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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmte i des taux de reduction diffirents. Lorsque le document est trop grand pour Atre reprodult en un seul clichA, 11 est filmA A partir de Tangle supArleur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'Images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 c. . i (?. ^/!W ^,u .Q ,■ AMERICAN CRIMINAL REPORTS. A SERIES DESIGNED TO CONTAIN THE LATEST AND MOST IMPORTANT CRIMINAL CASES DETERMINED IH THE FEDERAL AW STATE COURTS IN THE UNITED STATES, AS WELL AS SELECTED CASES, iMPORTAJrr TO American Lawyers, FROM THE ENGLISH, IRISH, SCOTCH AND CANADIAN LAW REPORTS, WITH NOTES ANT> EEFEREI^^OES. BY JOHN GIBBONS, Of the Chicaoo Bar. Vol. IV. CHICAGO: CALLAGHAN AND COMPANY, Law Book Pubushers. 1885. t I l^t Entered according to Act of Congress in the year eighteen hundred and eighty-Hve, by CALLAGHAN AND COMPANY, in the office of the Librarian of Congress, at Washington, D. C. DAVID ATWOOD, miNTER AND STEREOTYPER, MADIiON, WW, WAV 2 8 J576 PREFACE. The volumes of American Criminal Reports heretofore published wero received by the profession and legal press with gratifying manifestations of favor and approval; and, in undertaking the editorial work at this juncture in the series, I entertair 'he hope that this volume will be welcomed with no less cordiality, and prove no less useful, than its predecessors. In discharging the duty of compiler, I have aimed to collate the latest and most imi^rtant cases, and to give in full the decisions of the courts I have sought, also, to make accurate, reliable and valuable the notes that it lias seemed fit to insert. To this end, indeed, I have deemed it my duty to examine carefully the different cases cited. If I have given license to the expression of my views on certain questions, my apology must be that, having given earnest consideration to the points in controversy, and the decisions bearing upon them, it appeared to be hardly less than a duty to state what I regard as the better rule of law in the premises. The index, which is very full, has been prepared with a view to present- ing to the practitioner, and enabling him to determine at a glance, the con- tents of the volume bearing upon each topic treated. I take great pleasure in acknowledging indebtedness to my esteemed friend and former schoolmate. Col. William Hoynes, Professor of Law in the Univereity of Notre Dame, Indiana, for many valuable suggestions during the progress of the work. ^^^^ ^^^^^^^ Chicago, October 30, 1885. 1 TABLE OF CASES EEPORTED IN THIS VOLUME. PAGE. Adams v. State 331 Adams v. The State 309 Adams et al. v. The People 351 Adams, The State v 392 Ah Wah and Ah Yen, TeiTitory v. 574 Aldrich et al. v. The People 534 Allen V. The State 252 Amery, State v 112 Anderson v. Com 460 Ashton V. The State 90 m Balch, state V 516 Blackwell v. Tlie State 183 Boyd V. The Com 143 Brittain, State v 458 Brittleton et al.. The Queen v . . . 605 Brosnahan, Jr., In re 16 Brown, State v 299 Buckrice v. The People 106 Burke v. Tlie State 579 BuzzeU, State V 410 0. Campbell v. The People 838 Carll, Ex parte 253 Carll, United States v 246 Carpenter et al.. State v 559 Casey, The People v 312 Cheaney v. The State 264 Cook, The State v 485 Corkin, Com. v 15 Costin, State v 169 Coylev.Com 379 D. Dame,Statev 444 Daniel et al. v. State 247 PAQS. D'Argencour, The People v 240 Davis, People v 514 Day, State v 104 De Banks, The Queen v 601 Dickey v. The State 249 Dolan, The People v 308 Donovan, State of Iowa v 25 Dowlen V. The State 49 Downs, State v 42 Drake v. The State 320 Dreesv. The State 571 Dunaway v. Tlie People 60 Dunn V. The People 52 E. Edwards v. Com 460 Exnicios, The State of Louisi- ana V 160 Fanning v. The State 6dl Fay.Statev 300 Feoms et al.. Appellants, v. O'Brien 611 Fleetwood v. The Com 36 Fletcher, State of Illinois v 157 Flores, People v 485 Freeman v. The State 470 Fulford, The State V 43 G. Garvey's Case 254 Gedicke, State V 6 Gonce, The State V 68 Gordon, State v 1 Graham, State v 276 Graves V. State 386 Grise v. The State 146 Guthrie V. State 78 n mL^>: VI AMEBICAN CRIMINAL REPORTS. H. PAOE. Haflev. State 09 Hairv. State 127 Hall,Peoplev 357 Hamilton, United States v 477 Hannett, State v 38 Hartnett, The State v 572 Herron V. The Cora 238 Hess V, State 178 HUI and Blake, State v 102 HoUis, The Queen v 609 Holmes, The Queen v 591 Hoptv, People 305 Hopt V, Utah 417 Hutcliinson, State v 162 J. Jackson, In ro 508 Jacobs V. State 405 James, State v 318 Jenkins, State v .... 330 Johnson v. The Com 140 K. Keenan v. The People 434 Ker V. The People 211 L. Landsberg, United States v. .7.. 474 Leong Quong, People v 334 M. Magrath, State v 279 Malloiy, The Queen v 580 Manning, The Queen v 583 Martin, The State v 86 Maurer, The Queen v 588 McDaniel v. The Com 369 McGinnis, State v 349 Moore, Com. v 230 Moran, The People v 476 Mosley, State v 529 Mullen, State of Louisiana v 181 Muller, The People v 453 Munday, State v 234 Murphy v. The People 323 o. O'Laughlin, People v 542 Oliver v. The State 583 P. PAOE. Payne v. The State 155 Priest, Ex parte 13-1 R Railroad Co., State v 137 Raymond, The People v 124 Reese and others. People v 527 Reynolds v. The State 152 Rice V. Com 562 Richardson v. The Com 479 Ritzman v. The People 403 Robinson v. State 570 Rolfs, Petitioner, In re 446 Rooks V. The State 483 Scarlett, State v 278 Shaffer, State v 83 Shipley, Territory v 491 Sifred v. Com 304 Simmerman v. State 91 Smith, Statev 275 Sontag, Ex parte 523 State of Nevada v. Charley Hing 375 State of Nevada v. District Court 230 Steisiger, The State v 482 Stephenson and others, The Queen v. 593 Stewart, State v Ill Stewart v. The State 271 Swanv. Com 188 T. 1 Taylor v. The State 30 Tobin V. The People 555 TraHlt V. The People 293 Trczevant, State v 566 u. Upstone V. The People 395 T. Vanderpool, The State v 203 Van Houten v. State 272 Vines et al., The State v 296 ■V \ ■V \ ■V '.> I ^1 1 TABLE OF CASES. Vll PAOE. Walters V. Tlie State 33 Watson V. State 71 Wheeler, People v. 191 Wiggins V. People, etc., in Utah 494 Williams v. The State 65 Williams v. The State 293 PAOE. Williams v. The State 415 Wilson, Ex parte 283 Woodson V. The State 477 z. Ziebold, In re 118 A T Ml TABLE OF CASES CITED AND REFERRED TO. A. PAOR. Abhott, People v., S3 Cal., SM 841 Abcrnathy v. Latlmore, 10 Ohio, 880 ... . 17(1 Adams, State v., 03 Ind., 110 310 Addington, State v., 77 Mo., 110 St Adriance v. Lugrave, 50 N. Y., 110. . . .'.'05, 8111 Aguila, State v., 11 Mo., 130 4tf Ah Lee, In re, f) Fed. Hop., 800 1*1 Alden v. The State, IH Fla., 187 77 Alexander, Stote v., GO Mo., 131 87 Alexander V. Com., 10.-)l'a. St., 1 318 Allen, The People v., 6 Denio, 70 177 Allen V. State, 5» Ind., 401 578 Anderson, State v., 83 Minn., 00 38.') Anderson v. The Com 401 Andrews, Com. v., 07 Mush., MS 470 Angelo V. People, 00 111., 800 3115 Anonymous, 31 Me., 508 470 Anon., 7 Mod. Rep., 15 670 Anthony, People v., 50 Cal., 400 515 Archer, State v., 54 N. H., 405 413 Arkell v. Ins. Co., 00 N. Y., 108 43 Armstrong V. State, 1 Coldw., 33S 10(1 Arnold, People v., 15 Cal., 470 400 Arnold v. State, Tex. Ct. App., 4!n. . . . 6'W Ashworth v. Kitteiidgc, 18 Cusli., 103 (00 Mass.) 100 Atherton, People v., 51 Cal., 405 877 Atkins V. State, 10 Ark., tm 613 Attorney-Gen. v. The Qlass-Plato Co,, 1 Anstr., 30 801 Austin, Com. v., 07 Mass., 505 413 Austin V. People, 108 111., 801 680 Avery, U. S. v., 13 Wall., 8B1 477 Aveson v. Kinnaird, East, 188 7 B. Bacon v. Charlton, 7 Cush., 881 7 Bailey, Rep. v., 18 Cox, C. C, 50. . 170 Bniley, State v., 81 N. H., 581 441 Bailey, State v., 81 N. H., 313 415 Bailey v. The State, 58 Ala., 414 885 Bakeman, Com. v., 105 Mass., 63 413 Baker v. Bramen, Hill, 47 113 Baker.State v.,80Mo.,838 687 FAOE. Boker, State v., 1 Jones (N. 0.), 278 607 Bolbo V. People, 80 N. Y., 484 314 Bald, Regina v., 8 Den. C. C, 430 487 Baldey, Regina v., 5 Cox, 0. C, 583 483 BaKly, State v., 17 Iowa, 30 89 Ball, Rex v., Russ. & R. Cr. Cas., 188. .. . 83 Bunk V. Com., 10 Barr, 448 305 Biirbee v. Hereford, 48 Mo., 883 303 Barbler V. Connolly, 113 U. S.,87 184 Barber v. Men ian, 11 Allen, 383 7 Barker, The State v., 04 Mo., 883 87 Bamett v. People, 54 III., 385 801, 414 Ilurret, People v., 1 Johns., 60 807 Barrle, People v., 40 Cal., 843 433 Burron v. The ':!lty of Boltlmore, 7 Pe- ters, 873 183 Barry, Com. v., 184 Moss., 385 38') llortemeyer v. State, 18 Wall., 133 23 Burton v. The State, 18 Ohio, 881 100 Burton, The State v. , 71 Mo., 888 30 1 Uutchedor v. Tenny, 87 Vermont, 378 .. . 177 Buiigh, United States v., 4 Hughes, 501 . . 888 Bean, Com. v., 11 Cush. (Mass.), 414 810 Bean, Com. v., 14 Gray (Mass.), 53 240 Bflencitt, People v., 81 Cal., 544 307 Bull V. Mallory, 01 III., 107 534 Hell, The State v., 05 N. C, 314 330 Bell V. Stole, 44 Ala., 8a3 578 Bcller, In re, 1 Kan. Law J., 830 183 Ben V. The Stote, 37 Ala., 103 153 B -nnett v. Bullock, 85 Pemi. St., 304. .. . 573 Bennett v. People, 90 III., 003 550 Bernard v. Porvin, 1 Morris (lowo), 399.. 170 Berry. Com. v., 09 Mass., 438 175 Bertrand, Reg. v., L. R., 1 P. C, 680 33 BIgelow, Ex parte, 1 13 U. 8., 338 883 BInkemon. Reg. v., 18 Cox, C. C, 467. . . 10 Blakemore, Reg. v., 8 Den. Cr. C, 410. . . 413 Blotichard v. Fisk, 8 N. H., 39S 310 Blonford v. The State, 10 Texas, 087 ... . 809 Block, United States v., 4 Sawyer, 811 . . 288 Bogart, People v., 30 Cal., 845 170 Boliammon v. Com., 8 Bush, 488 613 Boles V. I'lnkerton, 7 Dano, 453 68 Bond V. State, 17 Ark., 800 118 AMERICAN CRIMINAL REPORTS. PAGB. Bonner, Com. v., 07 Mass., 687 475 Boone Co. v. Jones, 54 lowo, 699 104 Boornclt v. Com., 8 Leigh, 745 89J Borland v. Mayo, 8 Ala., 101 154 Bostick, State v., 4 Harr., 503 4*3 Bower v. The State, 5 Mo., 334 392 Bowles V. State, 5 Sneed ( Tenn. ), 300 . . . . 578 Bowman v. Woods, 1 O. Green Rep., 443. 193 Boyli', The State v., S8 Iowa, 523 3:)t Bradford, Com. v., 180 Mass., 42 1.". Brandt, State v., 41 Iowa, 007 177 Brandt v. Com., 13 Norris, 290 190 Brayman, Com. v., 13G Mass., 438 433 Bren, Reg. v., 9 Cox, C. C, 303 170 Brewster, State v., 7 N. II., 118 311, 219 Bridges, State v., 29 Kan., 133 531 Briilgman, State v.. 49 Vt., 203 82 BrigRs V. OaiTfltt, 18 Cent. Law J.. 103. . 523 Brow V. Hathaway, 95 Mass. (13 Allen), 239 5:3 Brown, Cora, v., 121 Mass., 81 197 Brown v. Com., ^3 Pa. St., 3.'5 131 Brown v. County Commissioners, 9 Har- ris, 37 395 Brown's Case, Vent., 213 4 Brown v. State, 8 Bl.iclif .. 501 570 Brown v. State, 10 Ind., 490 578 Brown V. State, 52 Ala, 3 19 l.)4 Brown. State ex rel. v. Stewart, Circuit Judge, (» Wis., 587 110, 21 1 Bruce, State v., 48 Iowa, .',3D 35 BrulTey, Stute v., 75 Mo., 3 59 8 < Bunnels, Com. v., 10 Mass., 518 6.jO Burdett, Rex v., 4 D. & A., 05 .592 Burdick, Com. v., 2 Ban-, 104 £31 Burgess, Reg. v., 9 Cox, C. C, 303 170 Burke, Com. v., 14 Gray, 100 413 Burrell's Case, 7 Barr. ,31 380 Burrows, State v., 11 Irrd., 477 831 Burt V. lHnj:iud, 99 U. S., ISO 319 Burt et al.. State v., 35 Vt . 373 5«) BuARex v.,Russ. & R. C. C, 372 80 Button, Rpg. v., 11 A. & E. (N. S.), 929 . . 414 Buxton, State v., 8 Swann (Tenn.), 57 . . . 1 10 Buzzell, State v., .5S N. 11., 2.-»7 412 Buzzo, United States v., 18 Wall., 133 .. . 2S7 Bryan, Kx parte, 17 Nev., 139 570 c. Cain V. State, 18 Tex., 387 433 Caldwell, United States v., 8 Blatchf., 131 20.5,219 Calkins v. State, 18 Ohio St., .300 531 CuUahan v. The State, 21 Ohio St., 31(i . . 03 Calvin, The State v., Zobr. (N. J.), 807 . . 187 Campbell v. Com., 15 Norris, 314 3B0 Campbellv. People, 10111., 18 4!W Campbell, People v. , 40 Cal. , 120 558 PAOB. Campbell v. The State, 33 Ohio St., 70. . . 170 Cartile V. Wood, o;i Mo., 513 09 Carlisle v. The United States, 10 Wall., 147 403 Carll, Ex parte, 100 U. 8., 521 883 Carman, The State v., (Hi Iowa, 130 118 Carpenter v. Calvert, H3 111., 0.1 400 Carpenter v. State, 4 How. (Miss.), 103. . 578 Carroll v. State, 23 Ala., 33 50: Cass v. Randall, 4 Gray (.Mass.), 13S fil CoKsody, State v., 12 Kan., .'wO 620 Cttucemi V. People, 18 N. Y.. 13^ 575 Chase v. The People, 40 lil ,, 3"3 57 Chesley, Com. v., 107 llass , 2;.3 414 Choate, Com. v., 103 Mass.. 451 15 City of Ripon v. Bettel, 3) Wis., 019. ... 800 Clapp, Com. v., 4 Mass., 1C3 683 Clark v. Com. , 5 Casey, 1 ,'8 380 Clark V. Peiiam. 2 Atk.. ;«) 415 Clark V. State, 8 Humph. (Tonu.>, 071 .. . .392 Claryv. Ciary, 2Ire(1..78 399 Clerk, Reg. v., 1 Sal k., 377 597 Cleveland, State v., 5 f Jle., 5!H 630 Clewes. Hex v., 4 Carr T< Vayue, 221 .... 428 ClilTord, Com. v., H Cusli. (Muss), 21.">. . . 210 Cofh, People v.. .M Cal , 027 5.W Cocheco v. StralTord. 51 N. H., ISl 319 Cocks V. Purday, 2 Cinr. & K. , 209 101 Codd V. Cabe, 1 Ex. Div., 332 8" Cohen, People v.. 8 Cal , 1> 170 Coleman v. The People. .33 N. J., 81 513 folcmaii V. The it;i!i>. 13 Ala., m.' 251 Colia V. State, 10 AIo., 7H1 ... mi Collier V. Simpson, 5 C. & P., 71 194 Collins. State v.. 3.' Iowa, 3< 518 Collyer, State v.. 17 Nev., 273 570 Connaghan v. Thu I'tv pli-. 88 III., l(i;), . . 5< Ciimpton, Aidt & Co. v. Wilder, 40 Ohio St., I.'IO 210 Cook, United States v.. 17 Wallace, 173. 278 Cooke, Rex v., 5 B. & C, .';'!* WS, ,381 Cooke, Reg. v., 1 F. & F., 01 59.', 593 Coon, People v., 1 Wend.. 277 140 Cooper, State of Missouri v., 43 Mo., 01. 3!18 Cooper, State v., 1 Green (X. J.), 3il . . . . 414 Cooper. State v., 8 Zab., ,32. 8 Copp, State v., 15 N. II., 21 .' <) 14 Corkin, Com. v., ant •, p. 13 ]01 CornettI, People v., 92 N. V., 83 314 Corning, The People v , 2 N. V., I H'i Cotta, People v., 49 Cal., 107 377 Cowan V People, 14 III., 3H S3 J Cox V. People, 80 N. Y., 5:)() 314 Craft V. Com., 81 Ky., 230 la-j Cranch, Ex parte, 1 12 U, S,, V,A 883 Cross, United States v., 1 MucArthur, >49 888 Crouch, The Queen v., 1 Cox's Cr. Cases, »4 195 Crozier, State v., 13 Nov., 3J0 370 TABLE OF CASES CITED. xi PAOB. .. 176 .. 69 HI., 403 883 113 400 078 aor. 61 620 575 87 414 15 800 843 3«) 415 393 3!M) 897 g:« 42S !MU B.-)K 3 m 191 3" 17(! M'i 851 SWJ 194 81 3 870 5,< 210 37H 3'18 414 8 •i44 101 314 33 377 S3 J 314 Via PAOB. Cniikslmnk, United States v., 02 U. S., 581 118,810 Cubitt V. I'utin, 8 Barn. & Cress., 857. .. . 573 Cu(ldinj,'ton v. Wilkins, Hobart, 81 401 Cuniiiiiiii^s. Com. v., 3 Cnsh., 313 3 J CuniminKS v. Nichols, 13 N. H., 420 349 Cunningham, Com. v., 13 Mass., 345 897 Curioy V. Com., M Pa. St., 151 545 Curtis, Ex jwrte, 100 U. S., 371 853, 883 Curtte, The State v., 77 Mo., 207 444 D, Dailoy, Com. v., 13 Cush., 80 578 Dalton, rcoplc v., 15 Weml., 5S1 171, 889 Darmer v. The State, 51 Ala., 137 848 Daviess V. Fairburn, 3 Mow. U. 8. R., 030 305 Davis, le"pIo v., 31 Wend., ;«» 243 Davis, People v., W N. Y., 103 14 Davis V. State, 3 Humph. (Tenn.), 439. . . 393 Davis V. State, 3 Tex. App. , .'>88 433 Davis V. The State, 5S Oa., 171 00 Davis v. The People, 1 Parker, C. C, 447 85 Davis, The People v., .JO N. Y., 95 108 Davis, Tennessee v., 100 U. o., 357 ICO Davis, Rex v., Car. & P. , 177. 543 Davis' Case, 18 Pa. St., 37 211 Davidson v. New Orleans, Oil U. S., 107. . 117 Davidson, The State v., 30 Tex., 335 893 Day, ReRina v., 9 C. & P., 733 633 Day V. The State. 03 Ga., 6119 18.") Dean, Com. v., 109 Mass., 349 413 De Coursey, People v., 01 Cal., 184 8 J8 Denton, State v., Coldw., !,3^ 107, 110 Dewitt v. United States, 9 Wall., 41 83 Dias v. The State, 7 HIackf ., 80 800 Dick v. State, 3 Ohio St., 89 5.50 Dickson, State v., Kan., 809 ... 487 Dill V. State. -,5 Ala., 15 807 Dlllenbnek v. Jerome, 3 Cow., 293 »« Dingoe, The State v., 17 Iowa, S33 29 Di.\on, Rex v., 10 Mod., .330 445 Dixon V. Richards, 8 How., 771 870 Doherty, Retina v., 13 Cox, C. C, 23 . . . 43:1 Dotan, People v., 9 Cal., 570 370 Dorr, State v., 33 Me., 498 S!)") Dorsey, Com. v., 103 Moss., 413 807 Dowers. State v., 45 N. H., 513 44'> Downer et al., State v., 8 Vt., 434 5«J Doyle, Com. v., 110 Mass., 103 293 Drake, State v.. 1 Vrooni, 438 11 Drew, United States v., 5 Mass., 88 807 Drum, Com. v., 88 Pa. St., 9 893 Dnini, Com. v., 68 Pa. St., 507 Duncan, Reg. v., 14 Cox, C. C, 571 33 Dupreo V. State, .33 Ala., 380 613 Dyson V. State, 86 Miss., 303 607 E. Edwards, Rex v. , 6 Cor. & P. , 681 650 ElUott V. Com., 13 Bush, 170 8.>6 PAGE. Elwe ', Com. v., 2 Met., 100 30 Emci-son, State v., 63 N. II., 019 413 Evans. Com. v., 101 Mass., 85 413 m. Falrchild v. Bascomb, .35 Vt., 403 883 Font V. Cathcart, 8 Ala., 725 I5i Farrell v. The People, 16 III., 500 3*1 Farrell, Reg. v., Cox, C. C, 440 873 Feaster, State v., 25 Mo., 325 393 Felton, The State v., 85 Iowa, 67 113 Fennell, Regina v., 14 Cox, C. C, 007. . . 433 Feriter v. State, 83 Ind., 883 308 Ferrler, Petition of, lOT III., 307 107 Field, State v., 14 Me., 844 510 Field, United States v., 21 Blatchford, 3.39 288 Filburn, Com. v., 119 Mass., 297 240 FiUionv. State, 5 Neb., 354 180 Fishback v. Brown, 10 III., 74 837 Fitzgerald, State v., 75 Mo., 671 71 Fitzpatrick v. The People, 08 Rl., 270. .. . 60 Flagg V. People, 40 Mich., 706 4.33 Flanigan v. The People, 80 N. Y., 654. . . 402 Fleetwoodv. Com., p. 30 501 Folke, State v., 8 Ann., 744 40 Fooks, State v., 81 N. W. R. aowo), 501 S33 Ford V. The State, 12 Md., 614 410 i^nl. State v., 3 Strobh. (S. O, 517. .. . 304 Forsythe, United States v., McLean, 584 177 Foster v. Neilson, 8 Pct.,253 807 Fouts V. The State, 8 Ohio St., 08 393 Fox v. Ohio,5 How., 410 285 Fox V. Ohio, 5 How., 484 18J Fox, People v., 85 Mich., 493 ... 400 Francis, Rex v., 12 Cox, C. C, 01 J .... 83 Franklin County v. Railroad, 13 Lea (Tenn.), 581 115 Ji-eeland v. The People, 16 111., 380 813 Freeman, Rex v., 5 Car. & P., 531 175 Frost, Reg. v., C. & P., 147 803 Fulwood's Case, Cro. Car., 4^3 4 G. Qaige, People v., 20 Mich., 30 460 Gallagher, Com. v., 126 Mass., 54 80 Galliard v. Laxton, 8 B. & S., 303 37 Oallhnore, State v., 8 Ired., 375 40* Garcia, People v., (a Cal., 19 156 Gardenshlre v. Parks, 3 Yorg. ,23 133 Ganlner v. People, 8 Scam., 83 645 Garland, Ex parte, 4 Wall., 3;M 463 C: .1, ner, Iv. v., 1 Den. C. C, 339 438 Garner, Reg. v., 4 Fost. & F., 316 88 Gnrnctt, People v., SO Cal., 630 648 Gorrity v. The People, 107 111., 102 85 Garvey (the petitioner) v. The People ... 860 Genet, The People v. , 69 N. Y 478 Gibbons, Reg. v., Cox, C. C, 105 475 3di AMERICAN CRimNAL REPORTS. PAGE. GibbB£StantonT. State,45N. J.,879... 891 Gilbert, People v., GO Cal., 108 658 Gfllbert, State v., 87 N. C, 827 103 Gilbert v. The State, 05 Ga., 449 658 Gilbert /Armstrong, Town of Madison t. 471 Gile V. People, 1 Col., 80 8G8 Gill, Rex v., Russ. & R., 431 445 Glllon, Com. v., 8 Allen, 503 108 Gilooley v. State, 58 Ind., 188 811 Glass V. The State, 30 Ala., 539 850 Ooerson v. Com., 3 Ont., 388 . 189 Golden v. Prince, 8 Wash. C. C, 813 113 Goldsmith, In re, 84 Kan., 757 447 Goodenow, State v. , 05 Me. , 30 39 Goodhue v. People, M 111., 87. .176, 826, 330, 5.55 Goodrich, State v., 40 N. H., 186 819 Grady v. State, 11 Ga., 253 507 Graham, State v., 17 N. W. Rep., 192. .580, 6:« Granberry v. State, 61 Miss., 410 29 Grant, The State v., 76 Mo., 230. . 37 Gray V. Com., 101 Pa. St., £30 433 Gray V. State, 63 Ala., 06 250 Green, Com. v., 1 Ashmoad (Pa.>, 889. .. . 3^2 Green v. Cornwell, 1 City Hall R , 14 . . . . 201 Griffith V. The State, 37 Ark., 334 13:1 Groomo, The State v , 10 Iowa, 898 113 Gross, State v., N. W. R. (Wis.), 802 HXi Guild, State v, 10 N. J., 103 433 Gunnarssohn v. City of Sterling, 98 111., 509 303 Gustafson, State v., 60 Iowa, IM 27 H. Hadley, Ex parte, 31 Cal., 108 174 Hagan, State v., M Mo., 193 43;! Ilagan v. The State, 10 Ohio St., 459 393 Haile v. State, 11 Humph. (Tenii.), 151. . 307 Hall, People v., 48 Mich., 491 106, 477 Hall V. State, a5 Ga., 3b 433 Hamilton, State v., 57 Iowa, 698 83 Hammond, Town of Washington v., 76 N. C, 83 459 Ilandly, State v., 4 Harr., 506 895 Hannah, Reg. v., 18 Cox, C. C, 648 9 Hannan v. Edis, ) Mass., 347 53 Hardy v. Merrill, j N. H., 8s7 400 Harmon v. Com., 12 S. & R., 09 830, 5,'i3 Harney, Com. v., 10 Met., 483 237 Harper, State v. , 83 Ohio St., 78 14 Harriden, People v., 1 Parker, 314 55fl Harris, The People v., 45 Barb., 494. .. . 108 Harris, State v., 4 Jones, luo 507 Harris, The King v., 8 Barn. & Alderson, • • 373 67 , , 37 47 83 xll., S47 an 394 • • • • 3:)a . . . . 113 71 578 . . .. 473 • • • • 633 171 .580 ,500 409 . . . 156 • • • • 333 .U8 184, «M 85 . .. . SOS • • • • 8... 28T 3. ?AOE. Jackson, Com. v., 133 Mass., 16 15 Jackson v. State 570, 578 Jacobs, State v., 5 N. C. Bep., a>9.. ...... la") Jacobs and others v. Com., 8 Leigh, 709. 146 Jamison, The State v., 37 Ark., 445 S3a J'Anson v. Stuart, 1 T. R., 748 445 Jarvis, The Quec. v., L. R., 1 C. C, 90. . 433 J. B., State v., Tyler (Vt.), 309 478 Jennings, Com. v., 131 Mass., 47 69 Jensen v. The State, 60 Wis., 577 109 Joe Allen, The Town of Madison v 471 Joel V. State, 2S Tex., 013 392 Johnson v. State, 47 Ala., 9 l.M Johnson v. State, 38 Ark., 343 336 Johnson, State v., 3 Harrington (Del.), 601 ;«0, 555 Johnson, State v., 40 Conn., 138, and 41 id.,!>»l 367 ■Johnson, State v., 67 N. C, 59 568 Johnson, State v., 13 Nev., 131 131 Johnson, State v. , 7 Blackf., 49 . 407 Johnson, The State v. , 49 Iowa, 139 175 Johnson v. State, 1 Tex. App., 3.33 131 Johnson v. The State, 08 Ga., 399 580 Johnson, State v., U Ohio St., 334 178 Johnson's Case, ante, p. 131 391 Johnston, State v., 30 Ann., 901 40 Jones' Case, 1 Leigh, 598, 611 371, 373 Jones, Com. v., 1 Leigh, 010 393 Jones V. Com., 75 Pa. St., 403 3(17 Jonc-8, People v., 31 Mich., 815 300 Jones V. Bobbins, 8 Gray. 389 301 Jones, State v., 30 Mo., 53 398 Jones V. State, Parker, 1 85 . . . »> Jones V. The State, 15 Ark.. 881 31 Jordan v. Osgood, 109 Mass., 457 191 Jordan v. Overseers of Dayton, 4 Ohio, '-9.-1 30 Jordan v. State, 31 Miss., 3S3 43:j Jukes, Rex v., 8 T. R., 538 178 K. Kalnv. The State, 8 Ohio St., 330 393 Kano, State v., 33 Ann., 999 44 Karstendick, Ex parte, 93 U. S., 3:M5 . . . . 381 Kate Marsh, State v., ante 3ri0 Kaufntan, Slate v., 51 Iowa, 578 118, 57'H Kearley, State v., 80 Kan., 87 531 Keeler, State v., 38 Iowa, 551 141 Kelly V. Com.. 1 Grant, 484 387, 393 Keenan v. Com., 44 Pa. St., 55 .387 Keener v. SUite, 18 Ga., 191 394, 4».'> Knanedy v. People, 39 N. Y., 315 550 Kenney et al., The People ex rol. v., 00 N. Y.,'394 115 Kent, State v., 33 Minn., 41 178 Kibs V. The People, HI HI., ,599 177, 3J7 Kimball, Com. v., 31 Pick., S.'iO 114 King, Com. v., 3 Va. Cas., 78 303 PAGE. King V. People, 83 N. Y., 587. 445 King V. Ford, Yelv., 99 280 Kingen V. State, 4(i Ind., i3i 311 King's Case and note, 3 Va. Cas., 84.. 371 Kirby v. Com., 77Va., 081 150 Kirk V. State, 1 Cold w., 31.5 107 Kirkham, State v., 1 Ired., 384 483 Kite V. Com., 11 Mete, 685 509 Klinck V. Colby, 40 N. Y., 437 523 Knight V. Morse, 51 Vt., 43i OH Kramer v. Com., 87 Pa. St., 899 83 Kramer v. State, 01 Miss., 158 we, 433 Kribs V. People, 83 III., 435 838 Kring V. Missouri, 107 U. S., 321 439 L. Ladd, State v., 32 N. H., 110. 319 Lamb, People v., 3 Keyes, 480 513 Landis v. The State, 70 Ga., 051 35 Lane, State v., 78 N. C, 517 33, 138 Lang, State v., C3 Me., 315 413 Lange, Ex parte, 18 Wall., 103 353,383 Langston, State v., 88 N. C, 093 450 Larkin, State v., 11 Nev., 314 378 Larned v. Com., 18 Mete., 240 It Lrfiwrence, United States v., 13 Blatchf., 335 205, 210 Lavey, Reg. v., 3 Car. & K., 20 475 Lawrence v. The State, 2 Tex. Ct. App., 479 » 474 Leach, Rex v., 3 Stark., 70. , 175 League v. State, 38 Md., 3)7 113 Leoth, Com. v., 1 Va. Cases, 1.>1 509 Leavitt, State v., 33 Me., 183 413 Lederer v. Wagner 295 Leftwich V. Com., 20 Grattan, 710 479 Legg V. Drake, 1 Ohio St., 380 199 Levy V. People, 80 N. Y., 3J7 5:31 Lewis V. Chapman, 10 N. Y., 309 52:1 Likes V. Dike, 17 Ohio, ^Vl 53 Lincoln, Com. v., 11 Allen, 233 2:» Lines, Reglna v. , 1 C. & K. , 393 .53 J Little, State v., 1 N. H., '357 333 Locke V. State, 33 X. H., 100 349 Logg V. The People, 93 III., 598 403 Logue V. Com., 3S Penn. St., 205 5«) Long V. State, 15 Ind., 183 531 Long V. State, 50 Ind., 183 .530 Lord Gortlon, Rex v„ 3 Doug., 591 3U8 Losee v. Losee, 3 Hill (N. Y.), 009 133 Love, State v., 21 W. Va., 783 110 Lovell, The State v., 23 Iowa. 301 37 Low's Case, 4 Me., 439 524 Lowenthal v. The People, 33 Ala., 5-(9. . . 389 Lowry v. McMillan, 8 Pa. St., 184 'JO Lowry v. Polk Co.. 51 Iowa, 50 185 Lowry v. State, 18 I.*a (Tenn.), 113 l.W Luning V. State of Wis., 1 Chand., 187. . 201 Lyon v. The People, 08 III., 271 318 Lyons et al. v. The People, 03 III., 271, 875 826,6.18 II i XIV AMERICAN CRIMINAL REPORTS. M. PAGE. Macino v. People, 19 N. Y., 137. 335 Maden v. Emmons, 83 Ind., asi 811 Mahler v. Transportation Co., 35 N. Y., 353 853 Maine, State v., 37 Conn., 881 1 18 Mann, United States v., 1 Gallison, 3, 177. 8S7 Mansfreed, State v., 41 Mo., 470 670 Marigold, United States v., How., 500. 851 Marion v. State, ante, p. 319 188 Marshall v. The State, 19 Ohio St., 303. . 3>^> Martin, State v., onte, 781 £31 Mash, Cora, v., 7 Met., 478 3) Mason, Rex v., 1 Leach (4th ed.), 487. . . 415 Matt«r of Common, 47 Mich., 481 309 Maxwell, United States v., 3 Dillon, 875. 88r( May, Rex v., 1 Doug., 193 414 May V. The People, 00 III., 119 58 Mayer, U. S. v., Deady, 13" 473 Mazou, State v., 90 N. C, C70 35 McCaller, Peoplo v., 8 Cal., .3ft} 517 McCarthy, Com. v., 119 Mass., .r McGiue, United States v., 1 Curt., 1 307 Mclntyre v. The People, 33 III., 514 408 McKflte, Reg v., Law Rep., 1 C. C. R., 185 CIO McLeod, People v., 1 Hill, 430 507 McMath V. The State, 55 Ga., 303 303 McPherson v. State, 9 Yerg., 379 55ii McPherson v. The State, 39 Ark., 835. ... 300 McPike, Com. v., 3 Cush., 181 201,413 Mead, Com. v., 18 Gray, 109 510 Mead, Rex v., 4 C. & P., 535 319 Medlicott, State v., 9 Kan., 257 487 Merkle v. The Stote, 87 Ala., 139 301 Merrill v. Nary, 10 Allen (Mass.), 410. . . 809 Merwin v. The People, 30 Mich., 298. .170, 403 Meyers, Ex parte, 44 Mo., 379 570 Middleton, Reg v., Law Rep., 3 C. C. R., 38 010 Miles V. United States, 108 U. S., 801 70 Miller V. Allen, 11 Ind., 3^9 570 Miller, In re, S3 Fed. Rep., 33 310 Miller V. People, 89 111., 457 58, 433 Miller V. State, 40 Ala., M 4ia Miller, United States v., 8 Hughes, 568. . . 888 Mills V. The State, 30 Ala., 80 851 Mills, The State v., 17 Mo., 811 gai Milton V. State, 46 Ala., 50 889 PAOB. MinaQueenv. Hepburn, 7 Cranch, 390.. 483 Mitchell V. Milholland, 100 III., 17.5 403 Mitvhell V. State, 5 Yerger (Tcnn.), 310. . 393 Mockabee v. Com., 78 Kentucky 87 Moore v. Fowler, 1 Hemp., .53) 113 Moore, The Peoplo v., 16 Wend., 419. .. . 183 Morey, State v., 3 Wis., 494 177 Morgan v. Burr, 58 N. H., 470 414 Morris, Regina v., 9 C. & P., 317 849 Morrison v. State, 40 Ark. ,448 115 Moses V. State, 33 Ala., 431 1.50 Moss, State v., 8 Jones, 00 Ill Moye V. The State, 05 Oa., 754 *'5 Mulholland. Stote v., 10 Ann., 377 808 Mullany, Reg. v., Leigh & C, 593 470 Mullen, The State v., 35 Iowa, 109 251 Munn V. Illinois, 04 U. 8., 115 118 Munster v. Lamb, 83 Am. Law Reg. (N. S.),88 583 Murphy, The Com. v., 1 Mete. (Ky.), 305. 578 iHurpliy, State v., 3 Dutcher, 113 8 Murphy. Peoplo v., 45 Cal., 137, 143 . . .131, 377 Murphy v. The People, 37 III., 447 1,50 Murphy's Case, S3 Oratt., 973 374 Murray, People v., 10 Cal., .303 370 Murry, Com. v., 8 Ashmead (Pa.), 41 ... . 393 Murray's Lessee v. Iloboken Land Co., 18 How., 373 117 Mycock, Regina v., IS Cox, C. C, 88 5 N. Neale. Reg. v., 1 C. & K., 591 414 Neitzel v. Concordia, 1 1 Kan., 400 4 18 Nelson v. State, 1 Tex. Ct. App., 551) . . . 3!t3 Nettleton, Rex v., 1 Moody, S59 175 Nevens, Peopla v., 1 Hill (N. Y.), 151. . . . S^4 Newcomb v. State, 37 Miss., 400 513 Nol)le V. The State, Hi Ohio St., 5 11 873 Northrup, State v., 4< Iowa, 5!-3 87 Nott, Com. v., 1.35 Mass., 378 43) Nye, Ex parte, 8 Can , lOl) 447 o. O'Brien, State v., 7 R. I., a38 190 O'Connell v. The Queen, 11 CI. & F., 1.16, ?• 838 6.>-3, 685 O'Connor v. The Stote, 01 Go., 185 .37 Oddy, Reg. v., 6 Cox's C. C, 810 lui Okely, Bank of Columbia v., 4 Wheat., »« 118 Olllier, Regina v., 10 Cox, C. C, 403 6 ONcll, Peoplo v., 4S Cal., 8,58 .. . 678 Ortwein v. Com., 70 Pa. St., 414 515 Osborn v. State, 84 Ark., 089 100 Osljorn V. United States, 91 U. S,, 474. . . . 401 Ostraiider, The Stole v., 18 lowo, 435 .. . 119 Owens, State v., 10 Rich. (S. C), 100 175 P. Palmer v. People, 10 Wend., 106 883 Palmer v. The State, 39 Ohio St., 830 ... . 85 A TABLE OF CASES CITED. XV PAOK. I.. 423 .. 409 .. 303 .. 87 .. 113 .. 133 .. 177 .. 414 .. 310 .. 115 .. ISO .. Ill .. 4H5 .. aw .. 470 .. 8M ... 118 ;n. . . . r,83 85. 678 8 ,131,377 . . . iriO . . . 374 ... 370 . . . 39i ;o., ... 117 5 414 448 31hi 175 S+J 513 S?J 27 4:)J 447 lUl 118 S 678 515 100 401 llii 175 833 SB 4 PAOE. Parks, Ex parte, 03 U.S., 18 883 rarineleo, State v., 9 Conn., 858 413 Pattoi-son V. Kentucky, 07 U. S., GDI 20 Pattci-son V. People, 40 Barb. , 035 507 Pattfrson v. State, 70 Intl. , 341 311 Patza, State v., 3 Ann., 512 208 Paul V. Detroit, 32 Mich. , 108 107 Payne v. The People, Johns. ,103 310 PcaboJy, People v., 85 Wend., 478 818 Peats cose, 1 Kast, P. C. , 389 103 Peirce, State v., 43 N. II., 270 415 Pendock v. McKinder, Willes, 005 2S) Pennoyer v. Neff, 05 U. S., 714 184 People V. City of Rochester, 50 N. Y., 585 113 I'erry et al. v. The People, 14 111., 40G . . . 03 Petit, United States v., 11 Fed. Rep., 58. 288 Petty, In re, 28 Kan., 477 447 Petty V. County Court, 45 Cal., 840 838 I'cvcn'lly V. People. 3 Park., 50 43 Pfifer, StJite v.. 8 Potter, State v. , 15 Kan . . 3.)2 3(iS Pow V. Bcckner et al., 3 Ind., 475 37 I'owell V. Stati>, 10 Ala., 577 518 Powell , State v. , 80 N. C. , (ilO 13^ Pratt V. Price, 1 1 Wend., 187 407 Price, Com. v., 10 (iray, 478 88 Price, Reg. v., 13 Q. U.' D., 317 605, .590 Prichett V. State, 88 Ala.. 39 511 Priddle, The King v., 1 Leach (4th ed.), 448 285 Prince v. Same, 7 A. & E., 027 13 Piitchard, State v., 15 Nev., 79 370 Pryor's Cas»', 87 Oratt., 1010 370 Q. Queen's Case, 3 B. & B., 397 13 Quinn V. Ilalbert, 52 Vt., 305 528 R. Rafferty v. The People, 00 111., 134 408 Railroad v. The State, 3.' N. H., 815 13:) Redlnger, The People v., 55 Cal., 290. .. . 470 Reed v. The State, 8 Ind., 201) 200 Reed. State v.. 47 N. II., 400 510 Ri'ed, State v., 08 Iowa, 40 3 > Reeve, The Queen v., L. R, 1 C. C, 308 . 4!J3 PAOE. Reeve, Reg. v., Lond. Leg. Obs. (Feb. li>, 1845), p. 312 300 Reid, The State v., 80 Iowa, 413 118 Reley v. Stote, 9 Humph. (Tenn.), 040. . . SJ8 Rex V. Justices of Kent, 11 East, 889. .500, 59V Reynolds, People v., 10 Cal., 138 545 Richmond v. Stat», ante, 388 S3 Richmond v. State (S. C, 80 N. W. Rep., 888) 93 Ridley and Johnson, The State v., 48 Iowa, 370 33 > Ridley, State v., 48 Iowa, 370 »4 Rivers, The State v., 58 Iowa, 108 4J8 Robinson v. Robinson & Lane, 1 Sw. & Tr., 308 58;), 684 Robinson, State v., 14 Minn., 447 108 Robinson, State v. , 40 Me. , 285 113 Roby, Com. v., 12 Pick., 490 344 Rockwood's Case, 13 How. St. Tr., 139.. 381 Roe V. Taylor, 45 III, 4*5 400 RoRcrs, People v., 18 N. Y., 9. 307, 408 Rogier, Rex v., 1 B & C, aW 445 Rohtrischt, State v., 12 Ann., 383 398 Rosenburgh, U. S. v., 7 Wall., 580 477 Ross' Case, 2 Pick., 105, 178 113 Ross V. Irving, 14111., 171 107 ROS.S, State v., 81 Iowa, 4(i7 817 Ross, The SUUe v., 8 Dutchor (N. J.I, 22.4 52 Koth, The State v., 17 Iowa, SUn 30 Rouch V. Zehring, P. F. Smith, 74 388 Rowe, The People v., 4 Parker's Cr. Rep., 853 217 Rowland, Ex parte, 104 U. S., 004 853 Ruby, Com. v., 12 Pick., 400 88 Runyan v. Price et al., 15 Ohio St., 1 ... 133 Rutherford v. Morris, 77 III., 307 400 Rj-au & Jones, The State v., 4 McCord (P.C), 10 175 s. Sanabrla v. People, 24 Hun, 270 343 Sanders, State v.. ») Iowa, m^i 2« Sanford, People v., 13 Cal., 80 388 Sartor, The State v., 8 Strobh., (10 201 Sawyer v. People, 3 Gilni., SVi 558 Sawyer, State v., 50 N. II., 175 ICO Seaife, Reg. v.. 17 Q, B. Div., 888 38 Schuler, People v., 88 Cal., 400 515 6ch»i-eiter, State v., 87 Kan., 409 490 Schwuchow V. Chicago, 08 HI., 444 808 Scott, Com. v., 183 Mass., 833 620, 531 Scott, Ex parte, 9 Bam. & Cress., 440. . . 218 Scott, The Territory v., 2 Dak., 218 278 Scott, State v., 4 Ired., 400 507 Serafford, In re, 81 Kan., 735 447 Scribes v. Beach. 4 Denio, 448 58 Scroggins. People v., 37 Cal., 083 513 Scroggins, Peupl' v., 37 Cal., 070 400 Seeley v. Engell, 13 N. Y., 543 4 Shadd, State v., 80 Mo., 338 178 XVI AHIERICAN CRIMINAL REPORTS. FAOE. Sheldon v. Newton, 3 Ohio St., 480 3J-' Shepaid, State v., 7 Conn., 54 413 Shopard v. The People, 2.> N. Y., 400 . . . . 2C3 Shepard, United States v., 1 Abbott (U. S.), Wl 2S« Sherman v. Com., 14 Grattan, «r7 47!) Sherman, People v., 10 Wend., S99 38!) Shines v. State, 43 Miss., &3t 55li Sholler v. State, 37 Ind., 01 513 ihorter v. People, 3 Conist., 197 507 ihortpr V. State. (13 Ala., 13!) 151 iiebold. Ex parte, 1()0 U. S., 371 SWJ liimmerman v. State, 14 Neb., 508 fti Himmons v. State, 01 Miss., 3-13 43J Simmons, United States v., 00 U. S.,300 SKI Simms, State v., 71 Mo., .WS 1)0 Bloan, State v., 47 Mo., 013 507 Smart, Com. v., Gray, 15 177 Smith V. Biinis, Johns., 198 :«.' Smith, City of St. Louis v., 3 Mo., 113. 3)3 Smith, Regina v., 33 Eng. L. & £ Stanp V. Com.,74 Pa. St., 1.5H ,'•,4.-, SterllUK V. Sterling. 41 Vt.. HO «; Stewart. People v., 7 Cal., 140 37; Stewart v. People. Sup. Ct. .Allch., 3 \. W. Rep., mm (,. Stinson V. The People, 43 111.. 397 .30,-, St. Jliohnels, Rex v., 3 BlaeU., 719 ,570 Stocking V. State, 7 Indiana, 3;1) 141 Stokes V. State, 8J Amer. Rep., 73 ir-, Stokes V. People of New York, .53 N. Y., ''■'* 405,.513 StoUer, State v., 38 Iowa, 331 177 PAOE. Stone V. Segtir, 11 Allen, 508 ,540 Stone V. State, 30 Ind., 115 HO Stone V. Stone and Appleton, 3 Sw. & Tr.. flOS 584 Stone, The TeiTitory v., 3 Dak., 1.55 445 Stoudenmeier v. Williamson, 39 Ma., .5,58 19.3,301 Straw, State v., .3.') Me., 5,54 5H Strong, People v., 3) Cal., 151 515 Sturdivant, Com. v., 117 Mns.H., 1.39 197 Sturge V. Buchanan, 10 A. & E., .5!)S-Ca5. 13 Sullivan, People v., 3 Seld., 400 .507 Sullivan, South & North Ala. R. R. v., .5!) Ala., 373 230 Sullivan v. The State, .30 Ark., 04 104 Swain v. Cheney, 41 N. H., Sir. 349 Swan V. State, 4 Humph. (Tenn.), 1.30. . . HK .swarth v. Kimball, ■Hi Mich., 143 100 Sweeney v. Baker, 13 W. Va., 100 53:J % Taleaferro v. Com., 77 Va., 411 Si Taylor, Com. v., 10 Gray, 1!K) 43:1 Taylor, People v., .5!) Cal., (i40 19!) Taylor v. Porter, 4 Hill, 14.5, 149 118, 119 Taylor, Reg. v., 13 Cox's C. C, 77 1!H1 Taylor, State v., 58 N. II., 331 39 Taylor, United States v., 3 McCrary, .■>oo lis Thayer, Pei pie v., 1 Parker, Cr. R., .595. 517 Thayer v. Thayer. 101 Mass., Ill Hi The State Freight Tax Case, 15 Wall., 333 S3 Thody's Case, 14 II<'n. 0, 3.5 b .581 Thomas v. State, 5 How. (Mi.ss), S;) 5:0 Thomjjson, Reg. v., 10 Q. B., Kji .. .5S.3, .581, 585 Thompson, Reg. v.. Law Rep., 1 C. C. R., 377 (liH ThiMiipson v. State. 10 Ind., 510 S;i7 Thompson. Stat. v. Hntehinson, 9 N. W. Rep.,lM)l lUI Webster, Com. v., 5 Cnshinff, 397, 310. 1 II. 515 Webster, HeK. v., I) Cox, C. C, 13 170 Welburne, State v., 7 .lere Baxter, 57. . . 103 Welsli et al. V. The People, 17 III., .'W9. . 335 Welton V. Slate, 1 Otto, 375 :i50 Wesley v. The State, 01 Ala., 383 349 West V. State, 3 Zabr , 313 5ii7 Westervelt v.dri'gK, 13 N. Y.. 303 118 Weyrieh v. Tlie People, 89 111., 00 107 Wheeler v. State, 34 Wis., .53 lOfi Whiteoml), The Slate v., 53 Iowa, m. . . ,30 White V. Nieholls, 44 U. S. (3 How.), 31)0 .533 Wliite, Uex v., 8 Car. & P., 743 175 White V. State, 1 S. & M., 149 407 Whiteford's Case, « Rand., 731 371 Whitehead, Reg. v., 8 Car. & Payne, 338 473 PAGE. White's Case, 52 Miss., 210 8.53 Whitlield, State v., 70 N. C, 3.')» 4;« Whitson, People e.\ rel. v.. 71 111., 20... 804 WiKKins V. The People, 93 U. S., 405. . . . 395 Williams, People v., 34 Jlieh., 1.50 177 Wilkes, Rex v., 4 Burr., 3.577 509 Wilkinson, Rex v., Russ. & Ry., 471.... .334 Williams, People v., 43 Cal., 311 307 Williams et al. v. The People, 101 111., 3S3 143, 4;«, 511 Williams et al. v. The People, 41 III., 478 5.50 Williams, Rex v., Ro.seoc's Cr. Ev. (7th Amer. ed.), 51 438 Williams v. State, 13 Ohio St., 03.'.. 113, .57.S AVilliams and Avery, State v.. 07 N. C, 13 150 Williamson, State v., 1 Iloust. Crlni. C, 1.55 335 Willshire, llej;. v., 14 Cox, C. C, .511 70 Willson, Com. v., 1 C.ray, im 197 Willson, State v., 3S Conn., 130 545 Wilson, Ex parte, ante, 38.3 508 Wilson. In re, 18 Fed, Rep.. .3:} 288 Wilson V. State, 10 Ark., COI 112 Wilson V. State, 24 Conn., .57 88 Wilson V. The Peojile, 91 111., 3))9 347 Wilson. The St^ite v., '^i Iowa, 314 89 Wilson, I'nitcd States v., 7 Peters, 150. . 462 Winder V. The State, 35 Ind.,231 175 Windham v. State, 30 Ala., 09 S.51 Winslow's Case. 10 Am. Law Rev., 017. . 207 Wish, State v.. 15 Neb., 4l:^ 138 Withers v. Hnekley and others, 30 How., iK) 138 Wixon, In re, 13 N(!V., 31!) 23S Wood, Com. v., 11 (iray, 85 11 Woodruff v. Parham, 8 Wall.. 123 81 Woleott, People v., 51 Mieli., 013 4:1.3, 581 WriKht V. State, 5 Ind., 390 311 WriKht V. State, 7 Ind., 331 311 Wright's Case, 8:j ( i ratt. , 881 371 Wright's Case, 75 Va. R., 914 371 Wroe V. State, 30 Ohio St., 400 1.55 Wynian, Peoi)lo v., 15 Cal.. 70 520 Wynehanier v. The People, 13 \. Y., 433 118 Wynn, United States v., 3 McCrary, 800 288 Y. YarbronRh, Ex porto, 110 U. H., 051 ..... 8KJ Yates, United States v., Fed. Rep., 801 288 Yeo V. People, 49 111., 413 198 York, Slate v., .37 N. 11., 175 4.3:1 Younpf v. Martin, 8 Wall., .3.5-1 ,307 Z. Zabriskio v. State, 14 Vroom, 040 370 i .305 I AMERICAN CRIMINAL REPORTS. State v. Gordon. (46 N. J., 433.) Abduction: Jurisdiction— Witness. 1. Person abducted competent ■vvitness for state. — On trial of an in- dictment for unlawfully convoying or taking away a woman child under the age of fifteen years, with intent to seduce, etc., under section 83 of the crimes act, she is a competent witness to testify on behalf of the state. 3. Jurisdiction op offense. — If the defendant brought her witliin this state from another, and here, with the intent set out in the statute, in- terposed his will or persuasion between her and her guardian's control, so as to overcome her intention to return to her home, the abduction is accomplished, .and he may be indicted in this state. On error to the Court of General Quarter Sessions of the Peace of Hudson County. Argued at June term, 1884, before Beasley, Chief Justice, and Justices Depue, Scudder and Eeed. For the state, C. II. Winfidd. For the defendant, Puster, Daly l:!iner in this case than that his per- suasion induced her to leave her home in Astoria and come with him to Jersey City, and wIkmi there, after, as she testifies, he had read to her the account in the papers of her elopement with him, she wished to return to her lionie, ho sought, by ])er- suasion, to keep her, and opposed her expressed wishes to go back. The mere fact of her leaving her guardian's homo and coming to this state with the defendant might not complete the crime with which he was charged, but when tho intent was here manifested to seduce or contract matrimony with her by proclaiming her as his wife in the presence of his friends, and keei)ing her a day and night in a sh^jping room at a hotel, and oi)p(».sing her wish to return home, he became amenable to the pimisliment allixed by our law to this statutory crime. These facts, which appear in tho case, if found by the jury, Avould constitute the crime of abduction within this state, and there was no error in tho direction of the court. The judgment is affirmed. 6 AMERICAN CBIMINAL REPORTS. State v. Gedicke. (43 N. J., 80.) Abortion: Administering noxious drugs— Evidence — Indictment 1. Declakatioxs to rtivsiciAN ^oucmxo PREGNANCY.— Declarations made to a physician of bodily feelings and symptoms of pregnancy at the time of examination, are admissible in evidence as paii of the facts on which his opinion is founded. 2. Same — Cross-examination.— A witness of the state, cross-examined as to the declarations of the patient concerning her pregnancy, made to him as a physician during his examination of her condition, cannot be re-examined as to other unconnected assertions in the same conver- sation, charging the defendant with criminal acts to produce mis- cr.rriage. 8. Noxious nature of drugs.— The thing administered or prescribed to procure the miscarriage of a woman then jiregnant with child (Crimes Act, § 7"i) must be noxious in its nature; but it is not necessary to prove that it will produce that effect. 4. Inok'tment, when objection must be taken to.— If the negative alle- gation that the mother or child did not die, wliich lessens the jjunish- ment under the statute, be necessary in the indictment, section 53 of the criminal procedure act requires that any objection to the oiuLssion tihall be taken before the jury is sworn, and it is then amendable. Oil error to the Quiirter Sessions of the County of Essex. Aririicd at November Term, 1880, before Justices JJcpuo, Scudder and Knapp. Tor the defendant, J. Franh Fort and 8. KallKoh. Vi)Y the state, G. iY. Alcel and E. F. Siodion, J)\ The opinion of the court was delivered by ScuoDER, J. The indictment in this case, found under kpc- tion 75 of the act for tlie punishment of crimes, ('har;.'-es that the defendant did, maliciously and without lawful jiistilieulion, administer, prescribe for, advise and direct one S. S., then and there being pregnant with child, to take and swallow eei-tain pjisons, drugs, medicines and noxious things, witli intent tlien and tlierc to cause and procure the miscarriage of the said S. S., contrary to the form of the statute, etc. The second count charges the use of certain instruments and means, with like averments of intent. The defendant was found guilty, and judgment and sentence were pronounced. Error has been assigned, founded on admis- \ 4 STATE V. GEDICKE. f sions of evidence, exceptions to the charge of the court, and on the record. Tlie fust exception is to allowing Dr. Bleye, a consulting pliysician, who was called in by her father, to testify how he I examined the complaining Avitness, S. S,, to ascertain her preg- 1 nancy, and to relate what she said to him. These declarations i were made by her to the physician at the time ho was called I upon as an expert to determine the state of her health, and were ? statements of her bodily feelings, and the symptoms of her I supposed pregnancy. This evidence was admissible. It is an I exception to the usual rule excluding hearsay evidence, and it I is foimded on the necessity of learning from the patient herself facts within her own knowledge, Avhich the physician should Icnow to f(jrm an intelligent and accurate opinion of her present health and situation. The usual symptoms of pregnancy in its early stage must be obtained from the patient herself, such as the ol)struction of tlie usual course of nature, morning sickness, headache, nervousness, and other indications hidden from the observation of otliers ; these, in connection with a physical ex- amination of the ])arts of the body ordinarily affected by en- largement ami other changes, are the facts on which the opinion of the oxi)ert witness is founded. It is right that he should have tliese facts and state them to the jury, that they may f know wliether his conclusions arc careful, skilful and reliable. ; If tlie object of the examination is to care for her health, there \ is tlic strongest inducement for her to speak the truth; if she ; i)e infhioiuMul by any other ccmsidei'ation, the jury must dcter- :; mine the W(M Kast, ISS; 1 Greenl. Ev., 102; Wharton's Cr. Ev., 271. It is fiu'tlier objected that there was error in the charge of the court, " that it was not necessary that the medicine, drug or noxious thing advised to be taken, administered to or pre- scribed for her should be capable of lu'ocuring a miscarriage, because that would be graduating the guilt of the defendant by the success or failure of the attempt, wlien tlie statute makes the attem])t a crime regardless of the success." The collocation of the words in this statute retpiires that the thing 8 AMERICAN CRIMINAL REPORTS. used to effect the miscarriage should be noxious — that is, hurtful. The words " poison, drug, medicine or noxious thing," indicate the cliaracter of the means that must bo used. The rule copulatlo verho?'um indicat acceptailoneni in eodem sensu, and the maxim noscitur a socils (Broom's Maxims, ■'■^:>0), gov- ern the construction of these words as they stand connected in this statute. The poison, drug, medicine or other thing must be noxious or hurtful; if it possesses this quality, and is administered, prescribed, advised or directed to bo taken with the intent to cause or procure a miscarriage when the woman is then pregnant with child, the crime is complete, wliether in the opinion of others it is capable of producing that result or not. It is dangerous to the life and hcaltli of the mother and to the existence of the child to experiment with any drug, medicine or noxious thing to produce a miscar- riage. Tlie ignorance of the operator may lead him to select something tliat will not have the effect he designs; but, if it bo noxious in any degi'ce, though in the judgment of others wlio have greater Imowledge it cannot produce the effect intended, it is witliin the statute. Tlie words defining the means to be used were brought into our statutes by the act of ^^Farch 1, 1849. Pamph. L., p. 190. It Avas passed to remedy an ad- Judged defect in our law, that to cause or procure abortion be- fore the child is quick was not a criminal offense at common law or by any statute of our state. State v. Cooper, 2 Zab., 52. As soon as the question was raised and the doubt suggested, this act was passed to punish the offense. The design of tho statute was not so much to prevent the procuring of abortions, however offensive these may be to morals and decency, as to guard tlie health and life of the female against tlio conse- quences of such attempts. The guilt of tho defendant is not determined by the successor failure of tlie attenq)t; but tho measure of his punishment is graduated by the fact Avhether the woman lives or dies. /State v. Jliirplii/, 3 Dutclior, 112. This law was further extended March 2(5, 1872 (ranq)h. L,, p. 45, Rev., p. 240, § 75), to protect the life of the child also, and inflict the same punishment, in case of its death, as if tho mother should die. The statute of 1849 introduced tho words " any poison, drug, medicine or noxious thing," and tUcy aro still retained in that form. A thing a STATE V. GEDICKE. 9 It n]')pears that they originated in the statute 9 Geo. IV., c. 31, § 13, where we find in the first clause, relating to pro- curing the miscarriage of a Avoman quick with child, the Avords " any poison or other noxious thing;" Avhile in the second cUiuse, relating to miscarriage of a woman not quick with child, tlic woi-ds "any medicine or other thing" are used. In a later statute (2-lr and 25 Yic, c. 100, § 59), the Avords "any poison or other noxious tiling" are used, Avhether the woman be or be not quick Avith child, the intent to procure the mis- carriage in its effects on the health of the Avoman being looked upon as ih'i main element of the offense. This change from "other thing" to "other noxious thing," in all cases is hn- portant Avhen considering the proper construction of our OAvn statute, Avhich so closely resembles it. The Massachusetts statute referred to in one of the aboA'c cited cases, as similar to ours, found in LaAvs of 18-15, ch. 27, uses the same words. In General Laws, ch. 105, § 9, the terms are, j " any poison, drug, medicine, or other noxious thing," the Avord i "other" b.'ing put before "noxious," as in the latest EnglisK ^ statute, thereby changing the effect, so as to emphasize the rule of construction before named. In an indictment under tlio former act of 18-15, it AA'as held that it Avas not required that the govevuMient should prove what the medicine Avas, or ,^ Avhcther it was such as Avould teiul to produce tiie effect in- ^ tended, or Avhether it Avas actually taken by the Avoman ; nor l that the liquids and pills procured for her, and Avhlch slie avjij a advised to take for the purpose of producing a miscarriage, :; Avcro noxious things. The reasoning of the court is, that it 4 may well be that the legislature has tlioug])t fit to ])unlsh per- sons for thus tampering with a wonum's health and life, though they may be utterly mistaken as to the character and eU'ect of the medicine; antl if it were necessary for the government to prove the (juality of the medicine, It might often be difficult to convict oU'enders Avho had used tlie most noxious drugs. This is a very good reason for striking the AVord "noxious" out of the statute, l)ut as long as it renuiins it must have a meaning, and all'ect tlie constructi(ni of the act. In 7Av/. r. Isaacs, 9 Cox, Cr. Cas., 228, the court says, "The thing intended by the statute must bo noxious in its nature;" and in Reg. v. Hannah, 13 Cox, Cr. Cas., 5-18, "the thing administered must bo noxious in itself, and not merely 10 AMERICAN CRIMINAL REPORTS. when taken in excess;" in Beg. v. BMeman, 12 Cox, Cr. Cas., 4GT, BramwcU, B., said, during the argument: "A nox- ious thing, Avithin the statute, moans a thing tliat >vill pro- duce the effect mentioned in the statute; that is, a miscarriage. This appears to have produced tliat effect." Tlic objection to this doctrine in the last case is that the statute does not say that tlie tiling administered nmst be such as will jh'o- duce tlie miscarriage, but only that it shall be noxious; and it was not called for in the case, for the thing used was clearly noxious and produced the designed effect. Noxiousness may be inferred from the effects. lierj. v. JfuUls, 12 Cox, Cr. Cas., 403. But where the miscarriage is not produced the bui'den must be on the prosecution to show that the thing used was noxious in its character — notliing more. As a rule of evidence this can make but little practical diiliculty, for, if pregnancy be shown, as it must be, under the statute, and the person charged, snj)posing it to exist, administers anything to effect it, very slight proof of the character of the thing administered will be required. Such things are usually known, or their effects are apparent. In this case an unmarried woman went to the defendant's drug-store to learn of him, as she says, Avhetlier she was in the family-way, being Avell assured of the fact her- self, for she further says, " I told him I wanted to see if I could get clear of the child." He i)rescril)ed for her, or gave her Dr. Clarke's female periodical i)ills. He had studied medi- cine, and knew that the medicine given her was an emniena- gogue. She gave him SIO, said she would probably come again; did go afterwards, and he examined hei' with a catheter, or something hke it, in a nuuiner dangerous to a woman in her supposed condit'on, according to the testimony of [)liysic'ians who were examined in the cause. These Avere her statements, and they illustrate the kind of evidence that is commonly at- tainable, even Avhen tlie miscarriage is not accom])lished, as it Avas not in this case. But if the diiliculty of obtaining proof in those c;;sos were greater, yet the statute will admit of no other construction than that the thing administered must be noxious or hurtful in some degree, though it does not require, by its terms, that the thing should bo capable of producing a miscar- riage. There was, therefore, no error in the refusal of the judge to charge as rocpiostod. In answer to the error assigned on the sufliciencv of the in- STATE V. GEDICKE. 11 (lictment because it docs not state -whether the patient died or not in consequence of the thing prescribed or the operation porfornicd, tills is not necessary. The general rule is that ■\vlicro, by the statute, there is a gradation of offcusos of the same species, as in the degrees of })unishinent annexed to the offense, it is not required to set forth a negative allegation as in tills case, that slie or the child did not die. It is no objec- tion that it cluu'gcs the acts which constitute the minor offense unaccompanied by any averment that the aggravating cir- cumstances did not exist. In such cases the offense charged is to be deemed the minor ofteiise and punishable as such. O >iinn(»iic('r' time, including her statement of her visits to Dr. (iedieke, /n-[y.g of medicine, and use of an instrument to procui'o nn.. LiUi'c, Avas made competent, and that they were cut it led to *tv \v\-;.; conversation. This evidence Avas finally admitted, tlioiiri!. the defendant's counsel objected. Its purpose and effect Avas to strengthen the evidence of the principtil Avitness by her declarations to others of the guilty acts of the defeiul- ant made several Aveeks after they Avere said to have occurred. This is hearsay evidence in its most objectioiuible form. Ad- mitting, as it is claimed by the prosecution, that ])arts of this conversation concerning j)regnancy during the examination of the physician to determine the fact, Avere introduced by tho defense, and in the confused condition of the evidence sent up STATE V. GEDICKE. 18 ■with the hill of exceptions it is difficult to tell exactly how it (lid come into the case, the cross-examination or re-examina- tion would be limited to what she said to the physician con- cernin;!^ licr feelings and symptoms of i>regnancy, Avliich was the subject-matter of his inquiry a3 an expoi't, and could not be extended to distinct charges of crime made against the de- fendant when they were alone, and afterwards in the presence of her father, concerning which the defendant's counsel had aslcod no questions, and permitted no statement to be nuide. In Prtnce v. Samo, 7 A. & E., 027, the court says that a wit- ness of the plaintiff cross-examined as to declarations of the plaintiff in a particular conversation cannot be re-examined as to other unconnected assei'tions of the plaintiff in the samo conversation, although connected with the subject of the suit. It must not, therefore, be assumed that cross-examination in part of a convei-sation necessarily lets in proof of the whole of it. This case qualifies the language of the court in Queen's Case, 2 B. & B., 297, where Abbott, C. J., says, " I think the counsel has a right on re-examination to ask all questions which may be proper to draw out an explanation of the sense and menning of the expressions used by the witness on cross- examination, if they are in themselves doubtful, and also of the motive by Avhich the witness Avas induced to use tliose expres- sions; but he has no right to go further and inti'oduco nuitter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. I dislinguish," he says, '' between a conversation with a party to a suit, crim- inal or civil, and a conversation with a third person," "What follows, as to conversation with a party to the suit, is qualified by the case above cited. See, also, Sturge v. .Buclnnum, 10 A. & E., 598-G05; 1 Taylor's Ev., 042; 1 Greenl. on Ev., § 407; Whart. on Ev., § 572 ; Whart. Cr. ICv., § 493, n. 1. This evidence of the charges nuule I)y S. S., in the conversa- tion with Dr. Bleye, was illegal and manifcstl}' prejudiced the defendant in maintaining his defense upon the merits. It was corroborating the evidence of the principal witness on the part of the state, by her own declarations made to another in the absence of the defendant, on the main point in the case, where she was the only witness. Her charge was met by the direct denial of the defendant, and this evidence was forced in to T u AJIERICAN CEBHNAL EEPORTS. give the effect of a second witness sustaining her. ITowcvcr reluctant the court may be in setting aside the verdict of a jury- in a case like this, yet we feel bound to say, as Lord Dennian once said to counsel who put in inadmissible testimony : " You should have taken care not to put in bad evidence." Other objections are not regaixled as having any iirportance. The conviction of the defendant was under section 75 of tlio act for the punishment of crimes, and not under section 193, relating to attempts to commit crimes. The judgnient for both fme and imprisonment was according to the statute, and legal. The punishment imposed by section 75 is not cruel and un- usual, witliin the prohibition of the constitution. Tlie penalty is a fine not exceeding $500 and imprisonment at hard lalor for a term not less than two years, where the Avoman or child do not die in consequence of the malpractice of the defend- ant. It is a reasonable punishment for a heinous crime, which in almost every case endangers the life and health of the woman, and the destruction of the foetus or child, which may be quickened or instinct with the beginning of life. It is not cruel nor unusual, but the kind and degree of punishment im- posed for crimes which are injurious to the persons of iiidivid- uals. Fine or imprisonment, or both, is the usual form, while for this crime, which manifests a recldess disregard of human life, both must be inflicted. When a proper case arises for dis- cussing what is a cruel and unusual punishment Avithin the constitutional inhibition, the matter will be examined further, but this is not such case. For the error of admitting illegal evidence prejudicial to the defendant, the judgment avUI be reversed, the record remitted and a new trial ordered. Note.— In The State v. Harper, 35 Ohio St., 78, which was an indictment for unlawfully using an instrument witli the intent of producing an nhor- tion, and not for homicide, the court held that the dying declarations of the woman were inadmissible in evidence against the defendant. ' ' This," says this court, in People V. Davis, 56 N. Y., 103, "is the settled rule, and it is uimecessary to discuss the reasons upon which it is founded." See, also, lieg. V. Hind, 8 Ck)x, C. C, 300. .' COMMONWEALTH v. CORKIN. 15 Commonwealth v. Coktcin. (136 Mass., 429.) Abortion: Indictment — Evidence. 1. DERcniBixa the offense.— An indictment which alleges that the dc- fi'iulant unlawfully used an instrument with intent to procure a miscar- ria,';o of a woman named, and whicli descriliOH the instrument anil the maimer in which the defendant used it, is sufficient. 3. EviDF.xcE AS TO PRIOR ACTS. — Acts of the defendant at other times may he shown as tending to prove the intent of defendant, and if competent to prove the crime chai'ged, it is no objection that it also tended to prove other crimes. JV. B. Bryant, for the defendant. K J. Sherman, Attorney-General, for the commonwealth. W. Allkx, J. The indictment must be construed as alleg- ing lliat the defendant unlawfully used an instrument Avith in- tent to procure the miscarriage of a Avoman named ; and it sulliciently describes the instrument, and the manner in Avhich the defendant used it. This is a suificient desci'iption of the statutory offense of using an instrument AA'ith intent to pro- cure the miscarriage of a AA'oman. Tiie evidence objected to Avas clearly competent for the pur- pose for Avhich it Avas admitted. Whether it Avas of acts Avhich formed part of the principal transaction, or of acts of the de- fendant at other times, it tended to prove attempts of the de- fendant to procure the identical result the intent to procure Avhich constituted the gist of the oifense charged, — that is, to prove the intent Avhich Avas charged in the indictment. Being competent to prove the crime charged, it is no objection that it also tended to prove other crimes. 3 Euss. on Crimes (5th cd.), 377 ct seq.; Commonwealth v. Choate, 105 Mjiss., 451 ; Com- monwenlth v. McCarthy, 119 Mass., 351; Commonwealth v. Bradford, 12G Mass., 42; Commonwealth v, Jackson, 132 Mass., IG. Exceptions overrided. li 16 AMERICA: CRIMINAL REPORTS. In ee Brosnahan, Je. (4 McCrary, 1.) Adulteration: Federal jurisdietion — Constilutional laiv — Habeas cor- pus — Patent laws. 1. Habeas corpus — Power op federal courts— State criminal stai • UTE.— Tho circuit court of the United States may issue the writ of habeas corpus upon the application of any person who is imprisoned in violation of tlie constitution, or of any law or treaty of the United States; and if a i^rson be imprisoned under a state statute which is in conflict with either, that court has power to dischaige him. 2. State statute held not in violation of the constitution op the United States.— Tlie statute of Missouri providing for the punishment by fine and imprisonment of any person who shall manufacture "out of any oleaginous substance or any compounds of tho same, other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or (!ream of the same," or who sliall sell or offer for sale the same as an article of food, is not in violation of any provision of the constitution of the United States. 3. Patentee not protected against violation op state laws. — Tho solo object and purpose of tho patent laws is to give to the inventor a monopoly of what he has discovered. What is gianted to him is the exclusive right, not the abstract right; but the right in him to tho exclusion of everybod}' else. lie is not authorized by tho patent laws to manufacture and sell the patented article in violation of tho laws of the state. His enjoyment of the right may be modified by tho exigen- cies of the community to which he belongs, and regulntod by laws wliich render it subservient to the general welfare, if holu bubject to state control. 4. Patent— In what sense a contract.— A patent is a contract only as between tho parties to it, namely, the United States on one side and the patentee on the other, and the rights conferred thereby can extend no further than the right granted to the patentee under tho patent laws. 5. Deprivation of liberty or property— Fourteenth ajiendiient to the constitution.— The statute above named does not deprive any person of liberty or property without due process of law, within the meaning of the fourteenth amendment to the constitution. C. Habeas corpus— Jurisdiction.— The federal courts have no jurisdic- tion to discharge a prisoner held under a state statute, upon the ground that such statute is in violation of the constitution of the state, or in excess of the powers which the people of the state have conferred tm their legislature. If it does not violate the federal constitution, tho question is for the state courts. On writ of Habeas Corpus. IN RE BROSNAHAN, Jr. It MiLLKR, Justice. The prisoner in this case is brought before us by virtue of a writ of habeas corpus issued under the author- ity of this court, and directed to John W. Rucker, in whose custody the petitioner stated liiniself to bo. To this writ Mr. Kucker, at the time of producing the body of his prisoner, makes return that he liokls him in custod}' by virtue of a pre- cept to him directed as constable by A. AV. Alhni, a justice of the peace of Jackson county, lV[issouri, and lie annexes a copy of the mittimus as a part of his return. From this it appears that a criminal proceeding had been instituted against Brosna- han for a viohition of the statute of ]\Iissouri concerning the sale of oleomargarine, and that on being arrested and brought before the justice of the peace, the latter had set the hearing or trial at some future day, several months off, and had fixed a reasonable sum as bail for the prisonei''s appearance at that time. The prisoner refused to give bail, whereupon the magis' trate made the order committing him to custody. The present writ of habeas corpus Avas thereupon sued out. As the courts of the United States are of limited jurisdic- tion, and, in ordinary cases, can have no control of the courts or judicial officers of the states while engaged in enforcing their criminal laws, the counsel representing Eucker on behalf of the state deny the jurisdiction of this court in the case. For the prisoner the jurisdiction is asserted on the following grounds : First, that the statute of ^Missouri is void, because the article, oleomargarine, the sale of which it forbids in ^lissouri, is made and sold under a patent of the United States issued to Ilyppolyte ^lege, December ;}(), 1ST3, for a new and useful discovery under the patent laws on that subject ; second, it is void because it impairs the obligation of the contract evi- denced by that patent ; third, it is void because it is a regula- tion of commerce among the several states ; fourth, because it deprives a man of his property without due process of law (section 1, article 14, of the Amendments to the Constitution of the United States ) ; Jifth, because it is without any authority in the constitution of the state of Missouri, and is outside of any legislative power whatever. The statute thus assailed is in the folloAving words : " An act to prevent the manufacture and sale of oleaginous Vol. rv — a ^ 18 AMERICAN CRIMINAL REPORTS. substances, or compounds of the same, in imitation of the pure dairy product. "Section 1. Whoever manufactures, out of jiny oUniftijious substances, or any compounds of the same, otiier than tiiat pro(hiced from unadulterated milk, or cream fi-om t\w same, any article desi<,mod to take the place of i)utter or cheese produced from imre, unadulterated milk, or cream of the same, or Avhoever shall sell or offer for sale tiie s:ime as an article of food, shall, on conviction thereof, be confined in the county jail not exceeding one year, or fined not exceeding $1,000, or both." Approved Wdrch 24. 1881. The acts of congress concerning the writ of hnl)caf< corjnin have been brought together in chapter IP. of the Revised Statutes, and are included in sections 751-700. That Avhich relates to the jurisdiction of the circuit courts is found in sections 751 and 753: "Sec. 751. The supreme court, and the circuit and district courts, shall have power to issue writs of Jmhms corjintfi" "Sec. 753. The writ of halem eot'pus shall in no case ex- tend to a prisoner in jail, unless when he is in custody under or by color of the authority of the United States, or is com- mitted for trial before some court thereof, or is in ci^stody for an act done or omitted in pui-suanco of the law of the United States, or of an order, process or decrce of a cornet or judge thereof, or is in eusfofli/ in vittlntion of the eonxtltHflon, or of a law or treatij (f the United States, or boiug a subject or citizen of a foreign state," etc. The words italicized above, namely, " m* is in custody in vio- lation of the coustituti(m, or a law or treaty of the United States," confer the only power under which, in tliis case, juris- diction can be exercised by the circuit couit. It is quite clear that if the ^[issouri statute is justly obnox- ious to either of the four objections first named, it is void, and the person held for violating that statute is in custody in vio- lation of the cimstitution of the United States; and the power and duty of this court to discharge him are unquestionable. We proceed 1o inquire if the law is so objectionable. 1. As to the (jffect of the patent. The patent is introduced in evidence, and proof is offered to show tliat the ai'ticlc sold IN RE BUOSNAHAN, Jr. 19 l>y tlio prisoner, and for wliicli salo ho is i)rosocutc'(l, is tlie article specilied in Mege's patent, an rhjht to their respective writings and discoveries;" and the act of congress which is tlesigned to give effect to this clause declares that in every case where a patent is issued under it, the patentee shall have the exdmive right to inah\ nse and sell Am subject-matter of his patent, whatever it may he. It is to be observed that no constitutional or statutory pro- vision of the United States was, or ever has been, necessary to the right of any person to make an invention, discovery or machine, or to use it when made, oi' to sell it to some one else. Such right has always existed, and would exist now if all patent laws /ere repealed. It is a right which may be called a natural right, and which, so far as it may be regulated by law, belongs to ordinary municipal legislation; and it is un- affected by anything in the constitution or patent laws of the Tnited States. The sole object and purpose of tlu! laws which constitute the patent and copyright system is to give to the author and the inventor a monopoly of what he has writtcMi or discovered, that no one else shall nuike or nso or si^ll his writings or his inven- tion without his permission; and what is granted to him is the exclusive right; not the abstract right, but the right in him to the exclusion of everybody else. For illustration, an author who h ,<1 written or in'inted a book always had the right to do so, and to nuike and sell as many copies as he pleased; and he can do this though he takes out no copyright for his work. Jhit if he wishes to have the benefit of the exclusive right to do this, he can get it by secur- ing a copyright under the act of congress. All that he ob- tains, then, by this copyright, all that he asks for or needs, and all it was designed to confer on him, is to make the right which ho had ah'eady in common with everybody else, an exclusive 20 AMERICAN CRIMINAL REPORTS. ri^ijlit in him —a monopoly in which no one can share without his permission. But let us suppose that the book which he has thus copy- righted is an obscene and immoral book, which by the law of the state in which it is published may be seized and destroyed, and for tliat reason ; does this statute, whiclf forbids any one else but him to print or publish it, autlioi ly.e him to do so? Can lie violate the law because no one else or :i do it ? Does the copy- right confer on him a monopoly of vice, and an immunity from crime? Suppose a discovery of a cheap mode of producing intoxicating liquor, in regard to which tlie inventor obtains a patent for the product ; docs this authorize him to defy tlie en- tire system of state legislation for the suppression of the use of such drinks ? The answer is tliat the purposes of the patent law and of the constitutional provision are answered when the patentee is protected against competition in the use of his in- vention by others ; and Avhen the law prevents others from infringing on his exclusive right to make, use or sell, its object is accom])lished. This pro})03ition is fully supported by the supreme court in the case of Patterson v. Kenttichj, 97 U. S., 501 . That case also cites with approval the following language from the opinion of the supreme court of Ohio in the case of Jordan V. Overseers of I)a>/t.o)i, 4 Ohio, 295 : " The sole operation of the statute (the patent law) is to en- able him I' ii ' inventor) to prevent others from using the prod- uct of his labors, except with his consent. But his own right of using is not enlarged or affected. There remains in him, as in every otlier citizen, the power to manage his property or give direction to his laborers at his ])lcasure, subject only to the paramount claims of society, which requires that his enjoyment may be modified by the exigencies of the community to wliicli he belongs, and regulated by laws Avhich render it subservient to the general welfare, if held subject to state control." The principle is reaffirmed in WeUcr v. Virqinia 103 IT 8 Mi. , . ., 2. Does the Missouri statute impair the obligation of any contract? The only one to which we are referred as aflTectcd by It is the contract found in the patent between the United States and the patentee. Some reference is made to a contract between the puUlc and the patentee. We know of no such lug an( tion, w state wi than th would I by the f liam, 8 IN RE BROSNAHAN, Je. 21 contract in a case like this, except such as may be found to exist between the parties to it, namely, the United States on one side and the patentee on the other. If we concede such a contract to exist, it can extend no further than the right granted to the patentee under the patent laws. We have already sliown tliat this is not tlie original or absolute right to make, to use and to sell, whicli is a right not dependent on the patent, but the right to l)e protected against the manufacture, use or sale cf this product by others without his permission. When the state of Alissouri shall pass a law that everybody may manufacture, use and sell oleomargarine, it will probably im- pair the obligation of the Mege patent. If it does not, it will certainly authorize the infringement of his right under the patent, and will be void for that reason. It will be, then, imma- terial whether it impairs the obligation of his contract or not. 3. We are unable to see that it is a regulation of commerce among the several states. If it can be called a regulation of commerce at all, it is limited to the internal conmierce of the state of Missouri. Being a criminal statute there i^ no pre- tense that it can have any operation outside the boundary of the state. The person Avho manufactures or sells the article outside of the state is not liable to the penalties of law. The statute does not forbid its importation or exportation, the bringing of it into the state, or carrying it out of the state ; nor is its use in the state forbidden to those who cliooso to use it even for food. It is only forbidden to manufacture it or to sell it for food, to take the place of butter for that purpose. For all otlier purposes it may be made and sold in the state, and for that purpose, or any other, it nuiy.be imported or ex- ported without violating tlie laAV. If it could be seen that the law was directed by way of discrimination against the prod- uct of a sister state, while no such prohibition existed against tlie same ])v )duct in Missouri, or was intended to prevent buy- ing and selling between the states, or importation and exporta- tion, whereby the citizens or the productions of a neighboring state were placed in a worse position in regard to that article than the citizens or the productions of JVlissouri, the argument would not be without force. Such is the doctrine laid down by the supreme court of the United States in Woodruff v. Par- /lam, 8 Wall, 123; and in Ilimon v. £ott, id., 148; and The ^ 22 AMERICAN CRIMINAL REPORTS. State Freight Tax Case, 15 Wall, 232; United States v. Dewitt, 9AVall,41. ^ . . 4. We are next to inquire whether the statute deprives the owner of this product of his property, within the meaning of the clause of the fourteenth amendment which says: "Nor shall any state deprive any person of life, liberty or property without due process of law." The statute does not, in direct terms, authorize the seiz.ure or taking of any property, not even that whose manufacture is forbidden. The party is not, in fact, deprived of this prop- erty by the statute, or by any proceeding which it authorizes. The personal punishment, by fine and imprisonment, which the statute imposes, must be inflicted according to the law of Missouri, Avhich allows a trial by jury, with all the other forms which from time immemorial have been held to be duo process of law. The moneyed line, then, and the liberty of Avhich the party may be deprived, are undoubtedly imposed by due process of law. If it be urged, as it has in some cases, that the offcct of the statute upon tlie right to sell tlie property is sucli as to destroy its value, and therefore to deprive the owner of it, tliero are sev- eral answers to the proposition : First, the value of tlie property can hardly be so alfected that tlie party may be said to be de- prived of it, while it can readily be transported into some other state, and sold without restriction; secondly, and conclu- sively, that as to the product made or imported into the states after tlie passage of the statute, the statute was and must bo taken as part of the due process of law, and deprived tlie party of nothing which he owiunl when it was passed, or which he had a right to make or acipiire for sale as food at the time he did so make or buy it. The law in such case did not de- prive him of his projierty. If he is injured in relation to that property, it is by his own acti(ni in buying or making it, with the statute before his eyes. That statute was, as to him and to this property, due [)i'ocoss of law, of which he had due notice. Bai'temeijer v. Sfufe, 18 Wall, 132. Ilis injury or loss, "f any, arises out of his determination to defy the law, and it is by the law and its mode of enforcement, which, ex- isting at the time, is due process of law, that he must be tried. 5. The evidence in favor of the petitioner is abundant, and IN RE BROSNAHAN, Jr. 23 of the liighcst character, to prove that the article which he sells, and which he is forbidden to sell by the statute of Mis- souri, is a wholesome article of food prepared from the same elements in the cow which enable her to yield the milk from which butter is made, and Avhen made by Mege's process is the equal in quality for purposes of food of the best dairy butter. No evidence is offered by counsel for Rucker or for the state to contradict this, because they say it is wholly immaterial to the issue before the court. A very able argument is made by counsel, whoso abilit}' commands our respect, to show that, such being the character of the article whose manufacture and sale is forbidden by the statute, the legislature of Missoui'i exceeded its po\vers in i)assing it. It is not so much urged that any- thing in tlie constitution of ^[issouri forbids or limits its power in this respect by express language, as that the exercise of such a power in regard to a property shown to be entirely innocent, incapable of any injurious results or damage to public health or safety, is an unwarranted invasion of public and private riglits, an assumption of power without authoi-ity in the nature of our institutionSj and an interference with the natural rights of t'le citizen and of tlie public which does not come within the [)rovinco of legislation. The proposition has great force, and, in the absence of any presentation of the matters and circumstances which governed the legislature in enacting the law, we should have difficulty in saying it is unsound. For- tunately, as tlie case before us stands, we feel very clear that, even if well founded, this objection to the statute is one which we cannot consider in this case. As already stated, Avlien a writ of habeas corpus is issued by the circuit court in behalf of one in custody of a state officer, under judicial ])roceedings in state courts and under state laws, the only inquiry Ave can make is, whether he is held in "violation of the constitution, or of a law of congress, or a treaty of the United States." The act in question may be in conflict with the constitution of the state Avithout violating the constitution, or any law or treaty of the United States. It may be in excc^ss of the ])owers which the i)eople of Missouri have conferred on their legislative body, and therefcn-e A'oid, without infringing any ])rinciplo found in the constitution, laAvs or treaties of the United States. ^ 24 AMERICAN CRIMINAL REPORTS. "We have, in the four objections to this statute first consid- ered, examined all the points in which it is supposed to con- flict Avith the constitution and laws of the United States, and Ave know of no others, and no others have been suggested. The jn-oposition now under consideration, if well taken, is one for the consideration of the state court when this case comes to trial. It is, in a habeas eoqms case in the federal courts, ex- cluded by the express language of the statute conferring juris- diction in such cases. This court does not sit here clothed with full and plenary powei-s either of common law or of criminal jurisdiction. Its criminal jurisdiction is still more limited than its jurisdiction at common law and in chancery. It has, in comuion Avith the district court, jurisdiction of all offenses affainst the statutes of the United States. Such is not the case before us. Section 753 goes further, and authorizes the court to issue Avrits of habeas corpus in all cases Avliere a ])erson is in custody in A'iolation of the laws of the United States, including its constitution and its treaties. The prisoner in t'lis case is not ])rosocute(l for a crime or offense against the United States. We have, therefore, no general jurisdiction of the case. We have endeavored to show that Avhile held inider a law of Missouri by Missouri officials, it is not in violation of, it is not forbidden by, the constitution, or any laAV or treaty of tlie United States; and the act of congress, under Avhich alone Ave can exorcise the special power of issuing Avrits of habeas corpus, ])crmit3 us to go no further. The return of the constable, Iluokcr, to the Avrit is sufficient, and the prisoner must be remanded to his custody ; and it is so ordered. McCkauv, J., concurs. Note.— In The State v. Addington, 77 Mo., llO, the court hold the act prohibiting the manufacture or sale of oleoiuargju-ino or any other article in imitation of butter or cheese constitutional. Held, also, that the offer, on the part of the defendant, to show that oleomargarine was as Avholcsomo as any other article of food, could not avail the defendant for the purpose of testing the constitutionality of the law; that the object of the net was the prevention of facilities for selling or manufacturing a spurious ai-ticle of butter, resembling the genuina article so closely in its external appear- ance as to render it easy to deceive purchasers into buying that which they would not buy but for the deception; that the law was salutary in its ol> STATE OF IOWA v. DONOVAN. 25 jccts, and that the legislature had a right to pass it in the exercise of tho police power of the state. In Palmer v. The State, 39 Ohio St., 236, the court held that, for the pur- jiose of promoting the public welfare, the legislature had the power to pro- hibit the sale of substances having the semblance of butter or cheese, but not wholly made from pure cream or millc, unless each package of such substance should have pamted, stamped or marked thereon, in the maimer prescribed by the statute, the name of every ai-ticle used in, or entering into, the composition of such substance, and that this power is possessed by the legislature over the sale of aiticles protected by letters patent as well as those not thus protected. Adultery: State of Iowa v. Donovan. (61 Iowa, 278.) Institution of prosecution for — Admissions - character — Prior acts of adultery. ■Previous good 1. Adultery EFFECTED BY FORCE. — To constitute the crime of adultery as agiiinst the man, the consent of the woman to the carnal intercourse is not indispensable, but the oifense maj' exist as against him, though the connection was effected by force and against her will. •v'. Institution op prosecution for, by husband or wife.— Under a statute which provides that no prosecution can be commenced but on the com- I^laint of the Imsband or wife, appearing before the grand Jury as a wit- ness in obedience to a subpoena is not a sufficient compliance witli the requirements of the statute to authorize a conviction of the dctV'ndant; but it is not incumbent on the state to establish the fact of the insti- tution of the prosecution by the husband or wife beyond a reaaonable doubt. 3. Admissions. — It is not erroneous to instruct tlie jury that " admissions made in ordinary or random conversations are not generally considered jx law as satisfactory proof." 4. Previous good character. — Previous good character is not of itself a defense, but is a circumstance which should be considered by the jury in connection with all the other evidence, and it may be sullicient to turn the scale in favor of the accused, but its value as defensive evidence in any given case is to be determined by the jmy. 5. Other acts op adultery. — The rule of law is that where the cli.- :go is of one act of adultery only, in a single count, to which evidence has been given, the prosecution is not permittetl afterwards to introduce evidence of other acta committed at different times and places. Appeal from Mitchell District Court. The (lefendiint was indictetl for the crime of adultery, was tried, convicted, ami sentenced to imprisonment for two years. He appeals. The material facts appear in the opinion. 25 AMERICAN CRimNAL REPORTS. Z. M. liyce, for appellant. Smith McPherson, Attorney-General, for the state. Day, C. J. 1. The person with whom the offense is alleged to have been committed was the sister of the defendant's wife, fif- teen years of age. SL 13 testi .led that the defendant accomplished the connection wit-\ ) e .'"I'ce and against her will. The court instructed the ju. ic \.ws: "To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse i. j>ot indispt'usable, but the offense nuiy, as against him, exist, though rhe c, .u.ection was effected by force and against her will." The giving 'X tliis instruction is assigned as error. It is fully in accord with the rule established in State v. Sanders, 30 Iowa, 582. We are content with the doctrine recognized in that case. 2. The court, after charging the jury that no prosecution for adultery can be commenced but on the comi)laint of the hus- band or wife, and directing them as to what acts on the part of the defendant would constitute such complaint, instructed the jury as follows : " Eut if she appeared before the grand jury in response to a subpecna, and testified before them in the case, but not intending to prefer the charge of adultery against the defendant, but gave lier testimony supiiosing she was required to do so, this would not be a complaint by her against her hus- band, within tin; meaning of the law." It is objected that this instruction is uncertain and mislead- ing. It is not, we think, vulnerable to the criticism made. It announces a correct rule, and was really in the interest of, and beneficial to, the defendant. 3. The a})pellant complains of the following instruction: " The burden is on the state to show tiiat the indictment was found on tlie complaint of the wife, and failing to do so the jury should acquit." The objection made to this instruction is that it does not direct tliat the fact referred to must be proved beyond a reasonable doubt. In State v. Jlcnh', 58 Iowa, 457, it was held that an averment in an indictment that the prosecution was commenced on tlio complaint of the wife, must bo proved by the state. Such fact is essential to the conviction of the defendant, but it docs not enter into or con- stitute any part of the facts which go to make up the crime. STATE OF IOWA v. DONOVAN. 2T Whilst, thei'efore, the defendant cannot be convicted without proof that the indictment was found on complaint of tlie wife, we do not think it is incumbent upon the state to establish the fact beyond reasonable doubt. The thirteenth instruction asked by the defendant was correctly refused, if for no other reason, because it required the fact of the wife's complaint to be established beyond a reasonable doubt. 4. The defendant complains of the instruction of the court thai " admissions made in ordinary or random conversations are hot generally considered in law as satisfactory proof." JJcfeiulant insists that the court should have instructed that "ordinarily such admissions are Aveak and unsatisfactory ])roof." Wliilst the court might, without error, l»ave couched the instruction in the language suggested by counsel, it was not error to employ the language used. a. The court instructed the jury as follows : " It is compe- tent for a person accused of crime to prove, as a circumstance in his defense, tJiat his previous character as to the trait in- volved in the charge was good. Previous good character is not of itself a (U^fense, but is a circumstance which should be considered by tlie jur}' in connection with all the otlier evi- dence, and it nuiy bo suHicient to turn the scale in his favor, but its value as defensive evidence in any given case is to be determined by the jury." It is claimed that this instruction docs not place sulKcient emphasis upon proof of good charac- ter, and that the court should have given an instruction asked by the defendant upon the subject. We think the instruction of the court gives all the effect to proof of good character which the authorities warrant. See /State v. Wortkrvj), 48 Iowa, 5S3 ; State v. Horning, 49 id., 158 ; State v. Gustafson, 50 id., 194. G. The defendant complains of the refusal of the court to instruct tlie jury as follows : " In this case it is claimed by the defense that tliere are some circumstances in proof tending to show that tl 10 Avas a combimition or conspiracy between the wife of the defendant and her mothcu*, and the wife's sister, Kate Corcoran, to fasten this crime upon the defendant, from motives of malice, pecuniiiiy gain, or other motives. If you Ihul, from the evidence, such to bo the fact, then it will bo your «^ 28 AMERICAN CRIMINAL REPORTS. duty to acquit. Or if the evidence raises even a reasonable doubt thereon in favor of the accused, you should acquit." This instruction was properly refused. If the defendant com- mitted the crime with which he was charged, it was the duty of the jury to convict him, without any regard to the motives which led to his prosecution. 7. The delcndaut assigns as error the refusal of the court to permit the intmcUiction in evidence of a letter written by ono John Callagan, to the wife of the defendant, stating that he would ^nve the old lady, her mother, a span of colts as soon as he was able to get Kate ; that he was bound to have Kate any Avay. This letter was wholly immaterial, and it was properly rejected. 8. The state introduced as a witness one St. John, who testi- fied to certain conversations he had with defendant, in Avhich he admitted having had intercourse with Kate Corcoran. Upon cross-examination, he stated that he couUl not give the lan- guage used by defendant, but could testify only from the impressions received and the ideas formcil from the conversa- tions. The defendant moved to exclude his testimony from the jury. The motion 'vas properly overruled. The testimony was properly left to the jury, to be given such weight as they might deem it entitled to in view of the facts elicited upon the cross-examination. 9. The witness, Kate Corcoran, testified to one act of inter- course between herself and the defendant, m January, 1882. The court permitted her to testify to another act of intercourse occurring one week afterwards. This action of the court is assigned as error. The rule of law is that where the charge is of one act of adultery only, in a single count, to whicli evidence has been given, the prosecution is not permitted after\N-ards to introduce evidence of other acts, committed at different times and places. 2 Greenl. Ev., § 47, and authorities cited. The abstract shows, however, that, at the close of the argument, the district attorney said he elected to rely upon the transaction first testified to by Kate Corcoran. This, in effect, withdrew the evidence of the second transaction from the jury, and cured whatever error there may have been in its admission. 10. It is claimed that the evidence does not support the vcr- STATE OF IOWA v. DONOVAN. gf diet. The evidence is not of such a character as to justify us in disturbin*^ the verdict. The judgment is affirmed. Note. — In Granhcrry v. State, 61 Miss., 440, under a st.itute which roads: " If any man and woman sliall unlawfully cohabit, whctlior in adultery or fornication, they shall be fined in any sum not more than $500 each and imprisoned not more than six months, at the discretion of the court, and it shall not be necessary to constitute the offense that the parties dwell to- gether publicly as husband and wife, but it may lie proved by circumstances which show habitual sexual intercourse," it was held tliat it must be shown that the parties, whether dwelling together or not, habitually indulged in sexual intercourse. The facts disclosed by the record were, that the defend- ant was a school teacher, and it was shown by the testimony of the woman, with wliom the offense was charged to have been committed, that on five or six occasions during a scliolastic term of three months she remained at the school-room after the other pupils had returned to tlieir homes, .at which times and place, but at no other, the defendant had sexual intercourse with her. On the facts of the c.ise, admitting all tlu; testimony proved and all that might be fairly inferred from it, the court w.as of opinion that habitual sex- ual intercourse was not proved. The coiu't held, however, that it was not necessary that they should dwell together, nor that they should publicly avow the relationship which existed between them — that it would be suf- ficient to show that condition or relationship, whether avowed or concealed, which, if pxibliclj'known, would lead men to char.ictei'izo the woman as the mistiess of the man. " It i*habitual concubinage or lying together wliich constitutes the cohabitation meant by the statute." Upon a motion to quash an indictment for fornication against an unmai'- ried man who was charged with having had sexual intercourse with a mar- ried woman, it was held tliat defendant could not be convicted of fornication, but that he might be convicted of adulteiy. " Adultery is committed when- ever tliore is an intercoui'se from which spurious issue may arise. State v, Tai/lor, 58 N. H., 331. See, also, The State v. Wilnon, 23 Iowa, 364. What in sufficient commencement of the pronecntion by the httsband or wife? Under the Iowa statute it is provided that "no prosecution for adultery can be commenced but on the complaint of the husband or wife." In The State v. Dingce, 17 Iowa, 232, it was held, where a wife filed an in- formation before a justice of the pe.'ice, charging her husband with the crime of adultery, that the prosecution was commenced by the wife within the meaning of the statute, and that her appearance before the grand jury, by which an indictment was found against him, was not essential to the validity of the indictment. After the prosecution is commenced by the husband or wife, it may be continued without further co-operation on their part, and even without their presence or consent. State v. Baldy, 17 Iowa, 39. And it is immate- rial whether the prosecution is commenced before the examining magistrate or the grand jury. It is then in the complete control of the courts, and further voluntary prosecution by the husband or wife is unnecessary. State r. Dingce, 17 Iowa, 233. «tt 80 AMERICAN CRIMINAL REPORTS. An avcrraont in an indictment for adultery, tliat the prosecution was com- menced l.v the Imsband or wife of the defendant, h not conclusive upon, but m;iy be controverted by, such defendant. The State V. Hath, 17 Ii)wn. 836. , , . Marviagr. after void decree of divorce. The defendant procured a decree of divorce from his wife and mm-ried again. Upon proceedings by the former wife the decree of divorce was hold void for fraud and annulled. In a criminal i)ro8ecution. held that the defendant was guilty of adultery in cohabiting with the second wife. The decree of divorce being adjudged void, it was so from the beginning, and neither that nor the good faith with which it was contracted gave any validity to the second marriage. The State V. Whitcomb, 53 Iowa, 85; State v. Goodenow, 05 Me., 30; Com. v. El- well, 2 Met., 190; Com. v. Mash, 7 id., 472. Taylor v. The State. (36 Ark., 84.) Adultery: Ai^pcal by state. 1, New trial.— A defendant acquitted of a misdemeanor punishable by fine only may, upon sufficient grounds, upon motion of the state, be again put on trial, without any violation of the constitutional provision against putting one twice in jeopardy of life or lin^J for the same offense. 2. Cohabitation.— Sexual intercourse between persons not maiTied, though living in the same house, is not sufflcient, alone, to constitute the offense of cohabiting together as luisband and wife without being married. Appeal from Mississippi Circuit Court. Hon. L. L. Mack, cir- cuit judge. Zyles, attorney for appellant. Harkisox, J. Dempsey Taylor and Josie Eogan were, at the November term, 1878, of the circuit court of ^Mississippi county, indicted for cohabiting together as husband and wife without being married. At the May term, 1879, Taylor was separately tried and was acquitted by the '}avy. The court set aside tlie verdict on the ground, as the record states, that it was contrary to the law and the evidence, and continued the case. At the jMay term, 1880, he was again separately tried upon the plea of not guilty, Avas found guilty, and his fine assessed at $20. He moved for a new trial, upon the ground that the verdict was not Avarranted by the evidence. His motion was over- ruled, and he appealed. TAYLOR V. THE STATE. 81 ■\ ■'. The cvuloncG AVas, substantially, that Josie Ilof^an lived in Taylor's family, in ^linsissippi county, as a hireling, and did the cooking lor the family, and she had been living there about two years when the iu(li(!tment was found. She hiid five or six children, the ohlest about sixteen and the youngest born about the time of tlio iinding of the indictment, all of whom Taylor recognized as his chiUh-en, and admitted himself to be their father, and thoy called him papa. She and her cliildren ate at the same table with him and his wife. The house in which he lived was a dtmble house, having two rooms, with a stack chimney between, but with no inside door or entrance from one to the other. Taylor and his Avife slept in one room, and Josie ]iOgan and her children in the other. Tavlors wife had no children ; and the witnesses knew of no unfriendliness of his wife towards her. It is insisted that the court had no authority to set aside the verdict of acquittal. The statute provides that appeals may be takei by the state, as well as by the defendant, in criminal cases, but there civn l)e no reversal of the judgment in felonies, and only when the punishment is not imprisonment, in misde- meanors, (iantt's Digest, sections 21 27, 2129, 21:52, 2U1, 2143. And it was held, in the case of Jones v. The State, 15 Ark., 201, that where a defendant indicted for a misdemeanor, pun- ishable by fine only, has been tried and acquitted, and, on ap- l)eal or writ of error to this court, the judgnient is reversed, and the cause remanded, he may be tried again, without any violation of the constitutional provision, that no person shall, for the same otfense, be twice put in jeopardy of life or limb. If, notwithstanding a verdict of acquittal, a new trial may, after a reversal of judgment in this court, be had, we can see no gootl reason, nor any reason whatever, why the circuit court niay not correct the error, by setting aside the verdict and granting a new trial, and so avoid the occasion for an appeal. A new trial must be applied for in the court below, or there can be no reversal for errors occurring at the time, and if it should be granted, there can be no reason for an appeal. There was no evidence that the appellant and Josie Bogan claimed to be husband and wife, or that they sustained to each other a relation in the house like that of husband and Avife. lie had a wife living with hinj in the house, with whom he slept. A 33 AaiERICAN CRIMINAL REPORTS. Josio Bogan and her chlldion slept in anotlior room, and notli- ing, so far as the testimony goes, was ever seen, in his and lier demeanor and conduct towards each otlier, of an improper or immoral nature. Sexual intercourse between ]>orsons not nnii-- ried, though living in the same house, is not sutHcicnt to con- stitute the'^offcnse of cohabiting together as husband and wife, without b-^ing married. The verdict, we think, was without evidence to sustain it. The judgment is, therefore, rov(>rsed, and tlie cause remanded. Note.— A'o opjical or itrit of nror on behalf of the stntc. It sooins to be well Kottleil .at the present time, in tliis country and in En,'(liuul, tlmt an apiieal or writ of error will not lie in l)eii;ilf of the state, except where it is given hy statute, and tlion only when the defendant has not been tried an decided that the right does not exist. In Com. V. Cummings, 3 Cush., 212, decided in 1849, Shfiw, C. J., in an elaborate and learned opinion, denies the right of the commonwealth to prosecute a writ of error in a criminal case. In State v. Lane, 78 N. C, 547, the court holds that no appeal can be taken by the sttite to any court from the .action of an inferior court in sus- taining a plea of former acquittal, although such plea is a mixed question of law and fact, and that the court erred in not leaving the question to the jurj-. The only gi-ounds of appeal recognized in that state are : 1. Wliere judgment has been given for the defendant upon a special verdict; and 2. Where a like judgment has been given upon a demurrer to an indictment, or upon a motion to quash. Since the decision in Coming'' s Caw, 2 N. Y., supra, an act has been passed in that state, providing that writs of eiTor to review any judgment in favor of any defendant, upon any indictment for any criminal offense, except when such defendant shall have been acquitted by a jury, may be brought in behalf of the people, etc. Similar statutes exist in many of the states. This question came before the Queen's Bench Division in 1881 {Reg. r. Duncan, 14 Cox, C. C, 571). Lord Coleridge, C. J., says: " With one single exception, no new trial has ever been granted, as far as we can find, when a defendant has been at his first tri.al in peril of imprisonment. The single exception is Reg. v. Scaife, 17 Q. B. Div., 238, which was a case for felony; but not, I think, on that accouui, of any greater or less weight as an au- thority here. . . . Tliis case, however, was considered at great length in Reg. V. Bertrand, L. Rep., 1 P. C, 520, an appeal in a case of felony from New Soutl the ]>rivy < Iwiieh deei I'pon ex writ of err a court of foumled uj land iK'fon one shall Ix certainly a: country. The burden undertii lation t< entitled the alib Error t( Pr'doJta B.A. Okt.v, J and enteri from, y itentiarj^ meat stole the door o get the wl door. ViW store-hous^ prove the fense char showinar t break an be that tl the store-1 Voi WALTERS V. THE STATE. 89 New South Walos; and Sir John ColoriilKo, who (Iclivered thfl jiulgmont of the inivy council. expresMKl person attempting to make the arrest was an officer; and guilty of manslaughter, if he did not know it. The law of self- defense, as api)licablo to rencounters between private persons, does not apply, unless the person resisting the jirrest has reasonable grounds to believe, and does believe, that the officer is not acting in good faith in the attempt to arrest, but is using his official [josition to gratify pei-sonal feeling against the person sought to be arrested, and that by submitting to arrest and to being disarmed he will, by reason of tliis fact, be in danger of great bodily harm or of losing his life. Tlie officer being in the riglit, and in the discharge of his duty, the person resisting arrest does it at his peril, and if ho kill, ho is guilty of murder or manslaughter, as it nniy appear that he know or did not FLEETWOOD v. THE COMMONWEALTH. 37 IcnoAV the character in which the officer was acting. This view of the law was presented to tne jury more fully and with more clearness than in any case that has come under our observation. The accused has no ground of complaint that the law was not properly expounded, or that the whole law was not given. Mochihce V. Commonwealth, 78 Kentucky ; Earl's Pleas of the Crown, vol. 1, p. 302. Judgment affirmed. Note. — An officer has no riglit to arrest without process for a past misde- meanor. In Pow V. Bcckncr et al., 3 Ind., 475, the court held that a statute wliich makes it the duty of peace officers to suppress all riots, disorders, dis- turbances and breaches ot the peace, and with or without pi'ocess to appre- hend all disorderly persons or disturbers of the peace, and convey them before a magistrate, etc., does not authorize such otHcei*s to aiTcst tlie offenders without process, for a breach of the peace, after the offense has been com- iiiitted and the disturbance has cei\sed. To justify an ofiicer in making an arrest for a past offense, whether it be a misdemeanor or felony, he can dispense with a waiTant only when he has grounds of reasonable suspicion, such as would justify him at common hiw in arresting for a past felony, llic State v. Grant, 76 Mo., 230. Altliough a warrant has been issued to apprehend a person for an oflfensc! Ii'ss than felony, and placed in the hands of the officer, unless lie has it in his possession wlicn he undertakes to make the arrest, tlie i)risoner would not be guilty of an assault, nor of resisting an officer in the discharge of his duty, as the ollicer in making the arrest without tlie wiurant in his ])osses- sion would not be in the execution of his office. Cudd r. Cube. 1 Ex. Div., 353; The State v. ImvcU, 23 Iowa, 304. In Codd V. Cabe, Draiuwell, B., says: "I have always held t to be clear law that a person not charged with felony shall have the oiiportunity of seeing the warrant when ho is taken into custody; and I should have arrived at the conclusion that the present ajipellant is entitled to jvdginent. even althtnigh there had been no authority in his favor. We liave <'onsulted some of the other judges, and they agree with us that the decision of the justic.i's cannot be ui)lield although tlie appellant displayed gi'eat violence. Yet it is not expressly found by the justices that he used more for<'e tlian was necessary to prevent his apprehension, wliich was unlawful; and, there- fore, as tlie ciise stands, he has not been guilty in law of even a common assault." See, also, Oalliard v. La.vton, 3 B. & S., 3(53; Hogg v. Ward, 3 H. & N., 417. Wiiere a police officer aiTested a man without a warrant, wlio was guilty of no ollVnse, and, in preventing an escape, struck and Idlled the i»risoner, it was iield that these facts would at least warrant a verdict for involuntary manshuighter in the commission of an unlawful act. O'Contior r. The State, (54 Oa., 125. 38 AMERICAN CRIMINAL REPORTS. State v. Hannett. (54 Vt., 83.) Arson: Evidenc —Stenographer — Arguments to he confined to the evi- dence. 1. To BURN one's own HOUSE %VHEN RIGHTFULLY IN POSSESSION, NOT ARSON. Our statute has not changed the definition of the crime of arson as given by the common laAV — tlie wilful and maheious burning of the dwelling- liouse of anotlier; hence, when one burns tlie dwelhng-liouso that he is lawfully occupying, in legal sense, it is not arson; for arson is a crime against the security of the dweUing-house as such, and not as property. 2. Motive may be shown.— To prove that the respondent had a motive for burning the building evidence was admissible to show liis ill-feeling and its intensity towai-ds his wife, who had an interest in it; but not the cause, merits and consequences of the quarrel; hence, it was error to admit proof that the wife had procured a divorce for intolerable severity ; that the respondent had been restrained by injunction from inflicting personal abuse upon her; and that, subsequently, the marriage was annulled on the giound of bigamy. 3. Error to read record of divorce. — It was error to read in the hearing of the jury the record of the court in the divorce proceedings to estal)- lish the competency of the wife as a witness, it being a question solely for the court to determine. 4. On cross-examination ill-treatment op wife cannot be shown.— It was error to allow the state's attorney to go into an inquiry, against an exception, on the cross-examination of the respondent, as to whether ho had been complained of and fined by a town grand juror for ill-treat- ment of his wife. 5. Admissibility op stenoqrapher's notes.— To contradict the respondent by proving that he had testified differently on the former trial under the same indictment, the admissibility of the stenographer's notes of his cross-examination depended on their relevancy; if relevant, admissihliv, otherwise, not; hence, it was the duty of counsel to have selected those passages contradictory to his last evidence. 6. Same —• Stenographer should be sworn.— A stenographer, although a sworn ofllcer of the court, when he reads his notes of the testimony of a former trial, ad evidence, must be sworn like any other witness; but if not, if known to the oiiixjsite counsel, the objection should Ikj raised in season, so that the over.siglit may be coiTected. 7. Counsel must confine their arguments to the evidence.— Counsel, in their arguments to tlie jury, are bound to keep within the limits of fair and temperate discussion of the evidence in the case. Any violation of this rule entitles the adverse party to an exception. Indictment for burning a dwelling-house, Caledonia county, Ross, J., presiding. The facts are sutRciently stated in the opinion, except the STATE V. HANNETT. 39 following: At the close of the charge to the jury, the respond- ent's couns6l claimed that the court had not reviewed his evi- dence and claims as fully as it had those of the state, and requested the court to do so ; but the court declined to modify its charge. The opinion of the court was delivered by PowEES, J. The respondent was indicted and tried for the crime of arson in burning a dwelling-house of Joseph M. Ste- vens, executor of Francis Oliver. The exceptions state that the fire occurred January 10, 1880, and that the respondent was then living in the house, and had the right to occupy the same until April 1, 1880. These facts appearing on the trial, the res])ondent requested the court to rule and hold that the i-espondent could not be convicted of the crime of arson; but the court ruled other- wise. At the common law, arson was de lined to be the wilful and malicious burning of the dwelling-house of another. Our statute has left the delinition of the crime as it stood at com- mon law. The oU'enso is a crime against the security of a dwelling-house as such, and not against the building as prop- erty. In cases Avhere the ownership is in one, and the occu- pancy in another, the indictment properly avers that the dwelling-house belongs to the latter. If the occupant is in i)ossession rightfully and burns the house, he cannot, in legal sense, be guilty of burning the dwelling-house of another — he burns his own dwelling-house. The authorities supporting this proposition are too numerous to be cited. They are collected in the text-books. In order to show a motive for the respondent to burn the house, evidence was offered tending to show ill-feeling between the respondent and his wife Mary, and threats of the respond- ent that he would " lay everything low," rather than permit Mary's brother to occupy the house. No question is niade as to the right of the state to show these facts. Mr. Hathaway, a witness for tiie state, was permitted, against the respondent's exception, to testify that, in 1870, he brouglit a petition for a divorce in behalf of said IMary against the respondent, based upon the ground of the respondent's intolerable severity; that in 1879 he brought a ])etition to annul the said Mary's mar- 40 AMERICAN CRIMINAL REPORTS. riage with the respondent, on the gi'ound that the respondent had another wife living at the time of such marriage; that the respondent was restrained from inflicting personal abuse upon said Mary by injunction; and that in June, 188(>, the marriage was annulled. This testimony we think went further than ^he rule allows. Any evidence tending to show a family cpuirrel, or a state of hostile feeling, between the respondent and his wife, Avho would be a loser by the burning of the house, is within the rule. But the merits of that quarrel cannot be investigated. The independent fact of a hostile feeling and its intensity may be shown. The cause, the merits, and the consequences of it, cannot be shown. The evidence in question Avas well calculated to inflame the minds of the jury against the respondent, by showing him guilty of other ofl"enses than the one on trial. In order to establish tlie competency of the said Mary as a witness, the state produced and read aloud in the hearing of the jury the record of the court in the divorce j)roceedings, showing that a petition was hied aiul decree obtained as testi- fied to by Mr. Hathaway. It is apparent that the jury had nothing to do with this record. It was ollered to the court that the court might determine upon inspection whether the marriage relation had been dissolved and thus the witness made competent. AVe can inuigine no reason for reading it in the presence of the jury except a desire upon the part of coun- sel to prejudice the minds of the jury by proof that the court, in the divorce proceeding, had found the charges testified to by IlatluiAvay to bo true. AVhile it may bo doubtful whether this was such error as Avould sustain an exception, still in the evident view in which it was offered by counsel, wo think, in a criminal ease, that such practice is unwarrantable and tends to break down tiie safeguards which the law throws around persons on trial for crime. On cross-examination of the respondent, the state's attorney Avas permitted, against exception, to go into an inipiiry to show- that the respondent Avas complained of by the grand juror of Walden, for ill-treatment of his Avife, and, being ])rosecuted therefor, Avas fined. This evidence is of the same character as that of Mr. HathaAvay above referred to, and like that Avaa inadmissible. STATE v. HANNETT. 41 To contradict the evidence of the respondent, the stenog- rapher was called to the stand, and asked to read his notes of tlie respondent's testimony in cross-examination on a former trial under this same indictment. The respondent insisted that only such parts of the former testimony, as related to subjects u]ion Avhich the respondent had testified to on the present trial, should be read by the stenographer, but the court ordered the fitcnograi)her to read the whole cross-examination of the re- s[)on(lont on the former trial. Much of tlie foriucr cross- examination was irrelevant to the case; much of it foreign to any inquiries addressed to the respondent on tliis trial ; and much of it calculated to prejudice the respondent's case. For the purpose of contradicting the respondent's testimony on the ])rescnt trial, it was the duty of counsel to select such passages iu the notes of his former testimony as were claimed to be in conflict with his present stoiy. It was error to go further. He could not be contradicted upon immaterial issues, any more, by ])i'oof of his declarations in court respecting them, than by liis (loclarations out of court. If the objection that the ste- nographer had not been sworn as a witness had been sooner raised, it would have been sound. But the case shows that the rosjiondcnt's counsel knew while he was reading liis notes that he had not been sworn as a witness, and made no t)bjection till the argument had commenced. The objection Avas then raised, and the court ruled that, as he was a sworn officer of court, it was unnecessary that he should be swoi"n as a witness. Xo exception was taken to this ruling. If counsel had persisted in their objection the court might have deemed it }>roper to stop the argument and correct the oversight. It is clear that any sworn officer of court, whether it be the reporter, clerk, sheriff, attorney or other officer, when he takes the witness stand as a witness must take the oath of a witness, lie is then not discharging his official duties ; his oath of office is no protection to the party against perjury. The reporter reads his notes of a former trial as an attorney Avould read his ; in either event their authenticity and correctness should be at- tested by his oath. It is argued that counsel for the prosecution ovei*stepped the limits of legitimate argumentation in his comments upon the facts testified to by Mr. Hathaway. The fact that counsel com- mented vigorously upon the offenses of the respondent referred 42 AMERICAN CRIMINAL REPORTS. to by Mr. Hathaway illustrates the purpose of counsel in oifering the evidence. It is difficult to see why counsel may not comment upon any evidence in the case. If the evidence is not fit to be talked about, it is not fit to be admitted. But no exception was taken to the argument of counsel. Counsel in their arguments to the jury are bound to keep within the limits of fair and temperate discussion. The range of that discussion is circumscribed by the evidence in the case ; any violation of this rule entitles the adverse party to an ex- ception which is as potent to uj^set a verdict as any other error committed during the trial. We think the charge of the court did not fully answer the respondent's request to have his claims explained and reviewed as fully as those of the state had been. This request was one the respondent had the right to make, and, in a criminal case, especially, was one that should be fairly answered. The sentence is vacated, the judgment is reversed, and the case remanded for a new trial. Note.— In Tlie State v. liases, 78 Mo., 307, it was urged that tho indict- ment was bad because it alleged the ownersliip of the property in the defendant. And in aiiswei-ing the objection thus urged tho court says: " The indictment is not bad for charging the ownership of the house in the defendant. It distinctly charges that the house at tho time was occupied by certain families named, human beings, other than the defendant. The statute denounces the act of burning 'any dwelling-house, in which there shall be at the time some human being.' It was not even necessary to name the person occupying the iiouse. State v. Aguila, 14 Mo., 130." charge. State v. Downs. (59 N. H., 320.) Arson: Indictment — " Adjoining," etc. Variance -"Adjoining," "adjacent to," etc.- An indictment charging that the respondent attempted to set fire to an out-building, adjoining a dwelling-house, is not supported by evidence that tho building was near to, but not in contact with, the dwelling-house. Cogswell di Stone, for tho i-espondent. Bogersy solicitor, for the state. Stanley, J. The motion for the discharge of tho respond- ent should have been granted. There was a variance between Theo] Levy, for the ( i THE STATE v. FULFORD. 43 the indictment and the proof. The out-building did not ad- join tlie dwelling-house. " Adjoining " is a synonym for " ad- jacent to," " contiguous." It was not adjacent to or contiguous ; that is, in contact with the house. ArJcell v. Lis. Co., GO N. Y., 192 ; Rex v. Ilodrjes, 1 Moo. & M., 341 ; Pemrelly v. Peo- 2>le, 3 Park., 59 ; 2 Kuss. Cr., 557, 561. The statute upon which this indictment was found specifies three distinct offenses, although the punisliment is the same in all of them. Tlioy are — first, burning a dwelling-liouse ; sec- ond, burning any out-building adjoining a dwelling-house; third, burning any building whereby a dwelling-house shall be burned. The Avords an out-building adjoining a dwelling- house are words of description, and must be proved. A con- viction under this indictment, upon the ovidenco received, would be no bar to an indictment for attempting to set fire to an out-buildiiig whereby a dwelling-house might be burned, and tlie evidence received in this case would support such a charge. Judgment arrested. BiNouAM, J., did not sit ; the others concurred. The State v. Fulfoed. ' (33 La. Ann., 679.) Arson: Practice — Deposition. 1, Copy of indictment and list of jurors have to be served on the accused two days before trial, but not before arraignment. Previous decisions affirmed. 2. The granting of a continuance is within the legal discretion of the court a quo, with which this court will not interfere without manifest cause. !i. So of the refusing of a new trial to tho accused. 4. Arson at common law and in this state. 5. Accused is, under no law, entitled to a commission to take the testimony of witnesses residing in another state. The opinion of the court was delivered by Levy, J. The accused, William M. Fulford, was indicted for the crime of arson, tried, convicted, and sentenced to im- 44 AMERICAN CRDIINAL REPORTS. prisonment at hard labor in the state penitentiary for the period of ten years. From this sentence and judgment he has apiiealcd. The record presents an array of multitudinous ob- jections and bills of exception, all of which are elab.H-ately, ably and ingeniously argued by counsel of accused, in their brief, which, while coiunumding admiration for the zeal, in- genuity and ability displayed, fail to convince us that there fs such error to the prejudice of their client as would justify us in setting aside the verdict and revei-sing the judgment appealed from. We shall pass upon the bills of exception in the order in which they were taken. 1st. As to failure to serve copy of indictment and list of jury two days before arraignment. The law does not require this serWce to be made two days before arraignment. It is required to be made two days before trial, and this appears from the record to have been done. State v. Kane, 32 Ann., 999 ; 7 Ann., 507. 2d. As to fixing the case for trial before passing upon the application for change of venue. The reasons stated by the court sliow to our satisfaction that this action of the court did not operate to the injury of the accused, it being stated at the time that the fixing for trial was without prejudice to the rights of accused to file his application for change of venue or any other pleadings desired by him. 3d. As to overruhng the motion for change of venue, and application for a commission to take the testimony of Avitncsses under commission, there was no evidence introduced by the defense on the motion for change of venue, there being thus a virtual abandonment, and the want of diligence and manifest intention to delay the trial, which are given as his reasons for refusal by the judge a quo, justified that refusal. 4th. As to the denial of the continuance. The court a quo, in the exercise of sound discretion, refused the continuance. We will not interfere with this ruling, made in virtue of the discretion with which the court Avas vested, and the reasons for the ruling fully justify the action taken. 5th, 6th, 7th. The question propounded by the district attor- ney, relative to the arrest of the Avitness Russell, Avas proper as being in rebuttal of the attempt on the part of the defense to THE STATE v. FULFORD. 45 show that said witness was actuated by malice in making the affidavit against accused. 8th. There was not suificient reason to sustain the objection to the question of the district attorney to the witness Sherrard. The preface of the question did not cause the question itself to assume the character of an objectionable or leading one. 9th. This exception has no merit. It was relevant to the offense charged, and notwithstanding the lapse of time between the conversation of witness and accused, and the burning, was competent to show a pre-existing intent and malicious design in connection with the offense with which accused is charged. 10th. This exception is also witliout merit. It was compe- tent for the state to ask the Avitness Kussell why ho made the affidavit for the arrest of tlie prisoner, in rebuttal of the at- tempt of the defense to show that witness was actuated by malice therein. 11th. The question propounded to the witness Jones in re- gard to conversation and remarks made b\' one ^lurphy was properly overruled, as tending to introduce hearsay and elicit- ing the moi'e opinion of witness as to the motives of another person. 12th. The reasons given by the district judge for sustaining the objection of the district attorney to the question propounded to the Avitness Kussell, viz., that a suificient basis had not been laid for tlie impeachment of the testimony of said witness, who had stated he could not give the substance of his conver- sation witli one Burroughs, justified the judge in his ruling. 13th. Tlio special charge asked for by prisoner's counsel has been substantially given by the judge in his written charge to the jury, to the effect tliat where the defense seeks to prove an aJihJ, tiio rule in regard to a reasonable doubt in regard thereto is applicable alike to such proof as to that introduced by the state. 14th. The reasons of the judge, as given in this bill, for his ruling, are conclusive. In his written charge he had sub- stantially charged as desired in the request for the special charge. 15th. The court correctly charged in regard to weight or consideration to be given to the law of the case as charged by the judge, and the charge in that connection is fidly sustained m 46 AMERICAN CRIfflNAL REPORTS. by the decision of the supreme court in the case of State v. Johnston, 30 Ann., 904. loth. The special charge asked for and referred to in this bill had been substantially given in the written charge. 17th. The same reasons apply to this as to the preceding bill (IGth). 18th. So, also, as to this bill. 10th. The judge a quo, in overruling the motion for a new trial, exercised the discretionary power with which he is in- vested, and his reasons embodied in this bill convince us that no grounds exist to justify us in setting aside liis ruling on the motion. The motion in arrest of judgment was urged on these grounds : 1st. That the offense charged is not arson, and therefore is prescribed by one year. The crime of arson is not denounced by the statutes of this state, eo nomine. The definition of this crime at common law- is, " the wilful and malicious burning the house of another." Both in England and in this country, by statutory enact- ments, this offense has been enlarged and comprises several grades and descriptions, just as the offense of homicide con- tains distinctive grades. In this state we consider that, under the generic term of arson, are included the offenses prescribed in sections S-ll, 842 and 84.3, each of Avhich is but one class of arson, and to Avhich different measures of punishment are at- tached. The commission of any one of the distinctive offenses enumerated in these sections constitutes the crime of arson. Section 980 excludes, among other offenses, that of arson from the prescription of one year, which is applicable to all others than those specially excepted in this section. 2d. That the bill of indictment is invalid because " it is not indorsed by the foreman of the grand jury in his official capac- ity, but is simply indoi-sed John AV. Jones, foreman." This indorsement was sufficient. This question w^as decided in the case of State v. Folke, 2 Ann., 744. See, also, 12 Ann., 382, 743. 3d. That the bill of indictment does not allege who was in possession of or had control of the building alleged to have been burned, and does not state what kind of incorporation i >w case 1 exercise( trict; th THE STATE v. FULFORD. 4T the parish of Jackson is, how or by whom it was represented, or is now represented. The allegations in the bill iis to the ownership of the property, its character and dcscrii)tion, are sufficient. The parish of Jackson is a political corporation created by the state, the existence and "kind" of which is defined by law and presumed to be fully known. -Ith. That the bill does not show that the ^I'and jury had been charged. AVe do not think that the ouiission in the bill itself of the statement that the grand jury hafused to issue « 'TV issions to take the testimony of cei'liiiu witnesses, on .lalf of defen int, residing in the state of J^lississippi. In the brief of counsi i the decision in thetase of iSfafe v. JFovnsby, 8 Jt., 551. is relied upon in support of his application. In that case ii was held: " That, the courts of criminal jurisdiction not being vested with power 1 yond a certain prescribed and de- fined limit, compulsory prociess cannot issue beyond said limit; that the accused has an undoubted right, imder the constitu- tion, to have his witnesses heard, whether they bo found within or beyond said limits; that the provision of the constitution allowing the accused to be confronted with the witnesses against him is a personal privilege which he may waive ; that being entitled to a sj>eedy trial and to conipulsory ]>rocess to enforce the attendance of his witnesses, this latter I'ight can only be exercised when the witness resides or is found within the dis- trict; that the legislature having failed to provide means to 48 AMERICAN CRIMINAL REPORTS. coerce the personal attendance of the witnesses, it follows as a necessary corollary, that recourse must be had to the ordinary and only remaining method of procuring testimony, viz., by commission." Tliis clearly had reference to the testimony of vritncsses re- siding within the state and beyond the jurisdictional limits of the court before which the trial was had. It is l)!iscd upon the reason that, under the constitution then existing, the accused then, as now, liad the right to compulsory process to enforce the attendance of his witnesses, and then the legislature hav- ing failed to pass proper law s to carry out the provision of the constitution, the court, ex projv'h wo^a, recognized, for the rea- sons given in the opinion, the right to issue commissions to take the depositions of witnesses Avithin the state, but beyond reach therein of its process. This right was recognized in view of the absence of means to enforce compulsorily the attend- ance of such witnesses. The state can only ju-ovide for com- pulsory process within its own limits and jurisdiction. She is powerless to execute, or to cause to be executed, sucli process in a foreign country, or even in another state. Under the laws in force on the trial of this case, compulsory process, in certain criminal cases, of which this is one, may be executed throughout the state, and under the decision cited and the reasoning tlierein depositions of witnesses absent, but within the state, would not be admissible. Any constitutional or legislative provisions, enforcing the attendance of witnesses outside of the state by comymlsory process, to be executed outside of the state, would be in vain and inoperative, and we tliink with the dis- trict judge that there is no law authorizing the issuance of the commission applied for, or the admissibility of evidence taken thereunder. No such right exists under statutory law. and, we think, cannot be derived from common law. In Alabama it has been held that " at common law a commission to take the deposition of a non-resident Avitness cannot issue at the instance of the defendant in a criminal case." Ex parte Ilas- l-lns, 6 Ala., 63. We do not think there was error in the verdict, sentence and judgment of the lower court. The judgment of the lower court is, therefore, affirmed, with costs. DOWLEN V. THE STATE. 49 i DowLEN V. The State. (14 Texas Ct App., CI.) Assault: Teacher upon a pupil. 1. AaORAVATED ASSAULT — EVIDENCE.— The prosccution for aggravated assault wa.g based upon a chastisement inflicted by an adult school teacher upon an infant pupil. The prosecution was permitted, over the objection of the defense, to prove that the pupil, two or tlu-ee nights after the chastisement, told his father that he could not sleep, because Ills hips were so sore it pained him to turn in bed. Held, that this dec- laration was made too long after the injury to be admissible in evidence. 2. Same.— Rules regulating the admissibility in evidence of the declara- tions of an injured party respecting his injuries, stated and discussed. 3. Same. — See the statement of the case for special instructions requested wliich, embodying correctly the law applicable to the facts, were im- properly refused in the trial of a teacher for chastising liis pupil. Appeal from the County Court of Collin. Tried below be- fore the Hon. T. C. Gooclner, County Judge. J. A. L. Wolfe and Garnctt c& Mxise, for the appellant. J. 11, Burts, assistant attorney-general, for the state. "White, Presiding Judge. This prosecution was by an in- formation which charged appellant with an aggravated assault, he being an adult male, committed upon the person of one D. II. Wisdom, a child. Appellant was a school teacher and D. 11. AVisdom one of his pupils ; and it appears by the evidence that the castigation was inflicted on account of a violation of the rules of the school by the i)upil. By the first bill of exceptions it is shown that the prosecu- tion was allowed to prove, over objections, that, two or three nights after the whipping, the injured party told his father that he could not rest or sleep because his hips were so sore that it hurt him to turn over in bed. This evidence was inadmis- sible, because the statements Avere made too long after the in- fliction of the injury. Mr. Wharton has discussed this subject in one of his standard works. lie says : " The character of an injury may be explained by exclamations of pain and terror at the time the injury is received, and by declarations as to its cause. AVhen, also, the nature of a party's sickness or hm*t is in litigation, his instinctive declarations to his physician or other attendant during such sickness may bo received. Imme- VoL. IV — 4 i PQ AMERICAN CRDHNAL REPORTS. diate groans and gestures are, in like manner, admissible. But declarations made after convalescence, or when there lias been an opportunity to think over the matter in reference to pro- jected litigation, are inadmissible. . . . Bnt where such subsequent declarations are part of the case, on which the opinion of the physician as an expert is based, tliey have been received." AVhart. Crim. Ev. (8th ed.), sec. 271. Xot coming witliin any of the exceptions pointed out, it was error in the court to admit the testimony. Comi)laint is made, in the second bill of exceptions, of the charges given by the court at the request of the county attor- ney,°in the following terms, viz.: "1. Whon an injury is caiiscHl by violence to the person, the intent to injure is pre- sumed, and it rests with the person inflicting tlie injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame, or other dis- agreeable emotion of the mind. 2. When violence is permitted to elTect a lawful purpose, only that degree of force must be used which is necessaiy to effect such purpose." The proposition announced in the first iiaragrr.ph, tliough unquestionably correct in tlie abstract and dcchircd as law in terms by our statute (Penal Code, art. 485), it; not !ipi)li cable, without further explanation, to cases such as the one under con- sideration. It has direct application only to acts of " unlawful violence," in the first instance, such as are essential to consti- tute the assaults and batteries defined in article 481, Penal Code. But " violence used to person " is not xmlawf ul, and " docs not amount to an assault and battery in the exercise of mod- erate restraint or correction given by law to the j)arent over the child, the guardian over the ward, the master over his ap- prentice, the teaclior over the scholar." Penal Code, art. 490. In all such cases the law presumes, from the relation of the parties, an entire absence of any criminal or unlawful intent to injure; and, in order to effect laAvful purposes, ])ermits tho parent, guardian, master or teacher to restrain and correct tho child, ward, apprentice and scholar. When tho teacher cor- rects his scholar the presumption is that it is in the exercise and within the bounds of his lawful authority, and it does not " devolve upon him to show accident or his innocent intention." Neither is it any criterion of his act or intention that " bodily :] pain, com tion of tl law, to in of restrai . violence i gree of f< purpose." It bein« Wisdom, that tlie f the whip tion, the i , roc lion or •that the sumcd int not coiK'l case, the ■"vliich wci the court crate, (lef( If it was 1 vated assii his le lal i a stnuigei moiisure c nor is it |i cossive m and dispo rounding the direct V. The Sk It was refuse the as given, iiciently ] lor th( cause ren Note.—] ,iiiry "that t!iat t'lc cai iiiiliciLvl; t DOWLEN V. THE STATE, ftlt ' pain, constraint, a sense of shame or other disagreeable emo- tion of the mind " is produced. He has the right, under the laAV, to inflict moderate corporal punishment for the purpose of restraining or correcting the refractory pupil. But " where • violence is permitted to effect a lawful purpose, only that de- gree of force must be used which is necessary to effect such purpose." Penal Code, arts. 490, 491. It being established that appellant was an adult male — that Wisdom, the party alleged to have been injured, was a child — that the former was a teacher and the latter his scholar — that the whipping took place at the time chai'ged in the informa- tion, the main question to be determined was, "Was the cor- .rcction or whipping moderate or excessive?" If it be shown ■that the force is excessive, then, indeed, the rule as to pre- Binucd intention may apply ; but this presumption of the law is not conclusive even then. Upon this supposed state of the case, the third and fourth requested instructions of defendant, -'vhicli were refused, presented the law most aptly and fully, and the court erred in not giving them. " If the correction was mod- erate, defendant was not guilty of an assault and battery at all. If it was not moderate, but excessive, he was guilty of an aggra- vated assault and battery, by liaving exceeded the boundary of his le -al right as teacher, and placed himself in the attitude of a stranger. It is true the law has not laid down any fixed measure of moderation in the lawful correction of a scholar, nor is it practicable to do so. Whether it is moderate or ex- cessive must necessarily depend upon the age, sex, condition and disposition of the scholar, with all the attending and sur- rounding circumstances to be judged of by the jury, under the direction of the court as to the law of the case." Stanfield V. The State, 4;J Tex., Km. It was error to giv(5 the instruction we have discussed and to refuse the third and fourth si)ecial instructions; and the cluirgo as given, which was also excepted to, did not properly and suf- liciently present the issues and law of the case. ; lor the eri'ors pointed out, the judgment is reversed and the cause remanded. lievcrsed and remanded. Note.— In Cass v. Randall, 4 Gray (Mass.), 130, the court instnicted fclio .i»i'y " tlmt u teacher liatl a right to inflict coriwral punishment upon a scholar; t'int tie case provjd was one in wliich such piuiiiilunent might properly bo iaUiciuJ; that iu inflicting cor[K>ral punishment a teacher must exercise roa- 52 AMERICAN CRimNAL REPORTS. Bonable judgment and discretion, and must be governed, as to the mode and Beverity of the punishment, by the nature of tlie oflfense, by tlio age, size and apparent powers of endurance of the i^upil; that the only question in this case was whether the punishment in this case was excessive and im- proper; that if tliey sliould find the punishment to have been reasonable and proper, the defendant could not be deemed guilty of an assault and battery; but if, upon all the evidence in the case, they should find the punishment to have been improper and excessive, the defendant might properly bo found guilty ui)on this complaint." To the credit of the jury, bo it said, they evidently found that the pupil was not blessed with the " apparent powers of endurance" of a mule, as they brought in a verdict of guilty. Tho supreme court, passing upon exception alleged by tho defendant to tho above charge, saj's: " The instructions given tended to justify the defend- ant in punishing his pupils with greater severity than is consistent with a just and humane exercise of the authority conferred on him by law. To say the least, they were sufficiently favorable to the defendant Whether, under all the facts, the punishment of the pupil is excessive, must be left to the jury." The rule is, that one who has the right to inflict phys- ical chastisement on another, and who proceeds with it to an unreasonable extent, becomes guilty of an assault and battery. Hannan v. Edis, 15 Mass., 347; Scribres v. Beach, 4 Denio, 448; Likes v. Dike, 17 Ohio, 454; Doles v. Piakciion, 7 Dana, 453; The State v. Ross, 2 Dutcher (N. J.), 224. Dunn v. The People. (109 m., 035.) Assault with INTE^^' to kill: Change of venue — Continuance — Rea- sonable doubt — Instructions — Evidence. 1. ClIANQE OF VENUE ON THE GROUND OF PREJUDICE ON THE PART OF THB PEOPLE OF THE COUNTY. — A jictition for a change of venue in a crimi- nal case was based on the alleged prejudice in tho minds of the people of the county, caused by the publication in certain newspapers of prejudicial accounts of tho alleged offense, sucli newspapers having a Btaiidiug and large circulation in the county. Tise state's attorney filed a denial of tlie statements in the petition, supported by countLr afilda- vits, going to show that such prejudice did not oxi.st from tho publica- tion of the ai'ticles, among which aflldavits was that of the sheriff, to the effect that ho talked about criminal cases with people from all parts of the county, and had found there was but comparatively little in- terest taken in the case, and that from his knowledge of tho temper of the people of the county he had no hesitation in saying that tho de- fondant could have his case tried as fairly and impartially in that county as in any one in the state. It was held that this court was not prepared to say the circuit court, in denying the petition, had decided contrary to the right of the case. 2. CONTINUANCE — ABSENCE OP WITNESSES.— Ono ground for a continuance in a criminal case was the absence of witnesses; but it did not appear from the affidavit but that the same facts might be proved by other witnesses. Held, that tliis ground was not sufflcient. DUNN V. THE PEOPLE. m 3. Same — Want of time for attorney to prepare the nEPENSE.— An offense was alleged to have been committed on March 31, and the de- fendant was arrested on the same day, so that both lie and liis counsel wore then infoi-med of the nature and character of the offense with wliich the defendant was charged, and the indictment was not found until forty-seven days thereafter, and the trial was had twenty days later. It was apparent from the nature and character of the case, as shown by the record, that the defendant had ample time to prepare for trial. It was held no error to refuse a continuance on the giound that defendant's counsel had been so occupied with other casen in the circuit and appellate courts that he had not sufficient tune and opportunity to prepare the case for trial. 4. CiiniiNAL LAAv — Insanity as a defense — As to the test of responsi- bility. — Where reason and judgment ai-e not overcome, Lut the person charged with crime at the time retains the power to choose be- twoon riglit and wrong as to the particular act done, ho cannot escape ii'sponsibiHty for his acts under the plea of insanity. 5. So, if at the time a deadly assault is made, the person making the as- sault knew that it was wrong to commit such an act, and had the power of mind to choose eitlier to do or not to do, and of controlling his conduct in accordance with such choice, he will be held amenable to the law, although ho was not entirely and perfectly sane. C. Same — Reasonable doubt — Defined. — A reasonable doubt, as vised in instructions in criminal trials, is one arising from a candid and im- paitial investigation of all the evidence, and such as in the graver transactions of life would cause a reasonable and prudent man to hesi- tate and ]iause. 7. Same — Of an instruction attempting to define a reasonable DOUBT. — On a trial of one for an a.^sault witli intent to mnrdcr, the court instnicted tlie Jury: "Tliatthe guilt of the defendant nuift bo proved beyond a reasonable doubt, as used in the inKtnutions in tliis case, means not a possible doubt, not a coiijei-tural doubt, not an im- aginary doubt, not a doubt of the absolute certainty of tiie guilt of the accused, because everything relating to human ad'airs and depend- ing uix)n moral evident'o is open to conjectural or imaginary doubt, and because absolute certainty is not reciuircd by law. A n asonablo doubt exists in that state of tlie case wliich, alter considering and comparing all the evidence in the case, leaves the minds of tlie jury in that conditicm that they cannot say tiiat they I'eel an abiding convic- tion of the truth of tlie charge; but when the evireju(lice exists in the county against the defendant. Among the allidavits filed was one made by the sheriff of the county, who btatcs that he talks about criminal cases with peo[)lo from all parts of the county, and finds that there is but. comparatively little interest taken in what is called the " Dunn case," and from his knowledge of the temper of the people of the county he has no hesitation in saying that Dunn could have his case tried as fairly and impartially in McLean county as in any county in the state. Section 22, of chapter 140, of the Revised Statutes of 1874, provides : " When the cause for the change of venue is the prejudice of the inhabitants of the county against the defend- ant, his petition shall set forth the facts on which ho founds his belief, and the attorney on behalf of the people may deny the facts stated in the petition, and support his denial by counter alfidavits, and the judge may grant or deny the peti- tion, as shall appear to be according to the right of the case." Here there was no dispute in regard to the publication of the newspaper articles, but the question was, whether these articles had produced a prejudice in the minds of the inhabitants of the county against the defendant. If they had, he would bo entitled to a change of venue ; if they had not, then it was the duty of the judge to overrule the petition. The affidavits filed by the people in suppoi't of the denial of the allegations of the petition, u])on which the circuit court rendered the de- cision, tended to show that there was no prejudice of the in- habitants of the county against the defendant, and we are not prepared to hold that the decision of the court was contrary to the right of the case. The alleged offense was committed on March 31, 1883. The indictment against the defendant Avas returned into court oa 66 AMERICAN CRIMINAL REPORTS. the 27th day of Apni, 1883. On the 17th day of May foUow- ing, the defendant entered a motion for a continuance of the cause until the next term of court. The court overruled the motion, and the decision is relied upon as error. One gi'ound stated in the affidavit for a continuance is the absence of two Avitnesses, in the state of Pennsylvania ; but it is not seriously contended that the affidavit Avas sufficient upon this point, as it does not appear from the affidavit but the same facts might be proven by other witnesses. The main ground relied upon in the affldaAdt for a continuance Avas, that counsel for defend- ant had been so occupied Avith other cases in the circuit and appellate courts that he had not sufficient time and opportunity to prepare the case for trial. A defendant, as a general rule, should not be compelled to go trial, after an indictment has been found, until he has had a reasonable time to prepare his case for trial ; but in this case the alleged offense Avas commit- ted on March 31, and the defendant Avas then arrested, lie and his counsel then kneAV the nature and character of the offense, and then kncAV as Avell Avluit the defendant Avould bo called upon to meet, as they did after the indictment Avas found. Here was a period of forty-scA'en days from the time of arrest before the defendant Avas required to go to trial, and twenty days after indictment, in Avhich he might prepare for trial, and from the nature and character of the case, as disclosed by the record, it is apparent that defendant had ample time to pre- pare for trial. The court gave ten instructions on behalf of the people, and objection is made to all of them except the first, fourth and eighth. The second instruction announced the Avell-known rule that the credibility and Aveight to be given to the testi- mony of the defendant Avas a matter for the jury, and in Aveighing the defendant's evidence they had the right to take into consideration his manner of testifying, tlie reasonableness of his account of the transaction, and his interest in tlic result. The rule applied to the defendant may be adopted in regard to the testimony of any Avitness called to testily in a case, and no error is perceived in this charge to the jury. The third merely folloAvs the language of the statute, which declares that drunkenness is no excuse for crime, — and Ave held in Fitzpat- rick V. The People, 98 III, 270, that such an instruction was not erroneous. The fifth, sixth and seventh Avere as folloAvs : «5. DUNN V. THE PEOPLE. " 5. If 3'ou believe, from the evidence, beyond a reasonable doubt, that at the time of committing the alleged act the de- fendant was able to distinguish right from wrong, then you cannot acquit him on the ground of insanity. " 0. If you believe, from the evidence, beyond a reasonable doubt, tliat the defendant committed the crime in manner and form as charged in tlie indictment, and at the time of commit- ting such act was able to distinguish right from wrong, you should find him guilty. " 7. If from all the evidence in the case you believe, beyond a reasonable doubt, that the defendant committed the crime of whicli he is accused, in manner and form as charged in the in- dictment, and that at the time of the commission of such crime tlie defendant knew that it was wrong to commit such crime, and was mentally capable of choosing cither to do or not to do the act or acts constituting such crime, and of gov- erning his conduct in accordance with such choice, then it is your ihity, under the lav*', to find him guilty, even thougli you should believe, from the evidence, that at the time of the com- mission of i\ie crime he Avas not entirely and perfectly sane, or that he was greatly excited or enraged, or under the influence of intoxicating liquor." It is claimed that these instructions conflict with the law as declared by this court in IIopps v. The People^ 31 III., oS5, and Cham V. The PeopU,, 40 id., 353. "Wo do not so mulerstand the instructions. In the IIopps Caf^i', in discussing the question of insiinity, it is said: ""We have come to the conclusion that a safe and reasonable test in all such cases would be, that when- ever it should appear from the evidence that at the time of doing the act charged, t!ic prisoner was not of sound mind, but afi'ected with insanity, and such affection was the efficient caurio of the act, and that he Avould not have done the act but for that airection, he ought to be acquitted. But this unsound- ness of mind, or aU'ection of insanity, must be of such a de- gree as to create an uncontrollable impulse to do tlie act charged, by overriding the reason and judgment, and obliter- ating the sense of I'ight and Avrong as to the particular act done, and depriving the accused of the power of choosing be- tween them." Under this decision, where reason and judg- ment were not overcome, but the person retained the power to choose between right and wrong as to the particular act done, 58 AMERICAN CRIMINAL REPORTS. he could not escape responsibility for his acts untlor the plea of insanity. This, too, is the doctrine of the instructions, if we undei-stand them correctly. Under the iifth and sixth, if defendant was able to distinguish between right and wrong, he should be held liable. So, too, if at the time the crime was committed the defendant knew that it was Avrong to commit such a crime, and had the power of mind to choose cither to do or not to do the act, and of controlling his conduct in ac- cordance with such choice, then he ought to bo held resjion- sible, although he was not entirely and perfectly sane. This, in substance, is the principle announced in the seventh instruc- tion, and we regard it correct. "Where a man knows that it is wrong to do a certain act, and possesses the power of mind to do or not to do the act, it would be a dangerous doctrine to hold that such person should not be held responsible because he might not be regarded entirely and perfectly sane. Instruction Iso. D, given for the people, is as follows : " That tlie guilt of the defendant nmst be proved beyond a reasonable doubt, as used in the instructions in this case, means, not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute certainty of tlie guilt of the accused, because everything relating to human affairs, and depending upon moral evidence, is open to con- jectural or imaginary doubt, and because absolute certainty is not required by law. A reasonable doubt exists in that state of the case Avhich, after considering and comparing all the evi- dence in the case, leaves the minds of the jury in that condition that they cannot say they feel an abiding conviction of the truth of the charge; but where the evidence in the case estab- lishes the truth of the charge to a reasonable and moral cer- taint}^, that convinces the understanding and satisfies the reason and judgment of the jury of the truth of the charge, then, in law, there exists no reasonable doubt." This court has had occasion, in a number of cases, to de- termine the scope and meaning of the term "reasonable doubt," and it has been uniformly held that a reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the grave.- transactions of life, would cause a reasonable and prudent mxn to hesitate and pause. Mai/ V. The People, 60 111, 119; MUler v. The People, 39 id., 457; Comiaghan v. The People, 88 id., 400. In a number of DUNN V. THE PEOPLE. 59 cases in this court an instruction given for the people, contain- ing the above proposition, lias been sustained; but wo are aware of no case Avhoro an instruction like the one given in this case has been sustained by this couit. The instniction is not a proposition of law, but it is more in the nature of an argument than anything ^ve can lilccn it to, and in a case wliere the testimony is conflicting, or such as to leave the minds of the jury in doubt, it would bo likely to prejudice the jury. While we do not hesitate to condemn the instruction, still wo do not think it did any harm in this case, for the reason that the evidence did not leave the guilt of tlie defendant in doubt. The guilt of the defendant was so clear and palpable, from the evidence, that no question of doubt could arise, and while the instruction was erroneous, the error could work no injury in the case. The tentli and last instruction given for the people, merely directs the jury as to the form of the verdict. But it is said tliat the direction to fix tlie term defendant should serve in the penitentiary, if found guilty, ignored their right to find the de- fendant guilty of tlie lessor offense, and hence was erroneous. Wo do not concur in this view, but if counsel for defendant are correct, it was for them to prepare an instruction informing the jury that they should bring in a verdict of guilty, only, if they find, from the evidence, that the defendant Avas guilty of tlio lesser offense, — an assault Avith a deadly weapon ; and as they did not i»sk for an instruction of that character, they are in no position to complain. The court gave to the jury, on behalf of the defendant, eleven instructions as asked, twelve others were modified by tlie court, and given as modified, and twenty-three were re- fused. It would be extending this opinion to a greater length than we have the time to do, should we undertake to review the decision of the court on the thirty-five refused and modi- fied instructions, and it would serve no useful purpose to do so. We are satisfied, aftdf a careful examination of the record, that the jury was fully and fairly instructed in regard to the law involved in the case, and if it be true that some of tlie refused instructions contain correct propositions of law, no harm was done in refusing them. The rules of law applicable to a case of this character are simple and plain, and the practice of in- cumbering the record with so many useless instructions is a vicious one, and it ought not to be encouraged. 60 AMERICAN CRimNAL REPORTS. It is also claimed that the verdict of the jury is against the evidence. There is no controversy in regard to the fact that the defendant shot his former Avife. lie claims that the re- volver which he had in his possession was discharged by acci- dent, while engaged in a sculUe with his son. In this, however, he is contradicted by his wife and several nionibers of his family, who were present at the time the shooting was done. Wliether the shooting was an accident, for which the defendant should not be held responsible, or whether it was done intentionally, was a question of fact, purely for the determination of the jury ; and when they have settled that question Avithout passion or prejudice, in accordance with the evidence, it is not the province of this court to disturb the verdict of the jury. The judgment of the circuit court Avill be airirmcd. Judgment affirmed. Dpnaavay v. The People. (110 111., 333.) Assault avith intent to kill: Shooting a third person. 1. Assault to murder a person other than the one intended, or AVITHOUT intent AS TO ANY PARTICULAR ONE — RECKLESSNESS — GEN- ERAL malice. — Whore a person deliberately shoots at A., and in tho direction of B., and tho ball misses A. and strikes B., inflicting a wound, these facts will sufficiently show tho intention of the person shooting to kill and murder B., although ho has no actual malice or ill-feeling toward B., and he may bo convicted of an assault uix)n B. with intent to kill and murder him. 2. Where an act, unlawful in itself, is done with deliberation and with tho intention of killing or inflicting serious bodily harm, though tho inten- tion bo not directed to any particular person, and death onsuo, it will Ijo murder at common law. Thus, if a party fires a gun-shol into a crowd of persons with intent to murder some one, or when it is done Avith criminal recklessness, tho killing Avill bo mui'dw, although no intention existed to kill any particular person. 3. Where one, without provocation, disch;irged his pistol dirortly at a group of persons, it matters not what person ho intended to kill; or if, under such circumstances, he shoots a person other than the one intended, tho act, from its recklessness and want of provocation, will bo referred to no other cause tlian malice. Such reckless acts imply general malice. "Writ of Error to the Circuit Court of Williamson County ; the Hon. D. M. Browning, Judge, presiding. in the that Av about DUNAWAY V. THE PEOPLE. <^ 3fr. James 31. Gregg, for tho plaintiff in error. J//'. William W. Clemens, state's attorney, and J//*. Jamea McCartmy, attorney-general, for tho people. Mb. Justice Scorr delivered tho opinion of the court. In tho indictment presented by tho grand jury of Vrilliam- son county, against James A. Dunaway, ho is cliargcd with an assault, with intent to commit murder, upon tlio powon of Ilartwell Ilendrickson. On tho trial at tlu; Noveiu!)or term, 1SS3, of the circuit court of that county, delcndant v.a;} found guilty, and sentenced to the penitentiary for a period oi six years. There is very little conflict in tho evidence, and tlio material facts can be readily ascertained. It appears that on tho even- ing of January 4, 1SS3, defendant was at tho dtjor of a store in the village where the parties reside, talking witli r.omo ono that was sweeping tho sidewalk, when Dow llavLwoU was about to pass into tho store. Some conversaticm not of an angry character occurred between defendant and Ilartwell, as to Avhether tho latter would commence other ])i'ococdings against defendant. Shortly afterwards defendant entered the store where Ilartwell and several other persons wore standing or sitting aroimd the stove, among whom was IJarLwell Ilen- drickson. It seems Ilai'twcll is an attorney at law, and had commenced proceedings on boluilf of defendant's wife for divorce from him, but whether defendant (mtertainod any ill- will against Ilartwell on that account does not certainly appear. But little was said by defendant after he entered the store and approached the stovo where the ])artios were, before he drew a revolver and shot towards Ilartwell, the bail taking effect on Ilartwell Ilendrickson, inflicting a very serious wound. A second shot was fired, but it did not hit any one. Defendant Avas no doubt under the influence of intoxicating liquors at the time of the shooting, yet not so drunk but Avhat he knew most, if not all, that occurred. It is not pretended by defendant, or any ono for him, tho pistol was accidentally discharged. His own testimony is : "I shot it because I wanted to." He also says ho "had no feeling against either Ilendrick- son or IlartAvell." Tho judgment might be sustained on tho ground the intention Avas sufficiently i)roved to kill and murder Hendrickson. Ho shot in the direction ho was standing, and 62 AMERICAN CRIMINAL REPORTS. the Ita is, a party intends the necessary consequences of an act (lelil , lately done. Giving tliat construction to the evidence, the instructions given by the court for the people contain nothing calculated to mislead the jury. Section 24 of the Criminal Code, under which defendant was indicted, provides: "Whoever attempts to commit murder, ... by any means, shall be guilty of the crime of an as- sault with intent to commit murder," and the theory of the defense is, that if defendant intended to kill and murder any one, it was Ilartwell. The evidence, in some degree, at least, warrants this view of the case. The conversation at the door of the store, before the parties entered, shows defendant had some ill-feeling towards Ilartwell. His inquiry Avhether Hart- well was going to "get up another suit" against him, shows un- kind feeling, to say the least of it. On the hypothesis the defendant intended to murder Ilartwell, the argument is, the shootinff of Ilendrickson was not intended, and therefore de- fcndant could not bo guilty, under the statute cited, of an as- sault with an intent to murder Ilendrickson. The law is, that had defendant shot at Ilartwell with intent to murder him, but killed Ilendrickson, the killing of the latter would have been murder at common laAV. The rule in such cases rests on the fact there was a felonious intent to commit murder. It is said when an unlawful act in itself is done with deliberation,, and with the intention of killing or inflicting serious bodily harm, though the intention be not directed to any particular person, and death ensue, it Avill be murder at common law. Thus, if a party fires a gun-shot into a crowd of persons, with intent to murder some one, or when it is done with criminal recklessness, tlic killing will be murder, altliough no intention existed to kill any particular person. As the argument is un- derstood, it is not denied that had the wound on Ilendrickson proved fatal the killing Avould have been murder, could it havo been established the defen lant intended to kill Ilartwell. Tho charge is, defendant assaulted Ilendrickson with intent to commit murder, and the insistence is, no such intent is shown, because the intent was to murder Ilartwell. Tho roasoninir on this brancli of tlio case is too subtle to bo adopted with safety. Undoul)tcdly there are cases that hold tlie doctrine contended for, and co many of tho early text writers wrote, but the bet- ter and more modern doctrine is against tho position taken. Concedir Iloiuh'icl severe av( Avitli into crime th cither in In tho ant was i Avhicli de sault, or ickmy, s; state prif ant did n fore tlie : proven, of person AA'as woun intended held, defe Avitncss A\ autliorizci tliat on 1 necessary The State, unlike the pistol Avas Avoumlod ])osition o ably appr viction or Avilh inter A\as not < ]it'(j!na V. Dut the J^cpi'ij et dieted am dor. On instructed tliat one prepense, Avould bo DUNAWAY V. THE PEOPLE. Conceding, as is done, had the shot fired by defendant killed Iloiulrickson it would have !ieeii murder, the proposition the severe Avounding by the same shot Avould not have been done Avilh intent to commit murder, — that is, to commit the greater crime that might have been the result, — finds no sanction citlier in reason or the analogies of the law. In the case of Walker v. The State, 8 Ind,, 290, the defend- ant was indicted and convicted under the statute of that state, which declares : " Every person Avho shall perpetrate an as- sault, or an assault and battexy, with an intent to commit a i'(.>i()ny, shall, upon conviction thereof, bo imprisoned in the state prison," and the defense insisted upon was, that defend- ant did not intend to shoot tiio prosecuting witness, and there- fore tlie intent to murder, as laid in the indictment, was not proven. It appeared defendant deliberately shot into a crowd of persons, among whom was the prosecuting witness, and who was wounded by the shot. Althougli defendant may also have intended to murder another person in the same crowd, it was held, defendant having committed a batteiy on the prosecuting Avitucss Avith a weapon likely to cause death, the jury Avero authorized to iind the intent as charged in the indictment, and that on the principle every man is su])posed to intend the necessary consequences of his 0\vn act. The case of i'aJh.ihan v. The State, 21 Ohio St., 300, is a case arising under a statute not unlike the one in the case last cited, and it was ruled, where a pistol was discharged with criminal intent at one person, and Avoundod another, who was at the time known to be in such ])osition or proximity that his injury might have been reason- ably ai)prehcndcd as a probable consequence of the act, a con- viction on an indictment averring tlie shooting of the latter Avith intent, is good under the statute of that state, and that it Avas not error, on the trial, to instruct the jury accordingly. Ju'(jlna V. Smith, 33 Eng. L. & Eq., 5(57. Ihit the question involved is not new in this court. In l^cri'ij et al. v. The People, \\ 111., 49(5, defendants Avcro in- dicted and con\'icted of an assault Avith intent to commit mur- der. On the trial, at the instance of the prosecution, the court instructed tlie jury that if tliey believed, from the evidence, tliat one of defendants iired the ])istol, oitlier Avith malice ])r('i)enHe, or a total disregard of human life, then the hiAV would bo for the people. In remarking on that instruction u AMERICAN CRIMINAL REPORTS. the court said : " Where the act is committed deliberately, and is likely to bo attended witli dangerous consequences, the mal- ice requisite to murder will be presumed." The instruction was a|)])roved because predicated upon that principle of law wliicli attributes malice to reckless acts of homicide, Avhere no particular motive can be traced. The case of Vanclermarh d al. v. The People, 47 111., 122, is analogous, both in principle and in its facts, with the case now before tliis court. Defendants were indicted for an assault with an intent to commit murder, and it was insisted in that case, as here, that defendants shot at another person, and it was accidental the prosecuting witness was hit. There Avas a con- llict in the evidence Avhether the defendant who lircd the shot intended to slioot another person. Tlio affray occurred be- tween one of the defendants and Hand, and it seems another defendant drew his pistol, and the shot fired struck tlic prose- cuting witness, wlio was not in the crowd. Under tlieso cir- cumslances, it was said by the court, tlie jury woi'o warranted in the conclusion defendant was actuated by malice against the party injured, or if not, his conduct was so reckless tliat it im- plied a total disregard for tlie lives of others. The act was such as implied general malice, and as defendant evidently in- tended to shoot some one, when it Avas apparent it Avas Avith- out any provocation, the act Avas referred to malice, antl the conviction of the party that did the shooting Avas sustained. The facts in the case being considered bring it precisely \vithin the doctrine of the case cited. Here, defendant discharged his pistol directly at the group of men around the stove, and Avhether he intended to kill Ilartwell or llendrickson, ho must haA'e intended to kill and murder some one of the number. The act Avas deliberately done, and Avas done Avilh such an utter, reckless disregard for the lives of others, Avhero no ap- parent provocation existed for the shooting, it can be referred to no other cause than malice, and that is suflicient, on the authority of the previous decisions of this court, to sustain the conviction. The instinictions given by the court, at the in- stance of the prosecution, conform so nearly to this a'Ioav of the hiAV it is not possible they could liaA'e misled tlie jury, to the prejudice of defendant. Indeed, the evidence so fully Avarrants the conviction, it is plain to be seen the jury Avero not misled. That some of the instructions are subject to criti- WILLIAMS V. THE STATE. G5 cism on account of the pliruscology in which they arc ex- pressed, may be conceded. Entire accuracy in the use of liing'uago in an instruction containing a correct proposition of law wouid. of • .iirse, be desira^jlo, but it is not always attain- able, 11' i bo reasonably expected. It is not, and ought not to be, tiie practice to re\'erse a judgment in a criminal case because some iiuiccuracy in word or phrase nuvy be found to exist in an instruct!' u which contains ii correct proposition of law, although not \ery h;ip])ily expressed. Such a practice would render the administration of the criminal law so technical and diliicult as to defeat the ends of justice. The conviction of defendant is wai i; led both by law and the evidence, and the judgment again i Jsiui ought not to be reversed on account of slight inaccuracies in the statement of the law, that could in nowise affect the merits of the defense. The judgment will bo allirmed. Judgment ajjlrmcd. "Williams v. The State. (G7 Ga., 187.) Bastardy: Jurisdiction. Gist Oi* offknse is the refusal of the putative father to orvE eond.— The K'«t 1)1" tlu! offt'iiHi.! of biustanly is tin; rofusal ol' tlio putative father to givo bon. Tiie proof of the second marriage was by the minister who solemnized it on the 10th day of April, 1877, and al>;o tlie record of the marriage certifi- cate. Tlie defendant offered a copy of a decree of divorce of a Kentucky court, dated in I8r)7, of A. II. Gonce against Mary A. Gonce, whicli was not certified as tho law directs (R. S., 1S7i>, ^ 2321), and was not com]vtent evidonce. but it was introduced witliout objection on the part of the i»n>secution. In rebuttal tiiereof the state called various witnesses, wlu»se ov'^ dence very strongly tendinl to prove that this pretended n^conl and clerk's certill<'ate were in the handwriting of the defend- ant. To this evidence the defendant objivted. There is nj ol)jecti52, 5.'')3. There was no contradiction here of a vecord of a court. If a genuine record, its contents cannot be changed o> YO AMERICAN CRIMINAL REPORTS. modifu d by parol. But any evidence is admissible to show, or that tends to show, it is a fraud ; that it is, in fact, not a record, but a forgciy. Thorn v. lamrmxce Co.^ SO Pa. St., 15 ; S. C, 21 Am. Rep., 89 ; Lowry v. McMillan, 8 Pa. St., lOi ; Wharton, Crim. Ev., § 595. III. Tlie instructions given on the part of the state were substantially correct, and defendant was not injured by iliem. But the defendant asked the court to declare the law in his be- half as follows : " The burden of proof to establish the guilt of defendant devolves upon the state, and the law clothes him with a presumption of innocence which attends and protects him until it is overcome by testimony wliich proves his guilt beyond a reasonable doubt. By a reasonable doubt is meant a substantial doubt, based upon the evidence or want of evi- dence in the case, ar^d not a bare possibility of defendant's innocence." This instruction should have been given. It is the law in all criminal cases. That part of the instruction as to a reasonable doubt is usually asked and given on the part of the state, delining what is meant by a reasonable doubt. But even though it may appear to the court there can bo no grounds for a rcat;onable doubt, yet the accused must have the opinion of the triers of the fact upon that question. This in- struction should have been given for the defendant, and the court committed error in refusing it. The judgmen': must, therefore, be reversed and the case re- manded ; the other commissioners concurring. Note.— Evidence of fimt viarriagc. On fin indictment for bigamy, tho first marriage may bo proved by tlie admissions of tlio jn-isoner; and it is for the jury to determine wlietlier wliat ho said was an admission tiiat lio had been legally married according to the laws of the country where tlio marriage was solemnized. Miles v. United States, 103 U. S. , 304, and cases cited. As long as the fact of his first marriage is contested, the second wife is an incompetent witness. Miles v. United Slates, supra. In Leg. v. Willshirc, 14 Cox, C. C, Ml, it appeared that tho jtrisoner in 1804 married E. In 18G8 prisoner was indicted and convicted for marrying A., E., his wife, being then alive. In 187i) prisoner married B., and in 1830 he married C. Prisoner was indicted for marrying C. in 1880, his wife B. alleged to be then alive, and upon the trial the prisoner proved by a witness and the jiro- duction of the record, that in 1808 his first wife, E., was then alive. The judge, at the trial, ruled that this was no evidence tiiat E. was alive in 1879 when the prisoner mai-ried B., and that the prisoner was bound to show WATSON V. STATE. 71 tlifit E. was alive in 1879 to entitle him to an acquittal. Ileld, on appeal, that tlio qiu'stion was one for the jury wliotlior E. was alive or dead in 1879, at tlic time of the last marriage, and that the conflicting presumptions of the continuance of the life of E., after 1808, there being no evidence to the contrary, and of the i>risoner being innocent and free to contract the mar- riage in 1879, wore evidence for the jury to consider in determining the question. Jiiritidiction of the offense. The Missouri statute provides that "every person, liaving a husban. to execute and deliver sucli note, or subscribe for the capital stock of a corporation, which the promoters of the project were about to organize, and deliver him such stock or give liim a poi'tion or jiercentage of whatever was realized out of some venture, to be aided by the legislation sought thereby to be corruptly influenced, and escape liability. Tlio thing offered must be a thing of value; but of value when? It may be a thing of great value at the time it is to be deliv- tn-ed, and have no existence at the time of the promise. It wiU JKive its evil iulluenco and be as pernicious as any form of bi'ibcry. AVhen this statute, therefore, prohibits giving, offering or prouiising anything of value, it must be held to mean of value wlien it is given, offered or promised, or when, by the terms of the offer or pi'omise, it is to be given. 4. It is claimed the verdict is against the weight of testi- uiony. "We cannot examine the record for the purpose of de- termining that question. Section T35G, Revised Statutes, as aniended April IS, 1883, by the act entitled " An act to amend sections 455,0710,0711 and 7350 of the Revised Stotutes," prohibits such examination. While this motion was filed be- fore the passage of that act, if we grant it, and the case takes its place on the docket, it Avill be governed by the provisions of the section as thus amended. • Ifotion overruled. Note.— In Alden v. TJie State, 18 Fla., 187, it is held on an indictment for cnihczzlement of public funds by an officer, that the corporate name of the corporation as fixed by law should appear in the indictment as the owner of the funds, and the name of ofRce of such officer as juescribed by law shovdd bo truly stated. That judgment will be arrested when it appears there is a misnomer in either the name of the corporation or in the title of the officer of the corporation so charged with embezzlement. 78, AMERICAN CRIMINAL REPORTS. GuTUEiE V. State. (10 Neb., 607.) Bribery: Indictment— Variance— Evidence. 1. Indictsient referring to third person as unknown.— At common \a.\\ , in cases where an indictment referred to third parties as persons to the gi-and jury unknown, if, upon the trial, it was made to appear tliat the grand jury did know the names of the persons referred to, the ac- cused would have to be acquitted on the ground of a variance between the allegations of the indictment and tlie proofs. But it was not neces- sary for the state to prove the truth of the allegation beyond a reason- able doubt. 2. Same — Variance not fatal.— The indictment in this case alleged that the sum of $300 was paid to plaintiff in error as a bribe by one C. B., " and others whose names ai-e to the giand jurors unknown." The proof showed that the money was paid by C. B. for the purpose alleged in the indictment. Held, that the variance was not fatal, and tlir.t the district court was justified, under the provisions of section 413 of the Criminal Code, in disregai'duig it. 8. Bribery — Evidence. — Under the allegations of the indictment, and the circumstances of the case as shown by the testimony, it was held competent for the state to prove other acts of bribery than those alleged in the indictment, for the purpose of corroborating the principal witness upon material facts involved in the original contract of bribery, and also for the purpose of showing the system, plan and design of the parties involved in the transact ° i alleged iu the indictment. Error from Douglas County. C. A. Baldwin, for plaintiff. Isaac Powers, Jr., attorney-general, for defendant. Reese, J. The plaintiff was indicted by the grand jury of Douglas county for the crime of receiving a bribe. Upon trial he was convicted and sentenced to the penitentiary. lie now prosecutes error in this court, alleging vai'ious errors, which will be noticed in the order presented by his brief. As the principal objections made by plaintiff in error either apply directly to or in some way refer to the allegations of the indict- ment, Ave quote the charging part thereof, which is as follows- "That the said Roger C. Guthrie, in the city of Omaha," etc., " being then and there a ministerial ollicer, to wit, the city mar- shal of the city of Omaha, duly and legally appointed, con firmed, qualified and sworn to discharge the duties of that office, it being an office of importance and trust concerning the admin- GUTHRIE V. STATE. 79 istration of public justice, law and order within said city, count}'^ and state, contriving and intending the powers and duties of his said office, and ^ he trust and confidence thereby re- posed in him, to violate, prostitute and betrt^y, and contriving and intending then and there the powers and duties of his said ollice to discharge and perform with partiality and favor, and contrary to laAv, did then and there, Avith the intent aforesaid, unlawfully, knowingly, corruptly and feloniously take, accept and receive from Cliarles Branch and others, whose names are to the jurors unknown, the sum of $300 in money, of the value of $300, as a bribe and pecuniary reward offered and given by the said Charles Branch and others, and by the said Ilogcr C. Guthrie talcen, accepted and received with tlie intent and pur- pose Lo induce him, the said Roger C. Guthrie, in his office aforesaid, to permit, authorize and allow certain gamblers, to Avit, Cluii'los S. Iliggins, Sctli C. Baldwin, Hiram B. Kennedy, Goodley Bi'ocker, James Morrison, William Soderstron, Charles Brancli and otlicrs to tlie grand jurors unknoAvn, to keep, use and occupy buildings and rooms for the purpose of and devoted to gambling, to exhibit gaming tables, gaming establislnnents, gaming devices, and other apparatus to Avin and gain money, and to carry on, conduct and prosecute the habit, practice and profession of gambling in the corporate limits of the city of Omaha, and to induce and influence him, the said Eogcr 0. Guthrie, then and there and thereafter, not to arrest nor cause to be arrested the said gamblers, and to keep and protect them from arrest and punishment, and free, clear and exempt from municipal or police molestation, interference or attack Avhile engaged in the business, ])ractice, and profession of gambling as aforesaid, in violation of laAV,'" etc. The first ])oint presented is tJiat the indictment charges that the contract of bribery Avas made Avith, and the money paid by, Charles Branch, " and other persons to the grand jurors un- knoAvn;" and no proof AA-as offered by the state, on the trial, to show that the allegation referring to the persons " to the grand jurors unknoAvn" Avas true. Plaintiff in error requested the court to instruct the jury as folloAvs : " Tiie jury are instructed that one of the allegations of the indictment is that the money charged to haA'e been receiA^ed by the defendant as a bribe Avas so paid to him by Charles Branch, and other persons ay hose 80 AMERICAN CRIMINAL REPORTS. namos are to the jurors unknown, Tliis is a material allega- tion in the indictment, and unless you are satisfied beyond a reasonable doubt that that allocation of tijo indictment is true, it is your duty to acquit the defendant." This instruction was refused by the court, to which plaintiff in error excepted, and now as3i. Hai/den, 45 Iowa, 11, and distinguishing A^tefe v, Ridley, 48 Iowa, 370. 2. Possession of goods recently stolen not of itself sufficient to WARRANT conviction OP BURGLARY. — Tho presumptiou of guilt which arises from the possession of goods recently stolon is applicable to the crime of larceny, but not tho crime of burglary; and while it is compe- tent evidence tending to show that the defendant committed the burg- lary, it is not, of itself, sufficient, even if tmexplained, to warrant a conviction. Appeal from Henry Distinct Court. The indictment in this case charges that the defendant broke and entered the burn of J. M, Holland, in which barn goods and merchandise and other things of value were kept for use, sale and deposit, witli the felonious intent to take, steal and carry away the goods, merchandise, and other valuable things, and twenty bushels of wheat of the value of $14, six sacks of tiic value of 82, and one bridle of the value of $1.50, of the goods of J. ]\r. Holland, did feloniously take, steal and carry away, etc. There was a verdict of guilty and judgment thereon, from wliich the defendant appeals. Z. O. ib L. A. Palmer, iav appellant. Smith IlcPherson, attorney-general, for the state. HoTHRocK, J. 1. The defendant, after verdict, moved in arrest of judgment on the ground that the indictment is in- sufficient and void. The motion was overruled, and the de- fendant assigns the action of the court in overruling the same 64 AMERICAN CRIMINAL REPORTS. as error. He insists that the indictment is bad for duplicity, in that it charges a felonious breaking with intent to connuit larceny, and also tlie commission of larceny. In State v. llaijden, 45 Iowa, il, an indictment which was in substance the same as that in this case was sustained. It was held that the cliarge of stealing might be regarded as a mere pleadiiig of evidence or surplusage, whicli might have been properly introduced in support of the char<,o of an intent to steal. That case was tried upon that theory in the district court, and the jury were instructed that the defendant was on trial for breaking and entering the building Avith intent to steal, and he a as found guilty of that offense. The some may be said of the case at bar. The court instructed the jury tluit "tlie charge in the indictment that the defendant stole goods is for the purpose of charging the public offense he in- tended to commit, and the larceny, if any, may be shown and consi) simple lai'ccny. The defendant was found guilty of larceny from a store in the night-time. It was urged in that case that the conviction Avas proper, under the indictment, because the crime charged was a compound offense, and that, under section 4300 of the code, the several offenses included in the compound offense could properly be charged ,n the same indictment. We there held tliat burglary and larceny were not a compound offense, and that, as the defendant was convicted of the lar- ceny on an indictment for feloniously breaking and entering a building, the conviction could not stand. The question in the last-named case, so far as it involved the sufficiency of the in- dictment, Avas confined to the inquiry Avhether or not the crime charged Avas a compound offense. It having been held that it Avas not a compound offense, under the rule in IlayderHs Case, the defendants Avere convicted of a crime Avith Avhich they were not charged. We think the indictment in this case Avas vi: STATE V. SHAFFER. 85 sufficient to support a verdict of guilty of the felonious break- ing of the building. 2. Upon the question of the possession of the goods recently stolen, the court instructed the jury as follows : " And if the burn was closed up at night, so that it could not be entered without breaking, and it was so closed at 9 o'clock at night, and at about 12 o'clock of the same night some of the goods kept in said barn during this time were found in the possession of the defendant, or the defendant and others, this would be prima facie evidence that the defendant broke and entered said building ; and this alone, in the absence of othor evidence, and the possession not explained, showing it to be an innocent jtossession, would be sutHcient to warrant a conviction of the crime charged." The substance of this instruction is that the possession of goods recently burglariously stolen is, of itself, if unexplained, suiiieieut evidence upon which to find the de- fendant guilty of the burglary. We think the presumption wliicli ai'ises from the possession of goods recently stolen is ap- plicable to the crime of larceny, but not the crime of burglary. The most that can be said of it is tluit it is evidence tending to show that the defendant committed the burglary. It surely was comj)etent evidence bearing upon the guilt of the defend- ant; but that it was, of itself, sufficient, if unexplained, to warrant a conviction, appears to be without the support of au- thority, but directly contrary thereto, -/ones v. /State, Parker, 125 ; Whait. Crim. Ev., § 703 ; Inf/all v. State, 48 Wis., 047 ; Steicart v. People, Sup. Ct. Mich., 3 K W. Rep., 803 ; 2 Bishop, Crini. Proc, § 747, note 3. For the error in this instruction the judgment of the district court must be reversed. Note.— In Taliaferro v. The Commomrcalth, 77 Va.,411, it is held tliat the ijdssossion of goods recently stolen creates a presumption that the person found in possession of them is the thief. " But it has never been decided in this state that such possession is even prima facie evidence of guilt in ciuses of burglary ai:d house-breaking." But where gootls have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in tlie actual and ex- clusive possession of a person who gives a, false account, or refuses to give any account, of the mamier in which he came into possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods, but that he made use of the means by which access to them waa obtained. Dan's v. The People, 1 Paiker, Cr. Cas., 447. 86 AMERICAN CRIMINAL REPORTS. The State v. Martin. (76 Mo., 337.) Burglary and larceny: Autrefois convict— Crime, grades of. 1. Autrefois convict— When no bar.— As burglary and larceny com- mitted at the same time are separate and distinct offenses, a conviction of one is no bar to a prosecution for the other. 2, Burglary and larceny — Crime consisting of deorees.- Under the Revised Statutes of Missom-i, sec. 1053, wliich provides " that if upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person by reason thei-eof shall not be entitled to be acquitted for such misdemeanor; and no person tried for such misdemeanor shall be liable after^vard to bo I prosecuted for felony on the same facts, unless the court shall think fit I in its discretion to discharge the jury from giving any verdict upon such trial, and to direct such person to bo indicted for a felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor," lield, that this section has no ref- erence to independent offenses, but has application to that class of offenses of which there are different degrees or grades, and of which grades or degrees the misdemeanor charged is one — that it would apply to petit and giand larceny, but not to burglary and larceny. Error to Jackson Criminal Court. Hon. Henry P. White, Judge. 3L Campbell, for plaintiff in error. D. II. Mclntyre, attornej'^-general, for the state. Norton, J. The defendant was indicted at the November term, 1881, in the Jackson county criminal court, for burglary and larceny. The indictment contained but one count, which charged the commission of both burglary and larceny. The defendant, in addition to his plea of not guilty, also put in a special plea in bar, averring therein that on tlie 17th day of October, 1881, J. W. Childs, a justice of the peace within and for said county, issued his warrant for the arrest of defend- ant on a charge preferred for petit larceny; that he was arrested by virtue of said warrant, was tried and convicted of petit larceny of the same goods and chattels whicli he is charged with stealing in the said count of said indictment; that on the trial before said Childs all the facts of the transaction on which the indictment is founded were brought out in evi- dence, but that said Childs nevertheless proceeded to try THE STATE v. MARTIN. 87 defendant for petit larceny, of which he was convicted and punishment ausessed. Upon the trial of the cause defendant was convicted of burglary, and his punishment assessed at five years' imprison- ment in the penitentiary, the court having in effect instructed the jury that unnly the legislature must take care that, in regulating, it does not destroy, nor materially interfere Avitli the objects of the consti- tutional provision. A Tennessee laAV, passed under this constitution in 1871, pro- hibiting the carrying of any army weapon, except openly and 102 AMERICAN CRIMINAL REPORTS. in the hand, was hekl constitutional. State v. Welburne, 7 Jere Baxter, 57. AVe think the first and second sections of our act of ISSl as free from objection. Tliore need be no fear from anything in these sections, that the citizen may not always have arjns, and be skilled in their propter use, whenever the common defense may require him to take them up. . „. , AJjivmed. jTOTE.— A merchant who buys a pistol for a sample, and carries it in his pocket from one store to another for the pmpose of liaving it packed witli other goods, may show such facts to rebut the presumption of the statute, that possession is prima fade evidence of conceahnent. State v. Gilbert, 87 N. C, 527. State v. Hill and Blake. (58N. H.,475.) CorJCEAMNO DEATH OF CHILD.— The crime of endeavoring to privately con- ceal the death of a bastard child, in violation of Gen. St., ch. 2.")(i, sec. 8, may be committed, althou.j;]! the facts are frona necessity made known to some one who is requested to keep them secret. Indictment of Mrs. Ilill, upon Gen. St., ch. 2r)('>, sec. 8, for l)oing privately delivered of a bastard child, and endeavoring ])rivately to conceal its death and the cause thereof ; and of j\Ir. Blalce as an accessory. The defendants lived together, but were not married. AVhcn IMrs. Hill was delivered of the child, ^Ii's. C, a neigld:)or, at Blake's recjuest, came to the defeiulant's house to remler assistance ; was there inforuied 1)V J»lalvc ol" the facts ; Avas requested by hiui to keep the nuitter secret ; saw tlie cliild dead in tlie presence of the defendants ; cut the uuibilical cord ; atlvised Mrs. Hill to send for a physician, but she refused to have any one else called in. No clothing had been prepared for the child; and Blake buried the body in the cellar. Sub- ject to the defendants' exception, the court instructed the jury that Mrs. CVs knowledge, obtained from the defendants, would not necessarily prevent a conviction; that tho defendants anight be guilty, although they did not conceal the facts from everybody ; that the crime consists in the intent and endeavor STATE V. HILL AND BLAKE. 103 to conceal ; and that the jury should consider all the evidence, including the fact that Mi'3. C. was called in, and the circum- stances under which she was called. Verdict against the defendants. Bill of exceptions. Blab' c6 Burleigh, for the defendants. The object of the statute is, to prevent the concealment of evidences of infanticide. In Peafs Case, 1 East, P. C, 229, it was held that the presence of any second person, even an accom- plice, negatived the charge of concealment ; and this case was afterwards overruled only where the second person was an accomplice. 2 Arch., 128. If the information given by the defendants to one innocent person does not disprove the charge of concealment, the law cannot determine how many must be informed in order to avoid a violation of the statute. Farr, solicitor for the state. The endeavor to conceal the death is the essence of the of- fense. If absolute concealment were necessary, conviction would bo impossible. Success in the attempt is safety from punishinont, even if the death was by murder. The instruc- tions given to the jury were correct. 2 Arch., 128, n.; 2 Whar- ton, Cr. L., sec. 1235. Doe, C. J. The gist of the crime is not a concealment of the death and the cause thereof, but an attempt to so conceal them that they may not come to light. Such a concealment may be attempted by one who is unable to keep knowledge of the facts from others whose assistance is necessarily called for, and upon whoni secrecy is enjoined. With these limitations, knowledge of the facts may be communicated to others by one who is making every prudent effort of concealment, amount- ing to such an endeavor as the statute was designed to prevent. A reasonable regard for the mother's health and life might have required aid from the neighbor who was enlisted in the safe-keeping of the secret. Exceptions overruled. Clauk, J., did not sit. Note.— Tho statute of Arkansas provides: "If any woman shall en- deavor privately, eitlier by herself or the procurement of others, to conceal the death of any issue of her body, male or female, that it may not como 104 AMERICAN CRIMINAL REPORTS. to light, although it cannot be proved that it was murdered, every such mother sliall suffer the same punishment as for manslaughter. " Nothing in tlie last preceding section sliall be so construed as to prevent such mother from being indicted for the murder of such bastard child." In Sullivan v. The State, 30 Ark., 64, the court held tliat, construing the sections together, and giving them both hai-monious effect, tho fii-st section must be undci-stood as if the word bastanl wore used in it; it must be sup- pUed by intendment. And, therefore, that an indictment which omitted to allege that the cliild was a bastai'd, whose death tlie mother was chai-ged with attempting to conceal, was bad. State v. Day. (55Vt., 510.) Confession: Evidence — Inducement — Practice. 1. Confession siade under projase.— The sheriff and state's attorney talked with the respondent while in jail. Tlie sheriff first testilied that no inducements to confess were hold out, but ;iftcrwards syiiil "that he presumed he and the state's attorney both told the respondent it would be better for her to tell the whole story, and the punishment would bo likely to be lighter." Held, that his testimony was not atlniissible. 2. Same. — When there is no conflicting testimony as to what tho induce- ment was, the decision of the court below may be revised by the supreme court. Information filed by the state's attorney for stealing. Trial by jury, December term, 1882, Itoss, J., presiding. Ycrdiet, guilty. Questions of evidence and practice stated in the opinion. Ilarry Blodgeit and Henry G. Lie, for the state. El'mJia May and M. Montgomery, for the respondent. The opinion of the court was delivered by Veazey, J. This is an information for stealing a horse, ■wagon, harness and buffalo robe. Numerous exceptions were taken on the trial, but the only one which we are all agreed must be sustained is that to the admission of the evidence tend- ing to show a confession by the respondent. It appears that while she was under arrest and in jail in Sherbrooke in Canada, she was visited by the sheriff and state's attorney, who there STATE V. DAY. 105 had conversation with her. The sheriff was sworn as a wit- ness by the state, and testified first that on one occasion when he visited the respondent with the state's attorney, no induce- ments to confess Avere held out to her by either of them, but afterwards said " that he presumed he and tlio state's attorney botli told respondent it would be better for her to tell the whole story, and the punishment would be likely to be lighter." Tliis was not contradicted. Objection was, therefore, made to tlie witnpss' testifying to what she said; but the objection was overruled, and the witness was allowed to testify to the conversation which tended to show admissions of guilt, to all which the respondent excepted. She Avas quite J'oung, in jail, away from friends, and without counsel to advise her. We think the admission of this evidence Avas a Adolation of the settled rule in this state, " that a confession must never be re- ceived in evidence Avhcn the respondent has been influenced by any threat or promise." The discussion of the question by the late Chief Justice Pierpoint, in State v. Walker^ 31 A^t., 300, is so applicable to this case it is sufiicient to refer to that opinion. Another question is made, that the judgment of the county court, that the confession Avas A'oluntary and the evidence should be admitted, is conclusive and cannot be revised by this court. . The same question AA'as raised in State v. ^Vall'cl\ sxqyra; and Ave think the true view Avas there expressed to the effect, tliat when the testimony' as to the promise, threat or induce- ment is conflicting, and the court must pass iq)on the character and Aveight of the testimony upon each side, in order to deter mine Avhetlicr the confession is voluntary or not, the decision tliei-eon is final. But in a case like this, Avhere there is no con- flict in the testimony or dispute about the facts, the decision of tlie county court admitting the testimony may be revised in this court. State v. PheJps, 11 Yt., 110. Tlie judgment of the county coui't reversed, new trial granted; and the case renuinded. 106 AMERICAN CRIMINAL REPORTS. m. *s^" 5'^, BucKEicE V. The People. (110 lU., 29.) Constitutional law: Jury of the vicinage — Offeme committed near county line. I Jury seuvice confined to the county.— There is no authority in any statute for the selection of grand and petit jurors in one county to serve in another countj'. As TO KIOHT OF TRIAL BY JURY; AND IN VHHAT COUNTY A PERSON CHARGED WITH CRIME MUST BE TRIED.— Tlie right of trial by jury, guarantied by the constitution to one accused of crime, includes the right cf being tried by jiu'ors selected from the county in which the offense is alleged to have been committed. 3. Section 5, division 10, of the Criminal Code, in so far as it authorizes a party to be tried for an offense committed entirely within one county, but one hundred rods from the county Une, in the adjoining county, is unconstitutional and void. 4. There is a class of offenses that may be committed by a pai-ty being in one county, upon a person or thing being at the same time in another county, when the offense may not inaptly be delined as having Iwvn committed in either county; and offenses committed on the county line, or so near thereto as that the distance therefrom is inappreciable, may with proprietj' be regarded as having been committed in either county, and by doing so no one is deprived of any constitutional riglit. 5. But where the entire offense is committed within one county, and at an appreciable distance from the county line, as in tliis case, at a distance of seventy rods, the party accused cannot bo indicted and tried in an- other county for that offense. Appeal from the Circuit Court of Kane County ; tlio Hon. C. AV. Upton, Judge, presiding. Ifessrs. liuhcns, MaGqfei/ db Ames, for the appellant. A citizen of this state can be tried for a criminal olfense only in the county or district where the offense has been com- mitted. Const, of 1870, art. 2, sees. 5, 9. Tlie statute providing that " where an offense sliall be com- mitted within one hundred rods of a county line, it may be so alleged, and the trial may be in either county " (sec. 390 of the Criminal Code), is in direct contravention of the constitutional guaranties relating to trials by jury, and, therefore, void. Anmfroi^g v. State,! Coldw., ZZ%{Swarth v. Kimball, 43 Mich., 143; State v. Saiojer, 50 N. II., 175; Wheeler v. State, 2i Wis., 52; Oshoni v. State, 24 Arlc, 029. The word " district," in article 2, section 9, of the constitu- BUCKRICE V. THE PEOPLE. lOT tion, does not include a bolt of one hundred rods in another county from which no jui'ors are drawn. Weyrich v. The People, 89 111., 90, The first constitutional provision which we invoke against the operation of this statute is section 5 of article 1 of the constitution of 1870 : '• The right of trial by juiy, as hereto- fore cujoycd, shall remain inviolate." The meaning of this constitutional provision has been held to be that the common law mode of trial by jury must remain inviolate. Petition of Ferncr, 103 1)1, 3(57 ; Ward v. Fai-well, 97 id., 593. And it was held that the mode of trial, as it existed at the time of the adoption of the constitution, was preserved by this provision. Poss V. L'vlng, 14: 111., 171. There can be no question that at common law no man could be taken out of the county Avliere the offense was committed, and \vliere he resided, to an adjoining or distant county. 4 Blackstone's Com., 319. And this right of trial by juiy in- cludes the grand as well as the petit jury, and both must bo drawn from the county Avliore the offense was committed. 4 Blackstone's Com., 303 ; Ilallam's Const. Hist., 15, iO ; Bacon's Abr., title "Juries;" 2 Hawkins' Pleas of the Crown, 300, ch. 25, soc. 28. The courts of other states have held acts of the legislature authorizing the trial of pci*sons out of the county in which the offense was committed as unwarranted by the constitution and void. Sicarth v. KlmlxiU, 43 Mich., 413; Paul v. Detroit, 32 id., 108; We>/)'lc7t, v. The People, 89 111., 90; Annstt'ong v. State, 1 Coldw., 338 ; 0,sljorn v. State, 24 Ark., G29 ; Wheeler v. State, 24 Wis., 52; State v. Saioijer, 5G N. II., 175; State V. Denton, G Coldw., 539 ; Kirh v. State, 1 id., 315. The framers of our constitution did not content themselves, however, with the provision above cpiotcd. They gave a still inoro definite expression of their determination to uphold this constitutional guaranty by declaring : " In all criminal prose- cutions the accused shall have the right . . . to a S])eed3'' puljlic trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Const. 1870, art. 2, sec. 9. Mr. Franh Croshj and 2L\ Terrence E. Pyan, state's attor- ney, for the people. The statute attacked is no novel experiment in legislation. 108 AMERICAN CRIMINAL REPORTS. It has existed among the legislative enactments of sister states for many years, and has frequently been confirmed by their judicial tribunals. Commonwealth v. Glllon, 2 Allen, 502 ; The People V. Harris, 45 Barb,, 494 ; State v. BoUnsoii, 14 Minn., 447 ; The People v. Davis, 50 N". Y., 95. " The right of trial by jury " may be regulated by tbe legis- lature in certain ways, provided its fundamental requisites are not impaired or destroyed, — that is, provided the number com- posing the jury, its unanimity and its impartiality are not vio- lated. Proffatt's Trial by Jury, sec. 100, p. 149. Me. Justice Scholfield delivered the opinion of the court. A])pellant sold spirituous liquors in violation of chapter 43, entitled " Dram-shops," in Cook count}^, but at a point Avithiu seventy rods of the line between that county and Kane county. For this he was indicted by a grand jury of Kane county, and tried and convicted in the circuit court of that countv. lie objected on the trial to the jurisdiction of that court, and by plea and motion raised the question of its power to render any judgment against him for the offeuse so committed. The action of the court is claimed to be authorized b}^ section 5, division 10, of chapter 38, entitled " Crimiual Code," of the Eevised Statutes of 1874, page 400, which reads as follows : '""Where an offense shall be committed on a county line, or within one hundred rods of the same, it may be so alleged, and the trial may be in either county divided bj'^ such line." Undoubtedly, if valid, this is broad enough to embrace the present case ; but counsel for appellant insist that so much of it as assumes to authorize the trial of a party in one county for an olf ense com- mitted in another county (no right in that regard having been waived), is unconstitutional and void, and this presents the only question for our determination. It Avill to observed no county lines are changed by this en- actment, and no provision is made for the selection of jurors beyond the county line, and within the one hundred rods thereof, and, we may add, there is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county. See R. S., 1874, ch. 78, entitled " Jurors," p. 630. "^^ The constitution of 1870 declares in section 5, article 1: " The right of trial by jury, as heretofore enjoyed, shall re- BUCKRICE V. THE PEOPLE. 109 main inviolate." And in section 9, ai'ticle 2 : "In all criminal prosecutions the accused shall have the right . . . to a speedy public trial, by an impartial jury of the county or dis- trict in which the offense is alleged to have been committed." Su])stantially the same provisions were in the constitutions of ISIS and ISiS, and they have been hcM to guaranty the right of trial by jury, in conformity with the principles of the common law as it was enjoyed at the adoption of the constitu- tion. Jioss V. Irving, 14 111., 171; Ward v. J^arwell, d7 id., rm-, Petit ioti of Ffrrler, 10;{ id., P.07. And this right of trial by jury included that of l)cing tried by jurors selected from the county in which the offense is alleged to have been com- mitted. Weyrlch v. The l^eojyle, SO III., 90. It Avas the settled common law doctrine that jurors in one county were not com- petent to pass upon the guilt or innocence of a party in regai'd to a crime alleged to have been committed by him in another county. See 3 Eeeves' Hist, of English Law, 135; 2 Hale's Pleas of the Crown, 2(i4 ; 2 I f awkins' Pleas of the Crown, 103 ; 4 Hlackstone's Com. (Sharswood's ed.), 349, * 350 ; 1 Wharton on Crini. Law (Tth ed.), 277. There is a class of offenses committed by a party being in one county, iipon a person or thing being at the same time in another county, where the offense m.ay not inaptly be defined as being committed in either county, and we are not to be un- derstood as questioning but that offenses comuiitted on the county line, or so near thereto that the distance thei'efi'om is inappreciable, may Avith propriety be regarded as committed in either county, and that by so holding no one is deprived of any constitutional right; but it is obvious such cases are not analo- gous to the present case. Here the entire offense is committed within one county, at a distance of seventy rods from the county line. It is not only possible, but probable, that many persons reside within one hundred rods of the county line who are competent jurors in their own county, but none of whom, in any possible contingency, would be competent to sit as such upon the trial in Kane county. And so, if it could be said this is a new district for criminal purposes, it is unconsti- tutional, in that there is no provision authorizing it, but, on the contrary, there is a positive provision excluding the selection of juiics in so much of the territory as is included in this strip 110 AMERICAN CRDHNAL REPORTS. of one hundrecl rods in Cook county. But if it may be salt! the districts simply remain as they were, then it would seem too plain to admit of argument, the constitution is violated by au- thorizing parties committing offenses wholly in one county to be indicted and tried therefor in another county. If this may be done as to one hundred rods of territory, why may not it be done as to one mile? And if it may bo done as to one mile, wli}'- may it not be done as to the entire county, and thus drag men for trial to Cook or Jo Daviess county for offenses com- mitted in Alexander or Pulaski county? It may be that it would work no inconvenience, and be greatly promotive of a rigid enforcement of the Criminal Code, if a strip of two hundred rods in Avidth on all county lines (one hundred rods on each side) might be, for the purjiosc of criminal trials, regarded as Avithin either county; but it is enough for the present to say this is not warranted by the con- stitution, and its mandate is, that " in all criminal prosecutions the accused shall have the right to a speedy public trial, by an impartial jury of the county or district in which the offense is alleged to have been committed." Wo have no more riglit to tlisrcgai'd this mandate as to one hundred rods than as to tliat many miles, and our opinion of its wisdom or convenience can- not in the sliglitest affect the question of its obligatory force. Like questions were presented and like conclusions reached in Swarth v. KhribaU, 43 ]\[ich., 443 ; Armstrojig v. State, 1 Coldw., 338; Xiric v. State, id., 34.j; State v. Denton, 6 id., 530; Wheeler V. State, 24 "Wis., 52; Oshot^n, v. State, 24 Ark., 029; State v. love, 21 W. Va., 783 (45 Am. R., 570). The constitutions of Massachusetts and !N"ew York do not contain like provisions to those in our constitution which we have been considering, and hence the cases cited by counsel for the people from those states are not relevant. As to the decis- ion cited from Minnesota, we are unable to concur in the rea- soning by which it is sustained, notwithstanding the high respect we entertain for the ability and learning of those com- posing the tribunal by which it was announced. The judgment is reversed. Judgment reversed. Note.— In State ex rcl. Drown v. Stewart, Circuit Judge, 60 Wis., 587, it is held that the statute providing that offenses committed witliin one Lun- STATE I'. STEWART. Ill (Ircd rods of the tlivuling line between two counties may be prosecutofl and punished in either, is not in violation of sec. 7, art. 1, Const., seciiring to the accused the right to a trial " by an impartial jury of the county or district wliorein the offense shall have been committed; which county ordtHtrict sliiiU liave been previously ascertained by law." See, also, People v. Davis, m N. Y., 05. Statk t. Stewakt. (89 N. C, 563.) CoNSTiTtmoNAL LAW: Trial by jury — Waivcr. 1. A trial by jury in a criminal action cannot be waived by the accused. 2. On trial of an indictment for an fissault and battery, a jury trial was waived, and the court, by request, found the facts .and declared the Law arising thei'eoo. Held, that such a procedure is not warranted by law, and the case will be remanded for trial. Attonieij-General, for the state. No counsel for the defendant. Asm:, J. It is a fundamental principle of the common law, declared in " ]\[agna Charta," and again in our Bill of Eights, that " no person shall be convicted of any crime but by the unanimous verdict of a jury of gooa and lawful men in open court." Art. 1, § 13. Tlie only exception to this is, where the legislature may pro- vide other means of trial for petty misdemeanors with the right of appeal. Proviso in same section. This is not one of the potty misdemeanors embraced in the proviso ; and if it Avas, no such means of tri.al as that adopted in this case has been pro- vided b}^ the legislature. The court here has undertaken to serve in the double capacity of judge and jury, and try the defendant without a jury, which it had no authority to do, even with the consent of the prisoner. 1 Bish. Cr. Law, §759. The action of the court in this respect was in violation of the constitution, and in subversion of a fundamental principle of the common law. State v. Jfoss, 2 Jones, GG. There is error. The case must bo remanded to the superior 112 AMERICAN CRIMINAL REPORTS. court of Stokes county, that it may be proceeded witli by a jury trial according to tlio regular practice of the court. Error. Reversed and remanded. Note.— In Tlie State v. Carman, 03 Iowa, 130, defendant was indicted for an jissault with intent to rape, which is felony. The defendant waived, in writiiif?, liis riglit to a jury trial, and after a trial by the court and a finding of guilty, the defendant claimed that he had no power to waive such right. Under the Code of Criminal Procedure of that state it is provided that " an issue of fact must be tried by a jurj' of the county in which the indictment is found, unless a change of venue has been awarded." Adams, J., deliver- ' (ig the majority opinion of the court (Seevers, J. , dissenting), says : " If the language of the statute were less imperative than it is, the adjudications would support us in reaching the same conclusion. Hill i'. The People, 10 Mich., 331; State v. Maine, 27 Conn., 281; Bond v. State, 17 Ark., 290; Wil- son V. State, 10 Ark., 001; League v. State, 30 Md., 257; iViUiamn v. State, 12 Ohio St., 022; People v. Smith, 9 Mich., 193; United States v. Taijlor, 3 McCraiy, 500. We think the judgment of the district court must bo re- versed." Seevers, J., in support of the point that a personal right or statutory privi- lege confen-ed on a person accused of crime may be waived by the person so accused, cited the following cases: The State \\ Ilnglies, 4 Iowa, 't'A: The Slate V. Groome, 10 id., 308; The State v. Ostrander, 18 id.. -135; The State V. Rpid, 20 id., 413, and The State v. Fclton, 25 id., 07. " The ('onstitu- tion provides that the accused ' shall have the right ... to i)o con- fronted wltli the witnesses against him.' This language is just as mandatory as that contained in the statute in question, and yet it was held in The State V. Poison, 29 Iowa, 133, that a personal privilege only was conferred on the accused, which he could waive, and that such waiver did not affect the jurisdiction of the court. The constitution provides that ' the riglit of trial by jury shall remain inviolate.' Every one admits that this meiuis a jury composed of twelve men. But it was held in The State v. Kaufman, 51 Iowa, 578, that such a jury might be Avaived by the accused, and the trial be had by a jury comj)osed of eleven men," etc. State v. Amekt. (12 R. I., 04.) Constitutional law: Statute void in part. A statute which prohibits the sale and the keeping for sale of intoxicat- ing liquors, and which contains no exception in favor of importers whose imported liquors remain in the original packages, or of dealers holding outstanding licenses, although void as to such importers, and perhaps void as to Ucense holders, is valid as to otiiers. If a law which is constitutional under certain limitations exceeds those limitations, it may still be operative witliin them and void only for the excess. Constit DURFKI ing is, W tutional ? and quali intoxicati tlie sclliu; porters ii that, inas is unconsi plies to ii totally so lie is not he is coi original \. That il for sale a; of the su] cense cas^ 285. But porters, is all other ] that a sta still be va connected tended to Const. Lir And so, offenses p stitutiona] offenses ; to past CO be entirel; Cooley's Hartung \ Ur, 50 N. V. Fowler, These c the case a Vol STATE V. AMERY. 1|$ Constitutional questions certified to the supreme court. DuRFKK, C. J. The question submitted to us in this proceed- ing is, AVhctlicr chapter 70 of the General Statutes is consti- tutional? CMuiptcr 70 prohibits, subject to some exceptions and qualifications, the selling and keeping for sale of certain intoxicating liquors. Jt does not except from the prohibition tJie selling and keeping for sale of imported liquors by the im- porters in the original packages. The I'cspondent contends tliat, inasmuch as the chapter does not make this exception, it is unconstitutional and void, and not only so in so far as it ap- plies to imported liquors sold or kept for sale as aforesaid, but totally so, and consequently so in respect to himself, though ho is not an importer and does not claim that the liquors which he is complained of for selling were imported, and in the original packages. That the chapter is void as to importers selling or keeping for sale as aforesaid cannot be doubted, in view of the decision of the supreme court of the United States in the so-called li- cense cases. 5 IIow. (U. S.), uOi ; State v. Robinson, 49 Me., 285. Eut because no exception is made in favor of such im- porters, is it therefore void, as the respondent contends, as to all other persons ? We think not. It is perfectly well settled that a statute Avhich is unconstitutional or void in part may still be valid as to the residue, unless the parts are so intimately connected that it caimot be supposed that one part was in- tended to be enforced independently of the other. Cooley's Const. Lim., *78. And so, also, a statute which is ex j)ost facto as to acts or ofTenses previously committed, and therefore as to them uncon- stitutional cud void, may yet be valid as to subsequent acts or offenses ; and a statute which is unconstitutional and void as to past contracts, because it impairs their obligation, may yet be entirely valid as to contracts entered into after its passage. Cooley's Const. Lim., *180; lioss Case, 2 Pick., 105, 172; Hartung v. The People, 22 N. Y., 95 ; People v. City of Eoches- ter, 50 N. Y., 525 ; Golden v. Prince, 3 Wash. C. C, 313 ; Moo^e V. Foxohr, 1 Hemp,, 536 ; Baker v. Brameti, 6 HiU, 47. These cases are not distinguishable in point of principle from the case at bar. The doctrine of them is, that if a law, which Vol. IV— 8 114 A5IERICAN CRIMINAL REPORTS. is constitutional under certain limitations, exceeds those limita- tions, it may still be operative within its legitimate sphere and void only for the excess. The doctrine is applicable in t\w case at bar, and under it chapter 79 should be sustained, except in so far as it goes beyond the proper limits. Indeed the statutes of Ehodc Island and Massachusetts, under Avliicli two of the cases reported in 5 How. (U. S.), 504, arose, did not contain exceptions in favor of importers, and yet convictions under them were sustained by the supreme court of the United States. It is true the objection here presented does not appear to have been explicitly made ; but the fact that it was not made by the counsel, considering who they Avcre, nor suggested by the court, is in itself almost equivalent to a decision that the objection lias nothing in it. In Commonwealth v. KhnhiU, 24 Pick., 8r)!>, the objection was taken and was declared to be un- tenable, tliough in that case the statute was sustained on the broader ground that it was not unconstitutional or void in any particular. l>ut, said Chief Justice Shaw, "supposing the law could be construed to be repugnant to the constitution of the United States, in so far as it prohibited the sale of imported spirits by the importer in the original packages, it would bo void thus far and no farther, and in all other respects conform- ing to the acknowledged power of the state government, it Avould be in full force." See, also, State v. /Snoio, 3 R. I., 04. AVe think the rule as thus stated is correct, though doubtless there are cases where a diiTcn^ent rule has been declared. We must therefore decide that cha[?ter TO is not totally unconstitu- tional and void for not reserving " the right to importers to sell in the original package," but that on the contmry it is coni^ti- tutional and valid, notwithstanding the oiiiission of any suclt reservation, as applied to all persons except such importers. The Siimo course of reasoning applies with the same effect to the other point, namely, that chapter 7!) contains no exception in favor of the holders of unexpired licenses^ Supposing, what we do not decide, that the cluj.pter is unconstitutional as to th(^ holders of such licenses, still it is not on that account unconsti- tutional as to any jiersons but them. The respondent objects that everything alleged in a com- plaint under the statute may be true, and yet the accused be J innocent, to the CO this proc rule is, tl it is for Ii in the coi ercnce in Eil.mur, for defon Note.— ' In construi an cnactmc anything ct it nugatory rel. V. Kcm governing i tional, that unless the j the otlier, o pose that tl jKiraniount effeet of th or ])arts \\a.\ tivo. If th the nianifes acc'ordancc of a sound tions, page out, that \v) in accoi-ilan that which a road, 12 Lcj tional ami v V. State, 40 though the peace exclu nnconstituti dealing witl STATE V. AMERY. 115 innocent. This is an objection to the form of complaint, not to the constitutionality of the statute. It cannot be made in this proceeding. We may remark, however, that the general rule is, that if the accused is entitled to any special exemption, it is for him to show it in defense, and it need not be negatived in the complaint, unless it is expressed or incorporated by ref- erence in the enacting or prohibitory clause of the statute. Edmund S. Ilophins, assistant attorney-general, for ]ilaintiff. W'dliam B. Beach, Charles E. Gorman and Henry W. Allen, for defendant. Note. — When aiid how far a statute will he declared unconstitutional. — In construing statute.? courts aim to ascertain the true meaning and spirit of an enactment from a consideration of the whole; and if they discover in it anjthing equivocal or unconstitutional, they eliminate the same or declare it nugatory, and do not sufler it to vitiate the entire act. In The People ex rcl. V. Kcnncij ct at,, 00 N. Y., 21)4, the court of appeals states the principle governing such cases as fellows: "Where part of a statute is unconstitu- tional, that fact does not authorize tlie court to adjudge the remainder void, unless the provisions are so interdependent that one cannot operate without the other, or so related in substance and object that it is impossible to sup- pose that the legislature would have pa.ssed the one without the other." The jiaraniount riuestion for the courts to consider is whether the meaning and ('ffec:t of the statute will I'emain uniin])aired after the unconstitutional part or ])arts have been subjected to a searching analysis and declared inopera- tive. If the void parts can be scjparated from the good, without changing the manifest intention of the law-making power, courts may prune them n accordance with the general canons of legal i>xegesis, and the suggestic ns of a scnuid and cautious discretion. In Cooley on Constitutional Limita- tions, page 178, it is said: " If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of tliat which was rejected, it must be sustained." In Franklin Countij v. Rail- road, 12 Lea(Tonn.), 531, it is held that pai-t of a statute may be unconstitu- tional and void, and the rest be valid, if the parts are separable. In Morrison V. State, 40 Ark., 448, the same principle is maintained. It is held that though the first section of the act of March 15, 1879, giving justices of the peace exclusive jurisdiction of certain misdemeanors, had been declared unconstitutional, yet it had no effect whatever upon the second section, dealing witii appeals, and this continued in full force and effect. 116 AMERICAN CRIMINAL REPORTS. In ke Ziebold. (U. S. C. C, 23 Fod, Rep., 791.) Constitutional law : Due process of Imo — Kansas act of March 7, 1885 — Habeas corpus. Wliere a person is imprisoned for refusing to testify or appear before a county attorney in a proceeding under section 8 of the act of Marcli 7, 1885, wliich is amendatory of the act prohibiting the manufacture and sale of intoxicating liquors, he is restrained of his liberty without " dins process of law," within the meaning of the fourteenth amendment to tlie constitution of the United States, and entitled to be released on habeas corpus issued by the United States circuit court. The petitioner was committed to jail for refusing to testify before the county attorney, and sued out a writ of habeas cor- pus. Further facts appear in the opinion. B. P. Wagge7ier and Thomas P. Fenlon, for petitioner. W. D. Gilbert, county attorney, for the state. FosTEE, J. The petitioner in this case alleges that he is im- prisoned and deprived of his liberty, in violation of the pro- visions of the fourteenth amendment to the constitution of the United States. That amendment provides, among otlior things, that no state shall deprive any person of life, liberty or property without " due process of law." The federal courts and judges are authorized, among other causes, to issue the writ of haleas corpus for a person in cus- tody and imprisoned in violation of the constitution, or of {• law or treaty of the United States. E. S., § 753. The juris- diction of this court to issue the writ and hear the case de- pends upon the truth of the averments in the petition, and therefore the jurisdiction of this court and the main question are so inseparably connected together that the determination of one must determine the other. It appears from the petition and the return to the writ that the petitioner is held in custody and imprisoned by the sheriff of Atchison county by virtue of a commitment issued to him by the county attorney, commit- ting the petitioner to the county jail for refusing to obey a subpoena issued by said attorney, and refusing to be sworn and give testimony before him in proceedings under the eiglith section of the act of the legislature of Kansas, approved Ifarch 7, ing the ir is admitt( ticcordan( is fairly \ a])pear oi iiigs is re within th The fin ])rocess oJ l)rcscribe( But such iinty mei deprive a shall cho( adjudicati the land oi'iginatet operate a; Murray's XI. New 310. In in the cor "They liominatei modes tlu ture, its e other wa mean thai wliom its its jurisdii virtue of iuiotlier c law, vioh he acts in the state's or the coi These v terms by same gem IN RE ZIEBOLD. 117 Ifarch 7, 1885, being an act amendatory to the act prohibit- ing the manufacture and sale of intoxicating liquors, etc. It is admitted that the county attorney acted and proceeded in ticcordance with the provisions of the law ; and the question is fairly presented whether a person imprisoned for refusing to a])pear or testify before the county attorney in such proceed- ings is restrained of his liberty without " due process of law," within the meaning of the constitution of tlie United States. The first matter of inquiry is the meaning of the term " due jM'ocess of law." If it has no broader meaning than process prescribed by act of tlie legislature, it is the end of the case. But such a construction would render the constitutional guar- anty mere nonsense, for it would then mean no state shall (lci)rive a person of life, liberty or property, unless the state shall choose to do so. It has repeatedly and uniformly been adjudicated that the terms "due process of law" and "law of the land " have a broad and comprehensive meaning, and originated in that great bill of rights, Magna Charta, and operate as a restriction on each branch of civil government. Murray's Lessee v. Jlohol'en Zand Co., 18 How., 272 ; Davidson V. M'w Orleans, 96 U. S., 107 ; Fx parte Virginia, 100 U. S., 31G. In the last-cited case the court, speaking of these words in the constitution, says : " They have reference to the actions of a political body de- liominated a state, by Avhatever instruments or in whatever modes that action may be taken. A state acts by its legisla- ture, its executive, or its judicial authorities. It can act in no otlier way. The constitutional provisions, therefore, must mean that no agency of a state, or of the officers or agents by wliom its powers are executed, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of a public position under a state government, deprives another of pi'operty, life or liberty, without due process of law, violates . . . the constituticmal inhibition, and, aa he acts in the name of and for the state, and is clothed with tlio state's power, his act is that of the state. This must be so, or tlie constitutional provision has no meaning." These words in the constitution have been defined in various terms by different courts, but all the definitions tend to the same general idea. Mr. Justice Edwards has said in one case : 1X8 Al^IERICAN CRIMINAL REPORTS. " Due process of law undoubtedly means in the duo course of legal proceedings, according to those rules and fonns which have been established for the protection of private rights." Westervelt v. Grcgcj, 12 N. Y., 209. Mr. Justice Johnson, of the supreme court of the United States, says : " As to the words from JVIagna Charta, incorporated in the constitution of Maryland, after volumes spoken and written witli a view to their exposition, the good sense of mankind lias at last settled down to tliis : That they were intended to secure the individual from the arbitrary exercise of the power of gov- ernment, unrestrained by the established principles of private rights and distributive justice." Banh of ColumVm v. OJcehj, 4 Wheat., 235. Tliis dclinition has been several times approved by that court. U. S. V. Crulkshank, 92 U. S., 554 ; Ilurtado v. California, 110 U. S., 527 ; S. C, 4 Sup. Ct. Rep., 111. Judge Cooley says : " Due process of law in each particular case means such an exertion of the powers of govern'.nent as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to whicli the one in question belongs." Cooley, Const. Lim., 35G ; Wynehamcr v. The People, 13 N. Y., 432 ; Taijlor v. Porte)', 4 Hill, 145. With this general principle established, and the moaning of those words defined, the dilliciilty remains of applying the principle to any particular case. In the case of Ilurtado v. Cali- fornia, supra, Mr. Justice Matthews, in a very learned and ex- haustive opinion, speaking for the court (Mr. Justice Harlan dissenting), held that the words " due process of law," in tliis amendment, do not necessarily require an indictment by a grand jury in a prosecution by a state for murder; and in J/»n;i y. Illinois, 94 TJ. S., 115, the chief justice says : " A person has no property, no vested interest, in any rule of the common law. Tiiat is only one of the forms of the nmnicipal law, and is no more sacred than any other. . . . The law itself, as a rule of conduct, may be changed at tlie will, or even the mere whim, of the legislature, unless pre- vented by constitutional limitations." IN BE ZIEBOLD. 119 And in Wall'cr v. Sauvinet, 92 TJ. S., 90, the court held that this amendment did not guaranty the right of trial b}' jury in all cases in the state courts. These cases tend to establish the doctrine that the rules and forms known to the common law, in judicial proceedings not affecting the ultimate rights of the party, are not necessarily guarantied to a person under the constitution ; and it has long been established that the remedial process of the law may be altered at the will of the legislature, so it does not impair a vested right, or cut off tlie remedy altogether. The words '• due process of law," then, must be directed at something deeper than the mere rules and forms by which courts administer the law. They evidently were intended to guaranty and protect some real and substantial right to life, liberty and property, as tlie ultimate result, and probably to prohibit any arbitrary and oppressive proceedings by which the individual is deprived of either. There are certain things that are manifestly obnoxious to this provision. For instance, the property of one pcison cannot be taken from him for private use and given to anuvher, even though he is compensated for it, and is given every opportunit}^ to be heard through all the forms and solemnity of judicial proceedings. 2\i>jlo)' v. Porter, 4 Hill, IJrO; (.'ooley, Con^>t. Lim., 357. Kor can a ])erson be condemned without an ojjportunity to be heard and make his defense, although he may be guilty. Wlien we go beyond a few well defined landmarks in this direction we are upon a broad sea of uncertainty. In any case, u'c have to incpiire if the person is imprisoned in violation of a due course of legal proceedings, according to those settled maxims, rules and forms established for the protection of private rights against the arbitrary exercise of power, unre- stricted by established principles applicable to such rights, and to the administration of justice. By section 1, article o, of the constitution of Kansas, the judicial power of the state shall be vested in certain courts therein named, and such otlier courts, inferior to the supremo court, as may be provided by law. Undoubtedly the legisla- tui'e has the constitutional right to establish inferior courts and define and limit tlieir jurisdiction, powers and proceedings. J udicial powers may bo conferred without expressly naming 120 AMERICAN CRIMINAL REPORTS. the tribunal a court, and these powers may be confined to one or more subjects of adjudication. They may be very limited or very extensive in their scope, and I am not prepared to say that a ministerial officer may not be selected to perform these tidicial functions. The coroner of a county has both minis- It ■ vl and judicial duties to perform. County commissioners ha^ e to some extent both duties imposed upon them, and prob- ably the same is true of a sheriff of a county. That the duties npos .1 tlie county attorney under the eiglith section of the act in eoiHi'c crsy ai'e judicial powers must be admitted. He is to hear and determine, compel the attendance of Avitnesses by subpoena and attachment, and to punish them for disobedi- ence to his writs. The power of courts, actinj^ within their jurisdiction, to punish witnesses for contempt is a necessary and admitted power. It goes with the judicial attribute, and with- out it a court is powerless to enforce its orders or protect its dignity. The serious objection urged to the law under consid- eration is that the county attorney is the public prosecutor for the state, lie is the informer against offenders, and on his in- formation parties charged with crime are put u})on trial. The judicial powers conferred on him by this law are not to hear and deterinuie matters in which he stands indifferent between the parties, but are given to aid and assist him in the per- formance of his ministerial duties, and have no otlier purpose, making the judicial powers auxiliary and subordinate to the ministerial duties, and are given to him as a means by which he can more successfully procure evidence to institute and carry on prosecutions; and in this respect the powers given him are very great, and in the hands of an unscrupulous man, stimulated by animosity or avarice, could be used as an instru- ment of sore oppression. On the mere unsworn statement of any person, and without any case pending before him, it is made liis duty, under sever penalties, to set this judicial machinery in motion, with no re striction as to whom he shall summon before him to testify, and no limitation but his own good will as to the scojio of his investigation ; fortified by a power to exact answers to any questions he sees proper to ask, almost despotic in its severity. The witness must answer the questions or go to jail for con- tempt. March IN RE ZIEBOLD. 121 tempt. It may be answered that such is tl'.o oaso in all trials, but there is this wide difference : In trials in opon court on is- sues made up betAveen the parties, the relevancy and compe- tency of the question is submitted to the court, and argument of counsel is heard ; the riglits of the witness, as well as the party, are discussed, considered and decided. And what makes the power given by this law still more dangerous and objec- tionable, is that the law makes it to the interest of the judge (county attorney) to find evidence of an offense committed. Tie is offered a reward to excite his vigilance and cupidity, and threatened with severe punishment if he fails or neglects to faithfully perform these dm ies. In some respects these duties ai'c similar to those of a grand jury and court comoined. The proceedings are preliminary, to ascertain if there is a probable cause to charge the party with the offense. But a grand juror may be challenged on the ground that he is a prosecutor or complainant or a witness upon a charge coming before him for investigation. St. 1879, p. 812, § 79. Nor can a grand jury issue a subpoena for a Avitncss, or decide the competency of a question asked, or punish for contempt. These matters rest with the court. Sees. 85-88. This provision of the act of March 7, 1885, is a strange combination of judicial and minis- terial duties, aided Avith rewards and penalties, and, so far as I have been able to ascertain, is an anomaly to all tlie judicial proceedings known to the land. It attempts to unite the judi- cial Avitli the executive branch of cIauI goveriimcnt ; and Avlien the law-making power and the power Avhich declares and ap- plies, as Avell as that Avhich executes and administers the law, are united and vested in one person or body, it becomes a despotic and not a constitutional goA^ernment. Are these objections suiRcient to justify a court in the con- clusion tliat a person restricted of his liberty under these pro- ceedings is depriA'^ed of his liberty'' Avithout " due proco 3 of law ? " I am compelled to answer in the affirmative. I believe no precedent can be found for the application and use of judi- cial power in the manner and for the purpose contemplated by this act, and that it is a dangerous innoA'ation on the fixed naxims and rules in the administration of justice, established for the protection of priA^ato rights. In this conclusion I am also sustained by a recent decision of Judge Crozier, of the ' 122 AMERICAN CRIMINAL REPORTS. first judicial district of this state. In re Belkr, 1 Kan. Law J., 220. It is, therefore, ordered that the petitioner bo discharged from custody. Note.— In Twltcliell v. The Commonwealth, 7 Wall., 321, which was a petition f(jr a writ of oiTor to tlio court of oyer and terminer of the city and county of Pliiladelphia, and the supreme court of Pennsylvania, witli a view to tlio revision of a judgment of the former, aflirmed by the latter court, which condemned the petitioner to suffer death for tlie crime of mur- der. The case presented was that the constitution of the United Stater., by its fifth amendment, ordains that no person shall bo held to answer lor a capital crime, nor be deprived of hfe, etc., "without due process of law;" and, by its sixth, that in all criminal prosecutions the- accused shall enjoy the right '"to be informed of the nature and cause of the accusation," etc. With these provisions of the constitution in force, the legislature of Penn- sylvania, by a statute of the 30th March, 1800, to consjolidate, amend and revise its laws relative to penal proceedings and pleadings, enacted that, " In any indictment for uuirder or manslaughter it shall not bo necessary to set forth the manner in which, or the means by which, the death of the de- ceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of bis malice aforethought, kill and murder the decca.sed." Tlie ])etition set forth that, pending tlic suit, the petitioner had set up and claimed the rights and privileges secured him under said amendments, etc.; that t!ic statute above quoted was in derogation of said amendments. Tiio decision of the court was delivered by Mr. Cliiof Justice Cliase, and in the course of it he said: "We are by no means prejjared to say, that, if it were an open question whether the fifth and sixth amendments of the constitution apply to the state governments, it would not bo our duty to allow the Avrit aj^plied for and hear argument on the question of repugnaniy. We think, indeed, that it would. But the scope and application of these amendments are no hunger subjects of discussion hero." To show that these ameudments were not designed as limits upon the state; governments in reference to their own citizens, but excilusively as restrictions uixin federal power, the learned chief justice cite-i Barron v. The City of Baltimore, 7 Peters, 273; Fox v. Ohio, 5 How., 434; Smith v. The State of Maryland, 18 id., 70; and Withers v. Bucldey and others, 20 id., 90. Witli those constitutional amendments in force, and the uniform and un- broken line of decisions of the supreme federal tribunal declaring that they contain no expression indicating an intention to apjily them to state govern- ments, the fourteenth amendment to the constitution was adopted, whicli ordains that : " No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unite;! States; nor shall any state deprive any person of life, liberty or pro]iert.> vvlthout due process of law," etc. The scope and aiijjlication of this amendment have not been definitely ascertained or determined by the courts. Tlie (piestion was dis- cussed with great learning and ability in the Slaughter-House Caseti, 10 Wall., 36, but as the court was nearly equally divided, the decision in that IN RE ZIEBOLD. 123 case can hardly bo regarded as a precedent. Much of the decision is taken up with the contention as to the status of American citizenship. But it would seem that it can make little difference whether the object of the amendments was to confer citizenship upon the ncgi'o race and to i)rotect them against hostile legislation of the states or not — since their language is broad enough to include all classes of citizens — it would bo a dangerous rule of construction to narrow the words of these amendments to tlie exclusion of cases which those words, in their ordinary acceptation, would comprehend. Tlic logical, and, as it would seem, kresistible conclusion to bo drawn from the language of the fourteenth amendment is as expressed by Mr. Justice Bradley in liis dissenting opinion; that is : " That the (luostion is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this countxy, and that state eitizonship is secondary and derivative, dejjending upon citizenship of the United States and the citizen's place of residence. The states .have not now, if they ever had, any power to restric^t their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go and reside in any state ho chooses, and to claim citizenship tlu'rein, and an equalitj' of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. Ho is not bound to cringe to an}- sujierior, or to pray for any act of gi-ace, as a means of enjoying all the rights and privi- leges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can bo so completely repressed as to give full practical effect to this right, we shall bo a happier nation, and a more pros- perous one, than we now are. Citizenship of the United States ought to be, and, according to the constitution, is, a sure and undoubted title to equal rights in any and every state in this Union, subject to such regulations as the legislature may rightfully prescribe. If a man bo denied full equality before the law, ho is denied one of the essential rights of citizenship as a citizen of the United States." If wo owe allegiance to the United States it follows that the United States owes us protection. Even under tho feudal system " the essential principle of a lief was a mutual contract of support and fidelity. Whatever obliga- tions it laid upon tho vassal, of service to his lord, corresponding duties of protection were imposed by it on the lord towards liis vassal." It is provided by the first amendment to the constitution that "congress shall make no law respecting an establishment of religion, or prohibiting tho free exercise thereof." According to tho well-settled rule of construc- tion as applied to tho fifth and sixth amendments above referred to, this amendment was not designed " as a limit upon tho state governments with reference to their own citizens," but exclusively as a restriction upon the federal power. Therefore, unless I can look to the federal government, through the fourteenth amendment, tho state of Illinois may set up a state church, compel me to attend it and to pay tribute to it. This new charter of liberty, purchased at so great a price, ought not to be rendered practically nugatory by narrow and restricted constructions. The word " freeman" in Magna Charta, although it had a well-defined meaning when tliat great eluuter was framed, by process of judicial construction was extended so as to include every British subject. 124 AMERICAN CRIMINAL REPORTS. In 1879 the state of Califomia amended its constitution, providing tlint " offenses heretofore required to be prosecuted by indictment shall be prose- cuted l)y information, after examination and commitment by a magistrate, or by iadictinont with or without such examination and commitment, as may be prescribed by law," etc. And it was held by the supreme court of the United States, Mr. Justice Hiu-lan dissenting, that a conviction for nmr- der in the first dcgiee upon such infonnation was not illegal by virtue of tlio clause in the fourteenth amendment which prohibits the states from de- priving any person of life, hberty or property without due process of law, Hurtndo v. California, 110 U. S., 510. See cases cited. See, also, Pcnnoijer V. Ncff, 95 U. S., 714; Barbier v. Connolly, 113 U. S., 27; In re Ah Lee, 5 Fed. Rep., 899. The People v. Raymond. (96 N. Y., 88.) Construction: Habitual criminals' act. 1. CONSTKCCnON OF PENAL CODE WITH REFERENCE TO PERSISTENT CRIMI- NALS.— The provision of the Penal Code, increasing the punishment where the offense charged is a second offense, applies to cases where the first offense was committed before said code went into eff act. The first offense is simply a fact in the past liistory of the criminal to be taken into consideration in proscribing punishnment therefor. The provision, tlierefore, is not limited in its application by tlie provision of said code . Verdici' — Entering jury room.— Tlie fact that a man was seen to enter, through a window, a room in which a jurj' had been sent to delibei'ate, without proof that the jury were still in the room, will not invalidate a verdict subseciuently returned by tho jurj', where it is shown by the tes- timony of tho jurors that no person other than the jurors and bailiff entered the room in which the jury were actually confined during their deliberations. 128 AMERICAN CRIMINAL REPORTS. 4. Evidence of witness deceased since former trial.— Wlioro a de- ceased witness testified, upon a former trial of the same party for the same offense, being brought " face to face" with the accused, and cross- examined by him, it is competent upon a subsequent trial to provf> the testimony of such deceased witness; and such proof does not violate the provisions of tlie constitution of the state which gives to the accused the right to " meet the witnesses against him face to face." 5. Evidence of court reporter at former trial. — Wliere a court re- porter is sworn as a witness for the puqwse of proving the testimony of a deceased witness, and where such reporter testifies that the notes of the testimony of sucli deceased witness were accurately taken by liim at tlie time the testimony was given, such notes may be used by the re- porter in giving the testimony of tlie deceased witness, for the purpose of refresliing his memory, and if necessary he may read the testimony to the juiy. Error from Kearney County. Burr & Parso7is for plaintiff in error. The Attorney-General and W. S. Morlan, for defendant. Eeese, J. This is a proceeding to review the judgment of the district com-t of Kearney county, by which the plaintiff in error was convicted of the crime of horse-stealing. The errors alleged by j^laintiff in error Avill be noticed in their order. The first point presented is that the indictment was presented at the October term, 18S2, charging the commission of the offense on the IGth day of May, 1882, and that on the 18th day of October, 1883, and after the repeal of the law which made the act criminal, and which was done June 1, 1883, plaintiff in error was put upon his trial and convicted. This question arose in the case of State v. Wish, 15 Neb., 448 {S. C, 19 N. W. Eep., 686), and was decided adversely to the position assumed by plaintiff's counsel. Upon a reinvestigation of the question we are satisfied with the decision in that case. The only change made in the law was to the benefit and advantage of plaintiff in error, the punishment having been decreased. This question also received the attention of this court in Marlon r. State, ante, p. 349. In this action of the district court there was no error. The next question presented is that while the jury were de- liberating upon their verdict a man was seen to enter " the court-house through the open window thereof into the room where the said jury had been sent by said court and ordered to be kc Tpon thi '• I was i on the 01 and saw window t the distri ing tlioir i that this I the jury tliat thisi luul l)ocn place, hoi baililT, an Tlic ixWuh that anyt was inad( affiant, w' wlio ooul( not. ]jut affidavits ^ one had ; room, cx( cliargo." fori'cd to man just i freshed," < It is ins plaintiff ii trial, and attorney, oner requ( and nccos acconipan questions, of the dis prisoner 1: turn, and t and they \ form bein Vol HAIR V. STATE. to bo kopt (luring thoir deliberation of the case aforesaid." ' Upon this point we iind the affidavit of R. St. Clair, as follows: " I was in the town of Minden, in said county, and saAV a man on the outside and south side of the court-house in said county, and saw the said man enter said court-house through the open window thereof into the room where the said jury had b?en, l)y tlic district court of said county, sent and ordered to be kept dur- ing thoir said deliberation aforesaid in the cause afoi'csaid ; " and that this occurred on the morning of October 21, 1S83, and while the jury were considei-ing their verdict. But it is not shown tliat this occurred while the jury were in the room to which they had l)i^on sent, nor that they had not been removed to another place, nor that the person referred to was not the sheriff or bailiiT, and making the entry for a lawful and proper purpose. The alii(hivit was not sufficient in itself to convince the mind that anything irregular or unusual was being done. The entiy was made on the morning of October 21, Avas soon by the affiant, who was one of the counsel for plaintiff in error, and who could have ascertained who the intruder was; but he did not. But this matter is fully and satisfactorily settled by the affidavits of two of the jui'ors, Avho testify positively that "no one had access to the said jury, or was allowed in the jurj^- room, except tlie mend)ers of the jury and the bailiff in charge." It is suggested by plaintiff in error that the num re- ferred to was a juror who "went over to the saloon to see a man just for a moment, and was returning to his duties duly re- freshed," etc. This suggestion is not sustained b}'' any proof. It is insisted that a new trial should be granted because the plaintilF in error was removed from the court-room during the trial, and while a witness was being examined by the district attorney. The affidavits show that during the trial the pris- oner requested the sheriff to allow him to retire for a proper and necessary purpose. The request Avas granted, the sheriff accompanying him. The district attorney asked tAA'o ov three questions, AA^hich were ansAvered by the witness. The attention of tlie district attorney was then called to the fact that the prisoner had stepped out, upon Avhich ho ceased until his re- turn, and then re-asked the questions (Avhich Avere unimportant) and they Avere re-answered by the Avitness, no objection in any fonn being made by the prisoner or his counsel. IS'othing Vol. IV— 9 130 AMERICAN CRimNAL REPORTS. occurred which coiikl be in the least to the prejudice of plaint- iif in error. It appears from the record that the jury, while deliberating, were uncertain as to the testimony of the two principal witnesses for the defense, and they were brought into court and the examination in chief of those witnesses was read by the reporter. This is now complained of. It is quite clear to our minds that this could not possibly have worked any prejudice to the plaintiff in error. But no objection was made at the time, and no exception was taken. So far as tlie record shows it was done with the consent of plaintiff in error. The presumption is it was, F'dUon v. State, 5 Xeb., 354. The plaintiff in error was convicted of the ofTenso charged on a former trial, and which was set aside by this court, and is reported in 14 K^eb., 503 {S. C, IG N, W, Rep., 829), On the former trial, one A. T. Shinneman was a witness on behalf of the state. This witness was the sheriff of Cowley county, in the state of Kansas, and arrested plaintiff in error at Winfield, in that state, and at the same time recovered from him the horses alleged to have been stolen. The arrest and recovery were made soon after the alleged theft. After the first trial, . and prior to the second one, Shinneman died. The fact of his deatli was shown, and his testimony, as given on the first trial, was reproduced on the second. It is insisted that the recep- tion of this evidence was in violation of the constitutional pro- vision of this state which guarantees to a defendant tlie right "to meet the witnesses against him face to face." Section 11, art. 1, Const. Neb. It is conceded that at common law the testimony was competent, but is insisted that this rule of the common law is changed by this constitutional provision. In "Whart. Crim. Ev., § 227, it is said: "What a decciised witness testified to on a former procedure against the same (k>fendant for the same offense as that under trial, or for an offense sub- stantially the same, may be proved by witnesses who h(?ard the testimony of the witness ; nor is such oral evidence excluded by the fact that the original testimony was reduced to writing, nor, in criminal cases, by +he constitutional provision that the defendant is entitled to be confronted with tlu; witnesses against him." In this case, the witness had tcstiflod to the facts sought to be proven, and had done so in the presence of the accused ; had been cross-examined by him, and had met him " face to HAIR V. STATE, 131- face" in giving liis testimony, and that in the same cause as the one in which the proof of tlie former testimony was made. Tiie evidence was competent and properly received. Broivnv. Com., 73 Pa. St., 325; Johnson v. State, 1 Tex. App., 333; State V. Johnson, 12 l^c\., 121; People v. Murphy, 45 Cal., 137, and cases cited in note to AYhart. Crim. Ev., supra. Objection is also made to the manner of proving the testi- mony of this deceased "witness. The record shows that the roi)orter of the court was placed upon the witness stand, and tostilied tliat he Avas the reporter of the district, and that he Avas present and reported the evidence on the previous trial. That the witness Shinneman testified on that trial, and his tes- timony was accurately reported by him. He was then requested to read the testimony of the deceased witness, which he did by reading the questions and answers as they were given on the former trial, excepting a part which was objected to by plaint- iff in error, and, the objection being sustained, the testimony was excluded. Plaintitf in error claims tluit a copy of tlie re- porter's notes was introduced in evidence in tlie IVn-m of an exhibit, as documentary evidence, and as such Avas incompe- tent. AVe do not so consider it. It is true, the reporter was v.'A asked to give tlie testimony from memory, for the ivasinion as to the proper mode of bringing into court a cf)rp()rati(m charged with a criminal offense — the point intended to be presented, and one of practical importance in the administra- tion of the criminal law. At common law this was done by the issue of a summons and its service upon the principal or head olficor of the company, and if it did not appear, as it only could apjiear, by a duly constituted attorney, a distvituidH was awarded, under which its goods and lands were seizeil to compel an appearance. 1 Tidd, Pi\, IIG; 2 Sellon, Pr., liS; Aug. & Am. Corp., § G37; 1 Whart. C. L., § 89. But a method of procedure is prescribed by statute in this state, as Ave presume it has been in most, if not all, of the others, Avhicli dispenses with that furnished by the common law, if not itself obsolete, to be found in C. C. P., § 82, and in the Code, § 217. It is there provided that the summons issued by the clerk of the superior court shall be served by delivering a copy thereof, " if the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing or local agent thereof;" the italicized words, as well as the superadded definition of them, having been intro- duced as an amendment by the act of March IG, 1875. If it be president sufficient agents, w arose the visions a api)licabl this conn The en ily intern: is C([uall_v sulHcicntl step was when the sity, as a taken iut( a mandat A corp( and iucaj; by attorn same proc why it sh aVc tin Ilampshii decided, i feature, t against a indictinci In our of the bil eireet tha Would ha and in bo any legal should ha in his refi pear that The a[i cause ma « curiam. STATE r. RAILROAD CO. 139 If it be a foreign corporation, service must bo made upon its president, treasurer or secretary found within the state, and is sufficient when made ui)(>n the other corporate officers and agents, Avhcn it has pro|)erty in the state or the cause of action arose tlierein, or tlie plaint iff resides in tfio state. Tliese pro- visions apply to coi'porations generally, but there are others api)licable specially to insui'auco companies, unnecessary in this connection to be noticed. Acts 1SS3, ch, 57. Tlic enactment from which avc have recited, though primar- ily intended as a regulation in the institution of a civil action, is equally appropriate in a criminal action, and its terms are sufficiently comprehensive to embrace both. The former initial step was by sunnnons and not by vajHUs, as Avas necessary when the oifender was a natural pei-son, and this from neces- sity, as a corporation has no bodily existence capable of being taken into custody by the officer, and could only be reached by a mandate directed to it and served upon its principal officer. A corporation having existence only as a legal conception, and incapable of being present in court except as represented by attorney, Avould seem, from its nature, to be subject to the same process in criminal and civil actions, and we see no reason Avhy it should not be. AVe find this view taken by the supreme court of New Hampshire in RdUroad i\ Sfidi\ 82 N. IL, 2f 5, Avhere it expressly decided, under legislation essentially similar to our own in this feature, that a summons is the only i)rocess that can issue against a corporation to compel it to appear and answer to an indictment, the common law not being there in force. In our case no summons issued, and the delivery of a copy of the bill of indictment to its local agent could have no more oirect than a delivery of a copy of a complaint in a civil action Would have, without an accompanying mandate from the court, and in both the act would be inoperative and meaningless for any legal purpose. If the appeal could be entertained, we should have no hesitation in affirming the ruling of the judge in his refusal to proceed Avith the trial, until it is made to ap- pear that the proper process has been served on the defendant. The appeal is dismissed, and this Avill be certified, that tiie cause may proceed in the court beloAV Avhere it is pending. Pet' curiam. Ajyjjeal dismissed. ^ ^pp 1^0 AMERICAN CRIMINAL REPORTS. Johnson v. Tue Commonwealth. (81 Ky., 825.) Corpus delicti: Circumatamtial evidence. 1. Circumstantial evidence is competent to establish the fact that the per- son charged to have been murdered is dead. The production of the body is certainly the best evidence of that fact; but this is not always possible. 2. The conclusiveness of cu-cumstantial evidence to establish the fact of death is for the jury, and not the court, to determine. The court is only concerned in seeing that improper evidence does not go to tlie jury, and that they are properly instructed in such cases. Appeal from Edmonson Circuit Court. Edicardn t6 ILizelq), for appellant. P. IF. JLinfhi, attorney-general, for appellee. Judge IIiXKs delivered the oi)inion of the court. Appellant was convicted and sentenced to the penitentiary for life on the charge of murdering his child. The evidence is entirely circumstantial. A])pL'llant left liis father's house, having- in his arms his two children, aged respectively three years and one 3'ear, with the avowed intention of goin;'' to Shakertown. He did not go in the direction ol" Sli. .cert()\> .,. nor is there any evidence that ho went the • .m his re- turn to his father's some three or four days lie had left having with hir^l only the elder of the two ch. n-en, and being asked about the youngei*, replied that he left it w itli ci'rtain widow woman near Shakertown. A brother of appellant then went to the house of the woman with whom appellant stated he had left the child, and ascertained that the child had not been left there. After these inquiries had been made, and the suspicion becoming general that the child had been murdered, appellant stated to a member of his father's family that he was going to Shakertown and get the child ; but instead of doing so, he went in another direction under an assumed name, and, Avhen arrested, denied his identity, and when tohl that he was charged with murdering his child said: "They may try me and send me to the penitentiary, but they can't hang me unless they prove the child is dead." The only question presented is, whether the corjms delicti, the fact that the crime of murder has been perpetrated, must A bo cstabli of the bo circumsta lished evidence charged t the body den CO of not alwa} courts set necessity establish the devel the dang( person ch counted f dence is a did the ki It may be greatei not all'ect such cases of the fac jury alone proper tes properl}' i potent in the jury : the jury 1 case. The CO] fact of de: its conclui of the coi Commonu 7 Indiana cumstanti Note.— J5 V. Com., 10] JOHNSON V. THE COMMONWEALTH. be establislied by direct proof of tlie kilb'ng, or by an inspection of the body, or wbetbcr tbe doatli may not be established by circtunstantial evidence as any other fact in the case is estab- lislicd. We think tliero can l)e no doubt that circumstantial evidence is competent to establish the fact that the jjerson charged to liavo been murdered is dead. The production of the body is certainly the most conclusive, if not the best, evi- dence of that fact; but, in the very nature of crimes, this is not always possible. He who meditates and perpetrates crime courts secrecy that punishment nuiy not follow; hence tho necessity that circumstantial evidence should bo admitted to establish tho fact of death as of any other fact necessar}-- to the development of truth. It is true that experience illustrates the danger of convictions for murder when the body of the person charged to have been murdered is not produced or ac- counted for; but a like danger arises when circumstantial evi- dence is admitted to establish tho identity of the person who did the killing. It may be that tho danger of an erroneous conviction would be greater in tho first instance than in the last, but that can- not aU'ect the question of tho competency of such evidence in such cases. Under our system, where the jury are the triers of the facts, tho weight to be given to testimony is for tho jury alone, the court being concerned only in seeing that ini- projjor testimony does not go to tho jury, and that they are proi)erly instructed in the law. "Where there is evidence, com- petent in its nature, tending to justify the conclusion at Avhich the jury arrives, this court cannot disturb the verdict, unless the jury have not been properly instructed as to the law of tho case. The competency of circumstantial evidence to establish the fact of death is acknowledged universally, and, under our code, its conclusiveness is for tho jury and not for tho determination of the court. Bishop on Criminal Procedure, vol. 1, sec. 1057; Commonwealth v. Webster, 5 Gushing, 310; Stoddng v. State, 1 Indiana, 330 ; State v. Keeler, 28 Iowa, 551 ; "Wills on Cir- cumstantial Evidence, sec. 3, page 1G2. Judgment affirmed. Note. — Established by circumstantial evidence. — In a recent case, Gray V. Com., 101 Pa. St., 380, the principal eviJouce relied ou to prove the corjius 142 AMERICAN CRI^nNAL REPORTS. delicti was as follows; May McCready, a daughter of the deceased, was asked by the prosecution, " From what you know of your mother's lower jaw, state whether or not you believe this jaw to be that of j'our mother." After objections which were overruled the witness stated: " That lower jaw looks very familiar to me. From my knowledge of my mother's jaw, the appearance of that jaw, I believe it to bo my mother's." Upon cross- examination she said: " Mother had just a few teeth in her upper jaw, here in front She had none back, only decayed teeth, roots like, back. I don't know how many ; there was nothing back of the eye teeth on each side, only roots like, decayed teetlu I can't just tell whether the lost teeth were the eye tcetli, but I know all she had was a few in front. There was no'doublo teeth on either side above, tliat I can remember, but there was some roots of decayed teeth back on each side." Another witness, who had been in the habit of eating at the same table with deceased for alx)ut two years, testified that tliere were certain marks about her head, and particularly about licr lower jaw bone, and tlie teeth therein, and that witness was able to identify this particular jaw bone and skull, from these peculiarities. It was also shown that the deceased disappeared about the middle of Feb- ruary, 1879, under cu-cumstances which pointed strongly to her death by violence. She was a woman of about fifty years of age, in humble life, liv- ing with her son, a lad of about twelve years of age, in a small log cabin near a river bank. Tlie little boy tcstiiioil tliat he last saw his niotlier on the morning of her disappearance, at about 8 o'clock ; that they ate break- fast together, and that when he returned from school about 4 o'clock in the afternoon, his mother was not there, and that he never saw or heard of lier since. Everything about the house and the woman's wardrobe wore undisturbed, and the deceased v%-as not in the hubit of going from home. It further api^eared that prior to her disappearance the prisoner, on one or more occasions, had threatened to take lier life ; he knew lier and had several times visited her house, and it was proved that some time be- fore her disappearance he had been in the neighborhood. On the 4th of April, 1878, a human skull was found on the river shore near the house in which the deceased had lived. The hair attached to the skull was evidently that of a woman ; it was black and gray, corresponding to the hair shown to have belonged to her : the skull showed marks of vio- lence ; therr; were two wounds, either of which would be suflicient to pro- duce dcatlu The court, upon this evidence tending to prove the corpus tlcUcti, admitted the confession of the defendant And the jury found him guilty of murder in the first degree, which finding the supreme court refused to disturb. See cases cited : Rex v. Hendnwrsh, 2 Leach's Cr. Cas., 569 : McCul- loch V. The State, 48 Ind., 109; Udderzool: v. The Com., 26 Pa. St., 310. In Williams v. The People, 101 111., 383, held, tliat it was absolutely neces- sary to a conviction for having received stolen goods, knowing tliem to Iiave been stolen, that the prosecution should prove beyond a reasonable doubt that a larceny of the things stolen had been committed. " This fact, being the corpus delicti, cannot be established alone by the confession of the accused." 1. Pr.vctici ciri'iiiu^ 2. Same.— ' general st'entl t' 3. Same — ( tlie act niotivcf ./. J). ( F. S. h Lkwis. The pli Pittsylviii at Slioc'lco there lieli cutiou is I' AvllicU [)!'( sou oil \vl or speciiil sueh duty same, ho s niisdoinea meat, as t provides t beoponed vided tha' of electio prescribei may solcc of such a luc nu of tlio jud 2d (hiy of duly selcc of his sai BOYD V. THE COMMONWEALTH. US Boyd v. The Com^ioxwealth. (77 Va,, 53.) Corruption in office: Statutory offense. 1. Practice — Pleading. — An indictment under a statute must state all tlio cii.uaistaiices which constitute the offense as defined in the statute. 2. Same. — Tliough the offense, at common law or by statute, is defined in general terms, yet the indictment nuist charge it specifically, and de- scc'iid to particulars. 3. Same — Officials. — In an indictment for corrupt misbehavior in office, the act must be distinctly charged as done knowingly and with corrupt motives. J. 1). Coles and W. W. ITcfirj/, for the appellant. I\ S. Blah', attorney -general, for the common wealth. Lewis, P., delivered the opinion of tlie court. Tlic i)luintilf in error was indicted in the county court of Pittsylvania county, for corrupt conduct as a judge of election, at Shoekoo voting place, in said county, at a general election tlierc lield on the 2d day of Xovemher, 1880. The ])rose- cutiou is founded on section 4;J. chapter 8, of the Code of 187;), wliich provides that "if any otlicer, messenger, or oilier per- son on whom any duty is enjoined by law relative to general or special elections, shall be guilty of any wilful neglect of such duty, or of any corrupt conduct in the execution of the same, lie shall, upon conviction thereof, be deemed guilty of a misdemeanor,'' and shall be punished b^' line and imprison- ment, as tlierein prescribed. Section 12 of the same chapter provides tliat at all elections held under that act, the polls shall be o|H'iied at sunrise on election day. And by section 8 it is pro- vided lliat in tlio event of the failure of any judge or judges of election to attend at the polls for one hour after the time prescribed for opening them, the judge or judges in attendance may select one or more qualified persons to serve in the ])lace of sucli alisent judge or judges. The iiulictment charges that tlio plaintiff in error, l)eing one of the judges of election at the said voting place, on the said 2d day of Xovember, 1880, "at the general election aforesaid, duly selected and appointed as aforesaid, and in the execution of his said oilico, . . . then and there with threats, oppro- Ui AMERICAN CRIMINAL REPORTS, brious language and menaces, did unlawfully, corruptly and Avilfully prevent Edward B. Moon and James B. Fitzgerald from qualifying and acting as judges of said election, at said voting place, and from entering upon the performance of the duties imposed upon tliem by law touching the holding, con- ducting and certifying t]ie same." It avers that the said Edward B. Moon and James B. Fitzgerald, together with tlio plaintilF in error, had been appointed judges of election for the said A'oting place, by the county court of the said county, at its preceding April term, and that the acts complained of were done within the space of one hour after sunrise on the said 2d day of Xovember, It then further charges as follows: "That he, the said William B. Boyd" [the plaintilT in error], . . . then and there, "and Avhilo in the discharge of the functions of his said office, did unlawfully, wilfully aiul cor- ruptl}^ select and appoint two other male citizens of said dis- trict, to Avit, Willis II. Shields and Larkin D. Atkinson, to act as judges of said election, in the place of the said Edward B. Moon and James B. Fitzgerald, he, the said William B. Boyd, Avell knowing, and at the time of said selection and appoint- ment of said Shields and Atkinson as judges as aforesaid, that the said Edward B. ]\[oon and James B. Fitzgerald were then and there desirous to qualif}'^ and act as judges at said election in conjunction Avith [him] the said Boyd, and were then and there endeavoring to qualify and act as judges at said election and to enter upon the performance of the duties imposed upon them by hiAv as such judges." These are all the facts and circumstances set forth in the in- dictment upon Avhich the chargo of corrupt conduct on the part of the plaintiff in error is based. Upon his ai)pea ranee in the county court, he moA'ed to quash the indictment, but the motion Avas OA'erruled. He then demui'red to the indictment, and the demurrer AA'as overruled; and having been found guilty by the jmy, and sentenced b}^ the court in accordance Avith the A'erdict, he applied to the judge of the circuit court of Pittsylvania county for a Avrit of error ; Avhich Avas refused. Thereupon, a writ of error Avas awarded him by one of the judges of this court. The first error assigned, and the only one avo deem it neces- sary to consider, is that the court erred in OA'erruling the mo- tion to demurrc It is a ing that cumstanc the act. the intlic guiltv of insullicie bo at coi not sulHc the sanu the specie Api)ly conclusio sufficient acted unl of unlaw conduct, 1 thoi'ofore, even by selected a their dutii the ofTens ]\[oreov and Fitzg election a that they month of to act as may have flees to 1: expressly visions of Avere qual show that lau'fully li ing. or in In an ii in ofilcc, f Vol BOYD r. THE COMMONWEALTH. tion to quash the indictment, and also in overruling the demurrer to the same. It is a familiar and elementary principle of criminal plead- ing that an indictment upon a statute must state all the eir- cunistances which constitute the definition of the offense in the act. so as to bring the defendant precisely within it. If the indictment may be true, and still the accused may not be guilty of the offense described in the statute, the indictment is insufficient. So, where the definition of an offense, Avhothcr it he at common law or by statute, includes generic terms, it is not sulficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species — ^it must descend to particulars. Ap])ly tlioso principles to the indictment before us, and the conclusion is irreslstiljle that it is fatally defective. It is not sufficient to sustain the indictment that the plaintiff in error acted unlawfully merely. A judge of election may be guilty of unlawful conduct, and yet not necessarily guilty of corrupt conduct, in the discharge of his official duties. Conceding, therefore, that the plaintiff in error unlawfully, by threats, or even by acts of violence, prevented those Avho liad been selected as his associate judges of election, from discharging their duties, it docs not necessarily follow that he is guilty of the offense for which he was indicted and convicted. ^[oroover, for aught that appears in the indictment, IVfoon and Fit/gerald may have been disqualified to act as judges of election at the time and place specified. It is true it is averred that they had l)een duly appointed judges of election in the month of A])ril preceding; but non constat they wercqualified to act as such on the 2(1 day of Xovember, ISSO. The fact may have beiMi that on that day they were candidates for of- fices to bo filled at the election then held, and therefore expressly forbidden to act as judges of the election by the pro- visions of th(^ statute relating to election. But conceding they were qualified to serve, there is nothing in the indictment to slioM' that the jilaintiff in error acted cn)'ri'j)f/>/ — however un- lawfully he may ha\e acted — in preventing them from so serv- , ing. or in selecting Shields and Atkinson to act in their places. In an indictment against an ofiicer for corrupt misbehavior in office, says AVharton, " it is necessary that an act imputed Vol. I V— 10 146 AMERICAN CRIMINAL REPORTS. as mibbehavioi' be distinctly and substantially charged to have been done with corrupt . . . motives, and, above all, with knowledge that it was wrong, though there are no technical words indispensably required in which the charge of corruption shall be made. It is otherwise, however, in neglects and in cases where bare acts are made indictable irrespective of in- tent." 2 "Whai't. Criminal Law, sec, 2518. See, also, JacoU and others v. Commomoealth, 2 Leigh, 709; Pco])le v. Coon, 1 Wend., 277; Slate v. Buxton, 2 Swann (Tenn.), 57. ' It is needless to say more. It is plain that the indictment lacks the certainty and precision required by the established rules of criminal pleading, and that the county court erred in overruling the defendant's motion to quash the indictment, and afterwards in overruling his demurrer to the same. The judgment of the county court must thei'cfore be reversed, the verdict of the jury set aside, and the plaintiff in error dis- charged from further prosecution under the said indictment. Gkise v. The State. (37 Ai-k., 450.) Cruelty to ammals. 1. Cruelty to animals— Construction op statute.— Tlie terra "nocd- leasly," in the act "for the prevention of cruelty to animal!^," means an act done without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction. 2. Same — Burden of proof.- The burden of proof was upon tho state to show not only tho killing, but that it was done under such circuinstancrs a3, unexplained, would authorize tho jury to believe that it was }ieccUcss in the sense of the statute. 3. Same— Useful object in killing.- However unlaAvful the act may he, and whatever penalties might be incurred under other sections of tho statute, tho defendant should not be convicted under an indii-tnicnt upon the particular section of the statute, if he had some useful object in tho killing, such as the protection of his wheat and corn. Appeal from Logan Circuit Court. Hon. J. II. Rogers, Cir- cuit Judge. G. B. Moore, attorney-general, for the state. The opinion states the case. Eakin, . ]\rarch 11 TIio first 1 Icssly mut indictmcn needlessly tiiro. No The pro appolliint J on the he was in a fi Avcra grow tvc:i|);issinf cdly a})pli tliom out were ar'air O (>gain in a] circuiustan at one \Ao\ On defei pig luul be tended far could easi! fence, and There w tending to all of whic of tho res Payment t the sense o tion aggra Upon th refused tin own niotio: giiilty and trial upon asked; in because tin Avas refuse* This cou GEISE V. THE STATE. 147 E.vKiN, J. The appellant was indicted under an act approved IMarcli 11, 1879, "For the prevention of cruelty to animals." The first section, infer alia, makes it a misdemeanor to need- lessly mutilate or kill " any living creature." The indictment simply charges that appellant did, unlawfully and needlessly, kill a hog, of the value of $5, being a living crea- ture. No allegations of value or ownership were essential. The proof on the part of the state tended to show that the appellant had killed a pig belonging to a neighbor, by a blow on tlie head with a stick, producing sudden death. The pig was in a Hold belonging to appellant in which corn and wheat Avcro growing. It had, before that time, been in the habit of trc:ipassing tliere with others, and the defendant had repeat- edly a})plied to the owner, a lady, to pen her hogs or keep tlioni out of his field. This for a while she did. But they were again turned out, and the one in question being found 5^gain in appellant's lield, he killed it on the spot, Avith no more circumstances of cruelty than would attend the taking of life at one blow. On defendant's part the proof — besides showing that the pig had been several times i if the field eating corn and wheat — tondo'l farther to show that it was a very small one, which could easily get between the rails of any ordinary country fence, and that there was around that field a very good fence. There was proof on both sides as to the value, aiul some tending to show that appellant had paid the value to the owner, all of which was entirely irrelevant, save as it might, as part of the res (jcstcc, show the purpose or motive of the killing. Payment to the owner coidd not atone it if it Avcre need/ess in the sense of the statute, nor would failure to make compensa- tion aggravate the offense. Upon the trial, defendant asked six instructions, which were refused throughout. In lieu thereof the court gave two of its own motion — all against objection. The defendant was found guilty and sentenced to a fine of $2. lie moved for a new trial upf)n the grounds of error in refusing the instructions asked; in giving those by the court of its own motion; and because the verdict was against law and evidence. The motion was refused and he appealed. This court is called for the first time to construe a now stat- lis AMERICAN CRIMINAL REPORTS, ute, belonging to a class which must ever be more or ]ck; vague in their meaning, and extremely difficult of administrulion. The_y are the outgrowth of modern sentiment, and arc of com- paratively recent origin. They attempt to transcend what had been thought, at common law, the practical limits of nui- nicipal government. They sprung, originally, from tentative efforts of the Xcw England colonists to enforce impt rfect, but well recognized moral obligations; a thing much more practi- cable in small, isolated communities than in populous govoin- ments. They first had in view only to compel bcnevolcuco and mercy to those useful animals, which, being domesticated and Avasting their lives in man's service, Avere supposed to l)o entitled to his kind and humane consideration. Sucli statutes appealed strongly to the instincts of humanity. They were adopted in many of the states, and recently in England ; and tlie impulse Avhich favored them has endeavored to enlarge their beneficence, until, in our laAV, they are made to embrace " all living creatures." It is obvious that laws of this class, pressed to this extreme limit, must be handled by the co^u'ts with great care, and wo feel it due the legislature to do so, to prevent their becoming dead letters. They must be rationally construed Avitli refoienco to their true spirit and intention. It must be kept in mind that they are not directed at all to the usual objects of muuicij)al law, as laid down by Elackstone. For example: Thoy are not made for the protection of the absolute or relative rights of ])ersoiis, or the rights of men to the acquisition and enjoyment of prop- erty, or the peace of society. They seem to recognize an attempt to protect some abstract rights, in all that aninuito creation, made subject to man by the creation, from the largest and noblest to the smallest and most insignificant. The rights of persons and the security of property and the public peace are all ])rotected by other laws, Avith appropriate sanctions. Tlie objects of the two classes should not be confounded. It Avill lead to Iiopeless confusion. The peculiar legislation Ave are now called to discuss must be considered wholly irrespective of property, or of the public peace, or of the inconveniences of nuisances. The misdemeanors attempted to be defined may be as well perpetrated u])on a man's own property as another's, or upon creatures the property of no one, and so far as one act is concern refined nn or in the s It is in 1 tliem, if p such absui letters. I Society, fc Avhich mi peace iuid been committed, as the father of the prisoner stated, and as lie made tlio arrest witliout a warrant, it was proper for the state to show that lie acted in good faith, and upon speedy information of some one claiming to have per'.unal knowleilge of the facts. AVhat the deceased said, when leaving liis bouse, was manifestly admissible as ])art of the res ycsta'. State v. Smith, 49 Conn., 370; Iliinter v. State, 40 N. J., 538. STATE OF ILLINOIS v. FLETCHER. 157 State of .Illinois v. Fletcher. (23Fed. Rep., 77C.) Electiox: Commission of crime by United States officer — Jurisdiclio7i. Federal election — Cojunssiox op cuijie — United States officer, ETC. — Pctitiouois wero indicted bj' the gi'aud jury of the criminal court of Cook county for the crime of nuirder, and petitioners alleged inter alia that they were duly appointed and qualified deputj'-niarshtils of the United States, and assigned to duty at an election to choose a represent- ative in congress of the United States ; that as sucli officers it was theii' dutj' to keep thy peace and in-eser%-e order at the polling place; that a disturbance occurred at said election between one Smith, a deputy-mar- shal of the United States, and a lai'gc number of oth(>r percons incited thereto by special constables of Cook county ; that in order to cpiell said disturbance petitioners took said Smith into custody and were proceed- ing with him to the office of the United States commissioner to make complaint against him for distui'bing the peace, when assaulted and fired ui)on by a large number of armed men, among whom was the deceased, who threatened petitioners and said Smith unless petitioners turned over said Smith to tlie state authoi-ities ; that, refusing to comply with this dcTuand, they were fired upon, and some one of the attacking party killed deceased. The petitioners prayed that a writ of Judtcas corpus cum causa issue, directed to the criminal court of Cook county, requir- ing that c()urt to stay .all further ])roceedings against petitioners, and thai, the suit be renioved under the iirovisions of section 013 of the Revised Statutes of the United St ;tes. Held, that the mere holding of a commission .as deputy-marslials of the United States, under the cir- cumstances set forth in the jietition, did not withdraw the case from the Jurisdicti:)!! of the state courts; that there is no federal statute making a disturbance at the polls an offense against the United States, .ind an Smith wiis violating a state law, petitioners had a right to arrest him and turn him over to the state authorities; that the fact that he was a deputy-ma "shal of the United States entitled him to no more considera- tion or protection tlhin others eng.aged in the same disturbance. Held, also, tliat the case differed from one in which depnty-Tuarshals of the United States, in repelling force by force in defense of themselves or their prisoners, shot and killed an assailant. Petition for rcnioval of case to circuit court. lilehard S. T"f/u'/l, United States district attorney, and C. II. Ddiceti, assistant United States district attorney, for peti- tioners. Gkksiiam, J. The sworn petition of John Flotclier and Julius Yattaw states that on the 2Uth day of November, 1SS4, they aEd_ James Smith were jointly indicted in the criminal court of 158 A3HERICAN CRIMINAL REPORTS. Cook county, Illinois, for the crime of murder upon one "Will- iam Curnan, by which a criminal prosecution Avas begun in the name ami by the authority of the people of the sl;ii <»f Illinois, against the petitioners, which is now pendin<4 lu iJio state court, and upon which they are confined in the county jail of Cook country awaiting trial. After further stating that at the time the alleged killing and murder occurred, namely, on the 4th day of I^^ovember, 188-i, the petitioners and James Smith, their co-defendant, were duly appointed and qualified deputy-marelials of the United States, and assigned to duty at the third clcctiou district of the second ward of the city of Clu- cago, at an election to choose a representative in the congress of the United States, the petition proceeds : " And that each of your petitioners Avas then acting under color of said oflice, and in pursuance of said law ; and that the act, for the alleged commission of which said arrest was made and said subsequent proceedings against your petitioners were had, was done, if done at all, in their own necessary self-defense, and while engaged in the discharge of their duties as deputy- marshals as aforesaid ; . , . that, as such officers, it was their duty to keep the peace and preserve order at the polling place aforesaid; that, on the said itli day of November, iit said poll- ing place, a disturl)ance and breach of the peace occurred between said James Smith, then and there a deputy of the marshal of the United Stiites for said northern district, and a large number of persons incited thereto by special constables of said Cook county, Avhose names are, to your petitioners, un- known; that said constables and said large numl)er of ])ersons were then threatening said Smith with personal violence and injury; that your petitioners, as such olficers aforesaid, in order to quell said disturbance, and to protect said Smith, and to preserve order at the polling place aforesaid, then and there arrested said Smith and took him into custody; tliat Avliilo your petitioners so had said Smith in custody, and were, Avith liim, peacefully and lawfully proceeding to the ollicc of i'liili]) A. Iloyne, Esq., commissioner of this court, therv) to make complaint against him, said Smith, for disturbing the i)cace at •said })olling place, they Avere assaulted and fii'cd upon with pistols and other deadly AA^eapons in tiie hands of a largo body of armed men, among whom Avas said Curnan, greatly out- numl)erin and said 1 Harrison- petit ionei and niailo nan; but known, tl said Ciirn mciitionei prosccutic done, if (.1 aforesaid, lawfully Statutes t The in-i issue, dire that cour tioncrs; t anil deter the Unite his custo; indictmen The moti So nuicli ( any civil i any ollice of any ac jcct of th or author! any of tli at any tii moved foi district w of such d uro of the on the do cause oriti prosecuti( ing by wli to issue I STATE OF ILLINOIS v. FLETCHER. 159 numbering your petitioners, who threatened your pot i Honors and said Smitli, unless your petitioners took said ISmitli to tlie lIiuTison-strcct pohee station, in the city of Cliicago; and your petitioners aver that they iired no shot at their said assailants, and nuido no attack upon them whatever, or against said Cur- nan ; but they aver and state that some poj'sun to them un- known, then attacking your petitioners, did shoot and kill the said Ciirnan, as they believe, which is the murder and killing mentioned in said indictment ; and your petitioners aver the said prosecution was begun and commenced against them for acts done, if done at all, by your petitioners as deputy -marshals as aforesaid, and while in the performance of their duty while lawfully acting under the provisions of title 20 of the llevised Statutes of the United States — the 'Elective Franchise.'" Tlie prayer is that a writ of haheas corpus cum causa may issue, directed to the criminal court of Cook county, requiring that court to stay all further proceeding against the ])eti- tioners ; that the suit bo removed into this court for hearing and determination ; and that this court direct the marsiial of the United States for this district to take the petitioners into his custody, and hold them for further orders. A copy of the indicUuout is attached to the petition, and made a })ai't of it. The motion is based upon section Gi?> of the Ecvised Statutes. So nuich of this section as need be noticed provides that when any civil suit or criminal prosecution is commenced against any ollicer of the United States, or other person, on Jiccount of any act done under the provisions of the act upon the sub- ject of the elective franchise, or on account of any right, title or authority claimed by such officer, or other person, under any of tlie ])ro visions of that act, such suit or prosecution may, at any time before the trial or final hearing thereof, be re- moved for trial into the circuit court next to be holden in the district where the same is pending, upon the veriiied ])etition of such defendant to such circuit court, setting forth the nat- ure of the suit or prosecution. The case is thercu))on ontcrctl on the docket of the circuit court, and proceeded with as a cause originally commenced in. that court. When the suit or prosecution is commenced by capias, or any form of proceed- ing by which a jjcrsonal arrest is ordered, the clerk is requested to issue a writ of habeas corpus cum causa, a duplicate of Th' .Vi^-^W OF iist"i-Ai.«Qcim 100 AMERICAN CRIJIINAL REPORTS. Avliich is delivci'od to the clerk of the state court, or left at the office by the marslial of the district or his deputy, or by some person didy authorized tliereto ; and thereupon the state couvt is obliged to stay all further proceedings in the case; and tlic suit or prosecution, on the delivery of such process, or leaving the same as aforesaid, is lield to be removed to the circuit court, and any further proceedings, trial or Judgment therein in the state court become void. If the defendant in tlie suit or prosecution be in actual custody on mesne process tlierein, it is the duty of the marshal, b}' virtue of the writ of haleas corpus cum causa, to take the bod\' of the defendant into his custody, to be dealt -with in the case according to law and the order of the circuit court, or, if in vacation, hy any judge thereof. If the petitioners have been indicted in the state court for an act done by them Avhile fairly in the lino of tljcir duty as doputy-nuu'shals of the United States, at one of the polHng places in the city of Chicago at the late election, at wliicli a representative in congress was voted for, aiul tliat fact ap- pears in tlic petition, the case may bo removed to this court for hearing. IC the petition simply averred that the defend- ants stood indicted in the state court for an act done by tliem as deputy-marshals, or undei* color of their oilice, or the law autliorizing their appnintniont and defining tlieir po\v(>rs and duties, without descril)ing the act or circumstances under wliich it was committed, it would, perhaps, be the right and duty of this court to assert jurisdiction of the case; at least, until it should appear that the claim was iinfounded. 2\>nnessee v. Davis, 100 U. S., 257. It is charged in the indictment that the petitioners shot and murdered William Curnan on the 4th day of Xovemlx'i', 1SS4, in the county of Cook and state of Illinois, and the petition distinctly asserts that "neither of them fired any shot or did any act by reason of which the said Curnan came to his deatli, as set forth in the indictment." If they neither did tlie shoot- ing nor in any way contributed to Curnan's dcatli, it follows that they have not been indicted for any act or acts done by them as de|)uty-marshals of the United States, and this court has no liglit to mterfero with the jurisdiction of the state court. It iS truo, the petition contains an averment that tho indictmen them, if t while in t the killing short of i they stanc (leputy-mi autliority case from liolding o States at 1 offense an ground fc case. Th( ant in the and a nun stahlcs of breach of l)y the spc violence; said Smith the petitio iug with h tlie United (hstuvlting upon by a deceased, ' ilarrison-s tlu'eatened and that, r u{)t)u, and Curnan. pears for duty as a ( of the ])ea against tli might hav the Unite( Instijad of engaged ii; Vol STATE OF ILLINOIS v. FLETCHER. 161 indictment was found against the petitioners for acts done by them, if done at all, as deputy-marshals of the United States, while in the performance of their duties as such. They did the killing or contributed to it, or they did not ; and nothing short of a positive averment that they did the act for which tlicy stand indicted, and did it in the line of their duty as (leputy-nuirshals of the United States, or under color of their aiitliority as such officers, will entitle them to a removal of the case from the state court to this court for trial. The mere liolding of a commission as a deputy-marshal of the United States at the time a party is indicted for murder, or any other oircnse against the laws of a state, is not of itself sufficient ground for depriving the state court of jurisdiction of the case. The petitioners state that James Smith, their co-defend- ant in tlie iiulictment, and also a deputy .United States marshal, and a number of other persons incited thereto by special con- stahlcs of Cook county, were engaged in a disturbance and a hroach of the peace at the polls; that Smith was threatened by the special constables and such other persons with personal violonco; that "in order to (jucll said disturbance and protect said Smith, and to ])reserve order at the polling place," they, the petitioners, took Smith into custody; that while proceed- ing with him to the office of Philip A. lloyne, a commissioner of the United States, there to make complaint against him "for (listini)ing the peace at said polling place," they were fired upon by a large body of arn^ed men, including Curnan, the deceased, who demanded that Smith should be taken to the Ilarrison-street police station, in the city of Chicago, and threatened both them and Smith unless he was taken there; and that, refusing to comjily with this demand, they were fired upon, and some one of the attacking party shot and killed Curnan. It is not claimed by the district attorney, who ap- pears for tlie petitioners, that Smith was in the line of his duty as a deputy-marshal when he was engaged in the breach of the peace at the polls, or that he had committed an offense against the United States for which Commissioner lloyne might have held him for trial, or for which any court of the United States had jurisdiction to try and punish him. Instt;ad of doing his duty as a deputj'-marsiial, Smith Avas engaged in a disturbance and breach of the peace ,it the polls. Vol. IV — 11 AMERICAN CRIMINAL REPORTS. The petitioners liad a right to arrest him for this offense, and. i:i a reasonable time, turn liim over to the proper state autlior- ities. He was simply a lawbreakei', and the fact that he was a deputy-marslial of the Uii'ted States entitled him to no more consideration or protectior than others engaged in the same disturbance and breach of the peace. The district attorney admits that there is no federal statute making a disturbance at the polls amounting to a breach of the j)eace an offense jigainst the Ignited States. This is not a case in which doputy- marslials of the United States, in repelling force by force in defense of themselves or their pi'isoner, sliot and killed an as- sailant. Smith had violated the laws of the state, and the petitioners refused to turn him over to the state authorities. They held him, it miiy be fairl}' inferred, to protect him ho- eauso he was a deputy United States marshal, and to take him before Connnissionerlloyne, who had no jurisdiction to hear ;i complaint against him or to detain him. The order prayed for is denied, and the petition is dismissed. State v. IlrrcniNsoK". (CO Iowa, 478.) EiiBEZZLEMFTNT: Emdciicc — Estoppel — Limildiions. 1. Estopped does not apply to criiIINAL cases. — Tln^ (Icfendant, wlio had been a comity tr'-asuror frf)m liiOS tolSTS, was indicted for cni- bczzlemont> and the state introduced in f vidence tlie Ketllcment shoct. which was made at the coinnu'iiceincnt of the dcfendnnt's last term nf oftice, witli his certificate tliereon lliat it was a tnu> slateuu-iit of ca-sfi then in his. hands as treasurer. Wliereuiion dt-fendailt sought to sfiow that the shortage coniphuned of in tlio indictment occurred during lii- prior terms of oflice, wmI more than three years htloiT the indi( tnuri! wa-s foimd, and that, tl»ert>fore, the jirosecntion was barred by tlie Ktal- Bte of Umitations, which testimony the court refased. Held, ihi\\ Un defendant should have been allowed to show, if he could. Ibiit mo (IcImI- cation took place within throe years next before the tindim; of the i' dictment. 2. Same. — A defendant in a crinn'nal case may prove the actual factji in dispute, notwithstanding anj' admissions or confessions ho may have made to the contrary. Conclusive i)resumptions and estojipels have no place in the cruuiual law cstablishuig the body of the (.'riijiu charijeil. Appeal Tliibhat Smith . KoTHRO county fo ing in Ja case Avas embezzlin his liands The sta was made of office, was a tru( The accoi the office : upon its fi thereby si up this sh scttlemeni the last si: Upon this term of o S4n.soo. We do the trial tl wli(>n he V to showth more thai tiiat, there limitations d('tif(> to t 1><7(5. and small amn thai tiieci iiaiids in deposit an catcs of d( use of hy the Jindini STATE r. HUTCHINSON. Appeal from Webster District Court. Tliibhat'd, Clarh S Daidey, for appellant. Smith McPherson, attorney -general, for the state. EoTiiRocK, J. I. The defendant was treasurer of Webster county for ten years, commencing in January, 18GS, and end- ing in January, 1878. In April, 1S7S, the indictment in this case was returned against him, in which he was charged with embezzling about $48,000 of the public money which came into his Iiands as such treasurer, Tlie state introduced in evidence the settlement sheet which was made at the commencement of the defendant's last term of oilico, in January, 1ST<>, ^vith liis certificate thereon that it was a true statement of casli tlien in his hands as treasurer. The account or settlement sheet embraced the transactions of the office for the six months next preceding the settlement, and upon its face it appenred to be correct, and the defendant was thereby shown not to be in arrears. The state then followed up this showing by an exhibit of the subsequent semi-annual settlement sheets, and then from the books of the office for the last six months of the last term, ending in January, 1878. Upon this l>asis it appenred that, at some time during the last term of office, the defendant became short in his cash some $4r.,800. We do not understand that the defendant contended upon the triiil that he was not short in his casli and largely in arrears wlicn he went out of office in .January, 1S78. I'ut he sought to show that this shortage occurred dni-ing his prior terms, and more than tlnx'e years before the indictment was found, and that, tlierel'ore. the prostvution was barred by the statute of limitations. To make this proof the det'endanl olVered evi- dence to the effiH't that, at the setth-tuent made in January, 1>, and at those previously and subsecpiently made, but a sm;ill amount of cash was prodiiet^d at each scttlenicnt. and thai the cash ktlaiu'e, which should ha\e been actually in his* liaii(l> in money, was largely m«de up of bank certificates of deposit and other vou« hers, lie offered to sliow that certifi- cates of (lc|H)sit and other evidfiices ol' debt had been made iis(( of l»v him in liis setllenu-ni: more than three years prior to tlic iindiug of the iutUetuient. lie further oll'ered to prove 164 AMERICAN CRimNAL REPORTS. that he had no funds in the hauls vjhich issued the certifeat's. In other words, he offered to show and prove tluit he inudo his settlement Arith the hoard of supervisors by the use of worthless and spurious certificates of deposit instead of cusJi. and that whatever money was converted to his own use, was so converted more than three years before the indictment was presented. This evidence was objected to by the state and tlio objection was sustained. This rulinj^, as we infer from the ob- jections made to the evidence, was based upon the idea that tlK> defendant was criminsilly bound by the settlement sheets, itiid by his cei'tificates that he had the cash actually on hand at tlic^ time the several settlements were made. In Boone Co. v. Jones., 54 Iowa, 099, it was held that a county treasurer and tlie sureties on his bonds Avere bound by a settle- ment and accounting made according to laAV, and where at such settlement, for aught that appeared, the cash which should have been on hand Avas produced by the treasurer, such settle- ment could not be impeached by showing that the defalcation complained of previously existed. In other words, it was held that Avhere a treasurer produces the funds Avhich should be in his hands at a settlement, the settlement is conclusive, and (he treasurer and his sureties cannot be permitted to proA'c that tlio treasurer deceived the board of supervisors in such settlenuMit by producing money not belonging to the office nor to tlir treasurer. That Avas a civil action to recover upon the bond of the treasurer, for an alleged defalcation. In Wehster Co. r. Ilutchinson, 9 N. AV. Fvep., 901, and 12 N. W. Rep., 534, whioli Avas a civil action to recoA'er on the defendant's bond for tlic same alleged defalcation for Avhich the defendant Avas indicted in this case, it appeared tliat the settlement Avas made Avith tli(> treasurer Avithout producing the money Avhich shoidd have bcni on hand, but by producing certificates of deposits from baidntion or attach any responsibility to clerks wliose duties are ministei'ial. Second. That defendant was not an officer known to the law, and charged by law with the collection of taxes. Third. That defendant was only a clerk employed by the administrator of finance of the city of Xew Oi-leans, and that act -12 a])plies only to officers charged by law with the collec- tion of taxes, and not tlieir clerks or subordinate agents. Fourth. That the administrator of iinance was the sole lawful agent of the city to collect and receive its revenues, and could not delegate its power to others, and thus cause res])onsibility under the law to attach to them. Act No. 42 of 1871 was ])asse(l under the regime of the con- stitution of 18G8, which, wliile requii'ing that "every law shall express its object or objects in its title," contains no inhibition against the inclusion of several objects in the same law, pro- vided they bo expressed in the title. The title of this act, under the broadest division, contains at least twelve distinctly expressed and ditferent objects. The act itself contains no less than one hundred and three sections, which have reference, some to one, some to another of the objects expressed in the title. It is settled, beyond dispute, that in the application of this constitutional i)i'()vision, those parts of the law which are indi- cated by the title must stand, while only those not so indicated will fall, unless they are so interwoven with, and dependent upon, each other, that they cannot be separated. Cooley, Const. Lim. (4th ed.), p. 181. It may well be doubted whether a ])leading, based on the broad charge that such an act as this, containing a multiplicity of objects in its title and of provisions in its body, is unconsti- ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^1^ ^ itt lii 12.2 IM ^ 1.1 £ US 12.0 u ■luu Hiotografiiic Sciences Corporalion 23 WIST MAIN STRUT WIUTIR,N.Y. 14SM (716)l7a-4S0) ^.^ ^ T \ rty to said S., and feloniously did embezzle and fraudulently convert to his own use, the same then and there being demanded of him by said S.," etc., is fatally defective by reason of omitting to state the purpose for which the defendant was intrusted with the property, and for the further reason that it did not name any property, either that belonging to S. or any other jiorson, which was then and there feloniously converted and embezzled. Com. v. Smart, 6 Gray, 15, citeil. Kibs V. The People, 81 111., 599. Tlie indictment must set out the acts of embezzlement. The defendant's fiduciary character, which is the distinguishing feature l)etween embezzle- ment .and larceny, must l)e specirically averred. Klbs v. The People, 81 111., ROO; The State v. Johnson, 49 Iowa, 141. Some general points. — The owner must be produced, to show the taking to have been without his consent, and the evidence of a third person wUl not suflSce. State v. Morey, 2 Wis. , 494. Construction of tlie words in the Iowa statute " or if any other person "' intrusted with such property, etc. The State v. Stoller, 38 Iowa, 321. See full discussion a.s to the alh>gations necessary to charge embezzlement by officers. State v. Brandt, 41 Iowa, 007. Refusal to pay over funds collected is not sufficient, even under a statute which makes it prima facie evidence of embezzlement for an officer not to pay over funds collected. United States v. Forsythe, 6 McLean, 584; Rex V. Smith, Russ. & R., 267; Batehedor r. Tenny, 27 Vt., 378. A servant who receives from his master goods or money to use for a spe- cific purpose, lias the custody of them, but the possession remains in the master, and a fraudulent and felonious appropriation of them would be lar- ceny. CommonipeaUh v. Berry, 99 Mass., 428. See, also, Kibs v. The People, 81 111., 599. Money is "property," within the meaning of a statute which enacts that if any person shall feloniously steal the property of another, " in any other state or county, and shall bring the same into this state," he shall be guilty of larceny. People v, Williams, 24 Mich., 156. Bank-notes are not " goods or chattels" within the meaning of a statut* which provides that " if any person shall receive or buy any goods or chat- V0L.IV — 18 ^ 178 AMERICAN CRIMINAL REPORTS. tela tliat shall be stolen or taken by robbery," etc. Tlte State v. Calvin, 3 Zabr. (N. J.), 207. Bank-bills cannot be regarded as money within the moaning of a statute which piovides that if any person shall steal " any money or other personal goods or chattels," etc. Johnson v. '^le State, 11 Ohio St., 834. Hess v. State. (45 N. J., 445.) Evidence: Quarantine. Sale of cattle ttnder (jCARAimirE — Belief that quaranttne had been UEMOVKD may BE SHOWN. — On an indictment for selling cattle, knowing them to be under quarantine, evidence was given on the trial of facts tending to create a belief in the mind of defendant that the quarantine had been removed when the sale was made. It was held error in the court to refuse, on rcfiucst, to charge for an acquittal if the jury found that tlie defendant did so believe on those facts. On error to the Essex Quarter Sessions. Argued before Beaslcy, Chief Justice, and Justices Depue, Van Syckel and Knapp. Charles Bried, for the plaintiff in error. Oscar Keen, for the state. The opinion of the court was delivered by Knapp, J. By the first section of a supplement approved March 17, 1882, to the act establishing a state board of health, passed March 9, 1877, it is enacted that if any person shall knowingly buy or sell any animal that is in herd held in quaran- tine, or that has been e.xiK)sed to a contagious disease, ho shall be subject to the penalties contained in section 8 of the supple- ment approved March 1% 1880. Section 8 of the act referred to enacts that if any person or persoiis shall knowingly either buy or sell, or cause to be bought or sold, any animal affected with the pleuro-pneumonia or other contagious or infectious disease, such person shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $200, or imprisonment not exceeding one year, or both, in the discretion of court. Section 2 of the last named act auth( of any c( of the ex the suspe^ and take necessary ants to ai The de ingly selli an tine by the legisli It was \ of the boa cers, had i them quai herd was i 1882. In the cows ! quarantine the trial I verbally t were, as 1 fore the of criraini by a defc had been this tcstiii tion of de of notice ban of tl adopted a the (juarai defendant was to ex J to exorcist was made present or and then, he was tol he made HESS V. STATE. 179 act authorized tho state board of health, upon the breaking out of .iny contagious or infectious disease, or upon the suspicion of tho existence of such disease in any locality, to proceed to the suspected place and to quarantine said animal or animals, and take such precautionary measures as sliould bo deemed necessary. The act also authorized the appointment of assist- ants to aid and supervise in tho duties of inspection. The defendant was mdicted, tried and convicted for know- ingly selling a cow out of a herd then and there held in quar- antine by said board under the authority conferred upon it by the legislature referred to. It was proved on the trial of the indictment that the secretary of the board, together with one Dr. Hawk, one of its medical offi- cers, had in June, 1882, examined defendant's cattle and ordered them quai'antined, giving notice thereof to the defendant. The herd was attended by Dr. Hawk through the summer and fall of 1882. In September of that year, the defendant sold one of the cows so ])laccd under quarantine, no formal act raising the quarantine having then been promulgated by the board. On the trial Dr. Hawk testified that he informed the defendant verbally that his cattle were no longer sick, and that they were, as he expressed himself, " then all right." This was be- fore the date of the alleged sale. A conviction of this form of criminality could be had only upon evidence showing a sale by a defendant who know when he made it that interdict had been put upon such sale and was then continuing; and this testimony of Dr. Hawk became important upon the ques- tion of defendant's knowledge. The statute provided no form of notice to be given to parties who were placed under this ban of tho removal of the restriction. If the board had adopted any settled method of notifying cattle-owners when the (juavantine was removed, it was not made known to this defendant, nor was he informed, so far as appears, of wh.at ho was to expect as assurance of his release from the prohibition to exercise full ov/nership and control over his property. He was made to understand that because of sickness in his stock, present or anticipated, he must not put them upon the market, and then, by one of the officers who officiated in this business, he was told that his cattle were no longer sick, and after that he made the sale for which the grand jury presented him. 180 AMERICAN CRIMINAL REPORTS. Kow, under these facts of the case, the court was asked to in- struct the jury that if, from what Dr. Hawk said to the de- fendant, the jury should find that the defendant believed the quarantine had then been raised, the} must acquit him. This instruction the judge declined to give to the jury, holding, virtually, that his acquittal must depend upon the power of Dr. Hawk to remove the quarantine, and the fact of its re- moval by him. This charge, I think, should have been given as requested by the defendant. Guilty knowledge of the de- fendant in the act of sale Avas an essential element of crim- inality. The statute makes the existence of the quarantine and the defendant's scienter facts jointly essential to guilt. Dr. Hawk may not have had conferred on him the right of revocation which the board of health possessed, or, having it, may not, in fact, have exercised such right, and yet his posi- tion was such that declarations of a character kindred to those which he admits to have made to defendant, might have led the defendant to the honest belief that he was no longer held under the restrictions which had been upon him three months prior by the officers of the board of health; and if he did so believe, and under that belief n^ade the sale, it cannot be said that he, within the meaning of the act, knowingly sold an ani- mal from his herd then held in quarantine. As a gcnciii'. rule, intent and knowledge is of the very essence of crime, and wherever a statute makes a guilty knowledge part of the definition of an offense, knowledge is a material fact to bo averred and proved. Rex v. Juhes, 8 T. K., 536. And the burden of prof^f, which, in such case, does not shift, is cast upon the state. 1 Lead. Cr. Cas., 553. The sale of cattle is in itself an innocent, lawful act. The statutory offense is selling in violation of a known interdict. When the case shows that a defendant, on fair and just grounds, believes the legal imj)ediment to be out of the way, guilty knowledge is disproved, and a defense is made. Upon the testimony referred to a jury would have been jus- tified in finding that there was reasonable ground upon whicli the defendant could have rested an honest belief that the quar- antine had been removed, and that thereby such belief had been created in his mind under which he acted ; consequently, that the sale by the defendant was outside of the statutory STATE OF LOUISIANA v. MULLEN. 181 misdemeanor. The jury should have beea permittecl to pass upon the question. The trial judge did charge the jury pointedly upon the ne- cessity of finding guilty knowledge as a requisite to conviction ; but he did not permit the jury to give the proper or, indeed, any, effect to an honest, well-founded belief of the non-exist- ence of a fact, the conscious existence of which avjis of the very essence of guilt. Other errors have been assigned upon this recoi'd, but their consideration is deemed unnecessary, inasmuch as we think the roquestcd charge should have been given, and withliolding it was error such as must have prejudiced the defendant in his trial upon the merits. For that cause the judgment must be reversed and a venire de novo awarded. State of Louisiana v. Mullen, i (83 La. Ann., 159.) Evidence : Testimony of convict. CtoNViCT CANNOT BE swouN IN A CAUSE.— The (listi-ict court having ad- mitted the testimony of a convicted felon, notwithstanding the defend- ant's objection, the verdict of the jury must be set aside and a new trial granted, although the objectionable witness testified ho knew nothing about the case. Appeal from the Second Judicial District Court, Parish of Bossier. Drew, J. /. A. W. Lowru^ district attorney, and «/. C. Eagan^ attorney- general, for the state, appellee. ir. O. McDonald and J. Ilenry Shepherd, for defendant and appellant. Tiie opinion of the court was delivered b/ PociiK, J. The defendant, having been convicted of the crime of rescuing persons committed to prison for capital crimes, and having been sentenced to imprisonment for two years in tlie state penitentiary, has taken this appeal, and relies 182 AMERICAN CRIMINAL REPORTS. for reversal of the judgment on a bill of exceptions taken from the ruling of the district judge in admitting as a witness on behalf of the state one Thomas Campbell, a convicted and un- pardoned felon. The bill shows that defendant objected to the witness on ac- count of his alleged incompetency, which was proved by tho record of the court by which he had been convicted and sen- tenced, notwithstanding which objection and proof the witness was sworn and allowed to testify. The judge assigns in the bill, as reasons to justify his course, that the accused was not injured by the obnoxious witness, who stated that he knew nothing of the case, as he was asleep in the jail at the time that the re3cue was effected. We are at a loss to conceive how such a circumstance could justify the court in allowing an incompetent witness to testify in the case. We are yet to learn that the nature or character of the tes- timony which may or may not be given by a pvoffeved witness can be used as a test of his competency to bo heard in evidence. Under tho commoi. law, felons are incapacitated from testi- fying by reason of their infamy, and because of their want of honor and honesty their oath is entitled to no weight. As soon as proof is made of the witness' conviction and sen- tence of an infamous ciime, his mouth is scaled, and ho cannot be heard, without considering the nature or effect of the tcs timony which he might give. In this case, proof having been given of tho conviction and sentence of Thomas Campbell, objection having been made l)y the defendant to his being sv orn and heard as a witness, for reason of his infamy, it was Liie boundon duty of the judge to exclude his testimony. Under the ruling of tho judge the accused has not had a fair and impartial trial (IG Ann., 273), and he is, therefore, entitled to relief. It is, therefore, ordered, adjudged and decreed that the ver- dict of the jury be set aside, and the judgment of the lower court nnnuUed, avoided and reversed. And it is further ordered that the cause be remanded to the lower court for a now trial according to law, and to the views herein expressed. Dii Bos~ ' BLACKWELL v. THE STATE. 183 Blackwell v. The State. (67 Ga., 76.) Evidence : Erroneous assumption of fact by court. 1. COMPELLINa PRISONER TO MAKE PROFERT OF HIMSELF. — In a Criminal Ctose, the place at which the prisoner's leg was amputated being a ma- terial point, it was error for the court to require him to make profert of himself, so that a witness could see him and describe his condition to the jury. A defendant in a criminal case cannot be required to give evi- dence against himself, either by acts or words. 3. Error to state that a contested point is conceded.— To state to the jury in a murder case that it was conceded that the deceased was killed with a pistol was error, where no such concession was made, and the weapon used was a material question in the case. That the de- fendant denies altogether that ho committed the homicide does not admit its commission in the manner claimed by the state. Before Judge Pottle. Elbert Superior Court. Mc Whorter cfe Mo Whorter, Worley <& Carlton and D. M. Da Bose, for plaintiff in error. George F. Pierce, solicitor-general, for the state. Si'eek, Justice. The plaintiff in error was indicted for the offense of murder. On arraignment and trial had, the jury found him guilty, and the sentence of death was pronounced against him. During the term of the court a motion for a new trial (subse(|uently amended) was made on various grounds, as set forth in the record, which was overruled by the court, and defendant below excepted. The evidence upon which the defendant was convicted was wholly and entirely circumstantial. The third ground of the motion for a new trial was as follows : " Because the court erred in ordering and directing the de- fendant to stand up for the purpose of allowing a witness for the state then on the stand, to wit, R. E. Adams, to see and testify where his (defendant's) leg was cut off, and in admitting the testimony based on said inspection." The liftli ground of the motion was as follows: " Because the court instructed and charged the jury that it is conceded in this case that the woman, McMahan, is desid; it is conced<'d that site was shot with a pistol, and came to hor 184 AMERICAN CRIMINAL REPORTS. death by a pistol shot, and the only question for you to deter- mine is, who did the killing (no such admission or concession having been made by the defendant or his counsel)?" In refer- ence to this fifth ground of the motion, the court certifies thus in explanation: "Tliis ground does not appear in the original motion which was made at the term soon after the conviction. There was no word said expreanhj conceding that the death was caused hj a pistol shot, but the whole defense and argu- ment went to tlie point that the defendant did not do the hill- ing. I so undei'stood the counsel. No point was made upon the mode of her death. When the charge was read to tlio jury, counsel did not call the attention of the court to that part of the charge. If I had misconstrued them I would have gladly recalled the remark, if my attention had been called to it. I had the impression from the general line of the defense that such was conceded." I. In reference to the third ground of the motion, it appears that E. E. Adams, a witness for the state, w.as being examined, who, as appears in the record, was testifying as to tracks and impressions, as they appear to have been made on the ground at and near the house at Avhich the deceased was slain the night before. He said : " The track we saw was left foot of man, and like he was on his knee of other leg ; I saw where he got on the horse ; there were three places where he had mired about six inches ; we tracked the horse on out and found where it had run up against a chestnut limb ; I knew the de- fendant ; I knew the defendant, Allen Blackwell ; his right leg is out off ; he has a left foot, but no right foot ; [apron pro- duced] that is a part of an apron such as shoenu^ker3 gener- ally wear [the apron produced was a piece of old, striped cloth, about one-third or one-half yard long, with a string at upper end long enough to go around a man's neck]; shoe- makers generally wear aprons from material of that sort ; the death occurred in Elbert county. Question (by the court): Iloio muoh of his leg has the prisoner had cut offf Answer: I don't know, sir; I just know he is one-legged; / canH «'ould liave shown such a confederacy in this character of crime at the time and place of the offense on trial as Avould perhaps have rendered the evidence competent ; but it is a rule of criminal evidence that an extraneous crime cannot be put in evidence against a defendant without proof in some form that he was concerned in its commission. It is said that Lynch and Swan were frequently seen to- gether, during the day-time of the l-ith of September. Tliis, as an independent fact, v:as properly for the consideration of the j'uy, but their association, so far as observed, was for lawful purposes, and proved no connection between the two offenses. It was, of course, competent for the commonwealth, as the defendants were jointly indicted and tried, to introduce any evidence tending to establish the guilt of either, although it might incidentally prejudice the other ; but the testimony so introduced should be expressly limited in its effect. Brandt V. Commonicectlih, 13 Korris, 290. There Avas, we think, sufficient evidence in this case, as against Charles Swan, to justify a submission to the jury, although it certainly was very slight ; inasmuch, however, as the record contains no bill of exceptions to the charge of the com't, that question is not properly before us. Judgment can only be arrested in criminal cases for causes appearing upon the face of the record. This is a general rule, and is well settled ; an exception exists when pardon is pleaded before sentence. For the reasons assigned in the former part of this opinion, the judgment is reversed, and a venire facias de novo awarded. Note. — It is a well-settled nile that, in the trial of an indictment for a specific criminal act, evidence tending to prove the commission of other ofifenses is inadmissible. An exception, however, is made in respect to the malicious burning of a building or buildings, at a prior time, with a view to the fraudulent collection of the insurance money. Commonwealth v, McCarthy, 119 Mass., 354. As pertinent to the subject, attention maybe called to the case of Barton v. The State, 18 Ohio, 231, where the court held that, although an indictment may contain counts for horse stealing and the grand larceny of other property, the offenses being of the same nature, and differing only in degree, yet offenses separate and distinct in character can- not be BO joined. It is never admissible to prove that a person has pre- viously com the crimina Jordan v. ( gold and d( sale upon tl testimony t the defenda and liabiliti and fraudul said: "The collateral isi .-pal issue in requires hiii opiwrtunity prove tlie it of one scJioi ixise." In ( dence of sir a sliort time showing tht In Reg. v. C ously receiv goods, not ( of guilty ki Evidence— TRODCCI On a tri the jury tion of d Jurispm and no t work of Appeal San Franc Darwin A. L. L PEOPLE V. WHEELER, in viously committed a crime of a similar cliaracter to show that he comn/tted the criminal act for which he is on trial. The principle is also well stat?'* in Jordan v. Osgood, 100 Mass., 457, an action in which the plaintiffs, b.,ivinR gold and delivered certain goods to the defendant, sought to rescind the Bale upon the ground of fraud. At the trial, the presiding judge admitted testimony to the effect that at or alxnit the time the purchases were made the defendants falsely and fraudulently represented their standing capital and liabilities to the plaintiffs, and that they made the »amc and other false and fraudulent rcpresentationB to others. In reference to this the court Raid: " The admission of such evidence would introduce a multiplicity of collateral issues, calculated to withdraw the attention of the jury from the rpal issue in the case ; and it would operate unjustly to the defendant, as it requires him to explain his transactions with others, without any notice or opix)rtunity for preparation. , . . Another act of fraud is admissible to prove the fraud charged only when there is evidence that the two are parts of one Bchemo or plan of fraud, committed in pursuance of a common pur- IKise." In Commonwealth v. Jackson, 133 Mass., 10, it was held that evi- dence of similar pretenses, maile by the defendant in sales to other persons, a sliort time prior to the sale in question, is inadmissible for the purpose of showing the intent with which tho defendant made the sale of the animal, hi Reg. v. Oddy, 5 Cox, C. C, 310, it wiu* held that, upon a charge of feloni- ously receiving stolen gomls, testimony as to the possession of other stolen goods, not connected with the immediate charge, is not admissible in proof of guilty knowledge, But see Com. v. Corkin, ante, p. 15. People v. Wueelee. (CO Cal., 581.) Evidence: Scientific hooks. Evidence— Reading from a book on medical jurisprudence not in- troduced IN evidence or proved to de op standard authority. — On a trial for murder, the district attorney, in his closing argument to the jury, read, "as a portion of his argument," and against the objec- tion of defendant, various sections from a book called ' • Browne's Medical Jurisprudence of Insanity ; " the book was not introduced in evidence, and no testimony had been introduced to show that it was a standard work of recognized authority on the subject of insanity ; held, error. Appeal from the Superior Court of tho City and County of San Francisco. Ferral, J. Darioin dc Dunphy, for appellant. A. L. Ilavty attorney-general, for respondent. 192 AMERICAN CRIMINAL REPORTS. MclviN'STRY, J. This cause was submitted for decision June 5, 1882. Tlie district attorney, in his closing argument to the jury, said he would read, "as a portion of his arguniont," from a book called "Browne's ^fedical Jurisprudence of Insanity." The bill of exceptions proceeds: " No testimony had l)een in- troduced to show that this was a recognized woric or standard authority, or that it was a scientiHc work. The defense ob- jected to said book or any part thereof or to any opinion of said alleged writer, on the ground that it had not been estab- lished to bo a scientific work, or a standard or recognized authority, and that it was incompetent. The court overruled the objections, and defense then and there duly excepted, and the district attorney did read from said book various sections thereof, commenting upon and treating of the subject of in- sanity, and sustalnimj the prosecntwn^s theory of the case.'''' An expert has sometimes been defined to be a witness who testiiies to conclusions from facts, while an ordinary witness testifies only as to facts. Mr. Wharton thinks this definition not sufficiently exact, since no witness called to testify to facts rejiroduces them precisely as they exist, more or less of inference being mingled with almost every detail of ordinary ol)serva- tion. "The true distinction is this: the non-expert testiiies as to a, subject-matter readil}^ mastered by the adjudicating tri- bunal; the expert to conclusions outside of such range. The non-expert gives the result of a process of reast)ning familiar to every-day life ; the expert gives the result of a process of reasoning which can be mastered only by special scientists." Criminal Evidence, 404. Whatever the exact distinction, it is well settled that where the object is to ascertain Avhether a supposed case is to be regarded as indicating insanity, only experts in insanity are to be called, since only experts arc competent to describe the differentia of insanity scientific- ally. Id., 417, cases cited. But the question in the particular case, " sane or insane," is a question of fact for the jury. The expert is called to assist the jury in reaching a just conclusion ; his testimony is necessarily subject to the supervision of the jury. They must determine, not only whether the hypothetical case on .vhich his opinion is based is the case before them as established by credible PEOPLE r, WHEELER. 193 testimony, but must consider the reasons ho lias given for his opinions, and by his whole testimony test his credibility and llio correctness of his judgment. Inasmuch as the cir- cumstances on which the jury are to determine the weight to be given the opinion of an expert are more numerous and complicat(s contradictory theories. In the case before us, too, there was no evi/ tf, Avhich may, in some degree, be founded upon books as part of his general knowledge." A similar rule obtains AA'ith respect to a Avitness called to prove a foreign law; he should state, on his respoiisiliility, Avhat the foreign law is, and not read fragments of a foreign code. Cocl's V. Purday, 2 Carr. & K., 209. But while a Avitness cannot be permitted to read as inde- pendent proof extracts from books in his department, he iiuay refresh his memory, Avhen giving the conclusions arrived at in his specialty, by turning to standard Avorks. 1 Whart. L. Ev., 438. And as Ave shall see hereafter, it AA'ould seem to have been held in Wisconsin that a Avitness haA'ing cited scientific authori- ties they may be put in e\ddence to discredit him. Quotations from medical books are not admissible as evi- dence Avhen offered independently, or Avhcn read by witnesses. It foUoAvs that counsel ought not to be allowed to read such to the jury; a fortiori Avhen they arc not proved to come from Avorks of standard authority in the profession. A gen- PEOPLE t'. WHEELER. 195 eral liistory may be read from, but this is only to refresh the mcinorv of the com-t as to something it is supposed to know. ^o, iin ler appropriate restrictions, domestic law books are per- mitted to be read to the jury. The court can always correct the counsel as to liis law, or the application of it. But the opinions of medical experts are in their nature farts to be estublislied by living witnesses. They cannot be proved by hearsa\', alleged to come from those not pi-esent and not even sliown to be competent to express scientific opinions. Xor are they established by the mere statement of counsel. The full report of The Queen v. Crouch, 1 Cox's Cr. Cases, 9-t, is as follows : '• The prisoner was indicted for the wilful murder of his wife, and the defense set up was that of insanit}'. "Clarkson, for the prisoner, in his address to the jury, attempted to quote, from a work entitled ' Cooper's Surgery,' the author's opinions on the subject. " Alderson, B., thought that ho was not justified in doing so. "Clarkson — I quote it, my lord, as embodying the senti- ments of one who has studied the subject, and submit that it is admissible in the same way as opinions of scientific men on iiiii!!o;.s appertaining to foreign law may be given in evidence. "Alderson, B. — I should not allow vou to read a work on forc'xjii law. Any person who was properly conversant with it might be examined, but then he adds I^is own personal knowledge and exi)erienco to the information lie may have derived from books. We must have the evidence of individuals, not their written opinions. "We should bo inundated Avitli books if wo were to hold otherwise. " Clarkson — I shall prove the book to be one of high au- thority. " Alderson, B. — But can that mend the matter? You surely cannot contend that vou nuiv give the book in evidence, and if not, what right have you to quote from it in your addrc^ss, and do that indirectly which you would not be permitted to do in the ordinary course? "Clarkson — It was certainly done, my lord, in JVauf/hten's "Alderson, B. — And that shows still more strongly the necessity for j, stringent adherence to the rules laid down for 190 i\MERICAN CRIMINAL REPORTS. our observance. But for the non-interposition of tlie judge in that case, you -would not prol)ably have thought it necessary to make this struggle noAV." Anjtl in Reglna v. Tai/Ior, 13 Cox's Cr. Cases, T7, it was held: " Cases cited in books on medical jurisprudence are not admis- sible even to form part of an address to the jury." Counsel for defense, in addressing the jury, proposed to read from Taylor's Medical Jurisprudence. Brett, J., said : " Tliis is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was in all probability not present." To the same effect are the American cases, in whicli tlie question is fully considered and decided. In Slate v. D'Hr'tcn, 7 E. I., 338, the court said : " The book offered to be road to the jury Avas not admissible as evidence. N^o evidence in the nature of parol testimony could properly pass to them, except under the sanction of an oath ; and upon this ground books of science are excluded, notwithstanding the opinions of scientific men that they are books of authority and valuable as treatises. Scientific men are permitted to give their opinions as exi)crts, because given under oath, but tlie books which they write containing them are, for want of such oath, excluded." The suggestion, that such books may be read " as part of the argument of counsel," did not receive much consideration from Chief Justice Shaw, in AsJncorth v. Klttrldgc, 12 Cusli., 193 {QQ ]\[ass.). That distinguislied judge there said : " Tlio court are of opinion that it was not competent for counsel for the plaintiff, against the objection of the other side, to read medical books to the jury. . . . AVc consider the law to this effect to be well settled, both upon principle and authority. "When books are thus offered, ihoj arc, in i)licable to a case in which counsel should be pei*- niitted to state facts not in evidence to a jury, against the objection of the opposite party. See People v. Taylor, 59 Cal., 64i>. Here the district attorney was permitted to read the opinions of one whose opinions (even if we assume the book to be of recognized authority) were, like the opinions of experts upon tiio witness stand, in the nature of facts. We do not think Harvey v. The iState was well decided ; but if it can be considered law, it will not justify an affirmance of the judgment in the case now before us. In Legg v. DraJce, L Ohio St., ii5i(», the bill of exceptions did not show that the passage from Youutt's work on " Veterinary Surgery," which counsel wa^ prevented by the court from reading to the jury, had any relevancy to the cause on trial. The action of the court below in refusing to permit it to bo read was sustained for this reason; as if the supreme court had said: "Assuming that passages from such works may properly be read, they should at least have some bearing on the issue being tried." V/hat is said in the opinion of the ])roi)riety of the practice is mere Jtduiii ()). 2S9). The bill of exceptions before us shows that the sections read by the district attorney to the jury, from Ih'owne's woi'k, were relevant. He read "various sections theivof, commenting upon and treating of the subject of in- sanity, and sustaining th.j prosecution's theory of the case.''' Moreover, in Legg v. Drake, the court only said: "Although unlimited license in range and extent is not allowed to counsel in thcii' a(l]iai*ently been permitted. The cases cited by Mr. Bishop are T/ie State v. Sartor, 2 Strobh., GO, and Merlle v. The State, 37 Ala., 139. In the first it was simply held that although an indictment for obstructing a highway was at common law, it was permissible for the state solicitor to refer to the public statutes, not to give character to the offense as aija'nist the datute, but to show what were ])ublic Avays. 37 Alabama, 139, is based entirely on Stondemneler v. Wdliamfion, 29 Ala., uGO, in which the question considered was not whether an expert coidd read from medical works, but whether such boolvs could themselves be introduced as evidence. In the opinion in the case last named the only English cases cited are Collier V. Simj)so)i, sujora, and Attorney-General v. The Glass Plate Co7nj)ani/, 1 Anstr., 39. Of these the first is directly adverse to the proposition that a witness can be allowed to read from scientific treatises; the secoid, which holds that parol evidence is not admissible to explain the meaning of a Avord used in an act of parliament, is admitted to have no bearing upon the question under con- sideration. It is further admitted by the learned Alabama judge that Greenleaf (vol. 1, sec. 410, note 5) is an authority against the admissibility of the evidence. Xeither the Mas- sacluisetts nor lihodo Island cases are mentioned. The Amer- ican decisions by him referred to arc Boicman v. Woods, already commented on; LMnhuj v. The State of Wheon^ln, 1 Chand., 178, spoken of as "a very loose opinion," and Green v. CornweU, 1 City Hall Eccoi'der, l-t. In the last, Avhich Avas a trial by jury in the mayors court of Kcw York city, a table from IJlunt's Coast Pilot and Bowditch's Xavigator Avas re- ceived to proA'e the condition of the tide at a certain time and place, the presiding judges saying "the testimony is of equal A'alidity Avith the almanac." But, clearly, Stoadeiiweier v. Williamson is not authority to the point that a Avitncss may fortify his opinion as exi)ert by reading from books, since that question Avas not decided in that case. There an extract from a medical book Avas itself admitted in evidence, and, as Mr. Bishop says, it is noAV Avell settled that the books themselves, or extracts from them, are not admissible as evidence. 202 AMERICAN CRIMINAL REPORTS. r If the last clause of tlie above nitation from Bishop is to be construed as implying that counsel can read to a jury extracts from medical works, and explain them, the great weight of authority is decidedly against so dangerous a license. In Merlde v. The State, supra, the book read from by the prosecuting attorney was first proved by the testimony of a practicing physician to be a book "recognized by the medical profession as good authority on all subjects therein treated of." The prosecuting attorney did not read from a book not intro- duced in evidence nor proved to be authoritative, as was done in the case now before this court. In Mcrkle v. The State, the Alabama court, solely on authority of Stoiulenmekr v. Will- iamson, held that it was proper to receive such a book in evi- dence. This ruling is in conflict with the established law on the subject, as stated by Mr. Bishop himself. As to the otlicr cases referred to in the note to the clause quoted from Bisliop, some have been hereinbefore mentioned and commented upon, others have no relevancy to the immediate question. JlcMath V. The State, 55 Ga., 303, only holds that, under the supervisidu and subject to the correction of the court, counsel may read from books treating of the law of this countrv. Our conclusion is that the court below erred in pei'mittiiig the district attorney, in his closing argument to the jury, in the absence of any evidence that the work was of reci^gnized au- thority in the medical profession, and against the objection of counsel for the defendant, to read from Browne's ^fedical Ju- risprudence of Insanity " various sections treating of tlie sub- ject of insanity, and sustaining the prosecution's theory of the case." Judgment and order denying new trial reversed, and cause remanded for a new trial. t Ross, J., concurred. McKek, J., concurring. Books of science or art oxe prim a facie evixlence of facts of general notoriety and interest. But the court beloAV eri-od in permitting the district attorney, against the objection ol' the defendant's counsel, to read to the jury extracts, " commenting upon and treating of the subject of insanity," from a book which was not proved to be a recognized or scientiiic work or D. THE STATE v. VANDERPOOL. 203 standard autliority, — was not offered in evidence in the case, nor made part of the testimony of any of the witnesses examined ; and on tiuit ground, I concur in the judgment of reversal. TnE State v. Vanderpool. (30 Oliio St., 273.) Extradition : Construction of treaty. 1. Prisoner can be tried only for the offense for which EXTRAorrED. A person extradited under the provitsions of the treaty of 1843, between the United States ajid Great Britain, tried, convicted and sentenced for the crime uixin which ho was extradited, cannot be detained in custody and prosecuted for a different crime than the one specilied in tlie war- rant of extratlition. 2. Construction of treaty. — Under the constitution of the United States, the ju-ovisions of this treaty are part of the law of tlie land, enforceable by the judicial tribunals in behalf of a person bo detained and prose- cuted. ]\[()tion for leave to file a bill of exceptions to the judgment of tlie court of common pleas of Belmont county. I). A. JFoUhujfiworth, attorney -general, and A. II. Mitchell^ prosecuting attorney, for tlie state. 6'. II. Ulackhui'H, for the defendant. Johnson, C. J. The demurrer to the plea presents the ques- tion whether the facts stated exemi)ted the accused from pros- ecution in lielmont county until a reasonable time has elapsed after the expiration of their sentence for the crime committed in lUitlcr county. The state had obtained possession of the accused from the authorities of Canada, under the provisions of the Ashburton^ treaty, for trial in Ikitler county. They were there tried, convicted and sentenced for the crime u])on which they were extradited. Before the expiration of this sentence, the state souglit to place them on trial for another criuH?, charged to have been committed before extradition in Bohnont county, the latter crime being one for which the accused might have been extradited. The court of common pleas held that proceedings on the indictment in Belmont county must be susiiended until a rea- 204 AMERICAN lRIMINAL REPORTS. sonable time after the expiiation of the sentence in tlio Cutler county case; or, in otlier words, that the state, having obtained jiossession of tlie criminals under the extradition treat}', could not detain them in custody and put them on trial for another crime. It was also held that the obligations of this treaty created a personal right in favor of the person extradiled, which he could plead in suspension of a ])rosccution for such other crime. By the tenth article of the Ashburton treaty it Avas " agreed that the United States and her Brittanic ;>[ajcsty shall, ui)on mutual requisitions by them or their ministers or authorities, respectively made, deliver up to justice all persons who, being chargect with the crime of murder, or with assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the juris- diction of either, shall seek an asylum, or be found within tlie territories of the other: Provided, that this shall oidy be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall bo iouud, would justify his apprehension and commitment for trial if the crime or offense had been there coinmitted; and the res[)ectivo judges and other magistrates of the two governments shall have power, jurisdiction and authority, upon comi)laiut mailo under oath, to issue a warrant for the ap])rehension of the fugitive, or person so charged, that he may bo brought before such judges or other magistrates, respectively, to the end th;it the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sulliciont to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive autlior- ity, that a warrant may issue for the surrender of such fugi- tives. The expense of such apprehension and delivery shall be borne and defrayed by the party who nuikcs the retpiisitiou and receives the fugitive." Independent of treaty stipulations, the obligations to sur- render fugitives from justice was of an imperfect nature. It rested on comity between states. Each determined for itself the extent of this obligation, and the nature of the crime and mode of surrender. Prior to, as well as since, the treaty of 1842, it has been the THE STATE v. VANDERPOOL. 205 settled policy of both the United States and G rcat TJritain to furnish an asylnm for persons charged in other states witli religious or political offenses. Eacli zealously vied with the otlicr in maintaining this right of asylum. Hence it was that in the treaty of 1842 it was expressly' limited to seven well- defined crimes. Hence it was, al^, that the riglit to demand a surrender in the specific cases named Avas so carefully guarded. The accused was protected in his asylum, unless the authorities there should find him guilty of one of the crimes specified in the treaty. By the terms of the treaty, the judge or other magistrate of the government upon whom the demand was made, is to hear and determine, accoi'ding to the laws of his own countrj-, whether there is a case made, and, if so, to report to the proper executive authority, Avho shall issue a warrant for his extra- dition. The right of the United States to demand the surrender of fugitives from justice found Avithin the British dominions is purel}^ conventional; hence the correctness of the ruling of the court below depends on the true construction of the treaty, and, also, how far the judicial tribunals of the demanding gov- ernment arc required to give effect to treaty stipulations, especially how far the judicial tribunals, federal and state, can take cognizance of and enforce the ])rovisions of the treaty upon the i»lea of the person surrendered. In United States v. Caldwell, 8 Blatclif., 131, and United Stages V. Lawrence, 13 Blatclif., 295, Judge Benedict held that Avhile the abuse of the provisions of the treaty, or want of good faith by the demanding government, might furnish cause of complaint by the surrendering government, yet such complaints do not form a proper subject for judicial cognizance. See, also, Adriance v. Lxigrave, 59 N. Y., 110. Other cases to the same effect might be cited, but as the decisions and the views of writers upon the subject differ so widely, Ave are free to de- termine the questions from the terms of the treaty itself, guided by the Avell-established rules for the construction of such instruments. By section 2, article C, of the constitution of the United States, " This constitution, and the laAvs of the United States, made in pursuance thereof, and all treaties made, or which shall 200 AMERICAN CRIMINAL P.EPORTS. le made, muJer the author tfy of the United States, .shrdl he tie supi'eme hue of the land, and the judges of every atafe nhall le lot/nd thereby, anything in the constitution and laws of any state to the contrary notwitlistanding." This treaty is, therefore, the law of the land, and the judges of every state are as much bound thereby as they arc l)y the constitution and -iws of the fedci'al or state government. It is, tlierefore, tlie imperative duty of the judicial ti-ibiiiiiil;; of Ohio to take cognizance of tlie rights of persons arising under a treaty to tlie same extent as if they arose under a statute of the state itself. "While authority is not wanting to support the dociHJons in CaldiceWs Case and Zawrence's Case, sujjra, yet we submit that these decisions ignore the provisions of the federal constitution just cited. Again, if it be true that the abuse of extradition proceed- ings, iradcr this treaty, is an olTonse for whicli the surrciulor- ing government alone can complain, the remedy is totally inadequate, and the treaty itself may be rendered nugatoi'v. When, as in the present case, tlie surrender is to one of tlie states of the United States, the prisoner ' passes be vond the control of the federal government and into that of Lliis state. Upon complaint made by the British government to the fed- ei'al government of an abuse, by the state of Ohio, of the process under the treaty, the federal government could only answer, as it has done in many instances heretofore, that, under our system of state and federal government, the latter is powerless to control the state authorities. If the riglit under the treaty to be protected from other prosecutions can only be enforced by the surrendering nation by protest or otherwise against the one making the demand, that is, if it is a question not cognizable in the courts, it is of little value under our system of federal and state governments. After the United States has secured the surrender, for an offense against state law, the accused is delivered to the au- thorities of the state for prosecution, Avhen all federal con- trol is lost. If the accused is of little or no political influence, the difficulty of giving him that protection which was intended by the treaty is so great, if the courts cannot intervene, that it is of little or no value as a protection to the person extradited. THE STATE v. VANDERPOOL. 207 TTo conclude, therefore, and both reason and the weight of autliority support tliis view, that the judges of this state are bound by tlie provisions of this treaty, and that if it secures to llio person extradited exemption from trial for crimes and otfcnsos other than those specified in the warrant of extradi- tion, it is the duty of the courts to take cognizance of his plea. ]u)sf(-i' V. Nellson, 2 Pet., 253; CummomoeaJth v. Haives, \^^ Bush, 700; Winslow'a Case, 10 Am. Law Rev., G17; llnlied States V. Watts, 8 Sawyer, 370; 14 Fed. Rep., 130; North Am. Eev., :May, 1S83, page 497. II. As to the right of the demanding government to hold the accused and prosecute him for a different crime or offense. This treaty is to bo subject to the same rules for ascertaining the intention of the contracting parties as in case of other contracts. It enumerates seven well-defined crimes for which extradition may be had. It thereby excludes all non-enumer- ated crimes and offenses, whether of a political or other char- acter, and leaves the surrender in such other cases to the disci-etion of the government where he is found. It limits the duty of surrender to those cases specified in the treaty, in whicli the evidence of guilt is sufficient, according to the laws of tlio nation where the fugitive or person charged is found, to justify his committal for trial, if the act charged had been committed there. The right of the nation where the fugitive is found to first hear and determine the case, and to decide upon the evidence whether, according to its own laws, the crime cliarged has been committed, i. e., whether a case for com- mittal has been made out, secures to the government upon which the demand has been made the right to determine for itself whether the demand shall be complied with. This nec- essarily excludes the idea that the demanding government can decide for itself to trj"- the prisoner, after obtaining custody, for other crimes ; otherwise the purpose of the treaty is defeated. If the demanding government can so decide, the whole inten- tion of the treaty could be defeated, and the right of asylum, which has been the boast of both governments, Avould depend entirely on the action of the demanding government. To extradite under the treaty for an offense named therein, and then to retain the prisoner for a non-extraditable offense, or for a different one, though extraditable, u])on which no ' 203 AMERICAN CRIMINAL REPORTS. hearing had been had as provided in the treaty, would ho, not onl}' a breach of good faith by the demanding government, Init a viohition of the right of asylmn in favor of the accused guai'autied to liim by tlie treaty. The sole object of tlie treaty Avas to enable each government to protect its citizens and inhabitants in the right of asylum, except they come within the provisions named. The legislatiort of both governments clearly supports this construction. Ey tlio act of congress of 1841, United States Ecvised Stat- utes, section 5273, " It shall be lawful for the secretary of state, under his hand and seal of office, to order tlie person so com- mitted to be delivered to such person as shall be authorized in the name and behalf of such foreign government, to he tried for the crime of which such j^cfsoii shall he so accused.^^ Again, by section 5275, "Whenever any person is delivered by a foreign government and brought into the United States and tried for any crime of which he is duly accused," it is the duty of the president to take proper measures for his " trans- portation and safe-keeping until the conclusion of his trial, for the crimes or offenses specified in the warrant of extriidition, and until his final discharge from custody or imprisonment, for or on account of such crimes or offenses, and for a reason- able time thereafter, and may emplo\" such porti(jn of the land or naval fore. A the United States or of the militia thereof as may be necessary for the safe-keeping and protoctio:i of the accused." In like manner, the British parliament, in 1843, for tlie pur- pose of carrying into effect this treaty, enacted tliat the i)ers()n to be extradited should be delivered to the person authorizcnl by the United States to receive him, "to be tried for the crime of which such person sliall be accused." While legislative interi)ret'ition of statutes is not conclusive upon the courts, yet in the case of a treaty, which is in its nature a contract between nations, enactments lilco tliese by the high contracting parties ai'o of persuasive power in the construction of the treaty. The ri^ht of the state of Ohio over the accused, who had sought an asylum in Canada, is derived from the provisions, express or implied, of the treaty of 1842. In view of the provisions of this treaty, the safeguards THE STATE v. VANDERPOOL. 209 thci'oin provided against the infringement of the right of asyhun save in the specified cases, and the legislation by both goveiMunents to carry out those provisions, we think it clear tlijit the court below did not err in refusing to put the accused on trial for a crime for Avhich they wei'e not extradited. In the correspondence bstwccn the United States and Great Britain, which took phice in 1SG7, growing out of the refusal of tlie latter to surrender AV^inslow, except upon a stipulation by the former that he should not be tried for another offense, the conflicting views of the two governments are stated. Winslow had been domanrled as a fugitive, charged Avith forgery. Great Britain refused to deliver him unless the United States would stipnlato that he should not bo tried except for the crime cliarged. This was refused, and an extended correspondence wiis the result. Finally the British government, as a tem- porary measure, and until a now treaty was made, suspended its claim to require such a stipulation. Time will not permit an analysis of the claims of the two governments. It is suflicient to say that it discloses a con- trariety of views by eminent statesmen and publicists upon the question at issue, and that the refusal by the United States to ma Ice the stipulation demanded was based chiefly on the ground tliat the demand was unusual, and was a reflection upon our government, after a successful execution of the treaty for nearly forty years without such a stipulation. If it be con- cedi'd tluit the United States asserted the right to retain an extradited prisoner and try him for another crime, that claim is not conclusive upon the courts. Nothing was then settled as to tlie true construction of the treaty. If, as we hold, the question is one of personal right under the treaty, as well as of international law, it follows that the courts can hear and determine sudi right when it is invaded. Much more miglit be said in support of our conclusion, but we content ourselves witli a reference to the following de- cisions and discussions on the subject : (Jominou tnodlth v. Hawes^ 13 Bush, (;i»7; United iStateii v. WtdtH, 14 Fed. Uei)., 130; Letter of Wm. Beach Lawrence on "Extradition," 10 Albany Law J., :52!»; North Am. llev.. May, 18S3, i)age 407, title " Extradition;" Whart. Crim. Plead, tfc I'l-ac, ijjj :iS-57. and cases noten, upon any of the authorities of the government of Peru for the stuTcnder of defendant, nor was any consent or authority piveji by any of the authorities or agcMits of Peru, to Julian or to any other person, to arrest and remove defendant from Poru; and that on April 3, 1883, while the defendant was domiciled at Lima, in Peru, Jidiaii, with {he aid of persons whose names were unknown, without any authority or warrant from the authorities or diplomatic agents of Pern, arrested the defendant, and forced him to go toCallao, and there placed him on board a vessel and carried him to Honolulu, and at that poii; transferreil him to another vessel which carried him to Sun Francisco, California, where he was arrested on a rcMjuisitiou from the governor of this state, and brought to this state for trial. Tlie court below sustained a demurrer to tliia plea. Held, that the de- murrer was properly sustained. 212 AMERICAN CRIMINAL REPORTS. 8. On requisition, reqularity op arrest not open to question.— Where a person cliargoJ witli crime in this state was arrosteJ in a Bister state and brought licre for trial, on a requisition of the governor of this state, it was held tliat our courts, on the trial of such fugitive, would not in(}uire into the regularity of his aiTest and surrentlor i i such sister state, and tliat it did not matter if he had been illegally arrested in a foreign country and brought forcibly to such sister state. 3. Fugitive from justice — Legality of arrest not a question fob THE courts. — Whei'e legal steps have been taken for the apprclu^nsion and return to this country of a fugitive from justice, and he is brought back to the United States, where he is arrested on a requisition of the executive of this state and brought here for trial, the fact that he may have been illegally arrested in such foreign country and brought to the United States does not deprive the courts of this state of jurisdiction to try him for any offense charged against him, the state not being a party to such illegal arrest and abduction. 4. Legality op arrest of a fugitive froji justice in a foreign coun- try NOT necessary TO GIVE COURT JURISDICTION. — The rulo at com- mon law is, that the court trying a party for crime committed within its jurisdiction will not investigate the manner of his capture in a for- eign state or country, tliough his capture and return may have been plainly without authority of law. 6. RiGUT OP ASYLU.M TO FUGITIVE Fr.oM JUSTICE. — A fugitive from jus- tice has no asylum in a foreign country when he is guilty of an offense for which lie is liable or subject to extradition, by treaty between this and the foreign government. If he ia illegally and forcibly removed from such foreign country, that country alone has cause of complaint, and he cannot complain for it. C. Extradition of fugitives depends on treaty. — Where no treaty exists between two governments for the extradition of criminals fleeing from justice, there is no obligation existing that can bo insisted upon to suiTender them for trial to the government from which they have fled ; but as a matter of comity between friendly nations, gicat offend- ers are usually suiTendered on retjucst of the govei-nment claiming the right to punish them. 7. Fugitive, when extradited, must be tried only for the crimes NAMED IN TREATY. — Where a fugitive from justice has been brouglit back to the country from wliich ho has floJ, on a warr.ant of extradi- tion in conformity with the ro]icrty of A, B and C, partners under the name of A, B & Co. The i)roof showed KER V. THE PEOPLE. that Ix'forc t!i(^ iill!',";'.'il oftt'tiso tlio firm w.is coinposcd of A. ]i. C and D, (loinp; business undor tlie s.inie name, the latter being a special partner, and that the iuticles of jiartnership were a matter of record} but that before tlie alleged (Jlense, D retired from the lirm, although the dissolution of the lirm of the f<;ur was not made a matter of reo ord, and notice given, as retiuired by law. Held, tiiat there was no variance, as, after D retired, the property in fact belonged only to A, D, and C. 9. Embezzle JiKN'T — CoMPELLiNO an election as to a single act.— On an indictment for embezzlement and lax'ceny of moneys, funds and eocurities, there is no error in the court refusing to compel the prosecu- tion to elect upon what alleged act of embezzlement or larceny a con- viction will be asked, as emlczzlemcnt may, and most often does, consist of many acts done in a series of years by virtue of the confi- dential relations existing between the employer and employee. 10. Indictment for emisezzlemknt — Evidexce op various acts.— The statute (section 82 of the Criminal Code) makes it sulHcient for an in- dictment for embezzlenunit to allege, generally, an embezzlement, fraudulent conversion, or taking, with intent to convert to the defentl- a;it's own use, the money, funus cr serurities of the employer to a cci^- tain amount or value, without specifying any particulars of such embezzlement, and on the trial evidence may b'> given of any such embezzlement, fraudident conversion or taking witi. such intent ; .and it is made sufflcient to maintain the indictment, taat any bullion, money, note, bank-note, check, draft, bill of exchange or other secu- rity for money of the euiploytr, of Avhatever value or amount, waa fraudulently converted or taken with such intent by tlu' clerk or em- ployee. In such case it is ^iroper to allow proof of any t ud all acts of embezzlement to go to the jury. 11. New trial — Question ok fact and of law. — Ordinarily, whether there is evidence to warrant a conviction in a criminal case is a ques- tion for the Jury, the court taking care always to see that no manifest injustice has been done : but whether the verdict is contrary to tho law, is a question for the court. 12. When verdict is aoainst the law. — A verdict in a criminal case is against tho law when, admitting all tho evidence tends to prove, it docs not show the crime charged. 13. Indutment good, in language of the statute.— An indictment for eud)ezzlement substantially in the language of the statute is sufft- cient. 14. Statute defining ejibezzlejient, construed.— Tlie word "care," aa used in section 75 of the Criminal Code, relating to embezzlement, ia the equivalent of " custody," and may mean "charge," "safe-keep- ing," " preservation," or " security." The word " possession," as used m the same section, has, perhaps, a different and broader meaning than the wonl "care;" but it may also mean "to keep," "to take or seize hold," "to hold or occupy," as tho owner of property would or might do. And it matters little whether one or both words are used in an indictment. "Tl»^^" 214 AMERICAN CRIMINAL REPORTS. 15. What is possession of goods by an employee, belonoino to em- ployer. — A bank clerk 'lavinp: access to the funds and Hecnritios of tlie bank in its vaults, anc. trubted with their keejiinfj for various ))ur- poscs, may Ije said to liare their possession by virtue of liis emjJoy- ment. within the nuanin^ of paction 75 of the Criminal Code. 16. Embezzlement — Laucevy 'T ' muon law.— The fact that the felo- nious taking of inom/s m ^ rities out of a bank vault by a bank clerk, and converting thei. 'n' nvn use, may be larceny at com- mon law, makes it no less emlK>z;;lement under the statute. It is entirely comi)eteut for the 'egislaturo to declai-e what acts shall cou- stitute the crime of embez /.lemciit, ana i'l \ 'ho jninishment. Writ of Error to the Criminal Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Mr. Bolert Ilervey and J//*. C. Stuart Beattie, for the ap- pellant. Mr. Luther Laflin Mills and Messrs. Swett, Ilaslcell cfc Gross- n the Ui KER V. THE PEOPLE. 215 of not gnilty for him. On tlio trial the jury found defendant o-nilty of cniljczzlomcnt, as charged in tlie indictment, and li.ved the term of punishment at ten years in the penitentiary. A motion for a new trial entered by defendant was overruled, and the court pronounced judgment on the verdict, and de- fendant brings the case to this court on error. One ground of error relied on with much confidence is the decision of the court sustaining the demurrer to defeiulant's plea calling in question the right or jurisdiction of the court to proceed with the trial against him, — or, what is the same thing, it is insisted it was error in the court not to grant him immunity from prosecution. Of course, the demurrer admits tlie facts alleged in tlie ])loa, and there can be no controversy as to wliat they are. Sliortly stated, the principal facts are, tluit. upon the written recjuest of the governor of Illinois, the president of the United States issued an extradition warrant, (Urectcd to the government of the republic of Peru, for the snrrendei" of defendant, under tlie treaty of our government Avith tliat govei'umeiit. and named therein Henry G. Julian as m(>sscuger to receive defendant from the autliorities of Peru. The crime of larceny, with which defendant stood charged, is one of the oll'enses specified in the treaty for which a party slioidd be surrendered, and it was specified in the president's warrant as the crime for which his surrender was demanded. On the same day the executive warrant was issued, the secretary of state at Washington made a written request upon the United States consul acting at Lima, to procure the executive of Peru to surrender defendant to Julian, under the treaty between the United States and Pei'u of September 12, 1870, which, it is averred, was and is tlie only treaty in force between the two governments. It is tlien averred no request was ever made by the United States consul at Lima, or by .Tulian, or any other person. ujKm any of the authorities ordi})lomatic agents of the governmei . of Peru, for the surrender of defendant, in com- pliance with the president's warrant, nor was any consent or autliority given by tlie authorities or - KER V. THE PEOPLE. 217 fondant as a fugitive from tlio justice of the state, and desig- nated Frank Warn(!r to i-eceive defendant and bring him back to this state. In coin])liance with that requisition, the gov- eiiior of CaUfornia did issue his warrant, upon which defend- ant was arrested within tlie jurisdiction of that state, and dehvercd into the custody of Frank Warner, who brouglit him into tliis state, and dehvercd him to the sheriff of Cook county. That was in accordance with usage and hiw. It is not allow- able, on the trial of one who has been surrendered by a sister state, under the laws of congress, as a fugitive from justice, to iiKjuiro as to the regularity or irregularity of such surrender. It ail'ects neither the guilt nor innocence of the accused nor tho juiisdiction of the court to try him. Conceding, as may bo (lone, defendant was arresteil in l*eru, and brought into tho state of California, without warrant of law, tho state now pi'usix'uting defendant was not a party to any violation of any treaty or other public law. The ajjplication the state made to the executive de|)artment of the general government was for the legal arrest of defendant, and if there was any abuse of tlie wai'iant of tlie federal government, or any treaty ob- ligations with a friendly power violated, it was not done by the state now conducting the prosecution against defendant. Julian, whom it is alleged nuide the illegal arrest of defendant, and brought him within the jurisdiction of tho state of Cali- fornia, was acting either under the warrant of the president or on his own responsibility. He did not bring defendant into this state at all. It was done b}'^ another person, on a requisi- tion from the governor of Illinois, and on a warrant issued by the governor of California for his arrest in that state. Of tho action of tho state prosecuting him, defendant can have no just ground of complaint that he was brought within its juris- diction without " due process of law." T/ie People v. lioioe, 4 Parlccr's Cr. Rep., 2r»;>; Ailriance v. Layrave, 59 N. Y., 110; The State v. lioss, 21 Iowa, 407. But waiving every objection to the ])lca that may seem to bo technical, and considering it on the broadest grounds taken in its support, it is thought the demurrer was properly sustained. Three propositions are stated, which, if they can be maintained, it is insisted lead to the ecmclusion the ei-iminal court of Cook county never obtained jurisdiction of defendant to try him for 218 AMERICAN CRIMINAL REPORTS. larceny or any other crime: First, that the ITnitorl States, by its treaty with the roi>ublic of Peru, provided " duo pi-ocess of law" for getting jurisdiction of jiersons domiciled in that country chai'ged with liaving committed certain crimes, among whicli is hirceny, of which defonchmt was charged in one count of the indictment against him ; second, that such " duo process of law" must be obeyed in all its terms, expressed or implied; and third, that such " due process of law " for the purpose of getting jurisdiction in such cases, by necessary implication ex- cludes any other mode of getting jurisdiction. As has beca seen, defendant was not, in fact, brought within the juris- diction of the United States under its treaty with Peru ; but the argument assumes that if defendant was brought back to the United States otherwise than under the treaty between the United States and Peru, his capture and detention would be unlawful, as being in violation of a right of asylum he is supposed to have had, under the treaty, at the place he was domiciled hen ciiptured. Xo principle is suggested on which this proposition can bo maintained as broadly as stated, nor is anj^ case, Engliih or American, cited where the decision was rendered, on analogous facts with the case being considered, that holds the doctrine contended for. Und5. The rule is ditrerent in civil cases, 1'or the reason a party guilty of fraud in bringing a party within the jurisdiction of the court will not be permitted to have a personal advantage from his own wrongful conduct. It may be well to recur again to the distinction taken by counsel which it is insisted takes the case being considered out of the rule esta*l)lished by the English and Ameiican cases cited, that some further discussion nuiy be had upon it. The position talvcn is, that where a tr(>aty exists between two gov- cnnnent. , as no capture can lawfully be had of a party accused of crime, in the c .untry to which he has tied for asylum, ex- cept under the terms of such treaty, if a capture and removal (»f a l)iirty is made in violation of the treaty it is without "due process of law," and the court witliin whose jurisdiction the accused is wrongfully brought obtains no rightful jurisdic- tion to try him for any crime, — either for the crime for which it was attempted to extradite him, or for any other crime. The exact question arising in this case was not involved in either of the cases vt ,s)/j>ra, nor, indeed, has the attention of the court Ix^en called to any case where the facts were precisely analogous. It is confidently insisted all through the argument for the defense, that defendant's right of asylum, under the treaty be- tween the two governments, was complete when he was domi- ciled in Peru, and that he has been deprived of that right by sheer force, without "due process of law." But is that posi- tion tenable? Upon what principle can it be maintained? As a question of law, on the facts as stat(>d in the plea, defendant never had any right of asylum in Peru that would secure him innnunity from ari-est cm account of offenses mentioned in the treaty, and for which a party was subject to extradition. Conced- ing, as may be done for the pur|)oses of this decision, the propo- sition insisted upon, the enumeration of certain crimes in the 220 AMERICAN CUDUNAL REP0IIT3. treaty for which a party may bo cxtraditcil implies that as to all other offenses he is guarantied asylinu in the country where ho is domiciled, how does that, if true, affect the question bcin" considered? vVs to the crime of larceny, with which defend- ant was charged, he could have no right of asylum in Peru, as that is one of the crimes enumerated in the treaty, and what right sccnired by treaty was violated when ho was arrcitcd, either with or without duo process of law? The accused was subject to extradition at any time, under the treaty, and wliat difference can it malce, in law, as to the right of a state court to try del"e:i(hint for an extraditable crime, wiiether the existin"" treaty was, in fact, observed in all its forms i Tliat Avhich was done, if wrong, was in violation of international law, and if the government of Peru does not com])hun of the arrest of de- fendant within its jurisdiction, as an infraction of international law, it does not Me in the moiitli of defendant to make com- plaint on its behalf. Questions arising under international law c;)ncern principnHy the nations involved, and their settlement is a national affair. Ilejecting, as must bo done, tho erroneous assumption de- fendant had the right of asylum in Peru under tho treaty be- tween the two governments, and tho argument for the defense is wholly without force. It is plain he had no right of asylum the law of either government would pi'otect. The treaty, as to the crime of larceny, with which defendant stood indicted, had provided no asylum that would secure him immunity from arrest for that crime in the country whore ho was domiciled. The utmost that can be claimed is, that the person having tlio president's warrant for tho extradition of defendant prooce led irregularly, and may have rendered himself liable as for a per- sonal trespass, but he deprived defendant of no right of asyliuii in the country of his temporary domicile, for the simple rea- son he had none secured by any public law, of which he could be dispossessed. The attention of the court has been called to Commonwealth V. IMnes, 13 Eush, 700; The State v. Vanderpool, 16 Vol. C. L. N., 31, and other analogous cases, upon which great stress is laid, as holding principles it is insisted ought to control tlie present decision. These cases have been examined, and it is found they hold the doctrine a fugitive from the justice of tho state wlio 1 ho had \\w tli(> terms < cannot be offcMisos th was cxtrad return to t these cases law, tliat t from ano) ' who hai upon tr^.. no treaty ( to surrend( they have jrrcat offer govcrnmer ning throu itself to a extraditior named in \ obtains no out bad fa tion, and reparation letter and conceded weiglit of considered served in t by force, c issued by feudant sh luiglit be t midor the tliat charfj victed of ] contained convicted, larceny," i trial of th KER V. THE PEOPLE. 221 stiito who has been brought buck from the country to which ho liad fleil, on a wurrant of extradition, in conl'ormity with till' terms of Ji treaty oxistin;jf betwor^n the two governments, cannot bo i)roc(';Mled against or tried by tlie state for any other olTonscs than those mentioned in the treaty, and for which he was extra(Uted, without tirst being alforded an opportunity to return to the country whence he had boon brouglit. Some of these cases also dcchire tlio familiar principle of international law, that the right of one government to demand and receive tioin anot' (^r the custody of an offender against its laws, and who has ght an asylum in such foreign country, depends upon tr^.. >iipulations between such governments. Where no treaty exists, no obligation that can be insisted upon exists to surrender criminals for trial to the government from which tbey have Jled; but as a matter of comity between nations, great offenders are usually surrendered on request from the government claiming the right to try them. A principle run- ning through this latter class of rases has much that commends itself to a sense of justice. It is, that where a person whose extradition has been granted for trial for a particular crime nauiod in the extradition warrant, the demanding government obtains no lawful right to try him for any other offenses, with- out bad faith to the government that consented to his extradi- tion, and for which it would have just grounds to demand reparation. Such an act would be in violation of both the letter and spirit of the treaty. But this doctrine, if it shall be conceded it has for its su[)port natural justice, and even the weight of authority, can have no application to the case being considered. Here, the complaint is, the treaty was not ob- served in the capture and detention of defendant. It Avas done by force, outside of its provisions. The extradition warrant issued by the executive of the United States demanded de- fendant should be surrendered on a charge of larceny, that he miglit be tried for that olfense. That is an extraditable crime under the treaty with the government of Peru. It was on tiiat charge he was put on trial. It is true he was not con- victed of larccn}' as at common law, but the same indictment contained counts for embezzlement, an olfense of which, if convicted, the statute declares "ho shall bo deemed guilty of larceny," upon which he was tried at the same time of the trial of the charge of larceny, and was convicted. 222 AMERICAN CRIMINAL REPORTS. Tliere is another reason tliat leads to tlie same conclusion the case in hand is not within tlie rule declared in the latter lino of decisions. It is, that defendant, as has been seen, was not surrendered by the government of Peru under its treaty with the United States. According to the averments in the plea, no ell'ort was made to obtain defendant on the extra- dition warrant, and the official authorities of Peru were not aslced to, and never did, consent to his capture within the juris- diction of that government. It was done by sheer force, aiul not imder the treaty at all. That brings the case more nearly under tlie decisions first cited, and they must be regarded as of controlling authority. But aside from all authority, on principle defendant has shown no right to inimunity from prosecution for the offenses for which he was indicted. The federal government has itself violated no treaty with the republic of Peru. The arrest and detention of defendant was not by any authority of the gen- eral government, and no obligation is implied on the })art of the federal or any state government, to the rei)ublic of Peru, to secure defendant immunity from prosecution for any olfensc. What Avas dor.e was done by individual wrong, precisely as was done in E.i', parte Scott, mqjra, and 27ie St^ft>' v. Brcicxtrr, supra. The invasion of the sovereignty of Peru, if any wrong was done, Avas by individuals, perhaps some of them OAvingno allegiance to the United States, and not by the federal govern- ment. Should the government of Peru comphiin its sover- eignty had been invaded by citizens of the United States, that would be a question arising under international law and not under any act of congress unt. The Avord "care," as used in the 228 AMERICAN CRIMINAL REPORTS. statute, is the e;iuivalont of " custo:ly," and may mean "charge," " safe-keeping," '• preservation," '• security," and it would seem it was in that sense it was used in the statute. " Possess io)i,''^ as used in the same section, has perhaps a slightly different and broader meaning than the word " care," but it may also mean '• to keep," " to take or seize hold," " to hold or occupy," as the owner of property would or might do. It matters little whether one or botli words were used in the indictment. A close read- ing of the testimony will show tlie funds embezzled were quite as much in the possession of defendant as under his care. It is idle to say, in view of the relations defendant sustained to the banking firm, as disclosed by the testimony, that the funds and securities in the vaults were not in possession of defendant and other pereons employed about the bank, and who had access to such funds and securities, for one purpose or another. If tlie indictment cannot be maintained on the ground the funds and securities embezzled were in the possession of defendant, as tliat term is used in the statute, by virtue of his employment, it could not had it been alleged they were under his care, or had it been charged they came both to his possession and under his care by virtue of his employment ; and the case would be presented where^ a clerk converted to his own use $14,000 of his employer's money and securities, and yet guilty of no crime, within the meaning of this section of the statute. So narrow a construction as that insisted upon would render nuga- tory this section of the statute which defines embezzlement by clerks and confidential agents. It seems to be claimed as to the money, bonds and property alleged to have been embezzled of his employers, the taking of them out of their vaults by defendant was larceny at common law, and therefore couhl not be embezzlement, under the sev- enty-fifth section of the Criminal Code. No such subtle rea- soning as that will satisfy the common understanding. It is not denied that defendant converted to his own use large sums of money and securities belonging to the bank while he was in its employ as a clerk, and that such funds did in some way come to his possession. How did he come to get possession of such funds and securities for money, if it were not by virtue of his employment? Had he not been in the employ of this banking house he could have had no access to thoir vaults. No KER V. THE PEOPLE. 229 attempt will be made to ascertain defendant's c::act relation with the bank. It is enough to know his position, whatever it was, gave him access, for some purposes at least, to the vaults wiiere the funds and securities were kept, and that brought the funds and securities embezzled into his possession, or, Avhat is really the same thing, under his care, in a measure, by virtue of employment. It was simply by virtue of his employment, and not otherwise, that he got possession of his employers' niouoy and securities, and converted the same to his own use, and that is embezzlement, under the seventy-fifth section of the Criminal Code. It is that for which he was indicted and convicted, and it is the offense defined by the statute. It is to l)e observed the statute of this state defining the (lime of embezzlement is much more comprehensive than any Kn<>]ish statutes on the same subject that we have examined, and especially that section which defines embezzlement by a clerk or confidential agent who converts to his own use funds belonging to his emi)loyer which may come to his possession or under his care by virtue of his employment, and the decis- ions of the English courts, construing their own statutes, do not in any Avay assist to a correct understanding of the stat- utes of this state on the same subject. Much of what is said hy text-writers to which the attention of the court has been called was said Avith reference to English statutes, which are niatei'ially ditfei'ent from that section of the statute of this state under which defendant was indicted. On account of the dissimilarity of the statutes, it has not been thought necessary to remark upon English .embezzlement statutes, nor upon the decisions of English courts construing them. Decisions have boon rendered by courts of some of our sister states construing statutes substantially like section 75 of the Criminal Code of this state, that make the embezzlement of money or per- sonal goods larceny, among Avhich are 27ic l*eople v. Slwf- man, 10 AWmd., 299; T/ie l\opU v. JMfon, 15 id., 581, and Loicenthal v. IVic People, 32 Ala., 589. So much of the reason- ing in the opinions in the cases cited as is apjdicable to the present decision may be read as being in harmony Avith the views expressed in this opinicm. Xo error affecting the merits of the case appearing in the record, the judgment is affirmed. Judgment affirmed. 230 AMERICAN CRIMINAL REPORTS. Commonwealth v. Moore. False pretense : Promise ■ (99 Pa. St., 570.) — Indictment — Constructive larceny — Gen- eral verdict. 1. False tuetense— Promise to perform some act in the future.— A false pretense, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the future. 2. Indictment. — Tlie particular act alleged in the indictment was the pro- curing *i the prosecutor's indorsement of the defendant's promissory note, and the false pretense chai-ged consisted in the defendant repre- senting to the pi-osecutor that he would use the note so indorsed to take up and cancel another note of the same amount then about maturing, and uiKJn wliicli the prosecutor was liable as indorser, and for no other purpose, and the indictment charged that the defendant, instead of uyiiig it for this purpose, as he pretended he would, used the same for liis own private purpose. Held, that the indictment did not set out an bi- dictable false pretense under the statute. 8. Constructive larceny. — By proviso of section 111 of the act of March 31, 1800 (P. L., 410), it is provided " that if, upon the trial of any person indicted for such a misdemeanor (false pretenses), it shall be proved that he obtained the jjroiierty in question in such manner as to amount in law to lai"ceny, he shall not, by reason thereof, be entitled to be acquit tod of such misdemeanor," etc. Held, that the distinction between tlio offenses of constructive larceny and cheating by fabe pretenses is ckarly defined, and as neither of the counts in the indictment would sustain a charge of larceny, the defendant could not be convicted of that oireiise. 4. General verdict op guilty. — A general verdict of guilty, ui)on an indictment, is a findmg only of the facts sufficiently pleaded. Certiorari to the court of quarter sessions of Dchiwiu-e county. Indictment of llobert M. More for cheating by false pretenses. Plea, not guilty. V. Gilpin liohlnsoH, district attorney, for the commonwealth. E. II. Hall, for the defendant in error. Mr. Justice Paxson delivered the opinion of the court Feb- ruary 27, 1882. The only question presented by this record is, whether tlio indictment sets forth an indictable offense. It contains two counts, in each of which the defendant below is charged with cheating by false pretenses. The particular act alleged was the procuring of the prosecutor's indorsement of the defend- ant's promissory note, and the false pretense charged consisted COMMONWEALTH V. MOORE. 231 in his representing to the prosecutor that he would use the note so indorsed to take up and cancel another note of the same amount then about maturing, and upon which the prose- cutor Avas liable as indorser. In other words, the note was ji'iven in renewal of another note of like amount, and the in- dictnient charges that the defendant, instead of using it for this purpose, as he promised to do, procured it to be discounted, and used a portion of the proceeds for other purposes. A false pretense, to be wutliin the statute, must be the asser- tion of an existing fact, not a promise to perform some act in the future. The man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a pro:iiise is another and very different affair. That occurs whenever a man fails to pay his note. It is true Chief Justice Gibson doubted, in Commomcealth v. Bio'dlch, 2 Barr, at page 104, whether every naked lie by wliich a credit has been gained is not a false pretense within the statute. This doubt has run its course, and has long since ccastsl to disturb the criminal law of the state. There was notliiiig in Commomcealth v. Biirdlch to suggest such doubt, as the deroiuhint had wilfully misrepresented that he had a capital of $8,000 in right of his wife, while, in all the cases cited therein, there was a misrepresentation as to existing facts, by means whereof a credit was obtained. The decisions upon tills subject are uniform, and it would be an affectation of learning to cite the cases. Many of them may be found in the foot-note to Purdon. In the case in hand, there was no assertion of an existing fact. Nor was there anything done by which even a credit was given. The credit had been obtained when the original note was indorsed ; the pi'esent note was indorsed in lieu of and for the ])urpose of taking up the original ; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute defining false pretenses. It was urged, however, that, if it was not cheating by false pretenses under the statute, it was constructive larceny, and therefore within the proviso of section 111 of the act of 31st starch, 1860 (P. L., 410), which is as follows : " Provided, always, 232 AMERICAN CRIMINAL REPORTS. that if, upon the trial of any person indicted for such a mis- demeanor (false pretenses), it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, ho shall not, by reason thereof, be entitled to be acquittetl of such misdemeanor; and no person tried for such misdemeanor shall be liable to bo afterwards prosecuted for larceny upon the same facts." The fourth assignment of error avers that "The learned court erred in not holding that the facts set forth in the indict- ment, and proved on the trial, showed that the defendant ob- tained the pro|)erty in question in such manner as in law would amount to larceny, and in not giving judgment for the com- monwealth," etc. AVti do not think it necessary to discuss the line of cases cited in the able and interesting argument of the learned dis- trict attorney, detining the distinction between the offenses of cheating by false pretenses, anfalsely j^retended that he had not sufficient money to pay Thayer's railroad fare to Stevens Point, and desired Thayer to advance him a sufficient amount to jjiu-chase the necessaiy railroad ticket, and agreed to return the money when Thayer should reach Stevens Point ; that there- upon Thayer advanced him $8 for that purpose. The information specific- ally alleges that each and all such pretenses were false, to the knowledge of the defendant, and were so made with intent to defraud ; but that Tliayer lielieved them to be true and advanced the money on the faith of them. This information undoubtedly charges a criminal offense under sec- tion 4423, R. S. This is perfectly obvious from a perusal of the informa- tion, and no discussion can make it plainer. State v. Gross, 21 N. W. R. (Wis.), 803. In State v. Foolcs, 21 N. W. R. (Iowa), 561, it is held that the representa- tion of a party wlio borrowed money, that his brother was to ai'rive with money, coupled with a promise to use it in payment of the sum borrowed, amounts to a prt^tense that he had the money, and may be alleged in the indictment and i)roved on the trial. To support a conviction it need not appear that the false pretenses were 234 AMERICAN CRIi'INAL REPORTS. the only inducement for giving credit or delivering property to the aocnsod. It is sufficient, if they had such effect, that without their influence upon tlio mind of the party defrauded, he would not have given the credit. If the false pretenses are made with the design of deceiving, and thoreliy obtaining credit or property, and have that effect, the guilty party cannot escape on the ground of the weak credulity of his victim. State v. Mundat. (78 N. C, 460.) False pnETENSEs: Sale of land. An indictment for obtaining goods under false pretenses can bo maintained against one avIio sells and conveys land for a price, by falsely represent- ing it to bo free from incumbrances and the title thereto perfect, wlii-n the land is in fact incumbered with a mortgage known to the defend- ant. Attorney-General, for the state. Mr. G. N. Folh, for the defendant. Ekadk, J. A. says to B., here is a tract of land which bo- longs to me, and to which. I have a perfect title, free from in- cumbrance; I will sell it to you and make you a perfect title for ^300. B. says I will give it, and he does give it. It turns out that A. had no title, or an incumbered one, and that he knew it at the time, and intended to cheat and defraud B. out of his money. And B. was defrauded. Is that a false pre- tense indictable in A. ? The defendant says it is not, because false pretense is akin to larceny, and that land is not the subject of larceny, and that neither land or any transaction conveying land is the subject of false pretense. And for this, State v. Burrows, 11 Ired., 477, is cited. In that case the defendant had by a false pretense induced the prosecutor to convey to him twenty acres of land, and the charge was '* to cheat and defraud the prosecutor of twenty acres of land." It was held that to obtain land by false pi'c- tense was ^ fraud, but that it was not indictable under the statute which embraced only such personalities as were the subjects of larceny. How does that affect this case? Here is no charge of ob- taining li false i)ret( It is su/ tion, and ' may bo w punished indictable not indici ciicat and Wo wei and his bi other alio; called to i ment is n( Tiiere ii tilied, to ti Htate V. P Per Cu Note.— Y falsely and \ bfloiifjs to 1 he will w.r, 1 !ij?aii>' him . w liicli ./T, ;s;{ M( lu uii iiidi |ii'operi pa Toe lain Stankij, 01 When it tenses, it is proof of pa The State v Wlien, or horse repres for propert; not the ho he obtained the indictni e(jual in va the Charlei had the rep the party ii should be r STATE V. MUNDAY. sm taining land by a false pretense, but of obtaining money by false pretense, and surely money is the subject of larceny. It is suggested that title to land is often an abstruse ques- tion, and that one who is not a lawyer, and indeed one who is, may be innocently mistaken about it, and therefore may be punished for an innocent act. Not at all. K miHtake is not intlictable. K ^retcme is not indictable. A. fahe j^retense is not indictable. It must be a false pretense with intent to cheat and defraud, and which does cheat and defraud. We were not favored with an argument for the defendant, luul his brief refers only to State v. Butwows. If there is any otiier allegcKl defect in the indictment, our attention was not called to it, and w^c have discovered none, although the indict- ment is not very well framed. There is error iti the arrest of judgment. This will be cer- tified, to the end tliat there may bo judgment upon the verdict. Htate V. r /lifer, 05 N. C, 321. Per Curiam. Judgment reversed. Note. — Wliero, upon an excliange of personal property, one of the parties falsely and fraudulent! j' pretends that the property which he is parting with bt.'I(jii^s to hiuisolf and is unincumbered, and at the same time afHrms that lie will warii' ' H against all incumbrances, an indiciment may be sustained i^'aii liim, 11 ilin fal^c pretense, and not the waiTanty, wiis the induce- \i liieh opuratfMl upon the other party to make the exchange. State v, ,ir, ;W ^ic, 40S 'oin. v. Lincoln, 11 Allen, 233. lu an indictmeui for such an offense, it is not necessary to aver that the )>iopei' parted with by the defendant was of any value. Id. To I lain a trade by false pretenses comes within the statute. State v. Stmhu, 01 Me., 157. When it is alleged goods v :c obtained by several specified false pre- tenses, it is not necessary to prove the whole of the pretenses charged ; but proof of part thereof, and that the goods were obtained thereby, is sufficient. The State v. Mills, 17 Me., 211. When, on the trial of an indictment, it was proved that the owner of a horse represented to another at his horse, which he offered in exchange for property of the other, waw called the Charley, when he knew that it was not the horse called by that name, and that by such false representation he obtained the property of the other person in exchange, it was held that the indictment was sustained, although the horse said to be the Charley was ecjual in value to the property received in exchange, and as good a horse as the Charley, The court say: "The horse called the C/mr?ej/ might have had the reputation of possessing qualities which rendered it desirable for tlie party injured to become the owner of him. ... If the construction should be narrowed to coses which might be guarded against by common '2M AMERICAN CRIMINAL REPORTS. lu-iulence, lap woak and imbecile, the usual victims of these pretenses, would be left unprotecteil." The State v. Mills, 17 Me., 211. It is as criminal to defraud the unwary as the wary. Johnson v. The State, 30 Ark., 242. If the party deceived by the false pretenses is proved to have been un- acquainted with the kind of property passed upon him, it is proper for a jury to consider that fact in determining the quo animo of the party accused. Cowan, v. The People, 14 111., 348. It matters not whether the goods were obtained immediately by the false pretense, or mediately by a contract, to which the false pretense induced the prosecutor to coiisent, provided there be a casual relation between the contract and the false pretense. Wharton's C. L., 8th ed., sec. 1180. Where two are indicted for obtaining money under false pretenses, evi- dence that one of them, with the knowledge, approbation, concurrence and direction of the other, made the false pretenses charged, warrants the con- viction of both. Wharton's C. L., 8th ed., sec. 1171. State of Nevada v. District Court. (ICNev., 76.) Fine and impkisonment : Costs — Certiorari. 1. Fine and imprisonment — Costs — Judgment for. — Relator was con- Aictod of an assault. The court imi>osed a fine of $500, taxed the costs at !{!300.50, and ordered relator to be imprisoned, ass by statute provided, for the fine. Hchi, that section 46 of the act concerning crimes and jiunishment (I Comp. L., 2352) authorized the imj)osition of the line, and section 074 of the criminal practice act (id., 2290) authorized the judgment for costs. 2. JiDGMENT— How enforced.— Relator could be imprisoned for the line, The judgment for costs can be enforced only by execution. 3. Certiorari — Leoauty of costs not reviewable. — If the court erred in allowing any costs that were not taxable against the I'ehuor, it was not an excess of jurisdiction, and its action, in tliis resi)ect, cannot be reviewed upon certiorari. Ca'tiorari before the Supreme Court. Tlie facts appear in the opinion. C. S. Vari((/i, for rehitor. M. A. JIurj>h]/, attorney-general, for respondent. By the Court, ITawley, J. Kelator contends that the district court exceeded its juris- diction in rendering the following Judgment: "Defendant, STATE OF NEVADA v. DISTRICT COURT. 237 J. J. Quinn, having been duly convicted of the crime of an assault, it is hereby ordered, adjudged and decreed that the said J. .T. Quinn do pay a fine of 8''>00, gold coin, and costs of tliis action, amounting to $300.50, making in all $800.50, gold coin; and it is furtlier ordered that the defendant be confined in tlie common jail of "Washoe county, Nevada, one day for cacli two dollars of said fine, so long as the whole, or any part thereof, sliall remain unpaid." From the views we entertain of this case, it is unnecessary to decide the question, argued by relator's counsel, whether tlie amendment to section 1 of the act in relation to fines (Stat. 1S()7, 44), as made in tlie amended act (Stat, 1809, 9G), is unconstitutional or not. There are other sections of the stat- ute, against wliich no objections have been urged, that gave the court authority to render the judgment. Section 46 of the act concerning ci'imes and punishments (1 Comp. L., 2352) authorized the imposition of the fine, and section G74 of the criminal practice act (id., 2200) autliorized the judgment for costs. Tlio imprisonment of relator is only for the fine. He couhl not be imprisoned for the cost. Const., art. 1, sec. 14; Thomjhson v. State, 10 Ind., 510. The judgment for costs can only be enforced and collected in the same manner " as costs in civil cases," that is, by execution. It is claimed that the court exceeded its jurisdiction in ren- dering judgment for the costs, because no cost bill was regu- larly made out and filed, and because " a large proportion of tlie amount adjudged as costs . . . was for fees not allowed by law." Although it would be a proper, and perhaps the better, prac- tice to require the prosecution to make out a regular cost bill in the same nuinner as is provided in civil cases, yet there is no provision of the criminal practice act requiring such a course to bo pursued, and in the absence of any statute regulating this uuitter, we think the court would have the right to deter- mine the amount of costs, as it seems to have done in this case, from an examination of the fees charged by the ro- s])ective officers. The petition sets out, in detail, the fees allowed to the several officers which are claimed to l)e illegal. It does not appear that any motion was made in the court below to correct any 238 AMERICAN CRIMINAL REPORTS. of those alleged irregularities. "We are of opinion that these questions cannot be reviewed upon certiorari. The question of the imposition of costs antl the amount to be allowed was a proper matter for the court to consider. It had jurisdiction to determine Avhat items of costs should bo taxed. If any error Avas made it could have been I'omodied by a proper motion in the district court. Relator was eniitlod to have his day in court and to make any objections to the judgment for costs, or to the allowance of any illegal fees. The fact that no cost bill was regularly filed did not deprive him of that right. If the court erred in allowing any costs that were not taxable against tlic relator, it was not an excess of jurisdiction, and its action in this respect cannot be reviewed upon certiorari. In re Wixom, 12 Nev., 219, and authorities there cited; Petty v. Connty Court, 45 Cal., 21r0. The writ must be dismissed. It is so ordered. IIerkon v. The Co^imonwealth. (79 Ky., 38.) Fine and isiprisonment : Verdict. 1. ALTEIlN'ATIVr: PUNISHMENT — FINE AND IMPRISONMENT, OR BOTH.— Wlicn a Btatute provides an alternative punishment for an offense, and further provides that the jiiiy, in rendering .1 verdiet of guilty, shall " fix the degree of punishment to he inflicted, unless the same he jixed hy law,'' the jury must be instructed and required to fix tho kind and extent of the punishment within tlie limits prescribed by the law. 2. General verdict of guilty. — It was error for the court to receive n general verdict of " guilty as charged in the indictment," and assess a line thereon. Appeal from Daviess Cii'cuit Court. W. W. Sweeney, for appellant. /*. ir. Ilardin, attorney-goneral, for appellee. Judge IIakois delivered the opinion of the court. It is provided by section 0, art. 1, ch. 47 of the General Stat- utes, that the penalty for setting up, exhibiting or keojiing faro banks shall be a fine of $500 and costs, and imprisonment until HEREON V. THE COMMONWEALTH. 239 the same are paid, or imprisonment not more than one year, or both such line and imprisonment, etc. The indictment was for a violation of this section, and upon tlie trial the jury, by their verdict, found the appellant " guilt}' us charged in the indictment." This verdict was received, and judgment rendered thereon by the court for $500 and costs, and declaring the appellant infamous, and incapable of holding any office of honor, trust or profit in this commonwealth, and forever disqualified from exercising the right of suffrage. To the reception of the ver- dict and rendition of the judgment the ap|)ellant objected and excepted. By section 258 of the Criminal Code it is made the duty of the jury, in rendering verdicts of guilty, to " fix the degree of l)iinishmcnt to be inflicted, unless the same he fixed hrj law.^^ This section means that if the law lixes the punishment, leaving no room for discretion on the part of the jury as to its kind or extent, then the law does not require them to fix the degree of punishment in their verdict. l>ut where an alternative or indefinite punishment is de- nounced by law for a given offense, there the jury must be instructed, allowed and required to fix the kind and extent of the punishment within the limits prescribed by the law. It will be observed at once that if the jury had been directed to fix the punishment in this case, they might have imprisoned the appellant without the fine which the court assessed without the imprisonment. In this class of cases, the punishment is not fixed by law, and the coui't erred in receiving tlic verdict and fixing the degree of appellant's punishment. The judgment is reversed and cause remanded, with direc- tions to set aside the verdict and award a new trial. Note.— In tho case of Milton v. The State, 45 Ala,, 50, the court says: " Section 37.17 of tlio Revised Code requires tho jury to fix and determine the amount of the fine in prosecutions by indictment. When they omit to iini)08o tt fine for an offense, whicli, in addition, may be puuislied by im- priKonniont or hard lal)or for the county, by returning a verdict of guilty niorcly, tho power to fine cannot bo exercised by the court. Tlie defendant, by iipiJOiUing from the county court, manifested his desire to claim all the benefits to be derived from the trial by jury. Among these were the de- cision by them, whether he would be fined ut all or not, and the amount." 240 AMERICAN CRIMINAL REPORTS. The People v. D'Aroencour. (95 N. Y., 624.) FohuEKY : Indietment — Evidence — Foreign corporations — Practice 1. Incorporation maybe shown by indirect evidence.— Upon the tri;il of an indictment, charging forgery in the second degree, in the makinj; and engraving of a plate in the form and similitude of a note of a hank incorporated in HaAana, under the laws of Spain, a witness on belialf of the prosecution testified that he had been at the bank in Havana ami saw business carried on there; tliat the bank issued notes which were received as money ; that he saw the articles of association, and from them, and what he sjiw in a newspaper, the official organ of tlie government, he believed the bank wa.s incorporated under the laws of Spain. An engraver, connected with the American Bank Note Company, also testi- fied that he engraved the plates from which the genuine notes were printed, and that they were then in the vaults of that company. Held. that the evidence was sufficient to establish the legal existence of the bank. 2. Civil practice act not applicable.— The provisions of the Code of Civil Procedure, making certified copies of the records of foreign coun- tries evidence, and prescribing the manner of authentication, are not applicable. 3. The indictment cluu-ged that the note so alleged to have lieen forged was "for the payment of Mty centavon." Held, that it was not necessary to define the meaning of the word centavos. 4. Under tlie statute defining forgery in the second degree, the making and engi'aving of an unfinished plate constitute the offense. 5. Want of authority of defendant to make the plate.— Testimony that the genuine plates of the bank were engraved and retained liy tin- Bank Note Company, with the testimony of the agent of the bank in this country that no one, except said company, had been authorized ti) do any engi'aving for the bank, was sufiicient to establish prima facie that the defendant was not authorized to make the plate. 6. Not necessary to allege intent to defraud. — As the offen.se charged was committed before the Penal Cotle went into effect, it was not essen- tial to charge in the indictment an intent on the part of defendant to defraud some individual or corporation. 7. Waiver. — Assuming that the provisions of the Penal Cotle, defining forgery in the second degree, were applicable, as the Code of Criminal Procedure requires such question to be raised by motion before or at tlie time defendant was called for judgment, by failing so to present it the right to object was waived, and defendant could not avail himself of it upon appeal. 8. Supreme court may grant new trial, although no exceptions were taken below. — The power conferred upon the supreme court by the Code of Criminal Procedure (§ 527, as amended by chap. 306, Laws of 1882), on appeal in a criminal action, to grant a new trial where tlio THE PEOPLE V. D'ARGENCOUR. 241 judgment is against evidence or law, or where justice requires it, althougli no exceptions were taken in the court below, is discretionary, and where it docs 'not appear that the discretion has been abused, the decision of tliat court is not reviewable. Appeal from judgment of the general term of the supremo court, in the first judicial department, entered upon an order made March 7, 1884, which affirmed a judgment of the court of general sessions of the peace for the city and county of '^ew York, entered upon a verdict convicting defendant of the crime of forgery in the second degree. ' Miller, J. The defendant was indicted and convicted for the crime of forgery in the second degree, on the first count contained in the indictment. Tliis charged that the defendant made and engraved, and caused and procured to be made and engraved, a ])late in the form and similitude of a promissory note, issued by a bank at Havana, in the island of Cuba, for the payment of fifty ccnfavos, said bank being a bank incor- porated under the laws of the kingdom of S])ain, without the authority of said bank, and in violation of the statutes of this state. Tlie counsel for the appellant insists that the court erred in refusing to advise the jury to acquit, on the ground that there was no legal evidence oifcred by the people that the alleged l)ank was incorporated under the laws of the kingdom of Spain. Upon the trial a witness was introduced and sworn on be- half of the people, who testified that he was a banker in K'ow York city ; that he had been in the bank named in the alleged forged note ; that the bank issued notes which were received as money ; that his firm were the agents of said bank in the city of N^cw York; that when he was in this bnnk at Havana he saw banking business carried on. He further testified that the said bank was incorporated under the laws of Spain ; that he saw the articles of incorporation in a book Avhich Avas in the court room on the day of the trial ; that from what he saw there, and also from what he saw in the official organ, the paper of the Spanish government, he believed it to be so ; that this official paper was published b}' the government and only con- tains official news, the chief laws, and any change in the ad- Vol. IV — 10 242 AMERICAN CRIMNAL REPORTS. ministration that interests the public. The fact of the bank being incorporated was also proved by the engraver connected with the American Bank Note Company ; that it had engraved the plates from which the genuine notes of the bank were printed, and Avhich plates were then in the vaults of said com- pany. We think that this evidence was suiRcient to show the ex- istence of the bank without producing the laAV to establish the fact that the bank had been incorporated, and the act of in- corporation, and that there was no error in the refusal of the court to advise the jury as requested. The rule has long been established in this state that it is not necessary, on an indict- ment for forgery of bonk-notes, to prove by direct evidence the incorporation of the bank, and that testimony of the most general character is sufficient for such a purpose. In People v. Davis, 21 Wend,, 309, it was held, on an indictment for having in possession, Avith intent to pass, bank-notes purporting to liave been issued by a banking corporation of a state other than that of Xew York, that it was not necessary to show that there was in fact such a corporation in existence; at all events proof of the most general character of its existence Avould be sufficient. The same rule is applicable here, and the proof in- troduced AA^as clearly sufficient to establish the legal existence of the bank Avithin the authority cited. Anyotlier or diiferent rule AA'Ould cause great difficulty on a trial of this dosciiption, and A'ery greatly interfere Avith the administration of justice in such cases. The general practice has been, in cases of this character, to produce general evidence as to the incorporation of the bank upon Avhich the alleged forgery Avas committed. Such being the rule in this state, it Avould seem to be unneces- sary to examine Avhether the same or a different rule exists clse- Avhere. The case of People v. Peahody, 25 Wend., 472, cited by the appellant's counsel, is not adverse to the rule laid down in People V. Davis, supra, as that Avas a case Avhere an intent was charged to defraud the bank, and it is there laid down that to constitute the offense of forgery, in counterfeiting the notes of a bank, it is not necessary that such bank, as the notes purport to have been issued by, should haA'e a legal existence; it is enough that the notes purport to haA'e been issued by a cor- poration ^r company duly author' zed to issue notes. gn THE PEOPLE V. D'ARGENCOUB. 243 The provisions of the Code of Civil Procedure (§§ 950-958 and 942) have no application to an indictment for coiinterfeit- in^' bank-notes. The rule in civil cases in regard to proof of tliis character is different, and the proof of the existence of tlic bank upon which the forgery was committed was entirely sufficient in the case at bar. It is further insisted that the court erred in refusing to ad- vise the jury to acquit upon the ground that the indictment docs not set forth any instrument Avhich purports to be a pecun- iary obligation of the bank. Tliis point relates to the allega- tion in tlie indictment tliat the note, alleged to have been made and engraved, was for tlxe payment of " fifty centavos,-^ and the claim is that the terms employed do not show, of themselves, tliat crntovos are money, or tliat tlie alleged promise involved any pecuniary obligation to pay on the part of the bank. Tlie charge in the indictment which is referred to is for making and engraving, and causing and procuring to be made and engraved, a plate in the form and similitude of a promissory note, in violation of the statute (3 E. S. (7th ed.), 2488, 30 and 31), and it was not necessary, to sustain the allegation, to define the meaning of the word referred to. It is of no importance \vh;;thcr an explanation was given to the Avord ccnfavos or not. If that word had not been engraved upon the plate, the en- graving and making of the plate unfinished would have been in violation of the statute, and the indictment was clearly good without defining or attempting to give a definition to the word reiitavos. The appellant's counsel relies upon the case of Sanahrla v. People, 24 Ilun, 270, but that case is entirely different from the one at bar. The indictment there was for attempting to forge an instrument purporting to be a pecuniary obligation of the empire of Brazil, which was set forth in the Portuguese language with an English translation, which did not define what was meant by the terms there used for money in the Portuguese language, and it was held that as the term used was not money of this country, and as the court could not take judicial notice that it was a coin at all, it did not appear that the instrument involved any pecuniary demand or obligation upon the part of the empire of Brazil, and that the indict- ment was insufficient. It will be observed that the charge re- 214 AMERICAN CRDIINAL REPORTS. luted to the forging of an instrument which created a pecuniary obligation, and sulficient did not appear upon the face of the indictment to, show that any such obligation was forged, and thus no crime was alleged. The allegation here is entirely difTeront, and a crime would be made out if the engraving had been but partially completed, and hence the case cited is not applicuble. Xor was any error committed by the court in refusing to advise the jury to acquit upon the ground that there was no evidence showing the want of authority on the part of de- fendant to make the plate. The evidence of such want of authority, we think, was sufficiently established by the agent of the bank in this country, who testified that no one save tlie IJank Xote Company had been authorized through him to do any engraving for the bank, and the lithographer whose com- pany had the genuine plates in its possession. The proof was positive that plates had been manufactured for the bank by the American Bank Note Company, who retained possession of the same, and the agent's testimony, therefore, tends to show that the defendant had no autliority for any such purpose. In view of this testimony', it is not probable that any other per- son was authorized to engrave plates for the bank, and it de- volved upon the defendant to establish to the contrary if such was the fact. The people were not bound, in view of tlio proof given, to show a negative, and the evidence introduced by the defendant, for the piu-pose of establishing authority, was not, of itself, sufficient for that purpose. As the case stood it was for the jury to determine whether a want of authority was established, and it cannot, as a matter of law, be held that there was a failure of the prosecution in this respect. It is further objected that the indictment Avas fatally defect- ive in not charging an intent to defraud some individual or corporation. The indictment charged an offense in violation of the provisions of sections 30 anrl ol of tlie "Revised Statutes, sujyra. There is nothing in these provisions which requires that there should be an intent to defraud any individual or cor- poration. The offense was committed in September, 18S2, be- fore the Penal Code went into effect, and hence the charge made in the indictment must be in accordance with the provisions of the statute cited, and, therefore, it was not necessary to allege THE PEOPLE V. D'ARGENCOUR. 245 any such intent. But aside from this view of the question pre- sented, and assuming that the provisions of section 511 of the Penal Code are applicable, it is a sutKcient answer to the point urged to say that tlio cpiestion was not raised so as to be avail- able to the defendant. Section 4()9 of the Code of Criininal Procedure required a motion to be made for that purpose before or at the time when the defendant was called for judgment. This was not done, but a motion was made in arrest of judg- ment and for a new trial, tlie grounds of which were con lined to tlie exceptions talcen at the trial, and to the judge's cliarge, and did not, tlierefore, include this alleged defect. By failing to present the question the defendant waived the riglit to ob- ject tliat tlie indictment was defective for want of an averment of an intent to defraud. The provisions of section 527 of the Code of Criminal Procedure do not aid the defendant, as tlio power conferred upon the supreme court to grant a new trial when tlie verdict is against the weight of evidence, or against law, or when justice requires a new trial, whether any excep- tion shall have been taken or not in the court below, is a dis- cretionary one, and as it cannot be said that the discretion has been abused by the general term of the suprcniio court, the decision is not reviewable upon appeal to tliis court. It is also insisted that there was no proof of an intent (in the part of the defendant to defraud. The question of intent was one for the jury. Although the plate was not entirely complete, yet it was sutticiently so to evince that it was intended for the printing of notes of the description of those is- sued by the bank named thereon. This is shown by the descrip- tion given by one of the witnesses upon the trial. It conforms to similar parts of a gen nine plate. The question of defendant's good faith was for the jur}-, and in view of the evidence it can- not be said that there Avas no ground for claiming that the act of the defendant was without any intent to defraud or commit a crime in violation of the statute. The judgment should be affirmed. All concur. Jxiclgment affirmed. 246 AMERICAN CRIMINAL REPORTS. United States v. Cakll. (103 U.S., Oil.) Forgery : Language of statute. SciENTEn MUST BE ALLEGED. — An indictment on section 5431 of the Re- \iaed Statutes, alleging, in words of the statute, that the defendant felo- niously, and with intent to defraud, did pass, utter and publish a falsely male, forged, counterfeited and altered obligation of the United States, must further allege that the defendant knew it to be false, forged, coun- terfeited and altered, or it is insufficient, even after verdict. Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of New York. The Solicitor-General, for the United States. Mr. William C. Roberta, for the defendant. Mr. Justice Gkay, after stating the case, delivered the opinion of the court. In an indictment upon a statute, it is not suificiont to set forth the offense in the woi'ds of the statute, unless those words of thcuiaelvcs, fully, directly and expressly, without any uncer- tainty or ambiguity, set forth all tlie elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts neces- sary to bring the case within that intent. United Stales v. Cruilcshaiilc, 92 U. S., 542; United States v. Slmmonfi, 9(5 id., 3G0; Commonioealth 'V. C//^o/yZ, 8 Cush. (Mass.), 215; Common- wealth V. Bean, 11 id., 414; Commonwealth v. Bean, 14 Gray (Mass.), 52 ; Commonwealth v. Filburn, 119 Mass., 297. The language of the statute on which this indictment is founded includes the case of every person who, with intent to defraud, utters any forged obligation of the United States. But the offense at which it is aimed is similar to the common law offense of uttering a forged or counterfeit bill. In this case, as in that, knowledge that the instrument is forged and coun- terfeited is essential to make out the crime ; and an uttering, with intent to defraud, of an instrument in fact counterfeit, DANIEL V. STATE. 247 but sii Imposed by the defendant to be genuine, though Avithin the words of the statute, would not be within its meaning and object. Tliis indictment, by omitting the allegation contained in the indictnicut in T/ie United States v. Howell, 11 "Wall., 432, and ill all ai>i)rovcd precedents, that the defendant knew the instru- ment which ho uttered to be false, forged and counterfeit, fails to chiirgo him with any crime. The omission is of matter of substance and no', a "defect or imperfection in matter of form only,'' within the meaning of section 1025 of the Eevised Stat- utes. By the settled rules of criminal pleading, and the author- ities above cited, therefore, the question of the suilicicncy of tlic indictment must be Answered in the negative. Daniel et al. v. State. (61 Ala., 4.) Fraudulent packing or cotton: Indictment— Technical terms. Not neckssauy to show concealment of substance mixed with the COTTON. — A penal statute, which provides that "any person who frauilulently packs or Imles any cotton by plating, or otherwise," is vio- lated when jwrsonfl, who gin cotton for toll, with intent to defraud the owner or the purchaser thereof, mix sand or other substances with the cotton ; nor is it necessary to show a concealment of the sand or other substances in order to make out the offense. Indictment — Generic or technical terms — Words generally under- stood AMONG THE PEOPLE. — Where a statute creating an offense de- clares that it may be committed by certain specified acts or means, "or otherwise," the acts "otherwise" or different from those specified must be alleged in such a manner as to enable the court to determine from the indictment whether or not they constitute an offense. Same. — In alleging the acts assumed to be criminal, they should be set forth in unambiguous words, understood by court and jury and by the people generally ; not in slang words or vulgarisms, or words used in a technical sense in some particular employment or business, but in words belonging to the plain and proper language of the community. Appeal from the Circuit Court of Barbour. J). If. Seals, for appellants. JI. C. ToinpJc'ms, attorney-general, for appellee. 248 A3IERICAN CRIMINAL REPORTS. Manning, J. The statute (sec. 4398 of the Code of 1S7G) de- nouncing a penalty against "any person wl") fraudulently juicks or bales any cotton by plating, or otherwise," is un- doubtedly violated when persons who gin cotton for toll, with intent to defraud the owner of seed-cotton sent to them to be ginned or packed, or to defraud a purchaser thereof, mix sand or other worthless foreign substances with the cotton when ginned, in the bales into which it is packed. It is not necessary, in order to nuike out the offense, to show that the sand is put into the interior of the bale and concealed by sur- rounding or plating it with clean cotton ; nor does it matter whether the sand is put into the cotton while in the gin-house, or being carried out to the press, or at the press when packed or about to be packed into bales. The charges of the circuit judge are not inconsistent witli these views, and were not erroneous; nor did he err in refusing to give to the jury the charges 2, 3 and 3J that were asked on behalf of defendants. About the indictment, we have had some diiliculty. It charges that appellants "did fraudulently jnick or bale one bale of lint cotton, the i)roi)erty of Hester Ann Jones, by plating or otherwise, to wit, by fttaul-jta/'l'aifj,'^ etc. When a statute creatiu": an t>trense declares that it may be committed by certain si)ecilied acts or means, " or otherwise," the acts otherwise or different from those speeiJled, and which are to be put in evidence, must be so described or alleged in the indictment that the court shall be able to see whether or not they constitute the offense. Darmer v. The State, 54 Ala., 127. If, in the latter of such alternative averments, the acts or means by which the offense is supposed to have been committed are not mentioned, — it may turn out that the grand jury, in finding the indictment, and the petit jury, in their venlict sus- taining it, have imputed to certain acts a character of crim- inality Avhich does not belong to them in the e^'es of the law, and upon which the judge would not bo justified in passing sentence against the accused. It follows, of course, that in alleging the acts assumed to bo criminal, they should be set forth in unambiguous Avords, un- derstood by court and jury and by people generally ; not in slang Avords or vulgarisms, or Avords used in a technical sense in some peculiar employment or business, but in Avords belong- mg or DICKEY V. THE STATE. 249 ing to the plain and proper language of the community. "We have hesitated over the question whether the expression "sand- packing " is not of a technical character, and as such not gener- ally known in popuhir use. But considering how generally the peoi)le of this state are concerned in the raising of cotton, and in pre[)aring it for nnirket, and in the sale and purchase of it, we tliink the meaning of " sand-packing" has become so gen- erally understood that wo cannot say the indictment is had for ambiguity. It would have been better to have alleged that the fraudulent packing of the cotton was done by intermix- ing or putting sand with the cotton in the bale, with the in- tent, etc. Solicitors should use more thought and care in preparing the brief indictments which are authorized by our statutes. Let the judgment of the circuit court be alhrmed. Note. — In the grave and f oimal accusation of a grand jury, by which a person is put on trial for lii:i liberty or life, things which arc the subject of an alleged ollense should bo called or set forth by names or words wliich properly designate or describe them. " Greenbacks " is but a niclniame, originally, or slang word, derived from the color of the engi'aving on the backs of the currency so denominated, and not either the legal designation or a proper description of the things alleged to have been feloniously taken. The fact that the word has, from its conveniency, come into common use, does not make it by itself, without comiection with something else indicat- ing the notes called by that name, a projier denomination for them in an indictment. Wculey v. The State, Gl Ala., 282. DicKET V. The State. (08 Ala., 508.) GAMiNa: Ilifjlncay — Public place — Jurisdiction over navigable stream. 1. Gamixo — Highway — Naviqable stream not.— A navigable stream is not a hiijlnvaij within the meaning of the statute against gaming (Coile, sec. 4207). > ' Suction 4207, Code of Alabama, provides : " Any person who plays at any game with cards, dice, or any device or substitute for either cards or dice, at any tavern, inn, store-liouso for retailing sijirituous liquors, or house or place where spirituous liquors are retailed, sold or given away; or in any public house, highway or other public place, or any outhouse where people resort, must, on conviction, bo fined," etc. 250 AMERICAN CRIMINAL REPORTS. 2. Sajie — Public place.— Playing a game of cards in a ferry boat, which carried passengers across a public licensed ferry, is a " public place," al- though the boat was not that day engaged in cai'rying passengers by reaijon of an overflow in the river, and a person standing on the bank of the river could not see the game going on. 3. Jurisdiction over navigable stream. — The playing having been in the middle of the river dividing two counties, the courts of either county had jurisiliction of the offense under the statutes. Appeal from County Court of Madison. Hon. W^illiam Richardson. Tried before the II. C. Tomjjhlns, attorney-general, for the state. SoMERviLLE, J. The general charge given by the court in this case asserts several distinct legal propositions, some of which are certainly correct. The exception reserved is to tlio whole charge, and not to any particular part of it whicli is specified as being obnoxious to objection. Such exceptions have frequently been coiidemned by this court as defective, and they Avill not, therefore, be considered, except in cases wliere evxry pi'oposition announced in the general cliar/j;e is er- roneous. South and XodhAla. 11. It. Co. v. SuIUvan, 5!) Ala., 272; Grth day of March, 1881, on which he was tried at tlic s])ecial November term of the district court of Arapahoe county, 1 88 1, found "guilty of murder as charged in the indict- ment," and sentenced to imprisonment for life in tlio state penitentiary. A writ of error to the judgment was prosecuted to this court, and at the April term, 1883, wo reversed tlio judgment nnd reiuiUHled the; cause, for the reason thu*^, after tlie commis- sion of the oU'ensc, the legislature had so anwrnled the statute concrniiug murder as to alter the situation of the prisoner to his disadvantage, without a saving clause as to the repealed 256 AMERICAN CRIMINAL REPORTS. provisions, tliui making the law ex post facto as to the case of the petitioner. The petition is demurred to by the attorney-general on be- half of tlie people, and it is stipulated by counsel reprcsentino- the respective parties, that the cause be heard upon this demur- rer, and that the record upon the writ of error of Garvey (tlie petitioner) v. The People, recently heard and determined in this court, together with the judgment of the district coi rt of Arnpahoo county, subse(piently rendered, denying the motion to quash the indictment, and entering judgment upon the former conviction, be considered as a part of the present petition for writ of liaheas corpus. Upon the return of the record in the district court, the peti- tioner moved to quasli the indictment, upon tlie ground tliat it was insullicient in law, as ajipcarcd from the judgment of re- versal. The petition alleges tlitit the court denied the motion to quash, and gave judgment on tlie same verdict, Avitliout any furtlier trial of the prisoner, that lie be confined in the state penitentiar}' for the term of eight 3'ears. TTj)on tliis judgment t)ie prisoner Avas committed to the penitentiary, wliei-c lie still remains in confinement, and to be released from which he has sued out, from this com*t, the present writ of haheas corpus. The judgment complained of is a judgment for man- slaughter. The grounds of the present npplication a]ipear to be: First. That the condition of the law ai)p1icable to the case of the prisoner, at and since the time of his trJMl for nvirdcr, has been such that he could not lawfully be tried for any of- fense charged in the indictment in question. Second. That the action of the district court in pronouncing judgment for manslaughter without a ti'ial by jury was with- out jurisdiction, and therefore null and void. Upon the first proposition, it is contended that the rejieal of the provisions of the law of homicide, above alluded to, < jiutshed the indictment, or left it in the same condition it would have been if no law authorizing an indictuumt for murder had ever ex- isted. That, if this be true, there could be no record in the district court upon which punishment for any ofl'ensc charged in the quashed indictment could bo inflicted. The repeal of the stat- utory' provisio.MS had the same eiTect upon the indictment as if I GARVEY'S CASE. 257 a domurrer tliei'eto had been sustained on the ground that it clmrged no crime. There could not be a conviction of man- slaughter, because it was quashed in toto and not in part only. A (lemuri'or, it is argued, would not have been sustained as to the cliarge of murder, and overruled as to the charge of man- slaughter involved in the allegations constituting murder, but the inon this indiorment; for, while manslaughter is includfd in every indictment for murder, there was here no indictment for murder; ;md it cannot be^iid that one crime contains another vhon there is no cimtainin.: crime, or that an indictnumt for murder includes manslaughter, when there is no such offense as muidcr. It would seem to be an extravagant proposition that, as to the petitioner, there is no such offense as murder. As stated in Ga)'i'{'if r. 77ir /*/f\ si//>r(i, there remained unreivalcil of the law of homicide, in aught included in the crime chargisd in the indictnu^nt; and, if so, is it sulliciently alleged < Our constitution provides that in criniinal prosecutions the accused shall have the right to demand L o nature and cause of the accusation against him, which is nothing nu)ro than was recpiired by tho rules of the common law. AVo have S(!cn that the Stat utoiy definitions of murder and manslaughter, as the same renuiined uni-epealed after tho legislation of 1881, weri: synonyii fenses; i accordin other UK test the 1 At cc api^ear t grades c hunuin b were tht sec. 4(i8. In liis Bishop s; called t\\ ideas," Certair one abov offense, m next Iow( the indict offense, ]> class of ci then; nii<^ of the all :Mr. Hi,- offense w elude the "We hav (listinctio slaughter which arc murder, homicide must con hij;her fr 1 I5ish. sec. TilS. ]\rr, \M with fchji fact of m ( GARVEY'S CASE. 259 synonymous with the common law definitions of the same of- fenses; and since tlie statute requires all trials to be conducted iiccording to the course of the common law, except where an- other mode is pointed out in the C'l-iminal Code, Ave may safely test the suiiiciency^ of this indictment by its principles. At cc union law, the words "murder" and "manslaughter" appear to have been terms emplo^'ed to designate different o-rades of the same oflfense, viz. : The felonious killing of a human being. All that distinguished one grade from the other were the words "malice aforethought." Bishop, Stat. Cr., sec. 4r.8. In his work on Criminal Procedure, vol. 2, sec. 570, Mr. Bishop says: "Whether mui'der and manslaughter are to be called two crimes, or one, is matter only of words, not of ideas." Certain crimes, including murder, were arranged in grades, one above another, and each higher olfense, or grade of an otTcnse, was said to contain all that was embraced in the one next lower, and something more. It was not necessary that the indictment for any olVcMise siiouhl sjiecify the name of the offense, provided it was in other respects sullicient; and in this dass of crimes, whatever the olfeiise alleged in the indictment, then^ might be a conviction of any other, if within the words of the allegation. Mr. l>ish()|) says the indictment for the higher form of the offense would iilmost necessarily be in such liinguage as to in- clude the 1()W(U'; and, relV^rring to the subject of murder, says: "We have alreadv considered what, in general terms, is the distinction between the indictment for murder and for num- slaiightcr ; the former merely recpiii'ing some allegations added, which are not in the latter. In otlru' words, the indictnu'ut for lunrdei', being founded (m the statu\ 3 which divided f(^lonious homicide into the two degrees of n.urder and numslaughter, must contain those statutory terms which distinguished the hijjher from the lower." 2 IJish. (Jrim. Troe., sees. 5Tgislation the wonl " imprisonment " means imprisonment in the county jail or Iwal ])ri8on. unless expressed to be in the i)enitentiary ; and the statutes luoviding for the UupriHonuient of a defendant until tho flue oud oust be paid CHEANEY V. THE STATE. MS refer to misdemeanors and not to f elonie * ; and a defendant convicted of a felony and sentenced to the penitentiary for a fixed term, and the payment of a fine, cannot be continued in prison after tlie expiration of said term, by reason of the non-payment of the fine and cost, either in the penitentiary or county jail. Error to Pope Circuit Court. Hon. W. D. Jacoway, Circuit Judge. Z7. J/. 7?os6', for appellant. English, C. J. At the November term, 1879, of the circuit court of Franklin county, P. O. Cheaney was indicted for se- (Uiction under a false promise of marriage. Tlic indictment charged tluit "said P. O. Cheaney, on the •>M\ (lay of June, 1879, in the county of Franklin, etc., being ti single and unmarried man, unlawfully and feloniously did obtain carnal knowledge of one Mary Head, a single and un- married female, by virtue of a false exju-ess promise of marriage to her previously made by the said I*. O. Cheaney, against the peace,"' etc. Defendant demurred to the indictment on the ground that it did not substantially conf(n'm to the statute, and did not state facts which constituted a public offense. The court ov^erruied the demurrer; and on the application of defendant the venue was changed to the circuit court of Pope county, where the case was trieil at the March term, 1880, on pica of not guilty, and the jury found defendant guilty and assessed his punishment at a line of $1,000 and imprisonment in the penitentiary for one j'^ear. The coui't rendered judgment that the defendant be im- prisoned in the penitentiary for one year; and that the state recover of him the fine of $1,000 assessed by the jury, and the costs, \\m\ that if the line and costs were not paid by the ex- piration of his term of imprisonment, he be further imprisoned in the penitentiary until they were paid, but that his confine- ment for fine and costs should not exceed one day for each two dollars thereof, etc. After defendant was sentenced the court permitted him to lllo a motion to sot aside the judgment and grant him a new trial, which the court overruled, and ho took -a bill of excep- tions and afterward brought error. 'tl RV. K:i^ 1 266 AMERICAN CKimNAL REPORTS. I. The indictment was drafted under the following statute : "Any person who shall bo convicted of obtaining carnal knowledge of any female by virtue of any feigned or preteiuled marriage, or of any false or feigned express promise of mar- riage, shall, on conviction, be imprisoned not exceeding two years in the penitentiary, and fined in any sum not exceeding $5,000 ; but no person shall be convicted of said crime upon tlio testimony of the female, unless the same be corroborated by other evidence." Act of April 12, 1869 ; Gantt's Digest, sec. 1319. The indictment alleges, in form substantially good, all tlie material facts requisite to constitute the crime of seduction by false express promise of marriage under the statute, and the demurrer to it was properly overruled. II. The material allegations of the indictment were suffi- ciently proved by the testimony of the injured female, tak(Mi in connection with admissions made by defendant to several witnesses. The evidence, looking at the whole of it, docs not make a case of rape as suggested by counsel for plaintilF in error, but sustains the charge of seduction by false promise of marriage. The question of force was submitted to the jury by tlu) sixth instruction moved for defendant, and given by the co t, wliicli was as follows: " If the jury believe that the defendant did obtain carnal knowledge of the said Mary Head, but that the same was doiu; forcibly, against the will, and contrary to the desire and con- sent of said jMary Head, then they nmst acquit." III. The bill of exceptions shows that eleven instructions were moved for defendant ; that the court gave the fifth and sixth and refused the others; then follows the statement tliat "the court, in lieu of the instructions asked for by dofeiKl- ant, gave the following" — but none are set out. Those in- structions sliould have been brought upon the record by tlic bill of exceptions, so that we could see whetlier the court erred in giving them in lieu of such of defendant's as were refused. IV. On the motion of the prosecuting attorney, the court gave six instructions, the defendant objecting to the second only. CHEANEY V. THE STATE. 267 In the first the court stated to the jury the offense charged, and the second follows: " To sustain this charge it must appear from the evidence, first, that Jie defendant did obtain carnal knowledge of Mary Head ; second, that ho did so by virtue of an express promise of marriage which was false, and was made by the defendant alone for the purpose of obtaining such carnal knowledge ; third, that such false pi'omise was made in such manner aiul under such circumstances as to induce said Mary Head to believe that it was not false, but was sincere and true, and that so believing she submitted to his embraces, when otherwise she would not have permitted such intimacy ; fourth, these facts, if proven to the satisfaction of the jury, satisfying their minds beyond a rea- sonable doubt, togetlier with the further facts tliat the offense was committed in Franklin county, etc., and at some time within three j'cars next before the linding of the indictment, are suificient upon which to convict the defendant." Xo objection to this instruction has been made by counsel here, and we see notliing in it that could bo the subject of a well- founded o1)jecti(m on tlie pai't of the accused. V. It was objected in the court below that the court erred m so mucli of tlie judgment as sentenced defendant to further imprisonment in the ])enitentiary, after the expiration of the term of one year fixed by the verdict, for the payment of the line and costs, at one day for each two dollars thereof, should the same not be paid by the time the fixed period of imprison- ment expired. Under the Revised Statutes, before the penitentiary was es- tablished, many felonies, as well as misdemeanors, were made punishable by fines, etc. See Eevised Statutes, Criminal Juris- prudence. If, on conviction, a fine and costs were not paid, the defend- ant was committed to jail until they were paid, but might be released under the insolvent act; or the court or judge might order him imprisoned for a limited time in lieu of the fine, etc. Id., Criminal Practice, sees. 10!) and 201. By the act of the 17th of December, 1838 (Acts of 1838, p. 121), modifying the Penal Code to correspond with the ostnblishmont of a penitentiary, no felony was made punish- able by tine, but all felonies were made punishable by imprison- 268 AMERICAN CRIMINAL REPORTS. •I } ■ ment in the penitentiary or by death. In other words, the act provided for no line where imprisonment in the penitentiary was made the punishment for an offense. So after the passage of this act it was in misdemeanors onlv that ])ersons were subject to imprisonment in jail for lines and costs, under the provisions of the Kevised Statutes above cited. After the passage of the penitentiary act of 17th Decem- ber, 1S3S, the legislature passed as many as seven acts (includ- ing- tlie one under which plaintilf in error was indicted) providing for the punishment of pai'ticular offenses n:uned in tliem by both lines and imprisonment in the penitentiary. See Gantt's Digest, pages 330, 343, 348, 351, 350, 307 and 372. But in none of these acts except the slander act (Gantt's Digest, p. 372) is there any provision that the person convicted shall be con- lined in the jjenitentiar}'" until the fine be paid. The code of practice m criminal cases which went into effect the 1st of January, 1800, contained two sections providing lor inij)risonment for fines. The first, under the title "Judg ment," chap. IX, sec. 283, follows: " If the punishment of an oirense be a fine, the judgment may direct that the defendant be imprisoned until the line is paid, s]iecifying, however, the extent of im})risonment, which shall not exceed one day for each two dollars of tlie iine." This became sec. 1001, Gantt's Digest Crim. Pro. The second, under the title " Execution," chap. X, sec. 20!> (of Cr. Code), follows: '' The defendant shall not be held in confinement under the execution for a fine, for a longer period than at the rate of (»no day for each two dollars of the fine; but such imprisonment shall not discliarge the fine, which thereafter can only be col- lected by proceeding against the defendant's property. But the provisions of this section shall not ai)ply to judgments in city or police courts, which may be discharged by confinement in the work-house, according to the provisions of the special statutes regulating them." This became sec, 20U0 of Gantt's Digest Crim. Pro. Neither of the above sections provides, in terms, for impiis- onment in the penitentiary for a fine; and the first clause of the first section: "If the punishment of the offense be a jf?nu to misdemeanors. J5y act of March 25, 1871, it was provided that in all prose- cutions in cases less than felonies, in courts of justice of the peace, and in other inferior courts, the i)rosecutor should give bond for costs, etc., etc. And it was further provided that : " If the accused be convicted, the court rende^'iug the judg- ment shall, in addition to the fine or imprisonment which it shall impose on the person convicted, render judgment against such person for all costs accrued in the case ; and if such costs are not immediately paid, such convicted person shall, besides undergoing the penalty adjudged against him, be confined in the county jail at the rate of one day for every two dollars adjudged against him for line and cots, and then the county sliall pay the '^^ats of said prosecution." See Gantt's Digest, sees. 2020-22. On the 21th of IMarch, 1875, the following act Avas passed: " That section nineteen hundred and ninetj'-one (1991) of Gantt's Digest be amended so as to read : ' If the punishment of an oirense be a fine,' the judgment shall direct that the defendant be imprisoned until tlio line and costs are paid, specifying, howevei*. the extent of imprisonment, which shall not exceed one day for each dollar of the fine and costs." Acts 1S71-5, p. 270. By act of JNfarch 10, 1877, the last act on the subject, a person convicted of any misdemeanor or petty offense in any of the courts of this state, and committed to jail in default of payment of fine and costs, is . eniiired to discharge the same by manual lal)or on public works, or be hired out until the fine and costs be paid, at not exceeding one day for each seventy- five cents of the fine and costs. See Acts 1877, p. 73. In all our penal legislation, when the word imprisonment only is used, it is understood to mean imprisonment in a county jail or local prison, and when the legislature has intended imprisonment in the penitentiary it has been so expressed. After a careful review of all the statutes on the subject, our opinion is that the court below eri'ed in so much of the judg- ment as sentenced plaintiff in error to imprisonment in the penitentiary until the fine and costs were paid. So much of the judgment as is for one year's imprisonment 270 AMERICAN CRIMINAL REPORTS. in the penitentiary as punishment, and for tlie $1,000 fine and costs, must be aflirmed, and so much as is for imprif;oniiiont in the penitentiary at 82 per day until the line and costs are puid must be reversed. If tlic legislature shall deem it good policy and just to im- prison persons in the penitentiary for linos and costs, in sncli felonies as fines may be imposed as part of tlio punislniiont, it must be expressly provided for, as was specially done m the slander act. Gantt's Digest, sec. 1551. VI. I>ut tlie further question is pi'csented, wliether this court will render judgment that if the line and costs be not paid by plaintiff in error before the term of his imprisonment in the penitentiary for the offense of which he was convicted and sen- tenced sliall expire, ho bo delivei*ed on the expiration of tlio term, by tlie keeper of the penitentiary, to the sheritT of Pope county, to be there imprisoned in the county jail for lines and costs, etc. This cannot be done imder the act of March 10, 1877, because that act exju'essly applies to fines and costs in misdemeanors and petty offenses only, and not to felonies. If we go back of that act to the act of ]\rarch 24, 1875, above copied, we should have to direct that ho be confined in jail for one thousand days for the line and a day for each dollar of costs, and that in idleness and at the public ex- pense; for that act makes no provision to put him at labor upon public works or to hire him out for the jmyment of the fine and costs, as does the act of ]\rarch 10, 1877. Moreover, by the act of the 10th of March, 1877, the legis- lature seems to have abandoned the former policy of confining persons in jail in idleness, and at the public expense, for lines and costs. Under the present aspect of the legislation, we shall decline to make any order for his confinement in the county jail for the fines and costs, and leave the state to her remedy l)y execu- tion against his goods and chattels, lands and tenements, if he has or may acquire any. The clerk of this court will make out and certify to the keeper of the penitentiary the judgment of this court, modi- fying the judgment of the court below, as above indicated. STEWART V. THE STATE. BISSKNTINO. Eakin, J. I concur in sustaining the conviction in this case, ami in holding void so much of the sentence as provides that defendant shall be retained in the penitentiary until the line bo paid. In vioAV, also, of the slight uncertainty of the result of legis- lation, I think it well to make no specific order for the de- livery of the defendant to the shorilf of his county, after the expiration of his term in the penitentiary. It is not necessary. Tlio duties and pouers of the sheriff are prescribed hy general provisions of the law ; no ordei's are required. I do not con- cur in holding the act of starch iii, 1875, to be so far repealed, by implication, that a fine imposed as a part of the punishment ill felony can now be collected only by civil process. The act of the lOth of March, 1877, seems to be confined to misde- meanor, leaving the former act otherwise intact. Stewakt v. TiiK State. I (39 Ohio St., 152.) Incest: Brotlicr-in-laic and suter-in-law, A brothor-in-Iaw and sister-in-law are nearer of kin by affinity than cousins, witliin tlu; meaning of the statute preBcribing the punishment of incest. Motion for leave to file a petition in error to the court of common pleas of Washington county. Nye d; Oldham, for the motion. J). A. //f^>///«j/.?y the Court. The defendant, Stanton E. Stewart, was in- dicted for incest, the indictment charging him with having cominitted adultery with one Etta Drake, " the said Stanton E. Stewart and the said Etta Drake being then and there nearer of kin, by allinity, than comiins, to wit, the said Etta Drake being then and there the sister bv alRnitv, said relation being commonly known as sister-in-law, of the eaid Stanton E. 272 AMERICAN CRIMINAL REPORTS. Stewart," and tlie only qnestion presented is wliethcr tlio in- dictment contains a sufficient statement of the rolationsliip between the defendant av; 1 Etta Drake. It is claimed tliat the indictment is in this respect bad: 1st, because it does not state how the rehitionship was created, and that it still subsists; and 2d, because no relatives by affinity are nearer of kin tlian cousins by consanguinity, tliere being no mode of comparison between relatives by affinity and relatives by consanguinity. The first objection to the indictment is disposed of by the decision in the case of Nolle v. The State, 22 Ohio St., 541. The second objection cannot be sustained. The statute pro- scribes the punishment of persons having sexual intcrcoui-se, who are "nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship," and we are of opinion that under this statute the degrees of relationsliip by affinity are to be determined in the same manner as degrees of relationship by consanguinity, and that a brother-in-law and a sister-in-law are, within the meaning of this statute, nearer of kin than cousins. Any other construction of the statute would exclude from its operation all relatives by affinity. Motion overruled. Van Houten v. State. (46 N. J., 16.) Indecent exposure: Intent, 1. The crime of indecent exposure is committed if a person intentionally makes sucli exposure in the view from tlie windows of two neigliboi- ing dwelling-liouses. 8. It is not necessary that any person should actitally see such exposure, if it was made in a public place with the intent that it should be seen, and persons were there who could have seen if they had looked. On writ of error to the Essex Sessions. . Edward M. Colic, for the plaintiff in error. Oscar Keen, prosecutor of the pleas, for the state. VAN HOUTEN v. STATE. The opinion of the court was dolivered by TJkasi.et, Chief Jttstice. This Avas an indictment charging the defendant with indecent exposure. The criminal act al- leged was that the defendant, in urinating, intentionally exposed his nakedness in a public place. The transaction in question occurred in the yard of a house which was occupied in part by the defendant and in pait by the prosecutors. The defendant himself, when on the stand as a witness, admitted that if he had done the act in the place designated by the prosecutors in their testimony, he would have ex[)osed himself to the windows of two dwelling-houses that were then inhabited and were close to the locus in quo. The defendant, at the trial, in his own testimony, denied that he occupied the position in ques- tion, and asserted that at the time of the occurrence ho had betalc(ni himself to a place retired from observation. If tlie state's account of this alTair was the truth, there can be no doubt that, in a legal sense, the act complained of was done in a public place. Accepting tluit version as the true one, tlie defendant ex})osed himself so that he could be seen from the wiiulows of two dwelling-houses that were within a few feet of the place of the occurrence. If it were tlie law that a man could lewdly expose his naked person to the in- mates of two dwelling-houses, as was said in the case of Beg. V. Holmes, G Cox, C. C, 21G, " this would not be a country fit to live in if such an abominable outrage could go unpunished." According to the law of this offense the place is a public one if the exposure is such that it is likely to be seen by a number of casual observers. In the case of Beg. v. Fart'ell, 9 Cox, C. C, 440, which is an authority relied upon by the defense in the present instance, it was declared that by an indecent ex- posure in a place not far from a highway, the common law otfcnse had not been committed, but the court was careful to supplement its decision with the remark " that it is not to be talcen that we lay down that if the prisoner was seen by one person, but there was evidence that otiiers might have wit- nessed the offense at the time, we would not uphold the con- viction." On the facts of the case, if the jury took them as stated by the witnesses for the prosecution, the place of the alleged Vol. IV— 18 274 AMERICAN CRBUNAL REPORTS. olTensG was a public place, and if the jud^e had so told the jury his charge in that respect would have been legal, and would have comprised all that he could be required to say on the subject. The same testimony proved that when in that position he was seen by them to make an indecent exposure of his person. Upon this subject the trial judge charged in these words: "I think the true principle is, and I so instruct you, that as a general proposition the place where the exposure is made should be public; but that it is sufficient if the place is not ordinarily public, but only so in consequence of persons being temporarily assembled there; and, further, that there is no nee;l that the exposure should be actually seen by any one, provided that it wac made to bo seen, and those who were there could have seen it if they had looked ; and if so made, the place being public, it is immaterial whether the exposure was made to one person or to many." In my opinion this extract from the charge contains a proper expression of the law on this general subject, but that part of it which consists of the declaration that the delinciuont need not be seen by any one was not germane to the case, for both witnesses on the part of the state had unequivocally tcstifiod that they had seen the indecent exposure in question. This was an essential part of their statement, and it is not within the range of possibility that the jury could have convicted the defendant, on their testimony, of the offense charged, and at the same time rejected their averment that they saw it. (j)n- sequently, if the charge Avas faulty in holding that the defend- ant was guilty, although no one actually saw the indecent exposure made by him, an exception on that ])oint could not avail in this Avrit of error, as such misstatement of the law couhl not have prejudiced the defendant on the trial of the merits of the case. But, as I have said, I do not think that, even with respect to legal theory, there was any fallacy in the charge in this particular. The jury were further instructed, on the subject of ci'iniinal purpose, in the following language : " I instruct you that the testimony must show that the exposure was not inercly acci- dentcal, and. in order to convict the defendant, you ought to Ik sjitisflcd, from the testimony, that the exposure was intentional, at such time and place, and in such manner, as to offend against Tl wan consi or an send STATE V. SMITH. 275 public decency ; but intent may be inferred from recklessness. It is not necessary tliat some witness should testify that tho defendant had said that he intended to commit the act ; you can infer what he intended to do from what he actually did do." This also was a correct statement of the law on this branch of the case, and, taken in connection Avith the previous instruo- tion above referred to, was all that could be properly required. The defense, indeed, requested that the court should charge tlio jury with respect to ci[^;;hteen legal propositions, Avhich were submitted in writing, but the whole of them were prop- erly rejected, as all the law appertaining to the matter in issuo had been, Avith entire clearness and correctness, already ex- pounded. Tho judgment should bo affirmed. State v. Smith. (40 N. J., 49. .) Indecent letter to female : Indictment for. An averment in an indictment that the defendant " unlawfully, wilfully and wantonly sent " an indecent letter to a female is not sufficient to show an offense under a statute which makes it a misdemeanor " wil- fully and wantonly " to send such a letter to a female, without lawful purpose in sending the same. On motion to quash indictment. P. W. Sfaff(j, for the defendant. A. D. Ca)nj}hell, for the state. The opinion of the court was delivered by Dixon, J. The defendant was indicted in the Bergen county oyer and terminer, under the act to suppress the sending of indecent communications, approved March 20, 1878. Pamph. L, p. 211. This act makes it a misdemeanor for any ]ierson wilfully and wantonly to send or convey to any female, aj^ainst her will and consent, any insulting, indecent. lascivious, disgusting, offensive orannoying letter oi-conmiunication, without lawful purpose in sending or conveying the same. 276 AMERICAN CRIMINAL REPORTS. The indictment charges the defendant with unlawfully, wil- fully and wantonly sending such a letter to R. A., a female, against her will and consent, but does not allege that ho diil so without lawful purpose in sending the same. For this defect the defendant moves to quash the indictment. As to statutory offenses the invariable rule is that every fact mentioned in the statute as constituting the crime must be averred in the indictment. Zahriskie v. State, 14: Vroom, (!40, The abronce of a lawful purpose in sending the communica- tion is undoubtedly made by the statute a necessary ingredient of the offense, and therefore, if the indictment does not charge it, it is insutficient. The prosecutor, conceding this, claims tliat the requisite allegation appears in the statement that the de- fendant unlaicfuUy sent the letter. The question, therefore, is, whether this is necessarily an equivalent averment, for no in- tendment can be made against the defendant. We think that it plainly is not. The statement that the de- fendant unlawfully sent the letter may be based upon some idea that the mode of sending it was unlawful. It does not necessarily indicate a want of lawful purpose in the mind of the defendant. We therefore cannot see, on the face of the indictment, that the grand jury were satisfied that the defend- ant had committed the statutory misdemeanor, and for this reason the indictment must be quashed. State v. Graham. , 3 Ark., 519.) Indictment: Statnlory offense — Conatntction, 1. Indictment must allege the facts, not a conclusion of law.— An indictment must allegu the special matter of the whole fact with 8uch certainty that the ollense may jiulicially appear to the court. It Ls not Bufficient to charge a conclusion of law. 8. Cuabgino offense in language of the statute.— It is sufficiont. ns a general rule, to charge a statutory ofTense in tlio words of tlie stat- ute ; but when a more particjular statemeiit of tlie facts is necessary to Bet it forth with retjuisite certainty, tliey mu.st be averred. 8. Constuuction of criminal statutes. — Criminal statuttM must lio strictly construed, and no case is brouj;ht by construction within a stat- ute unless it is «;ompk'tely within its words. STATE V. GR/IHAM. 277 Apjieal from Izard Circuit Court. lion. R. H. Powell, Judge. C. B. Moore, attorney general, for appellant. J. L. Aheniethy, for appellee. IlARRisoy, J. The indictment did not set forth the means by which the defendant Avas informed that Cook had com- mitted tlie alleged offense. It merely charged a legal concli*- sion, without setting forth the facts from which it was drawn or inferable. An indictment siiould set forth the special mat- ter of the whole fact with such certainty that the offense may judicially appear to the court, and it is not enough to chargo a conclusion of law. 1 AVhart. Crim. Law, sec. 285. The indictment liere, it is true, follows the language of the statute, act of February 10, 1875, "to prohibit the carrying of side arms and other deadly weapons ; " and it is, as a general rule, sulHcient to charge an offense created by statute in the words of the statute ; but the rule is subject to the qualification that where a more particular statement of facts is necessary to sot it forth with requisite certainty, they must be averred. To set forth the offense with sufficient certainty and deliniteness, if the defendant were subject to indictment under the statute, it should have b(ien charged that information of Cook's offense had been given iiim on tlie oath of some person, or that he had personal knowledge of it. But we are of the opinion that, as tlio statute only s})eaks of justices of the peace, it is in its appli- cation confined to them, and has no application to mayors of cities and towns, and that the defendant could not be indicted under it. Criminal statutes are to be strictly construed, and no case is to bo brought by construction within a statute unless it is com- pletely within its words. Hawkins says: "No parallel case, wliicli comes within the same mischief, shall bo construed to be within the purview of it (the statute) unless it can be brought within the meaning of the words." 2 Hawk. P. C, 188, see. IG. And I'ishop says: "If a case is fully within the mischief to be remedied, and is even of the same class, and within the same reason as other cases enumerated, still, if not within the words, construction will not be permitted to bring it within the statute." IJish. Stat. Crimes, sec. 220. The demurrer to the indictment was rightly sustained. « Affirmed, Ttv^ 278 AMERICAN CRIMINAL REPORTS. State v. Scaelett. (38 Ai-k., 503.) I^fDICTMENT: Exception in statute to be negatived. An indictment for selling liquor within tbreo miles of Evening Shade Col- lege must aver that the sale was not for medical purpo? 03 by a regular practicing physician, who had made and recorded the oi&davit re- quii-ed by the act of 26th of February, 1879. Error to Sharp Circuit Court. Hon. E. II. Powell, Circuit Judge. IT. B. Ifoore, attorney-general, for plaintiff in error. Scarlett, pro se. IIarrisok, J. The indictment in this case is bad. It did not negative the exception in the act, or aver that the sale of tho ardent spirits was not for medical purposes by a regular practic- ing physician, and who had made and recorded the allidavit prc- Bcribod by the act. 1 Bish. Crim, Pi'oc, sees. 031, C3G; 1 Cliit. Crim. Law, 284; Thompson v. The State, 37 Ark., 40S. As for that reason the jmlgment must be affirmed, Ave need not con- sider the exceptions taken by the state upon the trial. Ajjinncd. Note. — Where a statute defining an offense contains an excei;tit)n, in tlio enacting clause of the statute, which is so incorporated witli tho laiigu:i^'o defining the offense that tlie ingredients of the oftonso cannot be accuratily and clearly described if tho exception is admitted, the rules of good pli^ad- ing require that an indictment founded upon the statute nmst allege or.()u.','li to show that the accused is not within the exception; but if tlie languagoof the section defining the offense is so entirely separable from the oxtPiition that the ingredients coni;tituting tlie ofTonse may be ac(!uratoly and clearly defined without any referenc3 to the exception, tlie pleader may saloly omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused. United States v. Cook, 17 Wal- lace, 173. It is immaterial whether an exception or proviso bo contained in the enacting clause or section, or be introduced in a different manner, a.s it Is the nature of the exception or proviso, and not its lo(;aiion, whldi is material. When, therefore, the exception or proviso is so introduced as to constitute a part of the definition or description of the offense, it must bo negatived. Tlie Territory v. Scott, 2 Dak., 813. STATE V. MAGRATH. 279 State v. Maokatd. (44 N. J., 227.) Indictment, "tiiue bill:" Evidence — Parol not culmissible. 1. Indictment, not indorsed true bill. — An indictment will not he quashed on the ground of its not being indorsed as a " true bill," or signed by the foreman of the grand jury. 2. Evidence— Parol not admissible to snow resolution op cosimou council. — Tlie defendant was a member of the common council of Cape May, and was indicted, under the statute, for furnishing supplies which had been paid for by such council ; to prove such payftient, the treasurer of the city testified that he made such payment, and that the council had, by resolution, ratified the same. Jleld, that such proof of the con- tents of such resolution was illegal. From the Capo May Oyer and Terminer. Motion for a no\r trial, sent to this court for its advisory opinion. W. E. Potter^ for the motion. J. R. Jloagland, for the state. The o]>inion of the court was delivered by Beasley, Chief Justice. Before the oyer and terminer, a motion was made to quash the indictment in this case for tho reason that it was not indorsed with the sigiiuut:»'o of tho fore- man of the grand jury, nor marked with tho customary for- mula of its being a " true bill," and it was strongly pressed on the argument before this court, that such a mode of authenti- cation was indisi)cnsable to tho legality of the ])rocedure. According to the ancient English methods, it may bo rea- sonably suj)poscd that the form of authentication in ques- tion was an essential part of criminal practice. In that sys- tem the indorsement by the foreman was tho only certi- lication to tho court of what the action of the grand inquest had been in any given case, and in the absence of such certi- fication there was nothing on the record, or in any part of tho conduct of matters, to indicate, cither distinctly or ob- scurely, whether a bill in a particular case had been found op not found. The fact that a bill had been ])rosented to the court in open session, by the grand jury, afforded no intimar tion whatever touching the views of that body with respect to 280 AMERICAN CRIMINAL REPORTS. n it. This unavoidably resulted from the course of the proco(>(l- ings, which were conducted in this wise: Bills, or formal accu- sations of crime, were drawn up and presented to the grand jury, who, after investigation, if they thought any particular accusation groundless, indorsed upon it the word iffnoramus, or the phrase " not found," or if the opposite opinion was enter- tained, then the bill was indorsed with the words " a true bill," and such bills, some being thus certified to have been found, and others to have been ignored, were, in a promiscuous body, handed in by the grand jury to the court. It is manifest, therefore, tlmt in such a state of affairs the court had notliiu"" to guide it in ascertaining the purpose of the grand inquest in any particular instance except this indorsement upon the bill, and it is not surprising, therefore, to find the court, as Avas tlie case in Kiiiff v. Fovd, Yelv., 90, saying that " the indorsoniont is parcel of the indictment, and the perfection of it." In fact, however, it is obvious that such an indorsement was no part of the bill, but was the extrinsic indicium that the grand Jury had officially decided to make the accusation contained in the in- dictment. The indorsement that the bill was a "true bill" was the formal and sufficient certification of that essential fact, and in the absence of such a certificate there was absolutely nothing before the court to show such essential fact. But although this undoul)tcdly was the settled course of the English practice in this respect, and although, from the niituro of such practice, the omission of an indorsement, in one of the usual modes, upon an indictment, would have left it entirely uncertain whether such bill had been found or not found, I do not perceive that it was ever decided at common law that such method of certification of the purpose of the grand jury AViis the only admissible method. All that appears to have boon decided is that some certificate in this respect was necessary, and we also know that the one above described tvas the ap- proved form in vogue. No judgment has declared that if the finding of a bill by the grand inquest had been made to appear in a manner equally certain with that which arises from the usual indorsed certificate of the fact, that such an authentica- tion would have been insufficient and invalid. The object aimed at is, that the court should be informed, with the requi- site certainty, that the inquisitorial body has found the accusa- STATE V. MAOKATH. 281 tion true, but the mode of giving such information is but the form of tlie transaction. IJut in tliis state, as every practitioner is aware, the mode of proceeding with respect to the particular in question is very dilFcrent from the practice above described. In our procedures, bills are not drawn up beforehand and presented for adoption or rejection by the grand jury, but, to the contrary, they are drawn subsequently to the investigation, and consequently there arc no bills in this course of law which are marked " not found." The result is, that all the bills which the grand jury bring into court are such as have been found by them, and therefore the act of presenting them to the court is a certifica- tion that they have been oilicially found. The question thus, then, arises whether such an authentication has not that degree of trustworthiness that it ought to satisfy all legal require- ments. I confess that I do not see why such an assurance as tlie grand jury makes to the court on this subject, in our prac- tice, should not be held to be sufficient. The bills presented are in court openly declared by the grand jury to be the bills which they have found, and such bills aio at the same time htuuled to the officer of the court to be by him filed. Such a proceeding, the court and the grand jury being thus in contact, would seem to exclude all reasonable api)i"ehension of the in- tervention of error or imi)OPition. It was in this mode that the bill now before the court was brought into the oyer and ter- miner, and it seems to me that it is putting a sti'ain upon com- mon sense to infer that there is the least doubt that it was duly found by the grand inquest. This being so*, I am unwill- ing to hold that the omission of a form will vitiate the pro- ceeding. In liool'toooiVs Case, 13 How. St. Tr., 131), Chief Justice Holt placed the subject in a very reasonable light. He Bays : " An indictment is not an indictment till it be foimd ; it is only a Avriting prepared for the ease of the jury and for ex- pedition; it is nothing till it is found, for the jury make it an indictment by finding it; they may alter what they please, or refuse it absolutely. And if the jury, upon examining the witnesses, would only present a matter of fact, with time and place, the court might cause it to bo drawn up into form, with- out carrying it to the jury. Again, tli(M'e needs no h'tlht vera, for that is only the jury's owning that which the court has ( ■ ■ ii ■ 282 AMERICAN CRIMINAL REPORTS. prepared for them." The grand jury in the present instance having owned the bill as their linding, I think it was by that means sufficiently identified and autlienticated. Tlie American authorities are in conllict on this subject; but I agree with Mr. Bishop, as lie expressed himself in his book on Criminal Procedure, that the foregoing doctrine adopted by me is that which is " best sustained by reason, and as Avcll sus- tained by authority as any other." 1 Crim. Pro., § 141. This first ground of objection cannot bo sustained. Tlie remaining exception taicen to the proceedings at the oyer relates to the admission of certain testimony. The indictment charged that the defendant, being a member of the city council of Cape May, unlawfully did furnisii sup- plies to an;l for Ihe city of Cape May, the expense of which supplies was paid by the city council, of which the said Chris- topher T. Magrath was a member. The gravamen of the olfense Avas the payment of these moneys by the body to which the defendant belonged. It v;ng therefore incumbent on the pi'osccution to show not only pay- ment, but payment by this city council. The testimony on the part of the state on this subject was this: The treasurer testified that he made the ])ayincnt to the defendant lor those supplies; that he made it irregularly, with- out the order of the common council, and, in order to show tlio assent of the common council to such act, ho proceeded to state that the council, subscqncntl}^ by a formal rt^solution in their minutes, ratilied the payment. The defense insisted tliat if such resolution was passed, the proper proof was the minutes of the common council, and tliat parol evidence was not ad- missible, and could not supply its place. The evidence objected to was admitted, and I think that in this particular an eri-or in law is exhibited. The action of the common council was a necessary part of the case of the state, and as there was written and formal evidence of such action, secondary evidence, under the circumstances, should not have been introduced. The rule for a now trial must bo made absolute. EX PARTE WILSON. 2S3 Ex Parte Wilson. (114 U. S., 417.) Lnkamous crime: Ilahcas corpus— Information— Indictment — Sentence. 1. Hadhas corpus from United States suprems court,— It is well Bcttlod tlijxt the United States supremo court cannot discharge a person imprisoned under sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that coui't, or thero is no authority to liold liiin under the sentence. 2. Information or indictment.— The provision of the Revised Statutes of the United States authorizing certain offenses to be prosecuted by in- dictment or by information does not prechide tlie prosecution, by infor- mation, of other offenses of such a grade as may be so prosecuted consistently witli the constitution and hiws of the United States. 8. Record of conviction. — Tlie omission of the record to state that thero was no suitable penitentiary within the state is no ground for discharg- ing the prisoner on JiabeuN cor2nis. 4. Same. — A certified copy of tlie record of conviction, if valid upon it3 face, is sufRcient to authorize the keeper of the prison to hold the pris- oner witliout any warrant or viittimns. 5. Infamous crime. — A crime punishable by imprisonment for a term of yeara at liard labor is an infamous crime within the meaning of the fiith amcnJment to the constitution, and a person sentenced to suuli impris- omnent without having been presented or indicted by a grand jui'y is entitled to bo discliai'ged on habeas corpus. II r. Alford /iu.well, for petitioner. Mr. Assistant Attorncij-General Maury, contra. Jfr. Justice Gkav, after stating the facts, delivered the opin- ion of the court. It is xcgW settled by a series of decisions tliat this court, hav- int^ no jurisdiction of criminal cases by writ of error or appeal, Ciinnot discharge on haheas corpus a person imprisoned under tiic sentence of a circuit or district court in a criminal case, unless the sentence exceeds tlie jurisdiction of that court, or tliei'c is no autliority to hold iiim under tlie sentence. lL,e parte Wittkinn, ?> Pet., 103, and 7 Pet., 5GS; Ec parte Lange, 18 Wull., lO,*]; Ec jmrte Parks, 93 U. S., IS; Ev parte Slehold, 10ft IJ. S., 371; Ev imrtc Gnrth, 100 U. S., 371; J5:« parte CarU, 100 U. S., 521; Ee jyarte Ynrhrongh, 110 U. S., 051; Ex parte Crancli, 112 U. S., 178; Ec parte Bigelow, Hi, U. S., 328. in' 284 AMERICAN CRIMINAL REPORTS. None of the grounds on wliich the petitioner relies, except the first, require extended discussion. The provision of Eevised Statutes, section 1022, dei'ived from the Civil Rights Act of May 30, 1870, chapter 114, section 8, authorizing certain oifenses to be prosecuted either by indict- ment or by information, does not preclude the prosecution by information of other offenses of such a grade as may be so prosecuted consistently with the constitution and laws of the United States. The objection of variance between the conviction and the sentence is not sustained by the record. The first count is for unlawfully having in possession, with intent to sell, an obliga- tion engraved and ])rinted after the similitude of securities issued under autiiority of the United States, and the copy annexed and referred to in that count is of such an obligation. Both the verdict and the sentence are general, and therefore valid if one count is good. Un'di'd States v. Snyder, 112 U. S., 216. The misrecital of the vei-diet, in the statement of the intermediate inquiry, whether the ])risoner had aught to say wliy sentence should not be pronounced against him, is no more than an irregularity or error, not affect ing the jurisdiction of the court. The omission of the record to state, as in Kc parte Knrsten- dick, 03 U. S., 390, that there was no suitable i)enitentiary within the state, and that tlie attorney-general had designated the house of correction at Detroit as a suitable place of im- prisonment outside the state, is even less material. The certified copy of the record of the sentence to impris- onment in the Detroit house of correction, if valid upon its face, is sufficient to authorize the keeper to hold the prisoner without any warrant or mltt'uims. People v. JVevens, 1 Hill (N. Y.), 154. But if the crime of which the petitioner was accused was an infamous crime, within the meaning of the fifth amendment of the constitution, no court of the United States had juris- diction to try or punish him, except upon presentment or in- dictment by a grand jury. AVe are therefore necessarily brought to the determination of the question whether the crime of having in possession, with intent to sell, an obligation engraved and printed jittcr EX PARTE WILSON. 285 the similitude of a public security of the ITuited &ta':es, pun- ishable by line of not more than $.'>,()( )0, or by imjjrisonment iit hiirl labor not more than fiftoon years, or by both, is an in- famous crime within the meaninc King v. Pnddle, 1 Leach (4th ed.), 442. The disqualification to testify appears to have been lim- ited to those adjudged guilty of treason, felony, forgery, and crimes injuriously affecting, by falsehood and fraud, the admin- istration of justice, such as ])erjury, subornation of perjury, su[)j)ression of testimony by bi'ibery, conspiring to accuse one of crime or to procure the absence of a witness; and not to have been extended to cases of private cheats, such as the obtaining of goods by false pretenses or the uttering of counter- feit coin or forged securities. 1 Greenl. Ev., § 37!}; Utley v. Mctrkl; n Mot, 302; Fttx v. Ohio, 5 How., 410, 433, 434. But the object and the very terms of the provision in the tit'th amendment show that incompetency to be a witness is Mot the only test of its application. 5i8(; AMEIilCAN CRIMINAL UEPOUTS. ) "Wliotlior ii convict shall ho permitted to testify is not f>;ov. erned liy a roL;iird to his ri. The purpose of the amend- ment was to limit tlie powers of the legislatun;, as well as of tlie 21, EX PARTE WILSON. 289 prosecuting officers of the United States. "We are not, indeed, disposed to deny that a crime, to the conviction and punish- ment of Avliich congress has superadded a disqualification to hold office, is thereby made infamous. United States v. Wad- dell, 112 U. S., 70, 82. But the constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of congress is needed to secure, or competent to defeat, the constitutional safeguard. The re- maining question to be considered is, whether imprisonment at hard labor for a term of years is an infamous punishment. Infamous punishments cannot be limited to those punish- ments Avliich are cruel or unusual ; because, by the seventh amendment of the constitution, "cruel and unusual punish- ments " are wholly forbidden, and cannot, therefore, be law- fully inflicted even in causes of convictions upon indictments duly presented by a grand jury. By the lirst crimes act of the United States, forgery of pub- lic securities, or knowingh'^ uttering forged public securities witli intent to defraud, as well as treason, murder, piracy, mu- tiny, robbery, or rescue of a person convicted of a capital crime, wo s punishable with death; most other offenses were punished by fine and imprisonment; Avhipping Avas part of the punishment of stealing or falsifying records, fraudulently ac- knowledging I)ail, larceny of goods, or receiving stolen goods; disqualification to hold office was part of the punishment of briber}"^; and those convicted of perjury or subornation of per- jury, besides being lined and imprisoned, were to stand in the pillory for one hour, and rendered incapable of testifying in any court of the United States. Act of April 80, 1790, ch. 9 (1 Stat., 112-117); Mr. Justice Wilson's Charge to the Grand Jury in 1791, 3 Wilson's Works, 380, 381. By that act no provision was made for imprisonment at hard labor. But the punishment of both fine and imprisonment at hard labor was prescribed by later statutes, as, for instance, by the act of April 21, 1800, ch. 49, for counterfeiting coin or uttering or import- ing counterfeit coin; and by the act of March 3, 1825, ch. 05, for perjury, subornation of perjury, forgery and counterfeit- ing, uttering forged securities or counterfeit money, and other grave criiies. 2 Stat., 404; 4 Stat., 115. Since the punish- VoL. IV— 19 290 AMERICAN CRIMINAL REPORTS. ments of whipping and of standing in the pillory ^yGro abolished by the act of February 28, 1839, ch. 36, § 5 (5 Stat., 322), im- prisonment at hard labor has been substituted for nearly all other ignominious punishments not capital. And by the act of March 3, 1825, ch. 65, § 15, re-enacted in E. S., § 55i2, any sentonce of imprisonment at hard labor may be ordered to be executed in a state prison or penitentiary. 4 Stat., 118. AVhat punishment shall be considered as infamous may be affected by the changes of public opinion from one age to an- other. In former times, being put in the stocks was not con- sidered as necessai'ily infamous. And by the first judiciary act of the United States, whipping was classed witli moderate fines and short terms of imprisonment in limiting the criminal jurisdiction of the district courts to cases " when no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding §100, or a term of imprisonment not excecdinji- six months, is to be inflicted." Act of September 21, ITS',), ch. 20, § 9 (1 Stat., 77). ]>ut at the present day either stocks or whipping might be thought an infamous punishment. For more than a century, imprisonment at hard labor in the state prison or penitentiary, or other similar institution, has boen considered an infamous punishment in Eiigkuid and America. Among the punishments "that consist principally in tlioir ignominy," Sir William Blackstone classes " hard lal)(>i', in tlie house of correction or otherwise," as well as whi[)ping, tlie pillory or the stocks, -t iJl. (.'om., 377. And Mv. Dane, wliik* treating it as doubtful whether confinement in tlie stoclcs or in the house of correction is infamous, says: '* Punislnncnts, clearly infamous, are death, gallows, pillory, brandiiig, \\liii)- ping, confinement to hard labor and cropping." 2 Dane, Ah. 569, 570. The same view has been forcibly expressed by Cliief Justice Sliaw. Speaking of imprisonment in the state prison, which, by the statutes of Massachusetts, Avas required to l)o at hard labor, he said: "Whether avo consider the words 'infamous punishment ' in their popular meaning, or as they are under- stood by the constitution and laws, a sentence to the state prison, for any term of time, must be considered as falling within them. The convict is placed in a public place of punish- EX PARTE WILSON. 291 ment, common to the whole state, subject to solitary imprison- ment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meagre food, and to severe discipline. Some of these a convict in the house of correction is subject to; but the house of correction, under that and the various names of work- house and bridewell, has not the same character of infamy at- tached to it. Besides, the state prison, for any term of time. is now by law substituted for all the ignominious punishments formerly in use; and, unless this is infamous, then there is now no infamous punishment other than capital." Jones v. Rohhhfi, 8 Gray, 32!), 349. In the same case Mr. Justice Merrick, while dissenting from the rest of the court upon the question whether, under the words " the law of the land " in the constitution of i^Iussachusetts, an indictment by a grand jury was essential to a prosecution for a crime punishable by imprisonment in the state prison, and talcing a position upon that question more accordant with the recent judgment of this court in Jhiriado v. C:>C^. The judgment of conviction is reversed, and the information is dismissed. Itcversed and dismissed. Note. — A complaint charging an offense as committed after the date of the complaint will bo quashed, on objection taken after appeal, notwith- standing tlio statute which provides that " any objection to a complaint, in- dictment or other criminal process, for any formal defect apparent on tlie face thereof, shall be taken before judgment," etc. Com. v, Doyle, 110 JIass., 103. When by clerical eiTor in drawing the indictment the term of court at which the indictment was found was made to appear ten montlis prior to TRASK V. THE PEOPLE. 293 the (late of the commission of the offense, it was held that the error was not a matter of form, but of substance, and that the defect could not be cured by amendment. The State v. Davidson, 38 Tex., 325. A day certain within the time limited by law for the recovery of a pen- alty, and prior to the filing of the information, must be stated. State v. Ingalls, 59 N. H., 88. Tkask v. The People. (104 m., 5G9.) iNSTRUCTioy: Based on evidence, error to refvse — Conspiracy. IssTUUCTiON PRESENTING A PAUTY's THKORY. — On the trial of a party for conspiracy, when the evidence upon the material jwints in the case is conflicting, an instruction on the part of the accused, which f.airly pre- sents the law of the case on the theory contended for by him, ought not to be refused, having a basis in the evidence on which to rest. "Writ of Error to the Criminal Court of Cook County ; tlie Hon. Joseph E. Gary, Judge, presiding. Jfr. K F. Rnnyaii, for the phiintiff in error. Mr. Luther Lajliti Jfiils, state's attorney, and Jfr. Georcje C. Ingham, assistant state's attorney, for the people. Mr. Justice Sciiolfield delivered the opinion of tlie court. The plaintiff in error Avas indicted, together with John llorr, "William Turner, Micnael McDonough and II. M. Cook, for conspiracy. The indictment contains two counts, varying from each other only in the ownership of the money, goods, etc., which it is alleged it was the purpose of the conspiracy to obtain. Plaintiff in error was put upon trial alone. The jury returned a verdict of guilty, lixing his punishment at con- finement in the penitentiary for a term of two A'cars. The court, after overruling a motion for a new trial, gave judgment upon this verdict, to reverse which this writ of error is prose- cuted. One Lederer was the owner of a house in the city of Chi- cago, and plaintiff in ei'ror was liis agent for renting the same, and had heen such agent prior to and including the year IST."). On the 21th day of Xovember, ISTo, ]\[ary "Wagner rented the rooms on the second floor of this building, at a rental of $25 294 AMERICAN CRIMINAL REPORTS. per month, and on the next day she moved into them, and con- tinued to occupy them thenceforward until near the hist of April, 1870. On the 20th of February, 1880, plaintiff in error assumed to assign what he claimed was a balance of 8T5 due on account of this occupancy of the rooms, to William Turner. On the Dtli of July, 1880, Turner sued out a writ of attachinoiit bofoi-e Demars, a justice of the peace of Cook county, in favor of Ledorer and against Mary Wagner, to recover the amount so assigned to him. The writ was placed in the hands of Michael ]\rcDonough, a constable of Cook county, to execute, and, assuming to act by virtue of Hs authority, he seized goods belonging to John Taylor, in the possession of I^Iary Wagner, and one or more articles of insignilicant value belonging to Iior, The venue was changed from Demars to Matson, another jus- tice of tlie peace of Cook county, and plaintiff in error a{)i)OiU'ed in obedience to a subpa'na, and testified on the trial before Matson. While this attachment suit was pending, somebody representing liimself to be Franklin J. Spencer sued out a writ of replevin before Smull, also a justice of the peace of Cook county, for the same ])ropcrty upon which the writ of attacli- ment was levied. This writ was placed in the hands of Jcjlni llorr, a constable of Cook county, to execute, llorr, assuming to act by virtue of the writ, took the attached property fi'oni ]\[cDonough and placed it in a warehouse belonging to Iloj-ncr, who issued duplicate receipts therefor, one to ^[cDonou;:;h and ono to Miller — the latter a name not in anywise identified by ;< ■•: of the witnesses as connected with the transactions. II. 'hi. \>ok was bondsman for Turner in the attachment suit, and •t'^( :< 'I employee of plaintiff in error. The writ of attacliniont %i !-• 'U tlie hearing before the justice of the peace, ([uaslied. McDonough appeared at the return dny of the writ in the replevin suit, and there being no prosecution, judgment was given for the defendant, and tluit the property bo returned to him. The warehouse receipt issued in the name of 'Oliller" sul>sequently came into possession of Mary Wagner, and by means of it she regained possession of the property which had been taken from her by virtue of the writ of attachment. The theory of the prosecution is, that there was nothing duo from Alary Wagner to Lederer for the occupancy of the rooms ; that the assignment to Turner was colorable only, and the suit TRASK V. THE PEOPLE. 295 brought pursuant to a previous agreement or understanding with plaintilf in error; that the replevin suit instituted in the name of Frankhn J. Spencer was, in fact, instituted by plaint- iff in error in person, under that name, and that both suits were instituted as a means whereby to enable plaintiff in error and one or more of .his co-defendants to obtain this property. On tlic question of the indebtedness of Mary Wagner, there was a conflict of evidence. Tliere v/as also evidence tending to si low that the attachment suit was commenced by Turner of his own volitiiracy and the malicious intent may have been com- mon elements of both crimes, but this is not sufficient to con- stitute identity of the crimes themselves, which comprise not only those elements, but also objective acts. 293 AMERICAN' CRIMINAL REPORTS. The killing of Smith by Georn^o Vines is a totally distinct and different offense from the killing of Pye by Leo Vinos, althou<,'h both acts Averc done in execution of the same conspiracy. Tlicy a,re not different grades of the same crime. They are not t\vo felonies resulting from the same identical act. They are not different aspects of the same unlawful act. They bear no rela- tion to each other, in which one of them can be said to bo moujoil in the other. They are included in none of the liair- splitting distinctions which have involved this subject ; in the lan^-uatire of Mr. AVharton, "in a labvrinth of subtleties.'" The eop^ins delicti in each is, in every respect, distinct and inde})endent. We are not concerned, and it is not necessary to reconcile the conclusions of the juries in the two cases on the fact of the conspiracy. The vei'dict against George Vines, at least. nii<>ht rest without any proof whatever of conspiracy, if Smith was killed by his hand ; which is alone sufficient to show the un- soundness of the plea, so far as based upon the element of cons[)iracy. But holding that the pleas of twice in jeopardy Avere properly overruled, tlie jury was vested with the power of deciding all questions involved. Tln-ee bills of exception are found to rulings of the court upon reception of evidence: 1. The first exception Avas to permitting the state's witness to "narrate the whole occurrence, as it took place at the time of the killing of Smith," the objections being that this included the killing of Pye, which, being, a distinct felony, wa.^ not ad- missible; and because conspriacy was not expressly charged. The court overruled the objections, because the evidence was admissible as part of the res gestw, and because the accused were all charged as principals. The ruling is fully sustained by authority. As a general rule, all that occurs at the time and place of the killing, in homicide cases, is admitted as res f/estw. Wharton's Cr, Ev., sec. 202 ct seq. Proof of a different crime from the one charged, though gen- erally objectionable, is admissible when both offenses are closely linked or connected, especially in the res (jesttv, and, also, Avhen such proof is pertinent and necessary to show intent. Siate v. IfulhoUnnd, IG Ann., 377; State v. Patza, 3 Ann., 512; State v. Jiohfrlsoht, 12 Ann., 382 ; Wharton's Cr. Ev., sec. 262 et se^. STATE V. BROWN. 299 2. Exception was taken to a question propounded by the state to a witness, asking if he knew of any ill-feeling existing between Vines and Pyo, which was objected to on the grounds tliat it was res inter alios and not admissible to discover malice as to deceased, Smith. The judge, in overruling the objection, recites that the evi- dence had established the facts, already substantially stated by us iu tlio beginning of tliis opinion, and admitted the evidence as tending to sliow ujjon wliat malice the accused lay in wait and acted, holding that whether the malice was against Pye or Smith was immaterial, if the killing of Smith was the result of such malice. This is sound law; the principle being, that when parties are enffajjcd in the commission of a crime Avith malicious intent, and in the execution thereof pei'jwtrate another criminal act not originally intended, the unintended act derives its character from tlie intended crime, and the original nuilicious intent af- fects both acts. 1 AVharton's Cr. L., sec. 12S. 3. The last bill of exceptions, as to the admissibility of evi- dence showing when the trial of Pye, ui)on the charge on wliieli he was under arrest at the time of the killing, was fixed, seems to us immaterial and frivolous. Judyinent affirmed. State v. Bkown. (00 N. H., 205.) iNTOXiCATixa LIQUORS: Pharmacists. iNTOxiCATixa LIQUORS — Phakmacists.— A statute which authorizes phar- miioists lawfully rogljitorod to keep spirituous liquors for compound iug iiiedicinos does not confer the right upon thom to sell the liquors to otlicrs over whom they have no control, to bo by them compounded with medicines. Jewell cf? Stone, for the respondent. B. A. Hogers, solicitor, for the state. Smith, J. The sale of spirituous or intoxicating liquors, ex- cept by an agent of a town, is forbidden by statute. Gen. 300 AMERICAN CRIMINAL REPORTS. Laws, cli. 109, sec. 13. But pharmacists lawfully registered may keep spirituous liquors for compounding their medicines. Gen. Laws, ch. 133, sec. 7. The right to keep spirituous licpiors for a specific purpose undoubtedly includes the right to sell the medicines so compounded. What the pharmacist himself may do he may dc '.y his servant or agent. But the statute nowliere confers the right upon the pharmacist to sell spirituous li(piors before it is compounded with medicine, or to bo compounded with medicine by the purchasers or others not his servants. The right to sell such liqr.ors for the purpose of being com- pounded Avith medicines is not to be inferred from the riglit to keep them for the purpose of being so compounded. When tlie materials are delivered uncompounded the vendor has no longor any control over them; the purchaser is under no legal obliga- tion to mix the materials, and opportunities for defeating tlio object of the statute — the suppression of the sale of intoxicat- ing liquors — are thereby increased. Whether this is a case wliich the attorney-general ought to •,'0 o allow to go to judgment is a question for him to consider. Ju'cej^tions overruled. FosTiiij, J., did not sit. The others concurred. State v. Fay. (44 N. J., 474.) Intoxicatixo liquors : Single sale— " rrohibillon"—" Regulation." 1. Single sale.— Under the "Malt Liquors Act," aiiprovotl April 4, ISTi (Rev., p. 494, g 13), a, single sale of any of the liquors mentioned witii- out license makes the seller Uablc to indictment as keeper of a di'or- derly house. 2. Construction of license law with p.efeuence to charter.— The act is operative throughout the state except in townships, cities and in- corporated towns, where laws arc in force regulating the sale of such li(juors outside of inns and taverns. 3. Same — "Prohibition" — "Regulation." — Authority conferred upon a town to prohibit all traffic in or sale of intr.xicating driidis, with i'.i;- thority to license, regulate or prohibit inns or taverns, held, not to lin- brace authority to regulate the sale of liquors outside of inns and taverns. STATE V. FAY. 301 On Error to tlio Atlantic O^-cr and Terminer, TJeforo Bcas- Icy, Chief Justice, and Justices Dixon, Magic and Parker. A. IT. Sharp, for the state. //. L. & A. L. Slape^ for the plaintiff. The opinion of the court was delivered by Dixox, J. The defendant Avas indicted for keeping a disor- derly house in the town of Ilamnionton, Atlantic county. The offonse proved was the sale of lager beer in less quantity than a quart, to bo drunk upon the premises where it was sold, with- out license ; and the court charged that such a sale on more than one occasion constituted guilt under the indictment. The de- fendant by writ of error comj)lains of this instruction. The charge can bo sustained onl}" by force of the thirteenth section of the act to regulate the sale of ale and other malt liquors, approved April 4, 18T:J (liev., p. 404), which provides tliut if any person shall sell any of the liquors aforesaid (among thoni being lager beer) without license first obtained, accord- ing to the act, then such person shall bo held as a keeper of a disorderly house, and be liable to indictment and punishment as such. Tiiis statute, if applicable, ])lainly rendered the defendant subject to conviction of the oll'ense alleged and justiiied the charge. But it is claimed to bo inapplicable, because its four- tccntli section declares that none of its pi-ovisions shall apply to any township, city or incorporated town in which laws are in force regulating the sale of any of the liquors mentioned in tlie act. The question, therefore, becomes resolved into this: Avhether in the town of llammonton there were in force any laws (e. e. any laws other than the general law) regulating the sale of these liquors. The only law referred to by the defendant is the act incorporating the town (Pamph. L. 1800, p. 188), the twenty-third section of which provides that the corporation may have power to pass, enforce, alter and repeal ordinances to take effect within the town for the following purposes, to wit: . , , to license, regulate and prohibit inns or taverns, and to prohibit all traffic in or sale of intoxicating drink or drinks. 302 AMERICAN CRIMINAL REPORTS. The cl.iuse in this charter concerning inns and taverns should not be permitted to exclude from the town the opora- tion of the " Malt Liquors Act," for the reason that in our legislation the keeping of inns and the retail tralRc in malt liquors are treated as distinct subjects of regulation. Although iim-keepors may under their licenses retail malt liquors, and so, in a sense, laws regulating ini»e regulate the sale of these liquors, yet we think that the laws regulating such sale, Avhich are intended by this fourteenth section, are those laws refer- ring to the traffic apart from inn-keeping, laws which in tliis respect resemble the " Malt Liquors Act " itself. Ilencc, no support for the defendant's contention is to bo derived from this clause of the charter. But does the clause for the pi'ohibition of all traflTic in intox- icating drinks constitute a law for the regulation of the sale of these liquors, and so save the town from the operation of the statute ? The leading rules for the construction of municipal charters are well summed up by Mr. Dillon as follows: *' A municipal corporation possesses and can exercise the following powora tand no others: First, those granted in express words; second, those nettessarily or fairly implied in or incident to tlio powers expressly fjranted; third, those essential to the declared objects and pur, ies of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the ex- istence of power is resolved by the courts against the corpora- tion, and the power is denied." 1 Dill, on Mun. Corp. (3d ed.), § 89. In the charter now before us the power expressly granted is the power to prohibit the sale. This is not equivalent to nor does it fairly embrace a power to regulate. The exercise of the latter power provides for the continuance of the traffic under prescribed rules; the former power is to bo wielded only for its suppression. As was said in Sc/iwxf/iow v. Chhuujo, G8 III., 444: : " To suppress must mean to prevent and not to license or sanction the act to be suppressed. It would bo a contusion of tei ms to say that a thing is suppressed when it is protected, licensed or encouraged." And in C'dy of Sf. Louh v. Sni'dh, 2 Mo., 113, the court, speaking of authority to restrain and pro- hibit tippling-houses, said: "The legislature intended to give STATE V. FAY. 303 the corporation, by the words 'restrain and prohibit,' two powers; one was to prohibit their existence altogether, if they thought it best to do so, and the other was to keep them witiiin certain limits, as to the number and order, as they should think best." In Gnnnarssohn v. City of Sterling, 92 111., 5G9, it was indeed said that a general power to prohibit is sulRcient to authorize any i)artial prohibition deemed advisable, but the court was speaking of an oi'dinance which merely forbade sales in quan- tities loss than five gallons, and did not attempt to regulate permitted sales. By carrying out this notion of partial inter- diction to its furthest extent, it might be made to ai)pcar that a])r()hibition of all sales which wore not made in courormity Avith designated requirements would operate as a ro:^ulation of the tratUc ; but an exercise of the power to prohibit, with this end of regulation in view, would be a manifest strain of'author- ity, and of such doubtful propriety as to come under the con- demnation of the rules before mentioned. For intrinsically, regulation and prohibition range in di tie rent sphei'cs; no sale which is prohibited is regulated, and none regulated is ])rohib- itcd. This interpretation of the grant of power in this charter is enforced by the context. The power immediately preceding this is, "to license, regulate and prohibit inns and taverns." The power immediately following is, "to license, regulate and prohibit hawkers and peddlers." This power is merely " to prohibit all traftic in or sale of intoxicating drinks." Such language is tantamount to a declaration that the legislature gives authority to prohibit, but withholds authority to license or regulate the traiHc. ;^^y conclusion therefore is, that in neither of these clauses which • L'latc to inns and intoxicating drinks, is there expressed, or by fair implication to bo found, any law for regulating the sale of malt liquors in the town, outside of inns and taverns. The other provisions of the charter relating to nuisances and vice and immorality have been noticed, but it is not i)erceived that they contain any warrant for regulating the mere sale of malt li(piors ; such sale, of itself, except so far as it is interdicted by positive statute, is not, under our law, cither a nuisance or vici(jus or immoral. Xor is there any declared object or pur- pose; of the corporation to which this power of regulation, in 304 AMERICAN CRIMINAL REPORTS. addition to the power of prohibition or suppression, scorns in- dispensable. Hence the " Malt Liquors Act " prevails in the town of Ilammonton, and under its provisions the defendant ■was, for a single sale, rightly convicted of keeping a disorderly house, and the judgment below shoidd be affirmed. SiFKED V. CoMMONWEALXn. (104 Pa. St., 179.)' iNTOXiCATiNa liquors: Sunday — statutory construction. 1. Tlio act of April 12, 1875, prohibiting the sale of liquor on Sunilay, and providing a penalty by fine, docs not repeal, by implication, the prior act of February 20, 1855, prohibiting the sale of liquor on Sunday, and pro- viding a penalty by line and imprisonment. 2. Repeal by implication of a prior statute by a later one. Before Mercur, C. J., Gordon, Trunkey, Sterrett. Green and Clark, JJ. Paxon, J., absent. JIazlctt (0 Williams (with Eocl^), for plaintiffs in eri'or. W. II. Klingensmith (with Silas A. Kline, district attorney); for the defendant in error. Chief Justice Mercitu dclivei'ed the opinion of the court. The plaintilfs in error plead guilty to an indictment contain- ing two counts. It is framed under section 1 of tlie act of 2nth of February, 1885 (Pur. Dig., 040, pi. 38). The flr!;t count charges them Avith selling liquors on Sundny; the other count charges that they did unlawfully' and knowingly allow and permit liquors to be drunk on Sunday, on and within the house and premises kept and maintained by them. The court there- upon sentenced them to imprisonment for a period of sixty days, imposed a fine of $100 and the costs of prosecution on cacli, under section 3 of said act. The plaintiffs in error claim that in so far as this act of 1855 prescribed the punishment for selling liquors on Sunday, it was repealed by the act of 12th April, 1875 (P. L., 40). Error is assigned to the sentence. It is well settled that express provision of a subsequent Irv SIFRED V. COMMONWEALTH. 305 is not absolutely necessary to repeal a statute. It may be re- pealed by necessary implication. The leaning, however, of the courts is strongly against repealing the positive provisions of a former statute by construction. Dwarr. on Stat., 154. The more natural, if not necessary, inference in all such cases is, that the legislature intend the new law to be auxiliary to and in aid of the purposes of the old law. There should therefore be such a manifest and total repugnancy in the provisions of the new law as to lead to the conclusion that the latter law abrogated, and was designed to abrogate, the former. There are cases, however, in which it is held that although the latter statute be not repugnant to the former one, and there be no express provision in the latter repealing the former, yet if the latter prescribe the only rules which shall govern, it repeals the former one in all those respects in which it differs from the latter in the governing rule. Daviess v. Fairhurn^ 3 How. U. S. K., 030. The general rule, however, is that there must be such a positive repugnancy between the provisions of the new statute and the old that they cannot stand together or be con- sistently reconciled. Walhxcc y. Bassett, 41 Barb., 92; MeCool V. Sinifh, 1 Black, U. S. R., 459; Bank v. Cormnonwealf/i, 10 Barr, 442; Brown v. Gonnfij Commissioners, 9 Harris, 37. If it be possible that both can stand by construction, then the proper inquiry is, what was the intention of the legislature? Did it mean to repeal the former law, or was the new law in- tended to be merely cumulative ? United States v. Case of Hair Pencils, 1 Paine, 400. The act of 1S75 referred to contjiins twelve sections, yet no one of them makes any reference to the act of 1855. Section 1 expressly repeals the act of 27th IVfarch, 1872, which author- ized a vote to be taken every three years on the question of granting licenses to sell intoxicating liquors. Section 2 pro- vides when and under what rules licenses for the sale of liquors may be granted. Section 3 provides for the classification of hotels, inns and taverns, and sjieciiies the sum which those of each class shall pay. Then section 4, inter alia, declares "that any sale made of vinous, spirituous, malt or brewed liquors, or any admixture thereof, contrary to the provisions of this law, shall be taken to be a misdemeanor, and upon the conviction of the offense in the court of quarter sessions of the peace of any Vol. IV — 20 300 AMERICAN CRIMINAL REPORTS. city or county, the person so offending shall bo sentenced to pay a fine of not loss than $200, nor more than 8">00." The previous sections of the act changed the classification tand increased the sums which the keepors of hotels wei'o re- quired to pay for licenses under pi'ovious laws, and section 4 imposed the penalty stated for their violation. Section 5 pro- vides tliut the lines, ])enalties and proceeds of forfeited bonds be ])aid to the city or county treasurer. Section G directs every constal)lo to make return of retailers of liquors, and also uiulor oath of iiny unlicensed place within his bailiwick, within his knowledge, kept and maintained in violation of this act, and upon his wilful failure to do so, after being duly notified in writiiig, he shall be deemed guilty of the crime of j)crjurv. and subject to its penalties. Section 7 provides, when a person has the habit of drinking intoxicating liquor to excess, that eitlier member of his family therein specified may give written notice to any person not to sell or deliver intoxicating litpior to the person having such habit, and if the person so notified docs sell and deliver such licpior to the person having such habit, the person giving the notice may in action of tort recover ol' the pereon notified any sum not less than $50, nor more than $500, as may be assessed by " the court or judge," as danuigos. Section 8 prohibits non-residents of this commonwealth how engaging in selling, trading or vending intoxicating licnioi- within the commonwealth. Section 1> provides for the cancel- lation of bonds given under the act, and the releasing of sure- ties therefrom. Section 10 [)resci'il)os the form and condition of the bond which shall be executed to obtain a license to soil intoxicating drinks. Secticm 11 declares "it shall not be law- ful fcM'any person, with or withoiit license, to sell to any per- son any intoxicating drink, on any day on wliich elections are now or hereafter may be requii-od to be held, nor on Sunday, nor at any time to a minor, or to a person visibly affected by intoxicating drinks." This is the Avhole section. Neither it nor the subsequent section ])rescribes any penalty for its viola- tion. It is bv virtue of this section, standiu"- as it does re- moved from section 4, and making no reference thereto, that the plaintiffs in error claim the punishment prescribed by the act of IS.k") is repealed. We have thus referred to the act of 1875 at length and in SIFRED V. COMMONWEALTH. 307 l»y it olii- \v- W.d tlio detail to show that no part thereof in any manner refers to the act of 1855. Tliat no repeal of the latter was intended is apparent from the whole act of 1875. 1. Any existin;;^ act supposed to he in conflict therewith or sui)er.se(led tliereby was oxjiressly repealed by the first section. 2. The act clearly indicates an intention to present sepa- rate] v the different requirements of the law, and to provide a specilic penalty for the violation of eacli. Thus the punish- ment prescribed in section 4 was desij^ned to ai)ply to violations of the law under })revious sections of the act. Section 6 made certain acts a crime, and immediately provided a specific pen- alty therefor. In like manner, section 7 created an offense, and prescribed the penalty to bo imposed on the offender. No section prior to section 11 in any manner refers to any of the offenses therein stated. We are satisfied there was no intention to subject a person guilty of the acts mentioned in the eleventh secticm to the penalties prescribed in the fourth section. The reasonable conclusion is tiiat section 11 was iulded tlir<)U<^-h abundance of caution to negative any pre- sumption that the licenses granted under sections 2 and 3 would authorize the sale of li(pior on any of the days men- tioned in section 11. The act of 8th May, 1854, authorized the imposition of a fine and imprisonment for wilfully furnishing intoxicating drinks to any person of known intemperate habits, to a minor or to an insane person, for use as a beverage. The act of 26th February, 1855, l)efore cited, authorizes the imposition of a fine and imprisonment on one selling li(pu)r on Sunday, or on one i)ermitting it to be drank on that day on his premises. The act of IHth March, 1S72, makes it a misdemeanor to sell, furnish or give away, to be used as a drink, any intoxicating beverage on election days, when by law an election is in progress in said district, anrovided for those offenses, yet the construction claimed for the act of 1875 by the plaintiffs in error would modify all those several acts and strike there- from all power of the courts to sentence to imprisonment persons 308 AMERICAN CRIMINAL REPORTS. convicted of the offenses therein stated. This is asking us to assume too much. We are not questioning legislative power to repeal or modily the sentences to be imposed. Wo are merely considering the question of implied intention to be gathered from tbe lin'"'"'i<];e used. We think the power given to the court to senter .n :or the act of 1855 was in no miinner repealed by the act . .7.. Judgment affirmed. The People v. Dolan. (51 Mich., 610.) Jeopardy: Jury — Challenge. 1. A peremptory challenge is not allowable in a criminal case after the jury has been sworn. S. After the jury in a criminal case was sworn the prosecuting attorney was allowed a ijeremptory challenge, and a new juror being chosen, the jury was again sworn. Held, that so long as the jury first swon wius not legally discharged, there could not be two juries sworn to try the .sumo case : and a conviction by the latter jury was set aside and the prisoner discharged. Cramer i& Corhin, for responden*^^. appellant. SuERwoon, J. The respondent in this case was convicted in the Washtenaw circuit court of a violation of the statute re- lating to closing saloons on election days. Act 259, Pub. Acts 1881. The consideration of the first exception taken by dofonil- ant is alone sufficient to dispose of this case, and it will bo un- necessary to consider any of the other exceptions, altliougli wo think several are well taken. After the jurx-- was impaneled, the prosecuting attorney was absent from the court-room a few moments, and during sucli absence the jury was duly sworn by the court to try the cause. Immediately thereafter the prosecuting attorney returned into the court-room and insisted upon his right to still examine tlie jurors before they were impaneled and sworn, and the conit thereupon permitted him to challenge peremptoi'ily one of the jurors impaneled, and another was called and sworn in li"s place, and the jury, as thus constituted, was thereupon sworn to try the case. The proceedings were objected to by defiMid- ant's counsel on the ground that a jury had already beo:i rog- ADAMS V. THE STATE. 309 ularly impaneled and sworn in the cause, and further objected to tlie serving of the jury in the case as then constituted. The court overruled the objection, and defendant's counsel ex- cepted, and the court then proceeded with the trial. This was error. The statute clearly points out the various steps required to be taken in obtaining, impaneling and swearing a jury for the trial of a cause in a court of record. 2 Comp. L., pp. 172G- i7;n. There can be no departure from these requirements without tlie express consent or stipulation to that effect of the parties. Only one jury can bo impaneled and sworn to try a case, unless the jury first impaneled has, for some n ason, been le^ially discharged. In this case two juries were sworn to try the case, and the (irst had not been discharged by the court when the trial com- menced before the second, which rendered the verdict com- plained of. We know of no practice or statute which will allow a proceeding of this kind. Tiic conviction should be set aside and the respondent dis- charged. The other justices concurred. Note.— In Reg. v. Reeve, Lond. Leg. Obs. (Feb. 15, 1845), p. ni2, a case of felony, a juror was taken sick and had to be removed after part of tho evi- (lonco for the prosecution had been received. Sir. Justice Creswell there- upon required a pliysician's testimony as to the juror's inability to continue on duty, and then had another man sworn in his place. The prisoners were allowed their challenge, and tliose witnesses who had been already exam- ined were again called and sworn, and the judge read to each his own note (if tho witness' evidence and had Ixim state whether it was correct. 3 West. Law Journal, 95. — [Rep. Adams v. The State. (99 Ind., 244.) Jeopaudy : Disclmrging jury — Release of prisoner. Where, after the impaneling and swearing of a jury, it is ascertained that a juror is incompetent to act as such on account of not being a free- holder or a householder, and the accused refuses to object to the juror, and the court thereupon, of its own motion, discharges tho jury, the ac- cused has been once in jeopardy and should be released. 310 AMERICAN CRimNAL REPORTS. J. 0. Branyan, M. L. S^encei', B. A. Kaufman and TF. A. Branyan, for appellant. G. W. Gibson, ])rosecuting attorney, «/. lu. Il'ddebrand and 61 IF. Wat /i- ins, for the state. NiRLACK, J. This was a prosecution by indictment ac^ainst Joseph J, Adams, under section 2204, K. S. 1881, for selling a promissory note to the Citizens' Bank of Huntington, at Hunt ington, Indiana, knowing that one of the signatures to tlie noto had been obtained by false pretenses. Upon a former a])])oal to this court the indictment was held to bo sufficient, and tlio judgment below quashing it was reversed. iSuiie v. Adams, 92 Ind., 116. After the cause had been remanded, and issue had been formally joined by the entry of a plea of not guilty, a panel of jurors was called to try it. A man known as Luther f 'ran- dall was one of 'he persons tlnis called to serve as jurors in the cause. Crandall was not specially interrogated as to his qualifications as a juror, but others called with him were so interrogated in his ])resonco and hearing. Before tlio jury were sworn the court iufpiired whether all were cithei' free- holders or householders of the county, to wliicli there was a general response in the affirmative. After the jury were sworn, but before any statement of the case had been made to them, and before any further proceedings of any kind had been had, Crandall informed the court that he had, by inadverten(".\ in- correctly answered the court's inquiry as to some of his ([iiali- fications as a juror; that he wr.s, in fact, neither a freijholder nor a householder. The court then inquired of the defendant whether he objected to Crandall as a juroi' on account of tlie information which he, Cran(hill, had thus communicated to tlio court, to which the defendant, tlirough his attorneys, responded, "We decline to change the jury." The court, thereupon, over the objection and exception of the defendant, discharged tlio jury. The defendant then moved tliat lie be discharged and permitted to go hence witliout day, upon the ground that he had once been jdaced in jeoj)ardy, and that ho ought not, for that reason, to bo longer held to answer the charge which a jury had been imjjaneled, as above, to try. But the court ovci- ruled the motion and proceeded to impanel another jury to ti'V ADAMS r. THE STATE. 311 the cause, which resulted in finding the defendant guilty as cluirgcd, and in sentencing him to the state's prison for a term of two yt?ars. It is a well settled rule that all objections to the competency of a juror are waived by neglecting to use due diligence in urging them, as well as b}' the failure of the party, afterward complaining, to avail himself of such objections at the proper time, after they have come to his knowledge. Kingoi v. State, M\ Ind., lo2; (jIIooJoj v. State, .58 Ind., 1S2; Pattemjn v. State, 70 Ind., ;541; I IJishop, Crim Proc, sec. 040. That rule applies especially to that class of disqualifications whicli arise from a jiroposed juror not being either a freeholder or liouseholdcr or a voter of tiie county. It is al;u) well settled tliat when tlie ordinary forms of law have been complied with, jeopardy attaches whon the jury are swoi'n. 1 Bishop, Crim. Law, sec. lol-i; I Bishop, Crim. Proc, sec. 901; Muden v. Em- moiist, So Ind., ;531. When jeopardy has begun, and the jury are unnecessarily and witliout tlio consent of tlie ])risoner discharged, such dis- charge of the jury is e(]uivalont to an accpiittal, and the pris- oner thereby becomes entitled to exemption from further prosecution for the same olfense. Wn'(//it v. State, 5 Ind., 200; Wt'i(jht V. State, 7 Ind., 324; Maden v. I'Jinmoufi, .sapra. On that subject Bishop, in his work on Criminal Law, vol. 1, section 1037, says: " The general doctrine, let it be repeated, is, that if, after the jeopardy already explained has attached, the jndge discharges the jury without the prisoner's consent, the prisoner is entitled to be set at liberty, and he is not to be again l)rought into danger for the same olfense." As deducible from the authorities herein above cited, Adams, the apjiellant in this case, waived' all objections in the first in- stance to Criwulall's (pialifications as a juror by failing to make any incpiiry upon the subject at the proper time, and when the action afterwards taken by the court resulted in bringing out the fact that Crandall was neither a freeholder nor a house- holder, he still nuido no objection on that account. In all such proceedings a failure to object is construed as implying con- sent, and the declination of the appellant to " change the jury " ought, under the circumstances, to have been interpreted as meaning that ho was willing to proceed Avith the jury as it was :}12 AMERICAN CRIMINAL REPORTS, then constituted. There was, consequently, no sufficient cause for discharging the jury at tiie time it was discliarged, and the action of the court in that respect, having been without the consent of tlie appellant, either express or implied, was the equivalent of an acquittal of the offense which the jury were impaneled to try. It follows that the court below erred in overruling the apjKjl- hmt's motion for his discharge from his arrest upon the indict- ment against him, and that all subsequent proceedings based upon that indictment were, in consequence, erroneous. The judgment is reversed, and tlie cause remanded with in- structions to the court below to discharge the appellant. The clerk will give the necessary notice for the return of the prisoner to the custody of the sheriff of Huntington county. Note. — In Alexander v. Com., lOl Pa. St., 1, after the names of forty- iiino jurors had been (h-awn from the box, which had contained sixty, and «ight juror.s had been separately sworn, it appoiued tliut eleven of the pajjer pellets had b jen clandestinely removed ; whereupon the court directed the clerk to prepare eleven jjcllets in place of those which had been renioveiJ, and aj^ain put all the pellets in the box; and furtlier ordered that the draw- ing of the jury bo commenced de novo. It was held that the prisoner was not in jeopardy at the time of making the order. " The trial begins when the jury is charged, with the defendant, and that is at the moment a full jury is impaneled and sworn ; he is not in jeopardy before. Up to that i)oint the court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full num- ber are qualified to harken unto the evidence and make deliverance." The Puople v. Casey. (96 N. Y., 115.) Juror: Qualifications of, ttndo' code. 1. Under code practice, as formerly, juror must declare on oath that HIS verdict will not be ixpluen'ced by preconceived opinion.— Under the Code of Criminal Procedure, 370, a man who has formed or expressed an opinion in reference to the guilt or innocence of the defend- ant is still, as formerly, disqualified to sit as a juror, unless ho declares on oatli that ho believes such opinion will not influence his verdict, and that he can render an impartial verdict in accordance with the evidence. It is not sufficient to suppose merely that ho can determine the ca.se according to the evidence, or tlmt his opinion ought not to influence \m verdict. THE PEOPLE V. CASEY. 313 8. Same. — Uiwn the trial of an indictment for murtlcr, a man called as a juror, and challenged for bias, testified that ho had formed and expressed an opinion as to the prisoner's guilt; that ho supposed ho would have to determine tho cjiso according to tho evidi;nce, and wouUl have to go accxirduig to the witnesses, but that ho still hatl an opinion which would go with him into the jury box, and this he could not get out of his mind ; that he could not help it; and tiuit it might assist in influencing his ver- dict. To a (|uc3tion as to whether he would give liis verdict in accordance with tho testimony of tho witnesses, ho did not reply. The challenge wiis overruled. Held, error ; and that the juror was disqualilied. 3. Sami:. — Another juror testilied that he had heard and read about the case, and had formed and expressed an opinion and still held it. He was then asked if, notwithstanding such opinion, lie could sit as a juror and deter- mine the case upon the evidence. To this he answered, " Well, I sup- pose I could." Held, that tliis was not a responsive answer, and that the juror was incompetent. 4. Same. — Another juror stated that ho had formed and expressed and still entertained an opinion, and that he would go into tho jury box, if accepted, witli a prejudice in his mind, which it would require evidence remove. He was tiien iisked if tho impression lie had would at all biitipe or influence his verdict. Ho answered, " Well, I would go accord- ing to the e^ Idenco." Ho was iiskcd again if, apart from the evidence, his previously formed impression or prejudice would aid at all in shap- ing and forming his verdict. He answered, " Well, I dun't know that it would." Ho wiis then asked, "Are you sure tiiat it would not V" He answered, "No, 1 am not sure about that." Held, that it was error to overrule the challenge. 5. Sami;. — Another juror who declared that ho had foriiKnl, expressed, and still lield an opinion, wiis asked if, notwithstanding this, he could, as a juror, determine the cixso according to tho evidence. He answered, " Yes, I suppose I could." The challenge was overruled. Held, error. 6. Same. — All of said jurore, after the court had ruleil that they were com- petent, were challenged peremptorilj- ;uid excluded from tlie panel. It ai)peared that before the jury was fully impaneled all of tlie peremptory challenges allowed defendant by law were exhausted. Held, that as by the erroneous rulings he was obliged to uso his penniiittory challenges, and was thus deprived of the right to cliallongo other jurors, he was injured, and was entitled to a reversal. Appeal from judgment of the general term of the supreme COVU't. Eakl, J. The defendant was put upon his trial for the crime of murder, and interposed challenges for actual bias to several persons who were called to act as jurors, which his counsel now claims were improperly overruled. The Code of Criminal Pi'ocedure, section 370, provides that "the previous expression or fornuition of an opinion or im- 3U AMERICAN CRIMINAL REPORTS. prossion, in rcforonco to the guilt or innoccnco of the dcfoiul- ant, or a ])resent opinion or im[)ression in rcforonco tlieroto, is not a suliicicnt <^T(>nn{l for challenge for actual bias to any per- son otliovwise legally qualilied, if he declare on (uilJi tliat he believes that sucli opinion or impression will not inllueiu'o liis verdict, and that he can render an ini])artial verdict according to the evidence, and the coui-t is satisliod that he does not en- tertain such a pi'oscnt opinion or impression us wouhl inlhicnce his verdict." That provision is substantially a re-enactuuMit of soction 1 of the act, chapter i75 of the laws of iSTi*. Not- withstanding the in'ovision, a person who has foriiictl or ox- pressed an oi)inion or impression in reference to the guilt or innocenc;^ of the dolendant is still, as formerly, distpialilicd to sit asa juror, uidess three things shall concur: (1) lie must de- clare on oalh that he believes that such opinion or im})vo.ssion will iu)t inllucnce his verdict; (i^) he must also declare on oalh that he helices he can render an impartial verdict according to the evidence ; and (.'5) the court must be satisfied that ho docs not entertain such a prcrsent opinion or hnpression as would in- fluence his verdict. I'ldess these three things concur thu per- son must now, as before, be excluded from the jury box. Bulho V. P,i>i>h\ SI) X. Y., 481; C(m v. JVydc, id., noi); /'.•nj>I(' V. Coi'ne/f/\ [)'2 id., 85. The cases cited also hold that the de- cision of the trial judge in such a case, overruling the challenge, is reviewable in this court, and that it is our province and duty to determine, upon the evidence elicited by the examination of the person, whether or not he was a comi)etent junn*. Charles Diividson was called as a juror, and upon his examina- tion testilied that he had heard and read about the case; that what he had read left an imj)ression on his mind, for or against the defendant; that he had talked the case over with his neigh- bors; that in conversation with them he had ex])re;sso(l un opinion in reference to the guilt or innocence of the defendant; that he still had the opinion thus expressed, and that he wiis pretty sure he had said that he thought the defeiulant \v;u-; guilty. This question was ])ut to him by the district attorney: "Notwithstanding that you have heard or read of it, or niaV have formed or expressed an opinion or impression, can you sit as a juror, if selected, and determine this case upon the evi- dence as you shall hear it from the witnesses ? " and he an- THE PEOPLE V. CASEY. 315 gwcred : " 'Well, I suppose I could." The court ruled that ho wiis a ^ood juror. .lamos Waldron was culled as a juror, and tcstilicil upon his cxauiiuiition that ho liad heard and read of tlio c'as(% and formed an opinion or iin})i'ession in reference to it; and then the district attorney asked him this (juestion: "Notwitlistandinj^ tliat, couUl you, in your opinion, sit here as a juror and determine it entirely upon the evidence in the cascT' and he answered: "Yes." Tpon his cross-examina- tion ''e testified that he liad read in tlie newspapers a criticism 11} disscntini.;' juror upon a previous trial; that he had f(,., .1 distinct impressicm as to the guilt or innocence of the (lot'cn(hint; that he still iiad that impression; that it wouhl re- (luire evidence to remove it ; and that he would go into the jury hox, if acc{'])ted as a jm-or, with a prejudice in his mind, as the result of the newspaper reading and the iulverse criti- cism that he liad seen in the public press. lie was asked this (iuesti(jn; "Would that dellnite, distinct impression that you have in your mind, would it shape or shadow your verdict at all.' " and he aunwered : " Well, I would go according to the evi- dence, 1 think." There were further (jud d.ay of April ho was [mt u])on his trial, and the jury disagreed. The case was much discussed in the public press and in the comnmnity, and there was adverse critiiisni of some one or more members of the jury, lie was again put upon his trial on the 21st day of May, while the homicide and the former trial were still the subject of much criticism and con- THE PEOPLE v. CASEY. 319 vci'sation. Under such circumstances it can be seen that the defendant's right to challengo peremptorily was of groat value to him, and it cannot be said that rulings of the court Avhich abridged that right were not harmful. In the case of Burt v. Panjaudy 09 U. S., 180, it was held that an error committed in overruling an objection to a juror as legally disqualified is cured where it api)ears aflirmatively that he was not a member of the panel which tried the case, and it does not appear that by his exclusion therefrom the party's right of challenge was abridged. JMiller, J., writing the opinion of the court, said: '•We are of opinion that since Holmes did not sit on the jury no harm Avas done to defendant. The object of both motions was to exclude him as one incompetent to sit. It is immatei'ial to the defendant how this was Ijrouglit about. It is possible that if defendant had shown ailirmatively that he was excluded bv reason of his peremptory cluillenge, and that in doing so the exei'cise of his right of jieremptory challenge had been abridged, the result miglit be otlierwise. It is sullicient to say that tlie record docs not sliow tluit he was on the jury, but in fact that he was not, or that in getting rid of liim any right of defendant was abridged or lost." Jose[)li 1). Dowd was also called as a juror, and upon his examination he testified tliat he had heard and read about the case, and this tpiestion was put to him : " Notwithstanding what you have heard and read about it, could you sit as a juror, and determine this case upon the evidenced' And he answered: *'Well, I sliould, of course." Upon his cross-examination, he testilied tliat he luul read about the case in the newspapers, and tliat it Iiad made an impression upon him which still re- mained; tliat ho would bring that impression into the jury Ikix, and that he thought it wouhl reipiire evidence to remove it; that he had expressed the opinion that tiie defendant was f,milty of murder, and that he still had that opinion. The court sustained the competency of this juror, and he was sworn and served as a juror. A\'e are of opinion that this juror was not com[)etent. He was not asked to and did not declare on oath that his opinion or impression would not influence Iiis verdict, and that lie could render an impartial verdict according to the evidence, or that he could weigh the evidence impartially, lie diil not so declare in words or in 320 AMERICAN CRIMINAL REPORTS. substance. Unless he did so declare, and could so declare, he was incompetent, and in the absence of such a declaration he should have been excluded. It is not sufiicient for a juror simply to declare that he supposes he can determine the case according to the evidence, or that he would go accord- ing to the evidence, or that his opinion as to the defendant's guilt ought not to influence his verdict, or that he supposes that he Avould have to go according to the witnesses. The de- fendant has the right to have the conscience and mind of the juror tested by a declaration under oath, not simply that he will be governed by the evidence, but by declarations wliich chow that he believes he is in such a state of mind, so free from bias and prejudice, that he can weigh the evidence im- partially,' uniuHuencod bv any opinion or impression which he has formed. As said in Bacon's Abridgment (Juries, E, 5), " An honest but weak man may be so much biased as to think he goes by the evidence Avhen his affections add weight to the evidence." IndilTerency is one of the common law cliaracter- istics of a juiy, and it is inviolably secured by the constitu- tional guaranty of jury trial. A party put upon trial for a crime has a constitutional right, by challenge, or in some other mode, to protect himself against a biased jury. Other exceptions taken during the trial to rulings upon questions of evidence, and relating to the cliarge of the judge, have been brought to our attention. But we do not regard them as important, and they need not now be considered. The judgment of the general term and of the oyer and terminer should be reversed and a new trial granted. All concur. Judgment reversed. Drake v. The State. (08 Ala., 510.) Justice of Tinj peace; Jurisdiction of — Autrefois convict. 1. Justice of the peace — Has no juuisdiction until a complaint is FILED. — The power conferred on justices of the peace to hear and dotor- mine prosecutions for misdemeanors cannot bo quickened into activity until a complaint is made — until a cose is presented he cannot cxcrclso jurisdiction. DRAKE V. THE STATE. 321 Plea of guiltt when no complaint is made no bar to prosecution. — A iKirty knowing himself guilty of a misdemeanor, who becomes his own prosecutor, selects his own judge, confesses his guilt, and submits to a judgment entered upon such a confession, cannot escape prosecution in the appointed mode by pleading a former conviction brought about under such circumstances — such judgment of conviction is a nullity. From County Court of Madison. Tried before Hon. William Richardson, Judge. John D. Weid^n, for appellant. IT. C. Tompkins, attorney-general, for the state. Bbickell, C. J. The appellant was indicted in the circuit court of Madison county, tlie indictment containing two counts ; the first charging gaming, the offense denounced by the statute (Code of 1876, § 4207); the second charging the offenge of hotting at a game of cards or dice, or at a gaming table, etc., denounced by the statute (Code of 1870, § ■i'2'Jd). The in- dictment, under the statute organizing the county court of Madison county, was transferred from the circuit court to that court for trial. The appellant interposed a plea of former conviction, before a notary public and ex ojlcio justice of the peace. The plea averred that, on the 0th day of February, 1882, the defendant was by the notary convicted of the offense charged in the indictment, and set out tlie record of the pro- ceedings and judgment; from which it appears that, on the 0th (lay of February, 1882 (the first day of the term of the circuit court at which the indictment was found), the defendant ap- peared before the notary public, without complaint having been made, or process issued against him, and stated that, within the preceding twelve months, he had at a particular place, within the county of Madison, violated four different times the statute against gaming, and the statute against betting at a f^anie of cards or dice, etc., but the particular times or occa- sions he could not remember. To such violations of the statute he pleaded guilty, and the justice sentenced him to pay a fine of i^loo. The state demurred to this plea; the solicitor speci- fying, as the sole ground of demurrer, " that the plea does not show that there ever was a legal conviction of the defendant in any court of the state of Alal)iinui authorised to try such cuses." The demurrer was sustained; a trial was had on the Vol. IV — ',»! 322 AMERICAN CRIMINAL REPORTJ plea of not f^uilty, and there was a verdict of guilty as;;or)3in" a fine of $100 against the defendant, upon which judgnioat was rendered. The constitution authorized the* general assembly to confer jurisdiction of prosecutions of misdemeanors on justices of tlio peace, or such other inferior courts as may be established by law, dispensing with the presentment of a grand jury. By an act approved February 8, 1877 (Pamj)!!. Acts 1S7C-7, p. 107), justices of the peace in ^ladison, and several other counties, were clothed with original jurisdiction, concurrent with that of the circuit court, of all misdemeanors committed in the comity. It is expressly provided, however, that all proceedings under the act must conform to, and bo governed by, the general stat- utory provisions embodied in the code regulating proceedings in criminal proceedings before justices of the peace. The sub- stance of these proceedings is, first, a com])laint on oath, charging the person accused of an offense of which the jn:;tico had jurisdiction. This is the first step taken in the initiation of the prosecution, and it must be taken before the jurisdiction of the justice can be called into exercise. The power con- ferred on the justice is the power residing in the circuit court. It is power to hear and detei-mine prosecutions for misde- meanors. The power cannot be quickened into activity until a complaint is made — until a case is presented, bringing it into exercise. The power to hear and determine a cause is juris- diction. "Before the power can bo ailirmed to exist, it nnist be made to appear that the law has given tlie tribunal capiicity to entertain the complaint against the person and tiling sought to be charged or affected; that such complaint has iu-tuiilly been preferred ; and that such ])erson or thing has been biouglit properly before the tribunal to answer the charge tlicrcin con- tained." Sheldon v. Newton, 3 Ohio St., 480. It cannot bo admitted, for a moment, that the constitution or statutes con- template sucli a proceeding as that now relied on as a bar to this indictment; that a party, knowing himself guilty of a misdemeanor, should become his own prosecutor, select liis own judge, without notice to the state or any otiicer authorized to prosecute in its behalf, confessing his guilt, submitting to judgmont, and esca|)e prosecution in the appointed mode, in ])roce(!dings in form and effect adversj'.ry, in which the state MURPHY V. THE PEOPLE. S23 has tlio opportunity of bein,;j hoard and of vindicating its laws. If the proceeding was civil, involving private rights, it would not be pretended that a plaintiff could be barred of his right to a fair trial in the modes ajjpointed by law, by the appear- ance before a court and the confession of judgment by tho defendant, of which he had no notice, and in tho rendition of which lie haol no agency. The ])rococding and judgment before tlic notary were coram nonjndlce., — a mere nullity, — and can- not oi)erate as a bar to tho present indictment. State v. Little^ 1 N. II., 257. The demurrer was properly sustained, and tho judgment of conviction must bo allirmed. MuKPUY V. The Peoplts. ' (104 111., 528.) Larceny: Fraudnlent convernion — Joinder of counts — Variance — Newly discovered etndence — Questioning competency of counsel. 1. Larceny — Pautino voluntarily with possession and title.— If the ownt'v of the goods alleged to have boon stolen parts with both the possession and tlife title to the goods to the alleged thief, then neither the taking nor the convei-sion is felonious. 2. Otherwise when the owner intends that they shali. be returned TO iilM. etc. — But if the owner parts with the possession volun- tarily, Init y Ik.' feloniously converted by the bailee, Ko as to relate back and make the taking and conversion a larceny. 3. Joinder op counts — Larceny and embezzlement.— Joinder of em- hozzloment with larceny is in accordance with the well-est.ablished practice. 4. Variance. — One C. entered a place of business kept by F. to make a purcliiuse, and handed a twenty-dollar coin to F. for the purpose of paying for the article purchased by him and receiving his change. P. being unable t,i make the change handed the coin to M. and requested" M. to g.>t it changed. M, tfM)k the coin, went out and never returneJ with it or the change. He'd, that the property in tluj coin was properly laid in C, as no title «'ver passed to F. 5. Newly DISCOVERED evidence.— Where the la'isoner, ui)on a motion for ii new trial, jiresented attiilavits of persons wlio stated that the prisoner did. on the day of the alleged larceny, nuike elforts to get " change" of TT^r.-T^-. 824 AMERICAN CRIMINAL REPORTS. a certain coin, held not material, as the offense charged was not in fail- ing to get the money "changed," but in failing to return it, and in appropriating it to liis own use. 6. Questioning competency of counsel assigned to defend an accused PEKSON. — Wlien the court below assigns counsel for the defense of an accused person, it will be presumed that he was fully competent to dis- charge the duty assigned him. His competency cannot be made an issue on a motion for a new trial. AVi'it of Evi'or to the Circuit Court of "Will County; t'ae Hon. J. McRoberts, Judge, presiding. Messrs. Ilaley <& O'Donnell and Mr. J. R. Flcmders, for the plaintiff in error. Mr. James McCartney^ attorney-general, for the people. Mr. Justice Scuolfield delivered the opinion of the court. Plaintiff in error and John Fay were jointly indicted for the crime of larceny. They were jointly tried, and the jury found plaintiff in error guilty, and Fay not guilty. Judgment ivas entered upon this verdict, after overruling a motion for a new trial, and this writ is prosecuted to reverse that judgment, for several errors alleged, which we shall proceed to briefly consider. First. It is claimed the verdict is not sustained by the evi- dence. The undisputed facts, as proved on the trial, are : One Coskey, and a friend accompanying him, entered a saloon in Joliet, kept by Fay, and procured drinks, and Coskey, not having the exact amount of money with which to pay for the drinks, handed Fay a twenty-dollar gold coin. United States coinage, for the purpose of making " change." Fay, on look- ing over his money on hand, said he couhl not "change" it, and thereupon jjushed the coin towards plaintiff in error, who was at the time standing by the bar, and re(|Uostcd him to go and get tlie coin "changed." Plaintiff in error took the coin, left the saloon, and never returned or accounted for the coin. The case seems, in all its essential features, })rocisoly hke Farrell v. The Peitple^ 10 111., 500. There one Ilennis gave Farrell, who was a hack-driver, a five-dollar bill to 1)(> ^'changed," in order that Ilennis might pay Farrell twenty- five cents. Farrell did not return with the bill or the " chang(>." This court held he was guilty of larceny. MUKPIIY V. THE PEOPLE. 325 In Weliih et al. v. The People^ 17 111., 339 (a case similar in the controlling principle to that in the present case), it was said : " Where, as in this case, the alleged larceny is perpetrated by obtaining- the possession of the goods by the voluntary act of the o\vner, under the influence of false pretenses and fraud, when the cases are carefully examined and well understood, there is no real difficulty in deducing the correct rule by which to determine whether the act was a larceny and felonious or a mere clieat and swindle. The rule is plainl}"^ this : If the owne?* of the goods alleged to have been stolen parts with both tho possession and the title to tho goods to the alleged thief, theu neither the taking nor the conversion is felonious. It can but amount to a fraud. It is ol)taining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall bo returned to him, or that it shall bo dis- posed of on his account, or in a particular Avay, as directed or agreed upon for his benefit, then the goods may be feloniously converted by the bailee so as to relate back and make the tak- ing and conversion a larceny. The pointed inquiry in such a case must always arise, did the owner part with the title to the things, and was the legal title vested in the prisoner?" Again, in Sthisoti v. The People, 43 111., 3U7, the same doo- trine was reiterated. It was there, among other things, said: "If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending tho same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular Avay, as directed or agreed upon, for his benefit, then the goods may be feloniously con- verted by the bailee so as to relate back and make the talcing and conversion a felony, if the goods \vere obtained with that intent." This settles the law in this state, but analogous rulings, else- where, may l)e found in the following cases, referred to in argument by the attorney-general: Ba'dei/ v. The State, 58 Ala., -ill; Commonwealth v. Barnj, 124 IVIass., 325; State v. W/'/h'aninoH, 1 Iloust. Crim. C, 155; State v. Anderson, 25 ^linn.. «(»; People v. Abbott, 53 Cal., 284; Elliott v. CommoTir W'd/fh, 12 Ihisii, 176; Maehw v. People, 19 N. Y., 127; Com- moinocalfh r. I find, 123 Mass., 438; People v. McDonald^ 43 N- Y., (}1; midehmnd v. People, 56 id., 394. 82C AMERICAN CRIMINAL UEPOliTS. No mitigjitinj[^ or cxtcniuiting circumstance was given in evi- dence, and no ground is tljerof<>]'o appaient upon which it can bo said the verdict is not susla'nod by tlicevid;>nco. Tlic proof on belialf of the prosecution made a case, and that proof is in -no manner overcome or impaired by countervaihng proof on behalf of phiintiff in error. SccoaiL It is argued the second count in the in, and cases I'cferred to in note v. And it may also bo pro])ei"ly here added, tho objection tliat thoro is a varianco botweon tho proof and tho second coiuit (if it were important to consider such a (juestion when it docs not f.lso lie to the first count) is untenable. The averment that tho dolivci-y was to the piaintilf in error is literally su.^taino;! as to that act. Fay is to bo regarded as tho agent of C^jslcc y. and the rule applicable is, what tho principal docs by an agent ho docs by himself. Third. Coanrjol for plaintilT in error contend tlio property tore was not properly laid in the indictment as the pi-opcrty of Coslcey. Wo cannot yield our ar.sont to this view of tho law. In all tho cases before reforred to on tho (piestion of tho ciiar- acter of tho olfenso made out by the un(|uestioned facts, a contrary doctrine is announced. Tho projioty may bo alleged in the indictment as tho proi)crty of the real owner, or of any person having a special ])roj)erty in it as bailco. 2 liussisU on /Crime.'? (7th Am. ed.), >^'i, JK); 2 Wharton's Criminal Law (7tli cd.), sec. 1818 ei seq. I'ut clearly no titlo here pansed to plaint- iff in error. There was no intention he should become owner. lie was simply to perform a duty in regard to the juoixMty,— *' change" it, — that is, convey it to one who would give what, in popular language, is denominated "change," viz., bills, or gold or silver coins, or some of each, of lessc/ denomina- tions, in amount of oqu.al value, in exchange li r it. and return MURPHY V. THE PEOPLE. 327 tliia "cliango" to Coskoy. FiMxtch v. Brown, IC 111., 7-4, cited juid relied upon l>_v coimsol for a|);)clliint, doos not airecit the (juration. In that case, Avliat was decided was simply that a i>arty '" changinj^" money for an asjent, supposin;^ him to bo acting as principal, may proceed against cither the a'jfcnt or the i)rinci[)al, when he discovers him, in the event of a right of action growing out of such "changing" of money. The agent Avas there held liable because the ])rjnci))al was not known and trusted, but there wouhl not have been the slightest objection, had the party so elected, to holding the real ])rincipal liable. It may bo, had this coin l)een alleged to have been the prop- erty of Fay, plaintiff in error could not have objected to his title, but this furnishes no ol)jection to the property being alleged in the real owner. In point of fact, no title ever passed to Kay. It was passed to him just as he passed it to plaint- iff in error, not to invest title, but to procure it to be changed into (or, to speak more accurately, exchanged for) bills or coins, or a combination of each, of smaller denominations, in an aggre ;'at(5 amount and value equal to it, and as to that act he was, legally, the agent of ( •oskey. We cannot perceive that AVA,* t'. The People, 81 111., 500, has any bearing \\\w\\ the case. There the indictment was for lar- cany only, as at common law, while here we have a count for larceny as at common law, and a count for embezzlement, and hence if the proof su:;tains either the conviction must stand. B.it from the authorities cited, and what has been said, it must b^ evident, we are of opinion, the evidence sustains the count for larceny as at common law. The alHdavits in suj)port of the motion for a now trial dis- close no sullicient ground. Two of thom merely show efforts of the plaintiff in error to get money " changed" — v.'hat money is not coadusively shown. Ikit even if it were this for tho stealing of which he is convicted, that fact does not even tend to sliow his innocence. Ilis offense is not in failing to get tho money "changeil," but in failing to return it, and in appropri- ating it to his own use. Doubtless his own convenience required that it b;? '* ch;inged." The only other affidavit is that of plaint- iff in error that he was intoxicated, and. by reason thereof, ob- livious of all he did in regard to this money. Waiving comment upon some inconsistencies and improbabilities in this allidavit, 828 AMERICAN CRIMINAL REPORTS. "we deem it snfTlcient to say, the court below assignefl plaintiff in error counsel for his defense, who, wo must prcsunio, was fully competent to the duties assij^ned him. Neither plaintilf in error nor that counsel deemed it advisable to inti'oduco plaintiff in error, or any other witness, to make that proof upon the trial, nor was a continuance aslced to ol)tain evidence in that regard. We cannot permit the competency of counsel to defend j)ersons charged with crime to bo thus introduced as in issue on motion for a new trial. Perceiving no error in the record, the judgment is affirmed. Judijitient affirmed. Note. — Joinder of counts — Larceny — Embezzlement, — In People v. De Course!/, 01 Cal., 134, it is lield that larceny and embezzlement are sejjarate and distinct oiTenses, — tliat in the case of larceny the taking must be with a felonious intent, but that in embezzlement the original taking is lawful, and the crime consists in the fraudulent appropriation of property by a per- Bon to whom it has been intrusted, and, therefore, it is error to join counts for larceny and embezzlement in the same information. The decision wa.s based upon a statute of that state which provides " that the indiitnieiit must charge but one offense, but the same offense may be set forth in dif- ferent forms under different counts, and, where the offense may be com- mitted by the use of different means, the means may be allegeil in the alternative in the same count." In Iowa the statute is substantially the same as in California, with a, proviso "tliat in case of compound offenst^s, whert; in the same transaction more than one olTejiso luis been committed, the indictment may charge the several f)ffensea, and the defendant may Ihj con- victed of any offense included therein." In the case of The State v. Hni/den, 45 Iowa, 11, the defendant was found guilty upon an indictment for breaking and entering a store with intent to commit larceny, and which also alleged that the defendant did tal:e, steal and carry away the goods described; the tourt held that the indictment charged but one offense, that of breaking and entering with intent, etc., and that the allegation that ho actually committed the larceny v.onld be regarded as surplusage. It is evident from the language of the court that the indictment contained but one count, and the motion in arrest was pro|)- erly overruled, whatever the rule might be on a motion to quash the in- dictment. In the later case of The State v. Ridley and Johnson, 48 Iowa, 370, the indictment contained but one count, in which it was alleged that the defendants in the night-time unlawfully, feloniously and burglariously did break and enter the store of one John Slatten, etc with intent then .ami there the goods, chattels, money and property of the said John Slatten, in the said store then and there being, then and there unlawfully, feloniously and burglariously to steal, take and carry away ; and two cad- dies of tobiicco of the value of $12 each, ... of the personal goods, chattels and property of, etc., in the siiid store then and there being found, then and there unlawfully and burglariously did steal, take and carry away, etc. MURPHY V. THE PEOPLE. 329 \* Tlio trial court instnictftl the jury tlint in the fuctH set forth in thn in«lict- nicnt were included the t-riine of liirceny in a Htoro in the nipht-time, the crime of brcakin<^ and entcrinp; a store witli intent to commit larceny, and the crime of simple larceny. The defendants were found f^iilty of larceny fioiii a Htore in the ni<^l>t-tinu', and the sniiromo court reverseil the case on tlie f:;r t \lii( II count he would claim a conviction. Mr. Cliici .fustice Tilghman. in Uiirmoa v. The Com., 12 S. & R. (Pa.), 69, liiys down safe rule for tiie guidance of courts in matters of this nature, la tliat c. ( here were two counts in tiio indictment, t>ne for rape and the I'tlier for an assault with intent to ravish. The court, overruling the objec- liou iaise him, nor any dilUcuIty in defending himself against both charges. In- deed, if he was guilty o'' the rape, he must have been guilty of the assault witli intent to ravish; and, if he wis not guilty of the assault with intent to ravish, he could not be guilty of the rape. So that when he jirepared for defense against one count, he must n(!cessarily prepai'e for defense against the otiier. ... It may be i)roper to remark, here, that when two of- fenses are charged in -I'liate counts, if tlie defendant can make it appear that this mode of prot ding will subject him to unreasonable difficulty or eiubarrassment on his trial, the court have it iu its power to protect him by quosliing the indit;tment, or compelling the prosecutor to elect on which count he will ])roei>ed, iind discharge the defendant from the other." Motion to elect. — There is considerable conflict of opinion to be found in the decisions as to when a motion will lie to compel the prosecutor to elect on wiiich count lie will proceed, when the indictment charges several felo- nies; and, as ty the time when such motion should be made. The following is Mr. Wharton's deduction from the authorities; 1. Cognate ollenses may be joined in separate counts in the some indict- ment. M 330 AMERICAN CRIMINAL REPORTS. 3. If this is done in such a way as to oppress the defendant, the remedy is a motion to quaah. 8. It is permissible, in m;wt states, to join several distinct olTunses, to each of which fine or im;jiisaiim.»:it is attajliablu; auJ upon conviction on cac!i count, to impose a sentence on each, 4. Yet as to oiTenses of hi^h grade in all the states, and in some states as to all offenses, the court will not permit more than a single issue to go to the jury, and hence will respiire an election on the close of the prosoju- tion's case, except in tliojL* cases in which the offenses are so b!ende:l tliat it is eminently for the jury to determine which count it is that the evi k'ai;o fits. V/harton's C.'im. PI. anl Pr., soo. 2D1, CMi eJ. Sjo, al;)o, 1 Bisliop Ciim. Pro., oh. 33, 3i ed. In State v. Johnson, 3 Harrington (D3I.), 531, the court say: " When sav- cral felonies of tin sama kind are chargjJ in several counts, the court will, on motion, compel tlia attjr;ioy-;jenaral to elect oa wliich count ho will pro- ceed." In Coodhue v. The People, 9t 111., 37, the court nay: "If two or more of- fensos form pai't of one transaction, and are sujh in nature that a defcnidant may bo guilty of botli, the prosecution will not, as a general rule, bo ])ut to an election, but may proceed under one indictmLiut for the several oir.'a.sus, thou ;h t'.u'y h?, felonious. The ri^ht of donianLliu,^ an election, and tlio limitation of the proaejutl >n to one off-'iise, is confine.l to char,;o^ \\\\\c\\ are actually distinct fiom ea.-li other, and do not form parts of on(! and tlio same transaction. In misdemeanors the prosecution may, in the discretion of the court trying the case, be re;iuireJ to confine t'.iu evidence to one offjnse; or wlicn the evidonce is given of two or m:)re off in.ieo, may bu ro- quh'c 1 to elo.:t one (ihai^je to b:> su'oni'.tte 1 to t!i3 jury ; but in ca ji.vi of fel- ony it is the ri,"jht of tlie a?cuse.l, if he d<;man 1 it, that he be not put u])on trial at the sani,' time for m )rj t'lan o:\i olfjn.^j, exv'pt in ca les where t'ao several oiijas.M are rej;)jjtivjly pari^j of thj sa.uj transaiitio-i," Hjj, also, Wharton's C. L. (fjth eJ.), sec. l^JJr. The expre:!sion, "char;;!S which are actually distinct from each ollior," leaves the above opinion somewhat, involve;!. But its evident m(>aniii,"; is "charges which are actually distinct from each other" oidy in jioiiit of time, because it would be highly improper to introduce in an iudiclnicnt for murder a count for larceny, although both offenses mi,';lit form part of one transaction. It is evident that much discr;'tion mnrit be repoied in tlu? trial comt as to tliose "cases in which tho offenses are so blended that it is eminently for the jui-y to determine which count it is that tlie evidence fits;" but a niani- fe.;t e.-ror of judgment prejudicial to the riglits of the accused, like otlier errors of a judicial nature, slionld be tho uubjejt of review. Tii." tiuie when the motion should be entertained must rest lar ;;ely in the discn'tion of tlie court. But it would seem fair to the prosecutor that in thotic cases where a joinder of counts is permissible, that hn be not compelleJ to elect until after his evidenco ij Lntroduvied, and buforo thu accused is put to liiB defense. ADAMS V. STATE. 331 Adams v. State. (15 N. J., 449.) Lauceny: General owner — Stealing from special. 1. A general owner of goods may be guilty of larceny in stealing such goods from a special owner. 2. To constitute a crime of larceny in such cases, tha taking m^:2t bo felo- nious. A. Kalisch, for plaintiff in error. W. li. Wilson, for the state. Tiie opinion of the court was dclivcrod by Knapp, J. The plaintiff in error v/as indicted for grand lar- ceny at tlie May term of the Union oyer and terminer, tho indictment charyiiii'' hor with havin;^ feloniously stolen certain goods and chattels as tiie property of Thomas W. Sloan, abovo tho value of $20. She was tried before the quarter sessions of that county, convicted upon the trial, and sentenced to nine months' imprisonment at hai'd labor. Tlie property was levied upon by Sloan as tlio property of (^'atherine Adams, under an execution wliich Sloiin hehl, .is constable, against her; the con- stable allowed the goods to remain at the house of the plaintiff in error, the j)laco of tho levy, she bojig informed of the levy. Before the time for sale under tho execution, the plaintiff in error toolc and disposed of the goods. The case comes uj) on exceptions to the refusal of the court to charge as requested, and upon the charge as made. Tho assignments of error i)resent the question whether larceny may bo committed by the general owner of property in taking it from one \\\\o has the sjiecial ownership, without felonious intent in such taking. It is impossible, under ordinary circumstances, for one to commit larceny in taking possession of his own property, and the general owner of goods, in their lawful possession, has full dominion and control over such goods: but it seems to bo well settled in the law that larceny may be committed by a man stealing his own pi'OjHn'ty, if iho taking be an lino fnramU, or with a fraudulent design to charge the bailee with the value of it. There is a passage found, as eaily as the time of the Year 332 AMERICAN CRIMINAL REPORTS. Books, in which it is said, " if I bail to you certain goods to keep, and then retake them feloniously, that I should be hung for it, and yet the property was in me." This passage is found repeated in all the leading criminal treatises, but with the addi- tion that the goods be taken with the fraudulent design to charge the bailee with their value. 1 Hale, P. C, 513 ; 4 Bl. Com., 331; 2 East, P. C, 558 ; Ros. Crim. Ev., 650. As if one delivers his goods to another, as his servant or bailee, and tlien steals them from sucli servant oi* bailee, with a fraudulent intent to charge him with their value, this would be larceny in the owner, al- though he might have had their possession through the lawful assertion of his title. On an indictment for larceny against such general owner, the property in the goods stolen may he laid as that of the si)ecial owner. The general property of goods levied on by execution is in the debtor, and renuiins in him until they are sold for the purpose of satisfying the execu- tion; but the officer who levies acipiircs a special property in those goods which entitles him to their possession uutil satis- faction be made of the execution. JJ'dlenhack v. Jerome, 2 Cow., 293; Smith v. Burtis, G Johns., 19<>. The defendant asked tlie court to charge the jury that there was a variance in the allegation of property in Sloan, and the proof U{)on the trial; that, therefore, the defendant should not bo convicted. This the court refused to charge, and the evidence is brought here for examination as to the correctness of the court's action in so refusing; but upon the evidence it appears that Sloan, as ah'eady stated, had a special property in the goods, and they were, thcT'cfore, pi'operly laid as his goods in the indictment. There was no error in refusing so to charge. The next exception is as to what the court did charge on the subject of ownershij). By tlie bill of exceptions it api)ears that the court said that by virtue of the execution and levy "the constable became the owner of the goods levied upon until sold by him, and that if she took the goods, or assisted any one else in the taking, she is guilty." The part of the charge contained in this bill of exceptions is all wo have of it. It would seem to be a sufficient statement of the law defining the rights which the constable acquires in virtue of a levy. It was made by the court in answer to the objection that the true ownership was not alleged in the indictment, and, as re- ADAMS V. STATE. 333 >]>ccts that question, the instruction of the court was correct. The constable's ownership was a qualified one, it is true, but it was sufficient to support the averment. The further statement in that portion of the charge, namely, " that if she took the goods, or assisted any one else in taking them, she is guilty," may be subject to more criticism. It certainly is not a full presentation of the law. It is not every sort of taking of tlicse goods that would make her criminally liable. It might have amounted to no more than a trespass or a conversion of tlie property as against the officer. The goods were left in her custody by the officer. As between them she may have been considered as a mere receiptor for the goods, with the right in the officer to de})rive her of her possession and assume it him- self. But she not onl}'^ had their actual custody but was as well tlie general owner, .'ind could at any time before sale, by paying the judgment, remove the officer's hands entirely from lier property. Now, unless her taking the goods was under sucli circumstances as in some way to fraudulently charge him witli their value, it is difficult to find any recognized rule of criminal law that would hold her answerable for larceny. This case fails in resemblance to that of Palmer v. People^ 10 Wend,, 106, in this important feature: Palmer was con- victed of having feloniously stolen property of one Jennings, 'who, as constable, had levied upon property by virtue of an execution against Palmer. The goods, by the officer's consent, remained with Palmer, who subsequently sold the shingles and charged the constahle with having taken them away, and brought suit against him for their value upon that false allega- tion. This proof was held sufficient on the ground that it charged a felonious taking of his own property, with intent to charge the constable with the value of it, bringing the case within the rule above stated as the ground of criminal liabil- ity. Tn this charge is found the broad pro})osition that any sort of taking or conversion by the general owner of property loft in her possession l)y a coiistable possessed of the I'ights which a levy gives him, is a criminal act, and that of larceny. No fraudulent or evil design existing in the mind of the de- fendant is charged or intinuited to be a necessary element of guilt. It would not be every taking by a mere stranger of these goods from the possession of the constable that would "W" 334 AMERICAN CRIMINAL RI^PORTS. amount to larceny. A felonious intent would bo a rcqiiisito ingredient in sucli crime. A convcivsion of the goods i)y a stranger wlio ha I baen appaintod their kei^per by a con5tiil)lo would not have been a crime but a civil wrong merely. To hold the general owner in possession to a severer rule seems to mo to savor of illegal severitv. I am unable, in the researcjies I have made, to find any case which wiirrants the ascripti;)n of criminality to such facts. The case of /icx v. WUkhison, Iluss. & Ry., 471, Avhich goes as far as any other that I have found, presented the features of ilagrant fraud on the part of the de- fendants, who Avero the real owners of the property, upon cither the prosecutors or upon the crov>n. As to which, tlio judges were divided in opinion. If Ave are permitted to look into the evidence which is handed us Avith the record, one can scarcely escape the conclusion that, if the rule had been stated to the jury Avith the proi)er qualidcation, they must have failed to find in it CAudence of such felonious design as Avould have raised the o!Tense above that of a mere civil injury. Whether the judge in other parts of his charge qualified the expressions in the opinion excejited to, Ave have no means of knowing; the charge is not before us. Wo have nothing but this pointed statement of his views of the law. AVe must assume that this embraced his entire instruction to the jury upon the legal requisites of guilt, and it was erroneous in a Avay that must have prejudiced the defendant in her trial. I think the judgment for this error should be reversed and a new trial ordered. Peoi'lk v. Lkono Quo:ro. (GO Cal., 107.) L.\uceny: Aaine — Variance. 1. Larceny— Name— Vaiiiance as to alleged ownership op PRorEUTV. Appellants were convicted of the crime of grand larceny, for stealing a horse and wagon, the alleged proiserty of one Sang Hop. On the trial of the C!;se tlio owner of the property ntolen testified that ho had two names — a husiness nmne and a jM^rsonal one. Ilchl, that jus the owner of the property was known by tlie name of S'.ing Hop, that name wan BuHieient. in legal proceedings, whether he had another name or not. PEOPLE V. LEONG QUONG. 335 2. Samk. — The name of the owner of property stolen is not a material pai t of the olFeiiso cliarge;!. It is only required to identify the transaction, so that the dof(;n.lant, by proper plea, may protect liimself against au- otlier prosecution for the same offense. Appeal from the Suporior Court of the City and County of Sail Francisco. Fcj'ral, J. Thomas F. Barry, for appellants. JIcKkk, J. The appellants, in this case, were convicted in the court below of the crime of grand larceny, for stealin;^ a horse and waoon, the al]e;j;ed property of one San;^ Hop. The commission of tlic oiTcnsc was proved by unquoitioned evidence. No exception is taken to the charge of the court to tlic jury, but it is contended that the verdict is contrary to law, because of a variance bstwecn the information and evi- dence as to the name of the injured party. On the trial of the case the owner of the property stolen testified that he had two names — a business name and a per- sonal one. His pei'sonal name was Yup Chin, and his business name Sang Hop; and that in all his business transactions and dealings, for years, he has been known by his business nanio only. The name of a pei'son is the designation by which lie is known. As, therefore, the owner of the property was known by the name of Sang Hop. tliat name was sufficient, in legal proceedings, whether ho had another name or not. As is said by the supreme court of Afassaclmsetts: " The name which was given to a ])crson at the time he was baptized is to be taken as originally, and presumed to continue, his name; but if after liis baptism he adopts and uses another name by Avhich he is subsequently well known in the community where he resides, prior to and at the time of the aUeged sale, it is sullicicnt if ho is described by that name in tlie comphiint." Commonvicalth •6. Tra'mor. 1'23 Mass., 415. The name of the owner of prop' erty stolon is not a material part of tlie otfense cliarged. It is only rctpiired to identify the transaction, so that the defendant, by proper ]>lea, may protect himself against another prosecu- tion tor tlie same olfense. The owner nuiy have a name by reputation, and if it is proved that he is better known by that 336 AMERICAN CRIMINAL REPORTS. name than any other, the charge in the information by that name is sufficient. The State v. Bell, 05 N. C, 314. There was therefore no variance between the information and proof in the case which affected any substantial right of the defendant. People v. Hughes, 41 Cal., 236. Judgment and order ajjirmed. Morrison, C. J., and Eoss, Mykick, Thornton and Sharp- stein, JJ., concurred. State v. Jenkins. (78 N. C, 478.) LiAiiCENY: Ownership of property. In an indictment of the larceny of certain meat belonging to a railroad com- pany, the property was laid in a depot-agent of the company who had possession and control of it for the company for the use of its hands; TieZd, that the indictment is defective; the property should have been laid in the railroad company, the agent in such case not being a bailee. Indictment for larceny. Buike Superior Court, before Schenck, J. Keade, J. The only question Avhich it is necessary to con- sider is, whether the property in the goods stolen is properly laid in the indictment. It is settled by all text-writjers, and it is familiar learning, that the property must be laid to be either in him Avho has the general proi)erty or in him who has a sjyec'lal property. It must, at all events, be laid to be in some one who has a jj^'opertij of some kind in the article stolen. It is not sufficient to charge it to be the property of one who is a mere servant, although he may have had the actual possession at the time of the larceny ; because, having r\o jM'oj)ertg, his possession is the possession of his master. These are the only general pi'inciples that can be laid down; and any given case must be governed by them. In this case the meat stolen belonged to the railroad, and w^as in its })ossession in its depot-hous(N for the purpose of feed- ing its hands. The pr<)}>erty is not laid to be in the railroad, but in its depot-agent, who had nothing to do with it and did STATE V. JENKINS. nothing with it except to give it out to the railroad hands to eat. Ifis testimony was that he wa^j "the agent at the depot and had possession and control, /b;* ikem, as their bailee of the bacon alleged to have been stolen by defendant; that on Fri- day evening he issued rations of bacon to the railroad hands, nnd in the hogshead where the bacon was, he left one and a half sides of bacon loose; and that hev locked the depot and took the key," etc. It is true he says he was their bailee ; but what is a bailment is a question of law, and the facts which he states do not make h'm a bailee. A bailee has a special property in the thing bailed. He does not pretend that he had any property in it, or that he held it for any use of his own. He states ex- pressly that he was the railroad's agent and had possession and control of the meat '\for them."' It was in their house, for their use, to feed hands, and was issued to their hands by their agent or servant. The agent himself might have committed larceny of the bacon, which could not have been the case if he had been the bailee. It has been decided in this court that one who gets staves on my land on shares may steal them before they are divided. So an overseer who is to have a part of the crop for his Avages. So witli a ci'ojiper. So with a clerk in a store. So with a servant or agent of any kind, who has Xio property in the thing stolen, althougli he ma}'^ have the possession. It is otherwise if he has a property, general or special. A. is the general owner of a horse; B. is the special owner, having hired or l)orrowed it, or taken it to keep for a time ; C. grooms it and keeps the stable and the key, but is a mere servant and has no property at all. If the horse be stolen the property may be laid to be either in A. or B., but not in C, although he had the actual possession and the key in his pocket. Why Avas not the property laid in the railroad ? Then there could have been no difficulty. Or there might have been tAvo counts if there Avas any uncertainty. There is error. This will bo certified. Per Curiam. Venire de novo. Vol. IV— 23 TTW iifi^ 338 AMERICAN CRIMINAL REPORTS. Campbell v. The People. f (100 m., 565.) Larcent: Receiving stolen goods — Autrefois acquit — Pica of — General verdict — Improper remarks of state's attorney — Waiver — Instruc- tions, 1. Larceny — Receiving stoi-en goods— Local jurisdiction op of- fenses— Exceition TO the rule.— Under the consstitutiim ami laws of this state, as at couimon law, the local jurisdiction of all olfciscs is in tlie county whei-e the olfense is committed. The crime of larcenv is made an exception, and the offender may be tried in any county to which he can-ies the stolen property, or where it mny be found, as well as in the county in which the propei'ty was first taken. This rule has no api)lication, however, to any crime other than larceny. The oifeiiso of receiving stolen property, or aiding in itn conccidnient, knowing it to have been stolen, is not embraced in hc ction 31)3 of tlio Criminal Code, and the person must be tried in the comity where th(» olTense was committed. 2. Same — Former acquittal- Whether a bar to a skcond proseci- TioN — Jurisdiction essential — Former acquittal in ani^theu coi'NTV. — The trial and acquittal, in one count}', of one cliar;;cd witli receiving stolen goods, knowing them to have been stc len, is no bar to an indictment for the same olfense in a different county, unless it slinll ap]H>ar tiiat tlio offense was committed in the county in which the ac- quittal was had, so as to give the circuit court of that touiity .iurisdic- tion. An ac(iuittal of a crime by a court having no jurislii ti( n is no bar to a prosecution for the same offense in a court having jurisdic- tion. 8. The general rule at common law is, that an acquittal in one county (an only be pleaded in the same county, for the reason tliat all indict uuiits are local; and if the first is laid ui the wrong coiinly, the dcfi'iiilant cannot be found guilty, and could not have been in h\i;al jcopimly. To this rule thei'e are a few exceptions, as, in larceny, and in casi' of a change of venue, as in this state. 4. Same — Former acquittal, to be a bar, must have been is re- spect TO the same identical offense — And tiik plea must i-o SHOW. — To make a plea of a former acquittal or couvii tion a bar to a second indictment, [jroof of the facts alleged in the second must be sufficient in law to have wanumted a conviction upon tl'.e iirs.t intHct- ment of the same offense chai'ged in the second one, and iu)t of a dif- ferent offense; and the plea must show that the offense charged in both cases is the same in law and in fact, and the (lucstion must be de- termined by the facts appearing from the record, without the aiil of extrinsic circumstances. 5. Same — Of a plea of formi^r acquittal — Its requisites.— A plea of an acquittal of the same offense in a different county is defective, in substance, if it fails to show that the court of such other county CAMPBELL V. THE PEOPLE. ha 1 in aom? legal way a-jquiroil .jurislit-tion of the subject-matter, anl how such jurisdiction was aciiuiro I, as, by a change of venue, or, in case of larceny, by the defendant having taken the stolen property into H icli county. 0. Same — A plka must answer all it professes.— A special plea (as, a former acquittal) to an indictment containing several counts, if it fails to answer any one count, is bad on demurrer. 7. Same — Concealing stolen property.— A party knowing property to have been stolen has no riglit to conceal the same, even with tlie in- tention to save him sulf from h)ss; and a clause in an instruction, on the part of the defendant, announcing a different rule, will vitiate the entire instruction. 8. Same — General verdict on several counts.— On an indictment for receiving stolen ])ropeity, and also for aiding in its concealment, clitirged in two separate ct)unts, both of which relate to but one and tlie same transaction, the punislmient for each offense, even if distinct ones, being the same, a general verdict of guilty is good, and will sus- tain a judgment inflicting a single punishment. {). Puactice — Improper remarks of state's attorney — Waiver by • FAiLixo TO OBJECT. — A party on trial upon a criminal chargi," will not be permitted to remain quiet without calling the attention of the court to it, and permit the state's attorney to indulge in improper language, and afterwiird assign the same for error. He must object at the outset, or his t)bjection will be deemed to have been waived. But the fact defendant's counsel may have traveled outside of the recoi'd. and made statements not warranted by the evidence, affords no justification for the state's attorney to do the same thing. 10. Instruction — GiviNd undue prominence to particular facts, and GIVING improper CONSTRUCTION TO A LETTER. — Ou the trial of Ono for receiving, and also for aiding in ct)ncealing, stolen property, an in- struction directing the attention of the jury to a pai'ticular part of the evidence, and giving it undue importance, and which also gives a con- struction to a letter of the defendant not warranted by any correct reading, is properly refused. 11. Same — Should i.i: applicable to the case. - Although an instruc- tion contains a correct principle of law, yet if it has not the slightest application to the fai'ts of the case, its refusal is proper. Writ of Error to tlio Circitit Court of Jackson County; the Hon. Daniel M. Jirowning. Judge, presiding. Messr-i. AJhi'hjht tC* llarhcn and Mi\ R. M. Davis, for the plaintiff in error. Mi\ Jaitics McCartney, attorney-general, and IFr. Wdliam Srhamrtz, state's attorney, for the people. ^[r. Justice Scott delivered the opinion of the court. The indictment presented by the grand jury in the circuit coui't of Jackson county, at the December term, 1882, against 340 AMERICAN CRIMINAL REPORTS. Thomas Ciiiupbell, contains two counts. The first one cliaroos defendant with receiving stolen goods, knowing tlie same to have been stolen, and the second charges him witli nnlawfullv and feloniously aiding in concealing stolen property, knowiii"- the same to have been stolen. On being arraigned at the March term of the court, 1SS3, defendant entered a motion to quasli the indictment, which motion being overrule! by the court, he entered a plea of not guilty, on "which a trial Avas had. l)ut the jury failing to agree, they were discharged, and the cause continued. At the August term of court, Issp,, defeiulant seems to have tiled a special plea, in Avhicli it is averred, in substance, he was indicted in tlie county of Perry, at the October term, 1882, of the circuit court of tliat county, Avith one Kobert C. ]\rilburn, for the identical same offense, and that on the trial in the circuit court of that county ho was acquitted. To the plea setting forth, with the usual formality, the proceedings had against defendant in the circuit court of Perry county, and his acquittal of the olTenso charged against him in the indictment by the verdict of a jury, and the judg- ment of the court thereon, the state's attorney prosecuting tiled a demurrer, which was by the court sustained. On the trial at that term of the court, on the plea of not guilty, filed at a former term, defendant was found guilty by the jury, and the term of punishment llxed at a period of three yenrs in the penitentiary. Motions for a new trial and in arrest of judg- ment Avere severally overruled, and the court pronounced judgment on the verdict. The points made upon which defendant most confidently relies for a reversal of the judgment against him are, the court erred, first, in sustaining the demurrer to the plea of auttv- fols acquit^ second, in refusing certain instructions asked by defendant; and third, in permitting the state's attorne}^ in his closing argument to the jury on behalf of the people, to make remarks concerning defendant not warranted b}'^ the evidence, and Avhich were calculated to prejudice his defense. The principal question in the case arises on the decision of the court sustaining the demurrer to the plea of autrefois acquit. The plea contains a copy of the indictment found against defendant in the county of Perry, and it is seen it is an exact copy of the one found against defendant by the grand rega CAMPBELL V. THE PEOPLE. Oil jui'V of tlio county of Jjickson, and under Avliich ho was con- victed, except the venue is laid in tlio county of Peny, Tlio indictments in both counties contain two counts, — one for rccoiviny stolen property, knowing it to have been stolen, and one tVti' aiding in concealing' stolen property, — and were foujul under section 2'.]\) of the Criminal Code {U. S. 1874). It is licirdly necessary to state a pi'inciple so elementary, that if the circuit court of Ferry county had no jurisdiction to try defend- ant for tlie crime with which he is charg-ed in Jackson county, its judgment would be no bar to the present prosecution. Undrr tlu; constitution and laws of this state, as at common law, tlie local jui'isdiction of all otleiises is in the county wIkmo the od'enso is committed. See art. 2, sec. 9, Const. ISTO, and sec. 'Mo of the Crim. Code (11. S. 1ST4). The statute, it will be seen, follows cl<»sely tlie constitution, and declaivs, "tlio local jurisdiction of all otl'enses not otherwise provided by law sliall be in the county where the offense was committed.'' Among tlie jirovisions for jurisdiction of the same oll'cnse in more than one county is where, as in section .'U);» of the Crim- inal Code, which ])i'ovides, concerning jurisdiction in la.rceny, that "where pro[)(>i'ty is stolen in another state or country, and brought into this state, or is stolen in one county of this state and cari'ied into another, the jui-isdiction shall be in any county into or through which the property may have passed, oi' where the same may be found." This latter statute is simidy declara- tory of the common law on the same sidiject. Larceny. Viuder the laws of this state, '"is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of aiKjther."' The common law — which contained the same definition of larceny — seems to have regarded the felony as having been committed where the goods were fehmiouslv stolen, but f is of course familiar, but there is often some dilliculty met witli in its applicaticm. Generally the rule is, as at common law. jui acquittal in one county can only be ])leadod in the same county, and the reason assigned is, because all indictnumts are loi;il, and therefore if the lirst were laid in a wrong county the do- fendant could not be found guilty upon it, and consecjucntly was in no danger, and therefore could not ])lead an acunittal u])on it in bar of a subsequent indictment for the oH'cmisc in the proper county. Yaii,ex ^V.sr, Tt. 4, Co. 4r)d, Com. Di'^., Indict. L. ; 1 Wharton on Ci-im. Law, ]). 5.').5, ed. of 1S74; 2I((i'.ut at common law there ^wqyq excei)tioiis to this general rule, and one; of tlic ex- ceptions most frequently noted is in cases of larceny where the jurisdiction might be where the felony was in fact com- mitted, or in that jurisdiction into which the pro])erty m!;jlit be carried, and that c.\cei)tion, as well as some others, exists mider the hnvs of this state. Among the othei- (wceptions, under our laws, is where the venue is changed, under the stat- ute, from one county to another. It is said by text-writers, the crown may either traverse or demur to the plea of auinfoix avqnlt. The same praeitico would no doubt prevail under oar system of jin'ispru(leiie:\ In this case the (pu'st'on as to the suHiciency of the plea to bar the j)rosecution arises on a demurrer to it, interposed l>y tlic l)eople. The rule laid down by I'lackstono as to pleas of this character has been adopted by this court in FrctUmtl r. Tin' reo[)le, 1(5 111., 3S(), and is, with reference to former ac(]iiittal or conviction, it ''must bo upon a prosecution for the same iaenticalact and crime." All the authorities hold that, to en- title a defendant to the benefit of this plea, it is necessary the crimes charged in the first and second indictments should bo CAMPBELL t'. THE IJEOPLE. 343 the same, ami tluit if the crimes charged in the first and second i.:(littments are so distinct tliat the evidence of the ono will not support the other, a conviction or accjuittal of the one will not bill' a pros:!ciition of the other, — or, adopting the language of tliis court in Fri'dnnd v. Tho PtnpJc^ the rule may be stated to be, lliat, to make the plea a bar, proof of the facts alleged in Ihe second indictment must be sutfici(mt in law to have war- nmicd a conviction upon the first indictment of the same olTcn •(• cliargcd in the second, and not of a difTeront offense. Tlio genei'al rule adopted fin* ascertaining the identity of the olfcnsi'S is as stated by Archbold in his work on Criminal I'lcading, li'i, where it is said: "The true test by which the (piestiou whelher tlie plea is a bar in any particular case may 1)0 tried is. wlicther the evidence necer>sary to support the second indict nuMit would have been suilicient to procure a loiiid conviction on the first." Sub.stantiallv the rule has been stated in the same way by Chitty in his work on Criminal Law. and as stated by both authors it has been adopted by this court. Applying these well understood principles to the plea be"ng considered, the case ought not to present any groat dilliculty. "Wouhl pi'oof of the facts alleged in the in- lii'(l, and it is obvious the question admits of oidv a negative answer, ('(n-tainlv the ofTenso of receivinad there been tiie fact, that the Terry county circuit court got jurisdiction by change (.f venue to try th'iendant on a })roper indictment for I'eceiving stolen goods in Jackson ccmnty, and such a plea would have been a bar to a prosecution on a second indictment in Jackson county for the same offense. CAMPBELL r. THE PEOPLE. 345 That was not dono, simply because it would liavo availed notliiny. It has been seen original jurisdiction of an oirense, like the one charged in the first count of the indictment against defendant, is necessiirily local, and is confined to the courts of the county where the olTeuse is committed, and an acquittal elsewhere is as nothing in law. The plea in this case is in the usual form given where it is lilcd in the same county where tlie trial was had on the first indictment, to a second indictment in the same court for the same olfense. But that is not suilicient in a case like the one being considered. Here the plea is de- fective, because it does not show, by way of averment, that the circuit court of Perry county in any way, or for any cause, ob- tained jurisdiction to try defendant for the crime of receiving stolen goods, with guiUy knowledge, in the county of Jackson, and therefore it is obnoxious to the demurrer. A question might arise as to whether the plea miglit not bo good as to the second count of tlic indictment, whicii charges defendant with aiding to conceal stolen goods. It miglit be lie aided in concealing the i)roperty in Peny county, and that fact would have conferred jurisdiction. How the law may be on tliat (piestion it will not now l)e necessary to decide, for it does not appear from tlie ])l('a the jn'operty was ever in Perry county. Tliat fact is jurisdictional, and must ap[)eai', or the plea will be bad. It will be observed the former actpiittal pleaded took place in nnother county, and not within the juris- diction of tlie court v.'liere the second in;uled " not guilty " to the first count of the indictment, and "-'/c/yc- fo'hs arqult^'' ivi to the second count, which charges him with aiding in concealing the stolen goods, then the question Avlietlicr the circuit court of Perry county had jurisdiction on the lirst iu- dictuient to try defendant for that offense, on tho gi'ound it was an offense that might be committed in any county into which the property was carried and concealed, would liavo been fairly pi'esented, and might have been definitely dctoi'- mined. ]]ut that was not done, and the demurrer was pi'{)[)erly sustained. Passing now to tho consideration of tho instruction ; given by the trial court, it does not appear from tho transcript ol' tho record in this case that moi'O tlian one instruction was liivmon behalf of the people. That has relation to the foiMii of tho verdict, and it is so cleai'ly actrarate no ([uestion is nv.iilc con- cerning it. On belinlf of defendant a g-rcat nuinl»ei' of in- structions were given, stating tho law very favoi'aldy foi- tho defense souglit to biMiKide. Of the insti'uctions refniuvl that were asked for by defendant, it is insist(Ml it was error in tlio court not to give the first, second and third of the si^rics as they api)ear in tlic transcript of the record. Tiie lii'st in- struction is faulty, because it directs the attenti(m of t!ie jury to a particular pi(>ce of evidence, and gives an undue impor- tance toit,iind for the further reason it gives a construction to the letter to which attention was called, not wi'rrantcd by any correct reading of the sam(>. The {jr^sposition contiiined in tlio second charge, if d(>fendant concealed the stolen ])rop(>rty '• with an intention to save himself IVoin loss,'' is not the law, and that vicious clause rendered the whole instruction had. If it be cone(Mled the third chai'ge contains a correct pi-inciple of law, it couhl not have tho slightest api)licatio>i to the facts of the case, and tho court very pi'operly refused it. In supi)ort of his motion for a new trial, dofimdant (lied his own allidavit of matters stated and accusations nuuh' bv tho stf fei CAIilPBELL t'. THE PEOPLK 347 state's attoni<\v in his closing ar^iment to the juiy, against de- fondiint. not warranted by any evidence in the case. If the .uLorncy said all that is imputed to him, his conduct in ui;it respect is not free from blame. It is no sort t)f justifica- tion for him tlnit counsel for defendant may have traveled out of the rp(" •'! nn I made stateuuMits not warranted l)v the evi- dence. I>ii. iidiK'snot appear from anything in this record that defendant called the attention of the court to the objec- tionable language at the time. Had he done so, no doulit the court vrc (Id have checked counsel at once, and admonished him r;>( tc repeat the objectionable language. A jjart}^ on trial will not be permitted toreuuiin ([uiet, without calling the attention of the court to it, and permit counsel to indulge in improper language, and afterwards assign the same for error, lie must object at the outset, or his objection will be deemed to have been waived. Counsel say, in the case .it bar, that at the tiuu^ the objectionable language was being used, the atten- tion of the trial judge was c:di(>d to the fact, and the judge not only raJlcMJ to eh(\,'k counsel, but gave him license to pro- c'MhI. Xo such <(bj(!clion is found in the abstract. The tran- script of the record has also been examined, and no such thing is (lis('over(Ml, if any exists. Failing to call the iittention of the court to the imiu'oper language at the tiiiu! it was used, it is now too late to insist u[)on it as error. The fact it was em- bodied in an ailidavit in sup[)oi't of ,a motion for a new trial docs not dis[)(>nse with the necessity for calling the attention of tli(> court at the time tliat counsel might he conlinecl to the record in th(! argument of the case. Omitting to do so, the ohjection cannot now prevail. UlLwii v. The J\(>j>le, Ui 111., 2!)t). AVithout entering npon any analysis of the evidence, it may Ix'said, wlien it is subjected to a careful consideration it is seen it fully justifies the verdict. Ordinarily, the (piestion of the guilt oi' innocence of the accused on trial for ci'ime is a fact p(M'uliarly within the pi'ovince of the jury to liud. It is the duty of the court, however, to see that no injustice is done the accused, and for that reason thport it need not be remarked upon. On the whole record, when considered, no error matci'i- ally affecting the merits of the case is ])erceived, and the judg- ment of the cu'cuit court must bo allirmed. Judytaciit ajjinncd. State v. Jamks. (58 N. H., G7.) Larceny: Value of chattel. 1. Chattel. — A printed list of names und dales is , although to others it was oi no value. STATE V. JIcGINNIS. 349 The statute of Doccnibor, 1SI2, so far as material, was the same as sec. 0, eli. 2(!<), of tlie General Statutes. In Bhmchard r. Fhk, 2 X. ir., 308, 4J)20 to its owner, and Avortli nothing to anybody' else, rodiict8 nnd manufactui'es of other sfiitos, by reiiuiriug peddlers to obtain a licouse to sell the same, ia un- constitutional and void. S50 a:jerican criminal reports. Appeal from Nevada Circuit Court. Hon. Dan W. Joucs, Speciiil Judge. C B. Mo/nr, attorney-general, for appellant. MonhjoiifU'ij <(• ILiinbij, for appellee. ExoLisu, C. J. On the 24th of January, ISftl, Thomas ^McCrinni:! was cliarged and convicted before a justice of tlio peace of Nevmlii county, "with the olFeuse of ^oiniii: fi'om place to i)hu'0 ]KMldling and sellin^^ good^, wares and nierehim- . just such an act of Missouri was held by the supreme eomi of the United States to bo in conllict with the coniniei-ee chiiisc of the constitution of the United States, and, therefore, null and void. See also, Sfati^ r. Kutc Mai'sh^ aido. If tlui legislature deems it e.\|)ediciit to reipiire |)eil(llers to obtain license, and to punish them for pechlling without license, no diseriniination must be nuule against goods, etc.. of the growth, produce or manufacture of other states, etc. Affli'inid. ADAMS V. THE PEOPLE. 351 Adams et al. v. The Pkople. (109 111., 444.) McRDER : Continuance — Intent — MnJicn — Ecidence — Reasonable doubt — Instruction as to policy of the law, etc. 1. Continuance — Absence of avitxesses — Matkuiauty of the pro- I'osKi) TESTIMONY. — Preliminary to the trial of two defoudants on u c'liarf^c of murder, alle;:;ed to have been committed on the nififlit of the 10th of July, by compellin}^ the deceased to jump from a railroad car wliile in i"ai)id motion, tlu^ court refused a continuance on behalf of tlie ai'cnsi'd, asked on the ground of. the absence of two witnesses re- sidini; in Indiana, by whom the defendiints expected to prove tliat such witnesses saw the defendants at the town of Godfrej', in Miidison county. Illinois, cm the eveninj; of July 0. a place distant some twenty- fivr or thirty miles from where the oifenso was charf;i;(nl to have been connnittc 1. Held, no i'rror, as the allidavit failed to show any incom- patil)ility l)etween the fact alle;^eil. as expectent tliat death or great boilily harm was the natural result. Forcing a person to do an a<'t wlii<'ii causes his death renders the death the guillv deed <>( bun who coinpeiled the deceased to do tlie act. 4. ^lalice may be inf(>rr(Ml when an act unlawful in itself is don(> deliber- ab'ly, and with intention of mi-ii-liief or great bodily harm to those on wiiom it may c-hance to liubt. if death is vH'casioned by it. By the st:itute. if an involunta'-\ killing shall happen in the tiommission of an unlawful act wbi'-h in its consiMiucnces naturally tends to destroy the life of a human being, or th(< act is commit(»'d in tlie exccidion of a felonious iidcnt, the olTense is declared n\urder. 5. Ok tuk KVini'.NCK aoainst one ciiakuki) with mukdeu.— On the trial of two persons on a charge of nvurder comniillcd on July 10. issi), by compelling a passeu'^n- to Jump fnnn a I'ailway (rain while it wa.s in nuition, two witnessi^H for tl\>* people were allowe I to testify, over an objection, that tlu\\ naw the defendants, and two otiiers. with whom the defeudant < \\v>i\' indicted for the nuu'der, ttigether on the raiiroail track on July S, ISS;t, and that one of them had a revolver. Held, that tiiere was no legal objection to tl\i^ testin\ony. imm 352 AMERICAN CRIMINAL REPORTS. 6. In tho saino case, the state's attorney, in the examination of one of thest? witnesses, in-oihiceil a wateh chain, and the Avitness said it was his <'liain, and that lie had it on wlien he met tlie defendants and the two otliers wlio wore indicted, on tlio evening of July 8, 1883, — wliich was ()l)jec(('d to. ITchl, that wliile tlie evidence as to the watch cliain ini!j,ht laoiiorly enongli liave been exchided as irrelevant, yet it was not suflicieutly liarmful to the defendants to make its admission material error. It would not justify an inference tliat the witness had been robbed )j}" tho four men. 7. So, too, one of these witnesses, in answer to the inquiry wliether there was anything unusual to cause him to remember tlio time of seeing one of tho defendants on the morning of Julj' 8, 1883, said a man was found dead that morning, — a stock man, who had fallen from a train. Ilelil, that tho concluding i)art of this evidence repelled any iiiferenco that this 7nan, too, had been thrown from the train by tho same men, and its admission was not error, 8. Of a reasonahle doubt. — On the trial of one for murder, an instruc- tion for the defense that the law in regard to reasonable doul)t applies with greater force to circumstantial tlian to other classes of eviilencc, is erroiieuus, and pro])erly refused. 0, It is error in an instruction for the defense to say that if the circum- stances are capal)le of being explained on a theory consistent with the innocence of the accused, the jury should acquit. A theory miglit be .assumed that the testimony as to his guilt was false, and on such a theory there could be an exjilanaticjn of tlio circumstances consistent with Ills innocence. 10. And iiek!;ix, of thr policy that many gl'ilty mkx siiour.n EscArE RATIIF.U THAN ONE INNOCKXT PEllSON SHOULD SUFFER. — On the trial of two ])ersons upon a charge of murder, the defendants asked the court to instruct the jury tiiat tho policy of the law is, that it is belter that ninety and nine, or anj' number of guilty persons, should escajie, tliaii tliat one innocent man should be convicted, and that it is not siilliciciit to authorize a conviction that the greater weight or ijrepnnderance of evidence supports the allegations of the indictment, — whicii tlie court refused to give. Held, that the instruction was properly refusinl, tliere being no policy of the law on tho subject, or for the considcralion of tho jury; that it is not within the puri)ose of tho law that any guilty person shovdd escape or any innocent one be convicted; and that if the greater weight or preponderance of tho evidence be such as to satisfy the jury, beyond a reasonable doubt, of the defendant's guilt, then it would be sufficient to authorize a conviction. Writ of Error to the Circuit Court of Groeno County ; Hon. George W. Herdman, Judge, presiding. tho Mcssi's. DooUttlc (& English, for the plaintiffs in erroi*. Mr. James IlcCaHney, attorney-general, for the people. ADAMS V. THE PEOPLE. 353 ]\rr. Chief Justice Siitcldon delivered the opinion of the court. Frank Adams .and Benjamin F. Pritchard, at the September term, A. D. 1883, of the Greene county circuit court, were in- dicted for the crime of murder, and found ^niilty, and sentenced to imprisonment in the penitentiary for the terms of twenty and fourteen years respectively. They bring this writ of error to reverse the judgment. The refusal of a continuance is assigned for error. The defendants were indicted on the fith of September, 1883, and on the iVtii of September, 1883, made their motion and affida- \nt for a continuance, on the ground of tlie absence of two wit- nesses, who resided in Indianapolis, in the state of Indiana, by wliom they expected to prove that said witnesses saw the defendants at the town of (iodfrey, in the county of Madison, in this state, on the evening of the 9tli of July, 1883, the day before the night on which the offense charged in the indictment was alleged to have been committed; that said place was a dis- tance of twenty-five or thirty miles from the place where the offense was said to liave been committed, and in a different direction from which the train upon which the offense alleged to have been committed came. The crime was charged in the indictment to have been committed on the 10th day of July, 1883, by forcing the deceased, one Patrick Knight, to jump from a freight car on a certain railroad while the car was in motion. The alfidavit, so far as we can see, does not show any incompatibility between tlie fact alleged as expected to be proved by the witnesses, and the commission by the defendnnts of the crime charged, and we think the motion for a continu- ance was properly overruled en the ground of the materiality of the absent testimony not sul.'ciently ap])earing. Objection is taken to the adm ssion of the testimony of the witnesses Curtis and Thompson. The testimony of these wit- nesses was upon the point of having seen the defendants, and Hogan and Ryan, with whom they were mdictod, together on the railroad track on the 8th of July, and that one of them had a revolver. There could be no objection to this ; but in the examination of Curtis, the state's attorney produced a watch chain, and the witness said it was his chain ; that he had it on when he met these men, on the evening of the 8th of July. Vol. IV— 88 ;i5i AMERICAN CRIMINAL REPORTS. This evidence as to the watch chain might properly cnougli liave been exchuled as irrelevant, but we do not seo that it was suiKciently harmful to the defendants to ninko its adini^.Mion material cirror. It is said the implication wouhl be that tlio Avitncss was robbed by these four men. Wo thiidi that avouUI be a strained inference from the evidence, and one not justified. Thompson, in answer to the inquiry whether there was any- tliin<>' unusual to cause him to remember the time of seein"' llyan on Sunday morning, July S, said a man was found dead tha morning — a stock man had fallen from tlio train. It is said that was calculated to produce the impression that tliis man, too, had l>eon thrown from the tniin by these men; but the concluding portion of the statement, that a stock man had fallen fi'om the train, repels such an idea. It is contended that the evidence does not support the ver- dict. The witness, Patrick Coughlin, testilied that ho left (.'hi- cago with Patrick Knight, going to St. Louis; that on tlie way they, at (Treendeld, on the line of tlio Cliicago, Burlington «fe Quincy Railroad, got into a box car on a freight train on that raiboad, in v.-]Hch were Adams, one of the do feiu hints, and Kyan, and as t!ie train started, Pritchard, the otlier defendant, and Ilogan, jumped into tlie car, and the doors were shut; that some time afterwards^ while the train was running, the four other men "covered'' witn(>ss and Knight with four revolvers, two of them also havhig razors in their left hands; that tlioy ordered witness and Knight to hold up their hands, and searched them; that tliey got nothing from witness, for lie had nothing, but they took alxjut >>'► from Kniglit. After that they opened the door of tlu; ear and told witnes.s and Knight to jump; that witness jumped lirst, and some one kiclced him; that witness was not hurt; that he walked along a littk; way and came to the body of Knight; ho was dead; the bcnly was lying at right anghss with tin; track, the feet out, and the head between the ties, alx)ut an inch and a half or two inch(!s from the rail; the back jxirt of his head had been crushed in. The testimony of this witness, if believed, wouhl sustain the verdict- It is insisted th.it the testimony is not entitled to credit. The jury appear to have given credence to it, and after a careful consideration of it, with the other evidence in the case, and the circumstances which are adverted to as detracting from the ADAMS V. THE PEOPLE. 356 credibility of tlio witness, avo find no sufficient reason for dis- turbinf? tlio conclusion of the jury. Objection is taken to the givin<^ and rcfusinf^ of instructions. This instruction was given upon the part of tlio people: "Tlic court further instructs the jury, for the people, that to prove the charge in the indictmcmt there need be no laying of luuuls on the j)crson of Patrick Knight, by the defendants, to put him from the car, in order to constitute the force therein alleged; but that if defend.ants did, by threats of violence to the person, intimidation, or by displaying deadly weapons in a threatening manner, caur.e the said Patrick Knight to leap or jump from the car while in motion, as alleged in the indict- ment, under circumstances whicli would have caused a prudent man to do so, aiul thereby lie was killed, as charged in the in- dictment, and if the jury so believe, from the evidence, beyond a reasonable doubt, that such are the facts, they should find the defendants guilty." The exception taken to this instmiction is, that it is defective in not having the quali(icati(m that the defendants forced the deceased to jump from the car with intent to kill him, or that the killing was the ))robable and reasonable result of such jmnp. Intent to kill (l(x;s not enter into tlie definition of mur- der. It is enough if the unlawful killing be with malice afore- thought, either express or implied. Nor was it essential that dcati) should have been the ])r()bable and rensonable result of tiic act whicli the defendants forced the deceased to d(j. It is sulllcient that death or great bodily harm was the natural re- sult. Foi'cing a person to do an act which causes his death renders the death the guilty deed of him who comi)elled the deceased to do the act. 3 Greenleaf on Evidence, sec. 142. Malice may be proved by evidence of gross recklessness of human life, where, in any manner, the life of anotlier is knowingly, cruelly and grossly endangered, whether by actual violence or by inhuman privation or exposure, .and death is caused t]u':rel)y. Ibid., sec. 117. Malice may be inferred where an act unlawful in itself is done deliberately, and with intention of mischief or great bodily harm to those on whom it may chance to light, and death is occasioned by it. 2 Starkie on Evidence, 951. The definition of murder, by our statute, is: "The unlawful Icilling of a human being, in the IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 US lit m 2.2 lit lU u IM 2.0 RMII^H 1.4 11.6 KiDlDgraphic Sciences Corporation 23 WBT MAIN STRUT WitSTiR,N.Y. MSN (716)«72-4S03 4^ 35(5 AMERICAN CRIMINAL REPORTS. peace of the people, with malice aforethought, either express or implied. . . . Malice shall be implied where all the cir- cumstances of the killing show an abandoned and malignant heart." And in the statutory definition of involuntary man- slaughter there is this provision: ^^ Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committcen poisoned and died from poison had been introduced. All the nuilico inuiginable is no proof in itself tending to show that death was caused by crime. When there is legal r-l 300 AMERICAN CRIJUNAL REPORTS. evidence loading to the belief that homicide has been com- mitted, the motive of the criminal becomes important, and the relations of parties may therefore become relevant. This difficulty was not confined to the question of the order of ])roof, for in \vhat was done in charging and in refusing to charge the jury did not receive that careful instruction which the cii'cumstances called for, against allowing the crime itself to be presumed or to be ascertained by any but distinct and adequate proof. Before referring to the more definite defects in the proceed- ings at the trial, some notice must be taken of the preliminary proceedings. Wo have not sufficient facts before us to render it proper to say whether the venue should have been changed on the show- ing made, which is not brought up with the record. But the proceedings to summon jurors wore, we think, in violation of the jury law of 1S77. That law, in order to i)roveut unfair- ness or ino(]uality in tho distribution of jurors, required the names of jurors from each precinct to be kept in sei)arate par- cels, and one name to be drawn from each, before a second name should be drawn from any, and so successively, in like manner, Jiowever many jui'ors should be drawn. Laws 1877, pp. 113, 11-1. There is only one case in wiiich a diU'erent rule is permitted. It is })rovided by section -' ' (amending Conq), L., g <5U0l) that when gi'an was testimony from the medical witnesses having a tendency to show that the poison last foimd might have been put in the body after death; and there were facts showing bad blood between defendant and some of his neighbors Avho were somewhat zealous against him. Practically the case on the second trial n-as a new case;, and the defendant wr.s not informed of the witnesses to it until the trial began. This was an unfair suppression, in con- travention of law. We think it was error to prevent witnesses from answering questions as to conduct of the prosecution in seeking to induce PEOPLE V. HALL. mt them to suppress testimony or volunteer improper testimony not admissible and not asked for. There is no more reason for exomptin*^ tlie prosecution than the defense from scrutiny con- cerning tampering with witnesses, Tlierc were several questions answered by medical experts upon theories put to them wliich were contrary to the positive and uncontradicted facts. Such questions were improper and misleading. Some other rulings might be referred to, but we do not thinlc it inn)ortant to dwell upon them except as to some refusals to charge. A witness, Clifford, was called ostensibly to show that Hall was concerned in the removal of his wife's body from the grave-yard. lie stated that llall did not know it was to be put where it was fouiul, but to a series of questions concerning Hall's complicity in it he refused to answer on the ground that it might crimimite him. The court refused to tell the jury they iiad no right to infer anything against Hall from Clifford's silence. This was clearly wrong. Clitford had not testified to any fact whatever indicating that he or any other person naniod either removed the body or had any ])art in it. lie re- fused to answer at all bcvoiul the single answer that Hall did not know where it was to be placed. H moved without Hall's consent it would have been a crime. If otherwise, it might or might not be, according to its purpose. If the silence of a witness can be treated as evidence against a party Avho cannot compel him to answqr, it would not be dif- ficult to make out a case against any one on mere insinuations. It was the duty of the court to caution the jury against this, but this was not only refused, but that removal was dwelt on far enough to lead them to regard it as significant, which ren- dered the caution itself more necessary. Wo thi'ik, also, that it would have been highly proper that the couru should, when recpiested, have called the attention of the jury to II ickey's position as affecting his credit. For- niorl}^ he could liave not been sworn at all. The statute did not abrogate entirely the effect of conviction of an infamous crime on a witness, but still allows it to be shown as a distinct fact bearing on his credit, (/onip. 1.., Jj tyiHW. We observe that resort was had to reading medical books to the jury, the record not showing, however, what matters were thus laid before them. If this was anything it was evidence, -WT^JWf^ 364 AMERICAN CRIMINAL REPORTS. and probably evidence which was used with some effect. The practice is not permissible. Scientific or expert testimony must be given by living witnesses, who can be cross-examined concerning their means of knowledge, and can explain in lan- guage open to general comprehension what is necessary for the jury to know. The only legal reason for allowing the evi- dence of opinions is found in the presumption that an ordinary juryman or other person without special knowledge could not understand the bearing of facts that need interpretation. Medical books are not addressed to common readers, but re- quire particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or dis- criminate between symptoms or groups of symptoms, which cannot always be described to those who have not seen tlioni, and which with slight changes and combinations mean some- thing very different from what they mean in other cases. The cases must be very rare in which any but an educated pliysi- cian could understand detached passages at all, or know how much credit was due to either the author in general or to ])ar- ticular parts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on wliat princii)le living witnesses would be required. Scientific men are supposed to be able, from their study and experience, to give tlie general results accepted by the scientific world, and the extent of their knowledge is tested by their poisdiial examination. But the continued changes of view br<>, r'lt about by new discijveries in most matters of science, and the necessary assumption by scientific writers of some tecliiiieal knowledge in their readers, render the us(> of such woiks before juries — especially in detached ])ortions and sclcclcsd passages — not only misleading but dangerous. Tlie weiglit of authority as well as of reason is against tlieir reception. While we feel it oiu* duty to direct a reversal and a new trial, if the prosecuting autiiorities think it pi'oper to have one, we think the case is not of such a character that the prisoner should be deprived of bail. The judgment must be reversed and the prisoner remanded to the custody of the sheriff of Oakland county, with the right at any time of being let to bail in the sum of $3,000. GooLET and Makston, JJ., concurred. IIOPT J'. PEOPLE. 3C5 ' HoiT V. Pkoplk. (104U. S., 631.) Murder: Drunkenness — Instructions imoriting. 1. Intoxication may be shown. — Where, under a statute fixing the de- grees of crime in murder, and making provision tliat wilful, deliberate, malicious and premeditated killing shall be murder in the first degree, if it ai)pear that the accused was intoxicated at the time of the killing, it is iK'rmissible to olTor testimony of that fact, leaving it for the jury to determine whether Ills mind was in a condition capable of deliberate premeditation. 2. An instruction not reduced to writing must refer to authority.— Where a statute requires instructions to be reduced to writing before being given by the judge to the jury, and provides that such instruc- tions shall be taken as part of the record and deemed subjects of appeal, the judge cannot gi^'C an instruction not reduced to writing otherwise than by citing the page of the book or law magazine whence it is taken. Error to the Supremo Court of the Territory of Utalx. 3fr. R. Mc Bride and J//*. J. G. Sutherlard, for plaintiff in error. The Solicitor-general, contra.- Mr. Justice Gray delivered the opinion of the court. The phiintifT in error was indicted, convicted and sentenced for the crime of murder in tlie first decree in the district court of the tliird judicial district of the territory of Utah, and })rcsented a bill of exceptions, wliich was allowed by the pre- siding judge, and from his judgment and sentence appealed to the supreme court of the territory, and that court having affirmed the judgment and sentence, he sued out a writ of error from this court. Of the various errors assigned, we have found it necessary to consider two only. The Penal Code of Utah contains the following provisions : " Every murder perpetrated by poison, lying in wait, or any other kind of Avilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or attemrt to perpetrate, any arson, rape, burglary or robbery; or perpe- trated from a premeditated design unlawfully and maliciously to effect the death of any other human being, other than bim who is killed ; or perpetrated b}-^ any act greatly dangerous to the lives of others, and evidencing a dei)raved mind regard- less of human life, — is murder in the first degree ; and any 3G0 AMERICAN CRIMINAL REPORTS, other honiicldo, committed under such circjinustancos as would have constituted murder at common hnv, is nuu-der in the sec- ond degree." Sec. 89. " Every person guilty of muidcr in the lirst degree shall suffer death, or, upon the recomiiujiida- tion of the jury, may bo imprisoned at hartl labor in the })eni- tentiary for life, at the discretion of the fourt; and every person guilty of murder in the second degree shall be impris- oned at hard labor in the penitentiary for not less than live nor more than iifieen years." Sec. 90. Compiled Laws of Utah of 1S7(!, pp. 585, 5S(). By the Utali C-odo of Criminal Procedure, the charge of the judge to the jury at the trial "must bo reduced to writing bo- fore it is given, unless by the mutual consent of the parlies it is given orally" (sec. 257, cl. T); the jury, u[)on retiring for deliberation, may take with theui the written instructions given (sec. 28'.>); and '' when written charges have been presented, given or refused, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but tlie written charges or the rejmrt, with the indorsements siiowing the action of the court, form pai't of the i-ettord, and any error in the decision of the court thereon may by taken advantage of on appeal, in like manner as if presented in a bill of excep- tions." Sec. 3i:*, Laws of Utab of 187S, pp. 115, 121, 12(1. It api)oars by the bill of excei)tions that evidence was intro- duced at the trial tending to sliow that the defendant was in- toxicated at the time of the alleged homicide. The defendant's iifth request for instructions, which was indorsed "refused" by the judge, was as follows: "Drunken- ness is not an excuse for crime; but, as in all cases where a jury find a defendant guilty of murder they have to determine the degree of crime, it becomes necessary for them to inquire as to the state of mind under which ho acted, aiul, in the pros- ecution of such an inquiry, his condition as drunk or sober is proper to be considered, where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpe- tration of, or attempt to pei-petrate, arson, rape, robbery or burglary. The degree of the oll'ense depends entirely upon the question whether the killing was wilful, deliberate and premeditated; and, upon that question, it is pro|)er for the jury to consider evidence of intoxication, if such there be; not upon the ground that drunkenness renders a criminal act less crimi- r HOPT V. PEOPLE. sef nal, or can be received in extenuation or excuse, but upon the irround that the condition of tlio defendant's mind at the time tiio act was committed must bo inquired after, in order to justly determine tlio question as to whetlier his mind was ca- pable of tliat (k']il)eration or premeditation which, according as tliey are absent or presont, determine tlie degree of the crime." Upon tliis subject tlie judge gave only the following written instructit)n: "A man who voluntarily puts himself in a con- dition to have no control of his actions must 1i; held to intend the conso(]nences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is ,;u often resorted to as a means of nerving a person up to the commission of some desperate act, and is withal so inexcusable in itself, that law has never recognized it as an excuse for crime." The instruction recpiestcd and refused, and the instruction "iven, being matter of record and subjects of appeal under the provision of the LFtah Code of Criminal Procedure, sec. 015, above quoted, their correctness is clearly open to consideration in this court. Young v. Martin, 8 AVall., !?54. At common law, indeed, as a general rule, voluntary intoxi- cation affords no excuse, justification or extenuation of a crime committed under its influence. United States v. Drew, 5 Mass., 28; United Stafea v. 3 fc Glue, 1 Curt., 1; Commonwealth v. TIawl'inH, 3 (iray (>Iass.), 4(5;); People v. Rorjers, 18 K Y., 9. l?ut when a statute establishing different degrees of murder requires deliberate premeditation in order to constitute nmrder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily be- comes a material subject of consideration by the jury. The hnv has been repeatedly so ruled in the supreme judicial court of Massachusetts in cases tried before a full court, one of which is reported upon other points {Cammonwcalth v. l)orij, 103 Mass., 412), aiul in well-considered cases in courts of other states. Plrtle v. State, 9 Humph. (Tenn.\ 003; Jlaile v. State, 11 id., 1.^)4; /u'l;/ v. Comviomoealth, \ CJrant (Pa.) Cas., 484; Iveenan v. C'ommonioealth, 44 Pa. St., oo; Jones v. Common- wealth, 75 id., 403; People v lielcncia, 21 Cal., 544; Peoj)le v. Williams, 43 id., 344; State v. Johnwn, 40 Conn., 130, and 41 id., 584 ; J* if/man v. State of Ohio, 14 Ohio, 555, 557. 368 AMERICAN CRIMINAL REPORTS. And the same rule is expressly enacted In tlio Penal Code of Utah, sec. 20: " No act committed by a person whih) in a state of vohmtary intoxication is less criminal by reason of his having been in such condition. But whenever the actual ex- istence of any particular purpose, motive or intent is a lUM^cssary element to constitute any particular species or de^r(>e of crime, the jury may take into consideration the ' M-t that the accused was intoxicated at the time, in determining the j)ui pose, mo- tive or intent with which he committed tlu; act." ('oiupiled Laws of Utah of IS TO, pp. r)('.S, 5(5!). The instruction retpiested by the defendant clearly and ac- curately stated the law applicable to the case, and the refusnl to give that instruction, taken in connection with the uiupial- ifled instruction actually given, necessarily preju«liced him 'with the jury. One other error assigned presents a question of practice of such importance that it is proper to express an oi)inion upon it, in order to prevent a repetition of the eri-or upon anotiier trial. By the provisions of the Utah Code of Criminal Pro- cedure, already referred to, the charge of the judge; to tlio jury at the trial must be reduced to writing before it is giv(Mi, unless the parties consent to its being given orally ; and the written charges or instructions form part of the record, may be taken by the jury on retiring for deliberation, and are subjects of appeal. The object of these provisions is to re; Gifev. People, 1 Col., 00; Stater. Potter, 15 Kan., 3(»2. The bill of exceptions shows that the presiding judge, after giving to the jm*y an instruction recpieste*! in writing by the defendant upon the general burden of proof, proceeded of his own motion, and without the defendant's consent, to I'cad from a printed book an instruction which was not rechiced to writing, nor filed with the other instructions in the case, but was referred to in writing in those words only: " Follow this McDANIEL V. THE COMMONWEALTH. 309 from ]\raoazino American Law Tlegistor, Jul}'', 180S, page 550;" and that to tlie instruction so given an exception was taken and allowed. This Avas a clear disregard of the provisions of the statute. The instruction was not reduced to writing, filed, and made part of the record, as the statute required. If the book was not given to the jury when they retired for deliberation, they did not have with them the Avliole of the instructions of the judge, as the statute contemplated. If they were permitted to take the book with them without the defendant's consent, that would of itself be ground of exception. Merrill v. JS^ari/, 10 Allen (^Fass.), 410. For these reasons, the judgment must be reversed, and the case remanded with instructions to set aside the verdict and order a now trial. McDaxiel v. TnE Co^rMONWEALTn. (TTVa., 281.) SIi'RDER : First degree — Second degree. 1. Pr.vctic'E — New tiuvls. — Much caution is used by this court in granting a now trial wlicro it is aski'il Ht)lcly on the ground that the verdict is contrary to evidence, great weight being given to the verdict of the 2. 0.\rs ox rnosECUTiON to snow murder is in the first degree.— To constitute the olTense of murder in the first degree, the kilUng nuist be predetermined, and not xmder momentary impulse of passion; tliough the determination need not have existed any particuhu' Uuigtli of time. Prima facie, all liomicide is murder in the second degree. Onus on prosecution to raise the offense to the first degree. 3. What the record must show. — To sustain a verdict of murder in the first degree, the recoid must show proof, direct or inferential, sullicient to justify the jury in coming to the conclusion that the death of the de- ceased was the ultimate result which the concurring will, deliberation and premeditation of the prisoner sought. Wm. B. T'lnsleij and Z. S. Manje, for plaintiff in error. F. S. Blair, attorney -general, for the commonwealth. HiNTON, J., delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the county of Amherst, convicting Frederick McDaniel, the Vol. rv — 24 m 370 AMERICAN CRIMINAL REPORTS. plaintiff in error, of murder in tlie first degree, and sentencing him to be hanged therefor. The accused moved the court to sot aside tlie verdict and grant him a new trial ; but the court overruled the motion, and to this ruling tlie prisoner excepted. The 1)111 of exceptions contains a certificate of what is stated to be tlie "facts and all the facts proved upon the trial." Tlie only assignment of error is the refusal of the coiu't to set aside the verdict and to award a now trial. Upon an application of this kind, this court is always lf)th to disturb the judgment of the trial court. On this point, Christian, J., delivering the opinion of the court in l^ri/ors C(xsut I think we may remand this case for a new trial without being amenable- to the charge of violating its spirit or provisions in the si)ecial ciiruiiistanc(>s of this case. I [)roceed to state as brielly as I can sonu? gen- eral doctrines of the law of homicide, which will, I think, ma- terially assist us in ari'iving at a correct conel'isinn upon this point. Every homicide under our statute is yy/v'^/^^/'^^'A- a case of murder in the second degree. And it is incumlxMit u|t<»u the commonwealth, in a case like the present, where the olb'iist' was not committed by any of tho speciilc means emnuci-- ated in tho statute, that is, " by poison, lying in wait, imprison- ment or starving, nor in the commissic u of, or attempt to commit, arson, rape, robbery or burglary," in order to elevate it to murder in the first degree, to prove by evidence. (mIIkt direct or circumstantial, beyond rational doubt, that the killing was "wilful, deliberate and premeditated." And on the (»tlicr hand, the l)urden is upon the accused, if ho would reduce the offense below murder in tho second w the absences of malice and the other mitigating circumstances necessary for that purpose. McDANIEL V. THE COMMONWEALTH. Oil Xow to constitute a "wilful, deliberate and premeditated killing," it is neecssaiy that tiie killing should have been done on purpose, and not by accident or without design; that the accused must have reflected with a view to determine wlicther he would kill or not, and that he must have determined to kill, as the result of that reflection, before he does the act — that is to say, the killing must be a predetermined killing upon con- sideration, and not a sudden killing upon the momentary ex- citement and impulse of passion, upon provocation given at the time, or so recently before, as not to allow time for reflec- tion; and this design to kill need not have existed for any pjirticular length of time, it may l)o formed at the moment of the commissifm of the act. K'ni'ft^ Gfi^e and note, 2 Ya. Cas., 84; l]7>J/r;ror; (i Kand., T-H ; Jvik'-s Case. 1 Leigh, 5!»S; JIUFx ('fs Case, .'5:5 (Jratt., ssf ; ]\'n)//>rs Case, T.") A^a. 11., 01*. "With these familiar principles of the law of homicide in mind we now come to examine the facts of this case. From the cerf ificate thereof, it appears tliat the prisoner, Avho livi'il in a cabin in the yard, and u])()n the hind of the s(Ml charged that the prisimer had neii'leeted his horse in not feeding him during the dav. Loud and violent language was used, in the course of which the jirisoiuM'gave the lie to thedeceasedas to the charge of not feed- ing his horse. The deceased ai)i)lied harsh and profane language to the ]M'isoncr. The prisoner having unhitched the horses carried them to the creek to water them. After the prisoner 3T2 AMERICAN CRIMINAL REPORTS. got buck with the horses from the creek, which was some ile. And this stick the prisoner ])ieke(l up. That the deceased demanded to know why the priscuier stood holding the stick in his hand; to which the prisoner said: "If vou come here I Avill show vou." The fence around the vard at this })oint was a low one, not more than about two and a half feet high, so that a man could step over it, and this ])oint Avas about twelve or lifteen yards from the house of the de- ceased. This was about Jifteen or twenty minutes aftei" the lirst quarrel at thi^ wagon. The deceased raised his sticlc to Avard olf a blow from the prisoner, and maybe, ho struck at or struck the lU'isoner. The prisoner then stepped over the fence, struck at the deceased and knocked the walking-stick out of his hand; and with the bearing-stick struck the deceased two blows over the head. From the llrst blow, which Avas above tli(! left eye, the deceased was a})parently made insensilde, l)ut did not fall. The second blow fractured and indented the skull beliiiid and above the left ear. He never si)oko afterwards, and died Avithin about two hours from the ed'ects of the blows. These being all the facts proved on the trial, as the jiitlge certities, do they make out a case of " wilful, deliberate and premeditated killing ?" The prisoner certainly killed the deceased, and it is equally certain that this was not accidiMitally ut this is not enough to constitute a case of murdei* in the first degree. ]>efore Ave can pronounce him guilty of murder in the lirit degree Ave nuist be able to iuul, in the certiiicate of facts, proof, dii'cct or inferential, suflicient to justify the jury in (oin- in": to the conclusion that the death of the deceased was the McDANIEL V. THE COMMONWEALTH, 373 ultimate result which the concurring will, deliberation and pre- meditation of the prisoner sought. Jones'' Case, 1 Leigh, (>11. If we fail to liiul this measure of proof the case falls short of murder in tlic first degree. For it is laid down and helieved to 'be undoubted law, that, in all cases of slight and insufficient provocation, if it may be reasonably inferred from the wea]ion made use of, or the manner of using it, or from any other circum- stance, that the party intended merely to do some gi'oat bodily liarm, such liomicide will bo murder in the second degree, in lilce manner as if no provocation luid been given, but not a case of uup'der in the first degree. Davis' Cr. L., 99. In tliis case there liad been a quarrel between the prisoner and tlie dec(>ased, wliilst lie and, porha[)s, the deceased were unliitoliing tlie liorses, but there was no disposition shown by tlie })i'isoner to strike tlu' nij)ai':iit this language, in the light oF what subseijuently happened, can only be interpreted to mean something like this, namely: "Whilst I shall not seek you, yet if you shall attack me with that cane, I shall repel your attack with this stick. This lan- guage, instead of revealing a deliberate and preconceived i)ur- pose to kill, would imply, it seems to me it might well l)e argued, that in the event the deceased kei)t away from liiin. it was not his purpose to bring al)out a dilHculty. At any rate I do not think that, from this language, even if coupled with the blows inflicted on the deceased, without anv other acts or declarations shedding light upon the intention of the prisoiuM*, the jmy were warranted in finding, or that this court would 0»: AMERICAN CRIMINAL REPORTS, be justified in holding, that the prisoner killed the deceased in pursuance of a deliberate and preconceived purpose to kill him, and that, therefore, this was a case of murder in the lirst degree. It is not intended to intimate in anything that has been said in this ojjinion that the stick used by the prisoner in his en- counter Avith the deceased was not a deadly weapon, for the fatal effect of its use in this case but too surely establishes its deadly character when used by a person of the prisoner's strength, nor is it intended in anywise to contravene that wise and wholesome rule, " that a man must be taken to int nd that which he does, or Avhieh is the nature and necessary coiis(!- queiK'o of his act." Mm-pJufH Cr was not eitiier to foi'cil)ly repel the attack of tlie deceased nor to indict grievous bf)dily harm upon him, but to kill liim. For these reasons I am of opinion that the judgment of tlio cii'cuit court of Andierst county be reversed and aiinu]i(>d, the verdict of the jury set aside, and that a new trial be awarded the plaintilf in error. RicHAnosoN- and Fauxtl]:uov, JJ., concurred in the opinion of Ilinton, J. ^ Lkwis, p., and Lacv, J., dissented. The order was as follows: Tliis day came again as well as the ])lainti(f in error ]>y liis counsel, as the attorney-general on beiialf of the coi.inu)n- wcaltli, and the court having matur(;ly considered the tran- script of the record of the judgmentaforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and liled Avith the record, that the judgment of the said cii'cuit court is ei-roneous in refusing to set aside the verdict of the jury and to grant a new trial to the plaintilf in error. STATE OF NEVADA v. KING. 3Y5 ill lid Ml- llO its •r's iso 1S(!- /■s/\ ('(' 1111- W.IS 1' U> It is tlicroforc considered by tlic court that the said judg- ment be revei'sod and annulled, the verdict of the jury set aside, and a new trial awarded the plaintiff in error. Which is ordered to be certilied to the said circuit court of the county of Amherst. JRevei'secl. State of !Nevada v. Charley IIino. (10 Nov., 007.) MuKDER: IiKlictmcnt — Challenge of jurors — Conscientious convictions — Vrcdibilitij of witness. 1. MnniKU — iNOU'TMENT FOR — WU.FUL, DELIBERATE AND PREMEDITATED — MalU'K AKoirvrnouutiT. — In roviewing an indictment for murder, /(('/(/, llir.t cliuif^ing the liomifide to have heen with "malice afore- th( )ii;:;li I, " is tiuitanumnt to an avoriucnt tliat the act was " wilful, delib- erate and jireiiK'ditated." 2. Tiie jiUowaiue of a challenge for implied bias is not the subject of an exceiition. 3. Gei.t.iial ou PARTicrr.AR CAUSE OF CHALLENGE — Conscientious opin- U)Ns. — A juror was excused upon the ground that he entertained sudi (•oii.sriciitiuus o]>inioiis concerning capital punishment as would ])re- clude his Ihiding defendant giiilty ot an offense punishable with death. i/(7(/, that the objection to the juror did not go to the general cause of challenge, that lie was dis([uali)ied from serving in any case, but to the l)iirtkii!ar cause, that he was dis(iualiried from serving on the case on triiil. 4. CREDiniLiTV OF WITNESSES — INSTRUCTION.— In reviewing an instruction relative to the credibility of a witness jointly indicted with defendant, held, that the attention of the jury may be directed to the peculiar circumstances surrounding any witness tliat are proper to be considered in determining the weight to be attached to his testimony. X, A. Iiii<'lne)\ for appeUant. M. A, Murphy, for res[)ondent. By the court, Bklkxap, J. A])pellant was convicted of the crime of murder of the first degree and sentenced to be executed. He appeals from the judgment and from an order overruling his motion for a new trial. The first assignment of error arises upon the action of the court in overruling a motion in arrest of judgment, founded upon the alleged insulficicncy of the indictment to support a judgment of conviction of murder of the first degree. 376 AMERICAN CRIMINAL REPORTS. The indictment charges that the defendants Charles IIin£r and Tang Yan, " on the Sth day of May, A. D. 1881, or tlioreabouts, and before the finding of this indictment, at the said connty of Humboldt, state of Nevada, without autliority of law, with malice aforethought killed," etc. The statute defining the degrees of murder provides, '"all murder wliich shall be ])Ln'- l)etrated by poison, or lying in wait, torture, or by any other other kind of wilful, deliberate and premeditated killing, or Avhich shall be committed in the perpetration, or attempt to perpetrate, any ai-son, rape, robberv or bui'glar}', shall bo deemed murder of tlie first degree ; and all other kinds of nmr- der shall be deemed murder of the second degree. . . ." Frtmi this definition of murder of tlio first degree, it is ai'gued that as the indictmeiit failed to avor wilfulness, delibei'ation and premeditation, Avhich are essential constituents of the criiuo of murder of the first dcigive, it does not sup[)ortthe judgment rendered. Tiie statute declares that the indictment shall be sufficient if it can be miderslood therefrom " that the act or omission charged as the olfeiise is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a pei'sonof common uuflerstand- ing to know what is intended." Sec. 2^^'2'>^, Comp. L. The indictment meets all of the rctpiirements of this section of the statute; it follows the form prescriluKl l>y the legislature for indictments for murder in charging the act to have been done with "malice aforethought," and such charge is tanta- mount to an averment that the act was "wilful, delilterate and ])remeditated." People v. Dohin, 9 Cal., 57*1; People i\ Jf ((/'/■(()/, 10 id., 309; Ptvjde v. Va/iee, 21 id,, 100; iSfatc r. 77iompson, 12 Xev., 110; Sfafe v. 6'/-a:/er, and so the new trial would oiUy be to do over again that which had been doiu» already.'' L'pon this subject it is further contended that the action of the court sliouhl be reviewed because the ground of challenge is, in fact, gemn-al rather than ]>articular. Section ii)Ol declares: ""A challenge for cause may bo taken by either party. It is an objection to a particuhir juror, and is either: First, general, that the juror is discpialiiied from serving in any case; or, second, particular, that he is disquali- lied from serving in the case on trial."' Section 1903 defines implied bias to bo such a bias us, Avhcn the existence of the ■^^PJl" 378 AMERICAN CRIMINAL REPORTS. facts is nscci'tainod, in jiuli'ly n\a(loono of tlie ])arti('ulai" causes I'oi- clial- len<^t'. Tlio sul)soqiiont section, in itsnintli sulxlivision, declares that if the olfenso charged be punishable with death, the entor- tainin<^ of such conscientious opinions l)y the juror as would preclude his finding the defendant guilty, shall bo cause for challenge for inii)lied bias. It is apparent that the oltjt'ction to the juror did not go to the general cause of challenge, that he was distpialilied from serving in any case, but to th(' pai-tic- ular cause, that ho was discpialilied from serving on tlie raso on trial. The third objection is taken to the giving of an instruction touching the nr.itters proper for the jury to consider in deter- minin<>' the credibilitv to be •'•iven to the testimonv of Taiiir Yan, who was jointly indicted with appellant. The instruction is as follows: "The defendant, Tang Van, has olfered herself as a witness in behalf of the defendants in this ti'ial, and in considering the weight and etfcsct to Ik^ given to her evidence, in aublic jiulioial liiiictiuiis t!io liiwCul authority of i\ ju(l^(> c.iiinot bo (jiu'stioniMl by a private ih'1*s(>ii. Th.- attiiriK'y-g(?noral, acting ou behalf of tho state, can alone stion, by a A\n*it of qito war- ranto, Ins oonstitiitioniU rij;ht to exert'is)? his jmlicial functions. 3. At'T i;>rA»usniN(i coukt caxndt he attacked by special plea. — A lirirtoner, luiiler indictment for murder, cannot, by a s[)ecial \>lea to the jurisdiction of the c^nirt, impeach the constitutionality of an act of assembly which desiijnated the county in which sai ])o:>naeil to f^ivo testimony jw '•oxpiils" is to instnict the coiu't and jury in matters so far repioved from the ordinary pursuits of life, that accurate knowk'd};e «jf theuj cjui only be j^ainetl by study luid ex- perience; the object being to enable both court tuid jury to jutlKc intel- li;;ently of the force and api)lication of the several facts introduced in evidence. 4. Same — Opinion op, when evidence not conflicting.- In a proper case for expert testiniony, where the facts ai'e admitted, or provetl by evidence not conilicting, the opinion of an expert upon s^uch facts is ad- nussil)le as a scientific deihiction. 5. Same — But when conflicting, he cannot be asked opinion drawn FROM WHOLE EVIDENCE. — But where the evidence is contlictinj?, an ex- pert cannot be iisUed his opiiuon, as derived from the whole evidence. The questions to him should state specifically the particular facts in evidence, hypothetically assuming them to be true, upon which he is to express his oi)inion. He should be asked, by indi'pendent (piestions, his opinion as to facts testified to on the one hand, and his opinion as to opposing facts testified to on the other hand, in such manner that the jiny can know u^jou what particular state of facts liis several opinions were based. 380 AIHERICAN CRI5IINAL REPORTS. Indictment of John Coylo, Jr., for murder in the first degree of Emily Myers. II. I. Fixlicr and TT". C. Chapman, for plaintilT in error. S. 21. Sicojh', (li.strict jittoi'iioy for AdiUiis county, and FJ- van! />. Zliijh'i-, district attorney for Yorli county, for tlio commonwealth, defendant in error. ]\rr. Justice Ci.akk delivered the opinion of the court Janu- ary 7, 1.SS4, The question sou<^ht to be raised l)y the prisoner's sjx'cial plea to the jtnisdiction is not pi'opiM-ly before us. Tiu> vi^lit- ful authority of a jud^^-e, in the full exercise of his public judi- cial functions, cannot be questioned by any merely privato suitor; nor by any other, exce|)ting in the form ('specially pro- vided by law. A judge di' facto assuuus the exercise of a, j)art of the prerogative of sovereignty, and the legality of that iis- sumptiou isojK'u to the attack of the sovereign power ahme. If the question nuiy be raised by one private suitor it may be raised by all. and the administration of justice would under such cir- eumslances prove a failure. It is not denied that Judge ^^('- Lean was a judge ile facio; and if so he is a judge tie jnt'>' iis to all parties except the commonwealth. The attoi'ucy-gen- cral, representing the sovei-eignty of the state, by a writ of quo warranto., m\\f^\i pro[)erly present this constitutional (pies- tion for our consideration, but it cannot conu; bef»)i'e us from any other source, oi in any other form. This is not a Ui'w question; it came before this court \\\ Ihirrdr'i ('(f.<y. 1■J'^. The same principle is distinctly asserted in Camj>h>ll r. ('nin- monwcalth, 15 Norris, 344, and has been rej)eatedly appiictl in many others. This point was not pressed in the oi-al argunu'iit of counsel, but as it was the subject of the second assignment of error, we have been obliged to dispose of it. As the pica to the jurisdiction could not in any event have availed the; prisoner, even to raise the question intended, it is not only un- necessary to discuss the grave constitutiomil question suggested, but the first assignment of error falling with the second, we need make no further reference to cither. The third and fourth a'^.si^nments of error are without mei'it. COYLE V. COJLMON WEALTH. 3S1 It was proppr for tlio crmi't, in tlio cxoreiso of its (liscrction, to allow the witness, John C'oylc, Sr„ to be ivciillcd for further cross-exiuninntion ; the olfor was, in part at least, t<) lay ;;round foi" contra«lietion, and the testimony of Inisweiler was after- wards properly received for that ])urpose. \oi' can wo (ind a)iy merit in the fifth or sixth assii^nments. The testimony on the pai't of th(> defense, as to the prisoner's habit of resorting- to the woods, and renraining there in an ap- parently melanclioly state, was ^'•(•neral. not specilic. and the commcmwealth was thei-c^fore at lil)erty, by the introdiicticm of siM'cilic facts, to explain the causes wliich, on some occasions, led to this result. If the proof on part of the prisoner had been of specific instances, the course of examination insisted upon by the jirisoner's counsel ini<;ht, perhaps, have been the ])roper one. The testimony of Philip A. Altland was stricken out of the case bv the court, and the iurv was instructed to disre<,^ard it; but, if it liad not been stricken ont, it was cer- tainly competent, by the testimony of Jerry Altland, to con- tradict John Coyl(\ Sr., and his wife, Avho testified for the prisoner, in their statem(>nt that they were not present at the alleged interview in the jail. The counsel for the prisoner havinf^, in their opening ad- dress to the jury, referred to concussion of the brain from the discharge of a gun. as one of the original causes of the mental disturbances of the pi-isoner, and introcUiced evidence tending to show that, from that time, his conduct Avas such as to indi- cate unsoundness of mind, it was, we think, proper to inrpiire of competent witnesses, Avhether tlie cause thus assigned, and attempted to be shown, was sufficient to produce the alleged result. The seventh assignment is, therefore, not sustained. This bring^s ns to the substantial and important question in the cause, as raised by the eighth and tenth assignments of error. In the examination of experts it is only necessary to keep constantly in view that their proper office is to instruct the court and jury in mattci's so far removed from the ordinary pursuits of life that accnrate knowledge of them can only bo acquired by continued stndy and experience; the pnrpose is to enable both the court and jury to judge intelligently of the force and application of the facts introduced in evidence, as 3S3 AMERICAN CRIMINAL REPORTS. tlioy would litivo been ablo to do if tlioy liiul ])Qvn j)or.sf>r.s j)i'o[)ei']y iiistruc'tcd ujxm tlus subjects involved. Kxpcrt testi- mony, owin^', pei'hiijjs, to the greater extent of reeent scicntilic reseiircli, is uiucli more fronuently i-esorted to th;>n foi-nierly, and the rules reyuJating its introduction may bo considered cstal)- lislied ; there .seems to bo no great conllict of autiiorities on tlie law ai)])lieab]e thereto. lu cases involving the question of insanity a uiedieiil expert may, of course, give his opinion, based upon ))ers(>na] examin;i- tion and knowledge of the ])atient; but wliere ho is not pos- sessed of a personal knowledge, his opinion niit.it, as we liavc said in lionch v. Zt'h)'ln(j, !) P. F. Smith, 74, "be ])rj;!:cate(l of the facts jtroved or admitted, or of sncii as ii]>|)eiir in evidence hypothetically stated,'' and this must bo* accepted with some modification. Tlie credibility of the witnesses is in all cases a rpiestion for the jury ; wliat is " pj'oved '' is ior tiieir determination. An exi)ert cannot, therefore, if the witnesses are conti'ydiclory, be interrogated as to the eU'ect i)roduce(l upon his mind by all tiie evidence in tlie cause; and, upon similar ground-!, wjiei-e tlu^ testimony, although not contradictory, is inconsistent or otlier- wise conflicting, an expert is not allowed to ex])ress an opinion upon the effect of it, oven assuming the truth of the whole, as the (juestion of the preponderance of the testimony is also for the jury; where the truth of the evidence in such case is as- sumed or admitted, before the (juestion uj)on matters of science can arise the witness must may l)e intpiii'ed of in regard to the state and degree of mental unsoundness thus indicated, and how far it will dis- qualifv the ])erson for business or render him unconscious of the nature of his conduct." At the trial of this case, in the court below, the interroga- tories to the expert witnesses were put in hypothetical t\)nu: th{>y were so propounded that the jury would without dilliculty discover the particular facts uium which the several opinions W"re given; w]u}ther they were meagerly stated for tiie o])in- ion of the witnesses thereim was a sui)ject for discussion to the jury. Each side had the right to an opinion from the 384 AMERICAN CRIMINAL REPORTS. Avitness upon any hypothesis rcasonahl}' consistent Avith tlie evidence, and if meagerly presented in the examination on one side, it may be fully presented on the other; the whole exami- nation being' within the control of the court, "whoso duty it is to see that it is fairly and reasonably conducted. The questions Avere perhaps leading in form, but they Avere not objected to on that ground, nor Avould this defect in form ai)]M>ar to have produced any misehicvous results, if avc may judge of this from the results of the cross-examinations. It is true, perhaps, that Avhat is merely indicated by cei'tain facts may not be shown by them. Although the words " show "' and "indicate" are sometimes interchangeable in popular use, they are not always so. The present ordinary use of the Avords discloses a dilTerenco in signification, and that dilference is per- haps more recognizable Avhcn these terms are applied to the law or to medical science. "To show" is to make apparent or clear by evidence, to prove; Avhilst an "indication " may be merely a symptom, that Avhich ]H»ints to or gives direction to the mind. The commonwealth, however, had a riglit, we think, to inquire in projier form, of a competent exj)ei't. Aviiether any condition of facts assumed, either proved or indicated in- sanity; whether such facts Avere conclusive, or mere sympto- matic, or neither. Although tlie commonwealtli's counsel in the several examinations used the Avord show, the distinction Avas in each instance fully brought out in the cross-exauiinalion. The ninth assignment of ei'i'or is to the admission of a ])or- tion of tlie evidence of Dr. .1. W. (\ O'Xeal. It would iqipear that the jirisoner had for a, number of years practical the secret vice of self-abuse, and on Monday ])revious to the lionii- cide had applied to Dr. JI. K. Noi'ris for treatment, in an atlliction resulting from that A'ice, Avhich Doctor Xorris Ici-med "the loss <;f manhood." Dr. Xorris, who Avas ca]l(Ml by tlie prisoner in his examination and cross-examination. i)articularly descril)ed the conduct, manner and appearance of the prisoner at th(> time he a])plied for treatment. In response to a variety of questions, he says: " Of course I could not see into his mind, into the intrica- cies, but Avhat I saw of him that ]Sronday morning, Aviien his condition was called to my attention, he had the ap[)earaucc of an abject man, almost on tho A'crgo of despair." COYLE V. COMMONWEALTH. 385 Q. "When was that?"' A. "On Monday previous to the commission of this act; and I there — well, I took particular notice, and contrasted his appearance then, to all other times, — and I had met him occa- sionally, as he had been, to the best of my knowledge, under drink, lie generalh' met me, ' How are you, doctor?' 'xVbout as middling, ' and ' (live me ten — I want to get a drink? ' He seemed sad, and with his head down, but at the other times he seemed to be in better spirits." Q. " Do I understand that to bo John Coyle's condition ou the ]\ronday morning i)revious to the act?" A. " lie presented then to be a man — an abject, des])airing man." Q. " Abject aiid despairing, with his head bowed, and what else?" .1. "Soliciting help from me, and if not helped would kill himself." Q. (l>y Mr. Swope.) "When patients come to consult with you ^ that is, remembering the ])atient that yftu spoke of — on occasions as delicate as that, is it not a suf>ject approached with a great deal of reluctance and regret?" .1. "Generally so." Q. " Is it not the custom of every man, always, to approach tliat subject with sorrow and rei^ret?" .1. "Sometimes; it is not universal, it is not general, I ciinnot say that there are mt exceptions to that general rule; there may be some. I have had sometimes, but they do not present this invariably, sir, — I cannot say that." Dr. O'Xeal was called as an expert on the })art of the com- mon wealtli, and was incpiired of in rebuttal as follows: Q. " Stat(i whether or not in your practice you are consulted by persons for the loss of manhood, and cm account of the secret habit, — this ])rivate vice,— if so, ])lease indicate how frequently as nearly as you can — and tell the jury, if you jilease, the way patients approach physicians when they speak iiljout a complaint of such a character as that." The i)ur|)ose of this offer, as stated, was to explain the ap- pearance of the defendant as test i lied to by Dr. Xorris. A. "I am consulted often, and I think I may say through the whole period of m}' service, in the practice of medicine, Vol. IV — 25 mm. 3SG AMERICAN CRIMINAL REPORTS. that is, the first part of it, they ' come cliaractovistically.' AVJion I say 'come characteristically,' I lucan a])i)r<>ach the subject ^vith a good deal of regret — seem troiililed — their countenimco indicates; largely their situatitm — they are back- Avard, they approach the subject by degrees, — tlu^y have ex- ])ressiou of unhappiness, based upon the fact of their having lost their manhood." AVe cannot agree with the learned counsel for the prisoner that tlie admission of this testimony was error. If tin? vice of self-abuse has such a peculiarly depressing effect upon the mind, which becomes apparent and obvious to the eye of tlic expert; if, in general, the conduct and behavior of perscms set aillicted. influenced by their nu'utal coiulition, is ''ciiaractcr- istic" and peculiar, it is certainly proper for the ex])ert, wlii> has the skill from ex])erieuce to detect it, to descrii)e its ex- ternal manifestations in the conduct and behavior of tlic patient. The testimony of Dr. O'Xeal had a tendency to ex- plain wliy, at this ]iarticular time, the prisoner presented ai)pearance of '»an ahjinrt and despairing man.'' We have examtned with great care the whole record in tliis case, liled with tiut writ, and we are unable to lind ai\y error upt>n which we feel justilied in reversing the: judguu'iit of the court below. The. jury liave found, after a fair, d(*lil»erate and patient trial, thattlie i)risoner was possessed of a. full knowledge of the criminal nature of his act, at the time of its commission, and we cannot (listurl> their finding. It is use of the words with "deliberation and premeditation." 2. Insanity — When inteupi)SED as a defense.— The defense of insanity- must be ei-tahhshed liy a ja-ejuinderinu'e of proof; and, in such case, the Imrtheu is not on the slate to satisfy the jurj' of the sanity of tlio pris- oner bi-yond a reasonable doubt. Sioinid Kdlisch, for the plaiiititf in error, F. \V. Stei'cn-i and (hear Keen, for the state. The opinion of the court was delivered by P.i.Asi.Kv. CnncF .IrsricK. The first objection taken to the proceedings in tl'.is case is, that tlie indictment (k)es not legally charge the crime of murder in tlie first degree. The pleading tints challenged is in exact conrornuty Avitli the requirements ol' the iVc.'ly-lil'th section of the act regulaiing proceedings in criminal cases (Ilev., p. 2T.V), with the exception that it intei'- polates the adverl.) "delii)i'rately " in its description of the of- fense. It follows the statutory language in the essential particuhu's of charging ''that the deftMidant did AvilfuUy, felo- niously and of his malice aforethought kill ami murder the deceased;" so that if there be any illegality in the mode of charging the crime, as a matter of pleading, the fault is not in this formula, but in the statute itself. And, in ])oint of fact, it is this act which the arguuuMit addressed to the court puts to the test, the first exception to it being that it is repugnant to section S of article I of the constitution of this stat(\ The provision thus invoked contains the declaration that in "all criiuiri^d pi'osecutions the accused shall be infornuMl of the nature ami caus(> of the accusation." It is also ai'gued that section \) of the same article rellects a light on the nature of the jirivilege thus guarantied, in the regulation that "• no ])er- son shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury,'' except in certain enuuu'rated cases which (U) not touch the present nuitter of intpiii'V. The ingenious and elaborate reasoning on which the jiosi- tion here taken is sought to be held can be thus summai'ized: That the statute of this state which defiiu's the crime of mur- der has altered the comnum law t-y adding to the constituents of the crime in its higher form those of ''deliberation and pre- m 388 AMERICAN CRIMINAL REPORTS. inoditatioii." and tliat as a cotisoqucnce the offense of that rank must be laid in the indictment witli a special averment of the presence of such characteristics; and tliat, by the same statute, tlie offense is divided and made two substantive and distinct felonies, — the one punishable with death, the other with imprisonment for a definite period; and that, there^or(^ an indictment which charges in a general form the perpetra- tion of a murder, without indicating which of these two separate crimes is meant, does not fulfil the constitutional i-o- quirement of informing the defendant of the " nature and cause of the accusation," If the l>asis of this reasoning be sound, it is apparent tliat the result is that there has never been in this state, since tlu^ enactment of this ancient law defining the crime of murder, and the adoption of the constitution of 1844, a legal iiulict- ment or a legal conviction with respect to this offense. There have been no indictments drawn, treating the pro- vision assigning degrees to the crime of mui'der as having tlio effect wliicli is now claimed. Such a course Avould be incon- sistent with the statute itself, for it is drawn with the evident purpose that the charge should be in the general form, as at common law. of an accusation of murder, indicating the crime in its most heinous degi'<>e. This is clearly a))parent from tiie statutory dii'cction contained in the .section delining tin; crime, "that the jury before whom any person indletcd for iiiiirfendant ''did wilfully, feloniously and of his malice aforethought kill and mm*der the deceased," its plain iiicaiiing is that the charge is of murder in the first degree, as tliiit crime is defined by the laws of this state, and has the same effect as the old and verbose form of ]ileading in com- mon use in this respect had possessed. The intention of the legislature is plain, to substitute a simi)le ])lea(ling for a cum- brous aiul useless one, and such an amelioration of the law is, fortuniitely, not iiic<)mi)atible with the constitution. The objection cannot i)revail. The remainiii"' <>i'ound of allewd error resides in the refusal of the court, at the trial, to charge, at the instance of the counsel of the defenchii.t, the following proposition, that is to siiy : " That if the jury have any reasonable doubt as to whether the prisoner was sane or insane at the time he committed the ;i('t, the doubt should be resolved in favor of the prisoner's in- simity." The bill of exceptions states " that this pro[)osition llie court refused to charge otherwise than as had been charged," ami thereu[)on an exce[)tion was taken. Fi'om this statcMiu'iit it will be noted that the exception taken has no connection with the charge actually made to the jury, except in the respect that a ]'eference to it is necessary to ascertain whether or not it contained, in substance, the legal rule as ))roi)ounded by the defense. That it did not con- tain such rule is evident, and hence the only cpiestion now before the court for solution is, not whether what the court said upon this subject to the jury was legally correct, but 390 AMERICAN CRIMINAL REPORTS. Avhetlier the refusal to instruct tlie jury us rei^uosted was loyal. Ts it tlie law of this state that when, in a criminal case, the defense of insanity is inter[)()se(l, if the jury have a reasonable doubt on the subject, after looking tlirou«ifh the proofs, that sucli defense shall prevail? Every one versed in the practice of the criminal law is aware that the proposition claimed to be law l)y the counsel of the pi'isoner in this case is one, so fai' as authority is concerned, of the most doubtful of lenal })roblems. The judicial mind has been so i)er[)lexed with the subject that it is ditHcult to say whethei' on the allirmative or the negative side of the (piestion thei'c is a i)rep()nderaiice of o|tini()n. The elaborate aiid well-considered briefs of thi; re- sju'ctive counsel in this case are replete with antagonistic de- cisions on this })oint, many of which are ably ivasoned. iiyd are, fiom every consick'ration, entitled to the highest icsjiect. r>ut ahhough the law on this head is thus shown to l)e else- where in this coiKJition of uncertainty, it does not seem to me that it can convtly be said to be in such a condition in tliis state. It is safe to say that for over half a century this prop- osition now claimed to be law has been i-ejected in our ])ra('- tice. Our reports show that such re])udiation occurred in Sjhiir, r\s ('iis)\ which is a case of mark in the criminal aininls of the state, and which took place in tli(> year 1S|;5. 1 /al).. 3'.)/v'///(/ /'r/f//. presumes mental sanity, and that when, in llir given case, the prismier would overcome such presumption, h" must exhibit a cleai' pi'(>pondei'ance of ]»roof in favoi- of such r manslaughter it shall not bo necessary to set forth llie manner in which, or the means by which, the death of the deceased was caused, but it shall be sullicient in every indictmeut i'or murder to charge that tlu! defendant diil wilfully, feloniously, and of his malice aforethought, kill and murder the deceased," etc. Under these iirovisions, the words used as descriptive of the offense and those which may be em- ployed in the indictment are essentially different. The lej'islature, proljably, had the power to jilace the form above the substance, and thus dispense with the use of the words "(lelii)erate and premeditated" in the indictment, but without legislation dispensing with their use in the indictment, it would Neem that a common law form would not be good for murder in the tii'st d^gree, in lliose stales that liave departed fnmi the common law delinition and have classitii'il the crime into degrees. In Iowa the statute di-lining the crime of murder in the first degive is substantially tlu^ same as the New Jersey statute, and the supnMiie I'ourt of that state, in Tin' State r. Jitii/le, 28 Iowa, 022, held that an indictment whidi charged that the killing was "Avilful, felonious, premeditated and with malice aforethought" was bad as an indictment for murder in the lir&t degiee, because the word "deliberate," which entered into the definition of the crime, was oniitted. Beck, J., in analyzing and defining the words of the statute, says: "The first of these words used, describing the crime, •wilful," i!ii|)lies that the act was (^//^'f/ by the perpetrator of jmrjiose, with the intiiit that the life of the party killed should be destroyed. By the use of the word •deliberate,' in describing the crime, the Idea is conveyed that the perpetrator weighs the motives for the act and its conseiiuences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon ; thtit ho carefully considers all these, and that 392 AMERICAN CRIMINAL REPORTS. the act is ii >t -uddenlj' coniiuitted. It implies that the jwrpetrator niiLst be capable (if iIm' exorcise of such mental powers as are called into use by de- liberation and the consideration and weij^hiufj; of motives and consequences. However, if the mind be not in a condition to deliberate, from intoxication or frt)m any other cause, the offense wt)uld be murder in the second degree. The word ' itveinrditatcd' implies that the act is done in pursuance of :i l)rior intention — a premeditation. We observe that these three words con- vey distinct and indejiendent itleas, and that neither of the others ciui convey the meaning and force of the word ' «leliberate,' omitted in the indictnieiit." An indictment which charKeil that the assaidt was wilful, deliberate and premeditated, and that the blow causinfij death was dealt, wilfully, delilicr- atelj- and iiremedilatedly, but which itrpi)sc to kill is not averred in the stating part of the indict- ment, the defect is not cureil by the formal concluding jiart in which it is averred, " aHci .so the jiirorti . . . do aiiij that 'the ucetixi'd,'' in the ^manner mid 1)1/ the iiiraiis (ifoirmid, . . . jtuvpoHclji, ottd of delibwiite and premeditated maliec, did kill and murder" tlie drcetised; such aver- ment being a conclusion of law, and not a statement of facts. Kaiit r. The State, .•mprn. Naming the offense nmrder in the lirst degiet' in the introductory and con- cluding itortions of the indictment is not sutlicient. unlt^ss tlie facts charged constitute it such. The State r. MeCormiek, mipra. And see generally, flaf/aii V. The State, 10 Ohio St.. 45!); Bower v. The State, 5 Jlo., 'oM; State r. Joues, 20 Mo., ".8; St.. '.Vir,; State r. Jlieks. 27 Mo., .■)88; State v. Starr, 88 Mo., 270; Com. v. Jones, I J.eigh, 010; JJoornett r. Com., 8 lA'igii, 74."); Com. v. Green, 1 Ashme.ad (Pa.), 280; Com. v. Murri/, 2 -\shme.ad (Pa.), 41; Com. r. Drum, 28 Pa. St.. »; Kelli/ r. Com., 1 Grant. 4ai; Com. v. Kimj, 2 Va. ('as., 78; Mitehell v. State, .") Yerger (Temi.), !?40; Davis v. State, 2 Humph. (Tenn.), 430; Swan v. State, 4 Humpli. (Tenn.), VMi; Chirk r. State, 8 Humi)h. (Tenu.), 071 ; lieleif v. State, 9Huuii)h. (T(mn.), 040; I'eojtle v. Potter, 5 Mich., 1. The Statk v. Adams. Murder: Infants- (70 Mo., 355.) ■ De(*h pcnaltji — Threats uncommunicated — Threats, conditional. 1. Infants under eighteen years. — The Revised Statutes of Missouri, which exempts infants under eighteen years, who commit crime, from imprisonment in the penitentiary, does not exempt them from the deatii penalty. THE STATE v. ADAMS. 393 tlx- Jon 2. Conditional threats made by the prisoner aiUninsiWe. 3. Between the ages of seven and fourteen yeai's, the law presumes au in- fant incapable of committing crime, and the onus is on the state .-o o\ crcome this presumption, which the law 8up[)lies, by satisfactory e^ i- dence. Error to ^for^an Circuit Court. Hon. E. L. Echvards, Judge. James A. iSjmrlock and ^1. W. Anthony, for plaintilT in error. J). If. Mclntijre, attorney -general, for the state. Siii;kwood, J. The defendant, a negro boy, twelve years old tit the time of the trial, October 21, 1882, was indicted for imu'dcr in the lirst degree, having killed Henry Oslerniann, :il)()ut seventeen years old, by stabbing him with a pocket knife, August 1st of that year. Walton ^McXair, a small boy, twelve years of age, was the only witness who saw the stal)bing, and testilied that he saw it (K'c'ur on the hay lield as follows: Henry and Tom were fuss- iiiH'. Tom called Henry a liar. Henry said if Tom called him a liar again he wouhl knock him down with the jntchfoi'k. Tom called Henry a liar again, and then Henry jumi)ed out of the wagon and took Tom hy the arm and struck him over the head with the handle of his pitchfork. He hud Tom by the anil, and Tom had one hand in his pocket and pulled out the kiiil'e, open, and reached up and stabbed Henry. After Henry was stabbed, Tom g(jt loose and started to run; then Henry picked up a rock and knocked him down and then went and Ix'at him witli a pitchfork. Lev. Smith halloocil to him to quit. Then Henry (piit and came back and said he v/as cut in two, and went and laid down and died in a few minutes. The evidence shows that he was stabbed in the heart with the pen- knife of Airs. Silvey, his mistress, the blade being about two inches and one-half long, and slender; also, that when Henry lay down, sick from the wound, Tom got water and poured it on his head, trviu": to revive him. But when he died Tom started off and was traveling the main road to Tipton, when he was arrested about a mile cfF, and brought back. After he was arrested ho confessed the stabbing, but said he did it be- cause Henry struck him with his ])itchfork. The state proved by Frank AVilliains, a small boy, that he heard Tom say if Henry did not quit fooling with him he 39-t AMERICAN CRIMINAL REPORTS. would cut him witli liis knife, and lie told Ileiii'v of it, and told hini to (juit fooling' with him. Also "NVm. ('. Silvcy hoard them fussing- one m(nnin;j: at his barn, and told them to (|iiit and not I'epeat it in the I'litui-e. This was two months oi* nidie 1)i'f(»i'e the sliihhin^', and tlu! evidence of it and the conditional thi'cat were ohj(>cted to by (h'femhmt's counsel. The jury, under the instructions of the court, fouiul defend- ant guilty of murder in the iirst degree and he was sentenced accord inii'lv. I. T/k' - V. Jho'foti, 71 ^[c, 288, has settled thiit defend- ant issubjei't to the death ])enalty iu)twithstan. >J \Wa\. IF. Tnder the ruling in JoIm-sotiH C(is<', 1; Shftd v. Furd^ '<\ Strobh. (S. C), r.lT; Stnte v. Jlof/f, 4(5 Conn., ;];5<». III. W(i incline to the opinion that the instructions should have permitted the jury to have I'oiiml the defemlaiit giulty of a less grade; ')f homiiide than mui'der in the iii'sl degree, pro- vided t\u) circumstaiu-es. to be ])i'eseMlly noticed, were sucli as would admit of his being found guilty of any oll'ense. I!iit notwithstanding that we say this, we do not say l»ul that there Avere incidents in the evidence which, if defendant is to he treated as an adult, would justify an insti'uction foi' niuvder in the Iirst degree, in addition to those for a lower grade ol homicide. IV. And we thiidc that the instructions as to self-defense were very properly given. y. Ihit we ai'e very clearly of ojiinion that the coiu't eri-ed in its view of the law touching tlu^ age \)\). h\ such cases the oii>i.s is on the state. The evidence in the present case cannot bo regarded of the cliaract<'r indicated by lilackstone. Indeed, no ell'ort seems to have been made at the trial to show the delendiint ])()ssesscd criminal capacity. And the instructions mentioned \V(U'e well calculated to U'ad tiie jury to iiU'er that without evidence show- ing such ci'iminal capacity, still they wiM-e justified in convict- ing d(>iendant even of murder in the lirst degree. And if we treat the sixth instruction asked by dei'eiulant as given, which is marked on the margin "refused" {Itarhai v. //r/'/o/v/, 48 Mo., ',Vl'-\), this would not hell) the matter, as it teaches a dilfer- ent doctrine' from those; already mentioned respecting the (picstion of age, ami would oidy have been but too well cal- culated to mislead the jury. Therefore, judgment reversed and I'ause remanded. All concur. .\()TK. — By tilt' .stiilutc of Illinois ail infant under tho a^c of ton yi'urs is iiicupalile of coniMiittiii}^ crinu', and cannot lie eouvictcd of any crinic or niisdi'nu'anor. At tlic a^n of foiirti'i'U tho law luvsiiinos caiiaeily, without proof of a knowli'dj^o of j^ood and evil, hut hot ween these a;j,i s tin.' evideueo of that nialiee whieh is to supply af;o nuist ho stronj; and dear heyond all (louht and oontradietion, as the priiiid favie i)resuini)tiou is thiit tho party is iloli iiinipti.c. Aiit/ilo r. Tlir Pcojilf, i)0 111., »'()!). riicdiiuiiiiiiirdtcd tliinitH. — In }\'iijyiiis v. The Piopk; Q'-i U. S., 405, it was hold (tJlilVord, Justiee, dissenting) that iu a trial for honiieido, where it is left in (louht whether tho defendant or tho di'ee;used coniuieneed tho en- counter which resulted in death, it is conipotoiit to ]rt'ove, under certain cir- ciunstauces, threats of violence made hj-tho deceased against the defendant though not provioubly brought to dofondiuit's knowledge. UrsTONE V. Thk People. (109 III., 169.) McuniCR: Insanity produced by into.ricdtion — Emdence — Instnictions — E.vpiiin. 1. Insanity puoduced by intoxication, as a defense.— Temporary in- sanity jiroduced immediately hy intoxication furnishes no excuse for tho conunission of a homicitle or t)ther crime, but u fixeil insanity does. 390 AMERICAN CRIMINAL REPORTS. A\nicthcr a party committing a crime is imdor tlio influence of a fixod insanity, or a ti'mpoi-ary one induced immediately l)y intoxication, is a ([uestion of fact for the jury, and their verdict will not 1k' disturhcd unless it is clearly against the evidence. 2. While it is true there must be a joint imion of act and intention, or criminal negligence, to constitute a criminal olfense, yet when without intoxication the law will imiiute to the act a criminal intent, — as, in the case of a wanton killing of another without provocation, voluntary drunkenness is n>t nvailable to disjjrove such intent, so as to re manifestations of rage and vioU'iice towards theoflicers, and attemiitcil to break awaj'. Thereupon handcuffs wei-e placed iipon his wrists to restrain him. It was held there was no error in tiuis preserving ordii- and protecting the sheriff and his bailiirs from violence, and that it could not aHect the justness of the verdict at the jireceding term, nor the sentenci' following the overruling of the motion for a new trial. 6. Instructions — Statixo abstract proposition of law.— The giving of an instruction stating an abstract prin( iple of law not appli("il)Ie in a criminal case is not error unless the principle stated is erroneous. 7. Same — CoNSTiiUED, as excixdino defense of insanitv.— On the trial of (me for murder, insanity being relied on as an excuse, the court in- structed the jury that if the killing had been shown by the evidence, beyond a reasonable dimbt, to have been tlio act of the defendant, the law presumes it nnu'der, ]irovitle(l they further believe, from the evi- dence, that no circumstances existed excusing or justifying the a( t, or mitigating it so as to make it manslaughter. Jlclil, that tlu* itistrin- tion was not liable to the objection of excluding the defense or excuse* of insanity, but, on the contrary, it recogjii/.ed tiie fact there might he an excuse for the act. 8. jVnd in the same ca.se, an instniction contained a proviso that if the jmy further believed, from the evidence, beyon;oon-sho!)t; that a!)f>ut 1 o"clt»ck on the Suiulay of the homicide, a witness saw the de- fendant in his yard, and he called to the witness to come ov( r. Avho did so, and went into dolondant's house; defendant mixed nj) a drink for them l)oth to take, which was alcohol, as witness thoug-ht; witness remarked that his was too warm; d(>fondaiit rei)lied, i)orhaps it was not strong- enough for him, and put in some more li(pioi'. and tlion it was too strong; witness could not drink it all; defendant di'ank his. Dofondant said, " Dutch Pete is in the slio]) taking a little naj)," and h<» would take wit- ness' glass t Jiini driidc it; he tool' it out, and witness went with him to th(> shoj); Melson was there asleep, as tlie witness judged, his head ami siiotddors ieaning against liio sho]), and partially sitting on tla; vice-boncb ; defendant st>t the glass on the bench and went up and talked t(> ^lelson, pubed him a little, and Melson ])artially fell, and settled down on the floor among a lot of rubbish, "so druidc he couhhi't stand." "Witness did not hoar him say a woi'd him up and put him on the clean llooi. and defendant doulik'd U[> his cloth apron and [)ut it mnhT ^Felson's head; witness then loft tliem; the glass was left sit- ting there. Aljout tlii'ee-(piarters of an hour after, the alarm was given that defendant haler, and then sto|)|)iMg back in the shop. An empty (juart bottle was found in tlio stove, which had contained what the witness thought was alco- hol. On Thm'sday or Friday befoiv, dofetnlant, together with two othei's, had purchased a gallon of alcohol, one paying for a half gallon, aniven as to insanity in memhers of the family; that his mother, a sister and three brotiiei'S were insane, the mother, sister and one brother dying in insane hospitals; that an aunt of the mothei' Avas insaiu*, and two of iier sisters died in insane JKtspitals, ^luch testimony of neiohbors and acquaintances was given. — on one side, that del'eiulant was insane, on the otiicr side, that he was saiu?. The superintendent of the insane asylum at Klgin, a medical man, gave it as his opinion, as an expert, that fi'om the testinumy, taking it to bo true, defendant was iiisane. This was before the rebutting testimony of the l)i'(»seciilion. The (piestion in the case Avas, whether there Avas but a tem- porary insanity, produced immediately by intoxication, or fixed insiinity. If it Avas tlie former, it fui'uishes no excuse. Ques- tions of this kind are pecidiarly (piestions for a jury to deter- iiiine, and upon settled jjrinciph^ tiiis court shfiuld not interfere to disturb the verdict, tmless it is clearly contrary to the evi- dence. AVe camu)t say tliat is so in this case. Vari()n:; rulii\gs of the coiirt were excei)ted to, as. tiuit evi- (l(MU'e was received in relnittal improperly; tliat opinions as to (iel'endant's sanity were admitted, and evidence of defendant's previous Iial>its of intoxication. The tini(> of receiving evidence is much in a coiu't's discretion, and it would not be ground for reversing a judgment that evidence was permitted to bo intro- (hiced in rebuttal which in strictness was not properly so re- ccivalth'. Hvidence Avas given, on both si(U.'s. of o[)inions of (iefeiuhint's neigliliors and aciiuaintances as to his insanity, fuiMKh'd np(»n them- own kno^vledge. E.xception is taken tosuch testimony admitted on tlie part <)f the [teople. AVeare of opinion that witnesses who are not ex[)erts iiuiy give their opinions, founded upon observation, on the question of sanity. "Whar- ton on Crini. Evidence, sec. -117; 2 Ired., 78, Chiry v. Clary; ioo AMERICAN CRIMINAL REPORTS. "Wharton & Stille's Med. Jur., sec. 272; dissoiitinj^ opinion of Doe, J., in State v. Pike, 49 N. II., 408, whore the authorities are extensively collated; Ilarfly v. Merrill, 50 l!^. II., 2'>7; Iii» V. Taylor, 45 ill., 485; Rutherford v. ^Ln-rh, 77 111., 3<.>7; Car- penter V. Cah'ert, S3 id., 03. Evidence of previous intoxication on the part of defendant was properly enouf>li admitted, iis bearing upon tlie cpiestion of intoxication at the time of the homicide, and of the conduct of defendant wlien in tliat stiite. The second instruction given to tlie jury, for the people, Avas: "That if the kilhng of the person mentioned in the indict- ment has l)ecn satisfactoi-ily shown by the evidence, lieyond all reasonable doubt, to have been tlie act of tlie defendant, then the law presumes it to liave been murder, provided tlie jury further believe, from the evidence, beyond a reasonalile doubt, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslauglitcr." It is objected to this, that it tells the jury they must convict the defc^ndant of murder or manslaughtei\ "We do not so read the instruction. It left the jury free to accpiit, if thei'e w(M'e circumstances wliich excused or justified the act. It is fiu'tlier said tlie instruction Ignores the (piestion of the insanity of the defendant. Wo do not thiidc so. The instruction recogniz(>s there might be an excuse for the act, and instructions for the defendant abundantly informed the jury that insanity would be a defense, which the jury would take to i)e an excuse. It does not matter what may bo the technical meaning of excus- able, but how the jury woidd understand it, and whatever was a defv'Mse they would understand as matter of excuse. It is objected to the third instruction, that it states an abstract principle of law not ai)plicable to the case. This would not bo error unless the priiu'i])le stated were erroneous. It is objected to the fourth instruction, that it substantially instructed the jury to lind the defendant guilty, regardless of the qviestion of his mental condition at the time of the homi- cide. The question of mental condition was covenul by the proviso to the instruction, "provided you further beli(ne, from the evidence, beyond a reasonable doubt, tliat the blows were struck with malice aforethought, either expressed or implied." If there was the insanity which was claimed, then there would bo the absence of malice aforethought. UPSTONE V. THE PEOPLE. 401 The followiii<^ further instructions were given on behalf of the people: '' 7. Altliough it is the law in this state that a criminal of- fonse consists in a violation of a pul)lic law, in the commission of wliich there must be a union or joint operation of act and in- tention, or criminal negligence, yet wlierc, without intoxica- tion, tlic law Avill impute to tlie act a criminal intent, as in tlie case of wanton killing without pi'ovocation, voluntar}'^ drunken- ness is not avaihible to disprove such intent. " 8, That if you believe, from the evidence, beyond a rca- soniible doubt, tliat the defendant, when voluntarih^ intoxi- cated, committed the liomicide charged in the indictment, under such circumstances as would have constituted such an act, by one not intoxicatetl, murder, then you are instructed that such intoxication would not reduce the crime of the de- fendant from murder to manslaughter, nor would such intoxi- cation 1)0 any excuse or defense to tlie act. " 9. Tlie court further instructs you, that if you believe, from the evidence, beyond a reasonal)le doubt, each of the following ])ropositions, to wit: that at about two hours before the com- mission of the alleged homicide defendant was sane, and had the power to abstain from drinking alcohol; that defendant then knew that the drinking of alcohol by him would have the effect to render him insane or crazy; that d in the indictment, at the time and place, and in the manner and form therein charged,- — then you should find defendant guilty." The same criticism is made with respect to these first two as before — that they ignore the prisoner's defense. There clearly is no foundation for saying this as to the eighth, and as to the seventh that was only laying down the abstract principle of law as to voluntary drunkenness being an excuse for crime; and in doing that merely it was not necessary to incumber the instruction with any exception of the defense that was made Vol. IV -20 m AMERICAN CRIMINAL REPORTS. m for the prisoner, 3Iitchell v. JfU/iolIatid, IOC III., 175; J^o;/;/ 1'. Th'i People, 02 id., 598. The le^al j)rinciple asserted in tlioso instructions is disputed. The principle is sustained by tlie decisions of this court, and is the svell settled doctrine of the common law. lioffertij v. Thr People, •;!', 111., 121; JL-Inti/re v. The People, ;],S id., 511; The. P,:,y . Voyr/v.', 18 X. Y., 9; United States v. 2[i:Ghce, 1 Curt' , HHiijanv. The People, SON. Y,, 551. In Bishoji on Crim. Law. sec. -100, the author lays it down : " When a man voluMtunlv bet. )rMos drunk, there is the wronpful intent, and if, while lo.j fiu ^;une to have any further intent, he does a wronui'ul act, the !Ut(Mit to drink coalesces with the act while drunk, and for this combination of act and intention lie is liable criminally. It is, therefore, ti le<2;al doctrine, a()plical)le in ordinary eases, that voluntaiy intoxication furnishes no ex- cuse for crinu^ conuuilted under its iniUience. It is so, even Avhen tlu! intoxication is so extreme as to malce a person im- conscious of what he is doii><>", or to create a tempoiary in- sanity/' Our statute declares that "d' ankcnness shall not he an excuse for any crime or misdemeanor." We do not think the last above instruction is objectionable in the res[)cct, as claimcHl, of its jiartial I'ecital of the evidence^ nor in the res))ect that there is no i)asis in the evidence for the propositions stated. There was evidence of the defendant's acts and conduct alH)ut an hour before the homicide, affording ground of inference us to his mental state ivlK>ut two hours he- fore. As to his power to al)stain from di-ink-in/j; alcohol, there was evidence of his having once abstained for the ])eriod of about a year, after sifi^ninf^ a pledij^e not to y the defenilant. The jviry were instnicted, on the part of the defendant, most fully and most favorably for him upon the subject of insanity as a defense, in all aspects heav- ing upon the case. RITZMAN V. THE PEOPLE. 403 At tlic next term after the verdict the defendant was brought into open court, when the motion for a new trial, made at the ])revious term, was disposed of, and as the court was about to pass sentence tlie prisoner broke out into manifestations of vio- lence, and had a struoole with tlu^ ollicers to break away from them, and was attempting to comnnt acts of violence upon them, whereupon tliey placed a pair of handcuffs on his Avrists, and he ceased his struggles. At this treatment defendant's counsel made objection, but the court overruled the objection, and suffered what had been done, deeming it necessary to pro- tect the sheriff and his bailiffs from the violence of defendant, and for the preservation of order in court. This is alleged as error. What was done could have had no influence in the finding of the verdict the term before, nor upon the sentence, it following as a consequence upon the verdict and the over- ruling of the motion for a new trial. It did not affect the just- ness of the verdict or the sentence, and we fail to see why it should be any ground f(n" the reversal of the judgment. Finding no material error in the record, the judgment must be affirmed. Judfjment affirmed. KrrzMAX v. Tnt: People. (110 111., 363.) Murder : Joint trespassers — Evidence — Instructions. Encouragino commission of unlawful act. resulting in iiomicidk — LiAKiLiTV FOR coNSKijUENCES. — Sevoral iKTSons of a party pas.sing along a highway got out of tlio wagon in which thoj' were traveling .and went into an orcliard without i)ernussioii. The owner ordered them to leave, whii'li they r(>fused to ilo, when others from the wagon entered the orchard, armed with clods of dirt, and assaulted the owner, using very ofTensive languiige to him, and one of the i arty struck the owner, with a clod, upon the hack part of the neck, felling him to the ground, from which hlinv death ensued in a few minute's. It apjieared that one of the intruders, who wa.s tried sepaiately, took a piut in the affray, and tried to kick the decciiseil while lying prostrate from the blow. It was held that it was not necessary to show that he threw the missile which caused the death, in order to sustain his conviction for manslaughter. It was Kufik'ient that ho was i)resent, encouraging the perpetration of the offense, to nialvo liim equally guilty with the pai'ty who struck the fatal blow. 401 AMERICAN CRIMINAL REPORTS. 2. Exclamation op one of several persons xriio ilvd committkd an UNLAWFUL ACT. — Spvorul jjcrHons, incJuding one who was put upon trial for murder, while traveling along the road entered an orehard by the road side, when, without justification, in a ditHoulty with the owner, who hair homes. A party in pursuit of tlu'in. seeking to Imve them arrested, passed the wagon, when some one of them called out, " Hello, good-looking fellow! " or soinething like tiiat, but such witness so addressed could not say the defendant was in tlm wagon at that tiuie. It aj)peared, however, from the defendant's own testimony, that he did not get out of the wagon until after llu y reached the next iH)int where they stopped. Held, that the court jnop- erly refused to strike out of the testimony the words so spoken to the witness. 3. CRO.SS-EXAMINATION — LATITUDE ALLOWED.— Gre.at latitude shoul called to the fact, and he. \>e reiiuired to explain why the omission was made in Ills lirst statement. i). Conflicting statements.— .So, on the trial of one for murder, the deatii having been caused by a blow with a clod from the hand of snme une of .several trespassers, a witness who was i)rt>sent at the time of the killing, stated, on his examination in chief, that the defendant then being tried, (hiring the transaction cidled the deceased "a son of a bitch." On cross-examination the witness was asked if in liis former examination he had made any such statement as that. On objection, the court below held that the in(iuiry should bo limited to the (pn'stinns actually a.sked and the answers given in the former examination, and that the c made, with the view to a.scertain the motive of the witness in omitting the slat(!ment on his examination in chief, in ca.se it should turn out he liad done so. «. Error will not always reverse — Exclusion of evidence. — Although the court, on the trial of a cause, may err in the exclusion of evidence. or in refusing to allow certain questions to Ik) jnit on cros.s-cxamination, yet if this court is fully satisfied, under the facts of tiie ca.se, that the error could not have affe(;ted the result, the error will afTonl no gronml of reversal. 7. Instructions — Whether sufficient as a whole.- It Iwing imjn-aeti- cable to require absolute, literal accuracy in instructions, it is therefore sufficient if the instructions, considered as a whole, substantially i)re- sent the law of the case fairly to the jury. Writ of Error to the Criminal Court of Cook Ci>unty ; the Hon. T. A. Moran, Judge, presiding. RITZMAN V. THE PEOPLE. 405 Messrs. Moore <£• Purnell, for the plaintiff in error. Mr. Luther Laflbi Mills and Mr. Charles B. Morrison, for the people. Mr. Justice !Mulkky delivered the opinion of the court. The [)lainti(r in error, Xicliohis Ititznian, and William Spies, were indicted in tlie criminal court of Cook county, at its Sep- t(Muber term, 1SS3, for the murder of Chai'les Lovett. At the following- Deceml)er term Ritzman was tried separately, before the court and a jury, upon said cliarge. The trial resulted in his conviction for manslaughter, tlie jury iixing the term of confinement in the peuiteiitiary at eight years. The usual motions for a new trial and in arrest of judgment having been made, considered and overruled, tlie court thereupon entered final judgment in pursuance of the verdict, to reverse which Uitzman has brought this writ of error. Till! errors assigned (piestion the rulings of the court upon (lucstions of evidence, and upon the giving and refusing of instructions. Jt is also claimed the evidence is insulUcient to sustain the conviction, and a reversal is asked on these several grounds. The circumstances under which the homicide occurred are as follows: About 5 o'ch)ck in the afternoon of August 5, 1888, the accused, together with ten other young men, was retmm- ing to Chicago by way of Grand avenue, from a picnic which they had attended that day on the Desplaines river, and wlien within some ten or eleven miles of their destination they came opposite the premises of the deceased, on the north side of the avenue. Here some of the ])arty left the express wagon in which they were travelling, and entered an uninclosed apple (trchard, being a part of said premises. The dwelling of the deceased was about twenty feet north of the road, and on the west side of the orchard, .lust at this time the deceased was passing from his house through the orchard, in an easterly direction, when ho encountered those of the party who had entered the orchard. Upon discovering them he ordered them off the i)remises, which attracted the attention of those Avho remained outside, whereupon others of the party, arming them- selves with hard clods of earth, also entered the orchard, going in tiic direction of the deceased. Mrs. Lovett, and a young 406 AMERICAN CRIMINAL REPORTS. man by the naiuo of narry, wlio was boarding with tlic deceased at the timo, being informed of the dilficulty by the children of the deceased, left the house and proceeded in haste to wliei'c the parties Averc, Barry being somewliat in advance. 1I(> swears, in substance, that, when he got there, he saw a clod, or what he sui)p()sed to bo a clod, bound off Lovett's shoul- der; that he then ran to Lovett as fast as ho could, and, as ho came up to him, Lovett foil; that Spies being nearest to the deceased, witness "made for him," when the former stepped back and struck at witness; that, at this juncture of all'airs, witness discovered llitzmaii, the accused, standing near or over deceased, and in the act of kicking him, when witness jinnpcd over and shoved IJitzman back; that Lovett died in about live minutes after he fell; that witness saw as many as throe of the party in the orchard, and th(!i'e might have been more; that they used profane and foul languiige both to the deceased and witness; that witness ne.xt morning picked up a clod of diil close to where Lovett lay the evcMiing before; that the iKiily, haviiig ])roi;eeded on their way, were pursued and ovei'tulaui, and all arrested that evening except the accused and one otiiei', who succe;>ded, for the time being, in eluding arrest. The testimony of ]\rrs. Lovett is substantially the same as Barry's, so far as the transaction in the orchard is concerned. She j)ositively identilies the (h^fendant as being in the orchar.l at the tiuK! her husband was killed, and actively partici]);itiii^' in what was done. She says; " D(!fendant was trying to kick my husban i/ him in the face and said, 'you Inive killed him.' He looked at me. T hiMird some one say. ' you have killed a man,' and he started and ran." Mis. Lovett also identilies two clods of dirt as having l)een picked up n(!ar where her husband lay, wliidi were produced in court on the trial, and with which the med- ical testimony shows the wounds causing Lovett's death might have been produced. She also locates the wound from which RITZMAN V. THE PEOPLE 407 lio (lied on tlic right side of the neck, back of his ear, and Doctor- 1 JhithiU'dt swears that Lovett died from tlie wounds described by her. Cleaver, one of the party, admits he was in the orchard, and says lh(^ accused was tl)ere also, and near the deceased when ho fell, though lu; did not see the deceased receive any blow. He fui'tlici' savs, when thev returned to the wii<'on and got into it, Spies remarked: "]My first one didn't count, l)ut my second one did." To which Kitzniiin replied: "Afy second one counted; my fii-st one didn't hit, juid my second one counted." To which Spies rejoined : " AVill you stick to that? " and Ritzman said he would. The witness, on cross-examina- tion, states tliat lie understood from this conversation tliat Spies and Ritzman iiad thrown something at Lovett. The case tlius made by the people is met almost exclusively by the sim])]e denial of the accused, who testitied on his own l)chalf. The defendant himself admits he was j)resent when Lovett was killed; tliat his (h:'ath occurred at the time and place fixed by the other witnesses, and also that it was caused by a blow gi\eu by one of the ]>arty to which he belonged, without any excuse or justification whatever. lie further admits that he, in com[)any with Cleaver, without any author- ity, entered the orchard of the deceased for the purpose of getting ap[)les, and that they were ordered out by Lovett. So far there is no mat(>rial controversy. Tlie accused, however, claims that, when he and Cleaver were ordered out of the orchard. Spies jumped out of the wagon, picked up two lumps of dirt and tlirew them at the deceased, the first one missing liim and the second taking effect and causing his death, as stated by the otiier witnesses. While he denies the language attributed to him by (cleaver in the conversation which oc- curred after the ])artics had returned to the wagon, with re- spect to tin-owing at tlie deceased, yet he admits there was such a conversation, iMit claims tliat it was between Spies and Cleaver, and not between Spies and himself. lie also corrobo- I'ates the stalement of J>arry to the effect that Spies assaulted IJarry while in the orchard. Thus it will be seen the case made by the people, in several essential features, is greatly strcngtheneil by the testimony of the defendant himself. There is other evidence we have not commented upon, or even 408 AMERICAN CRIMINAL REPORTS. SO much as adverted to, for the reason wo do not consider it of sutliciont inipoi'tance to demand special notice. Takin;^' it as u whole, wo think the evidence not referred to rather stren<^th('ns the case made by that part of the testimony specially luiticcd. Fnnn the for<'(uir.s that on the ."tth of Au;.>'ust, issii, while the deceased was at home, (piietly and peuceahly attendin*^- to his own atl'aiiN, his ])remis('s were unlawfully invaded by a party of ti'espassiu's, the arcuseij l)eina\ iu;^'. as they slK)uld havt> done, they set upon him, and wantonly slew him in the ])i'esi»nce of his own family, without a shadow of justification <»!• excuse, — -and yet w(^ are tohl the;"e can he no convicticm in this ease, because the evi- dence does n(»t show, ht'youd a i-easonahlcMlouht, the very hand that hurKul the fatal missile which sent him intoetei-uity with- out a moment's warning'. So far as thes accused is concerned, under the [troofs in this case, we think it wholly immatei'ial whetlKM" the missile in (piestion was thrown by th(i hand of the accused or of some one of his co-trespassers. That the de- fendant was present, — and, t(» say the least of it, encom'a<^in;4' the pei'pelration of the olfense, — caniu)t be denied, mdess we are pi'e[)ared to set aside the testimony of .Mrs. Lovett ant! liai'ry, two wholly disinterested witnesses, and accept the un- supported statements of the aconsed, which, of course, we can- not do. Ami if the defendant was so present (iucoura^in^^the i)en)etrat!on of the offense, it is hardiv necessarv to sav that, by the express provisions of our statute, lu; is made a princi[)al, and etiually guilty with the one who personally <^ave the fatal blow. l>oth these witnesses, as we have; already seen, swear positively he was not oidy [U'esent, usine- abusive, profaiu) and obscene language, but, even after the rpose, except Avhoi-e there is a manifest abuse of the right. The right of cross-examination is justly esteemed one of the most etlicient means of eliciting the truth, and of exposing fabrication and falsehood. AVe think, where a witness, on a second examination, as to a particular trans- action, states an important fact omitted in his previous account of the mattei', his attention, on cross-examination, may pr^>p- (irly be called to the fact, and ho bo required to explain why the omission was nuulo in his first statement. If, in such case, the fact in (piestion was forgotten, or omitted through inad- vertence, and the attention of the witness was not directed to it, as it often happens, the witness, of course, would so state, and that woidd end the matter. But if the discrepancy was intentiojuil, the cross-examination, as a general rule, would de- velop the fact, and in such case it would, and properly should. 410 AltfERICAN CRIMINAL REPORTS. affect the witness' credit before tlie jury. While we tliink, us Jih'cady indicated, the riiline could not have affected the result. The judgment will be alllrmed. Jadijment ajjinncd. Statk v. BiJ//i:r,r.. (69 N. II., 05.) MURDEU : Principal avd acccsfiori/ — I'hndmcc — Iiistriiclinns — A iiUrfois acquit — Merger — lyesence of drfemimtt — Verdict. 1. MuRnru — rKixcn'AL and AfiM-.ssouv — Kvidknci;.— U|»()n ry before tlio fact to tlie iiuirder of II., cvidciu'c wii.s rcccivctl as part of C.'s tt stiiiiony toiuliiij^ lo juovo tlio iillcKation of (lie iiidkl- iiicnt tliiil (!. nmrdcrctl IT., and for no other inirpose; lnhl. llml as it- (;oini'(>teiu'y for tliat jnirpose, and iln incoiniu'leiicy for any nllnr imr- posc, wore dintinotly (leclared hy tlie <'ourt wlien it was received, flien was no error. 2. Same — Instructions. — A jud^nK'nt will not bo reverHcd bei anse of (lie refusal of tho court to repent a ruling once dl»{inclly made during the progress of the trial. STATE V. BUZZELL. 411 .■5. Same— Autrefois acquit— Merger.— If the defendant was in fact both a principal and an accessory, and if, in law, on the plea of former conviction, ho could not be convicted of either crime after ho had been convicted of the other, he could, on the i)lea of not guilty, bo convicted of either whore he had been previously convicted of neither. •I. Presence of DEi'ExnAXT ix a caimtal case. — When the defendant de- clineil an invitation to tie jn-esent at a view taken by the Jury in a capital ca.se the judfjjment should not be reverseil on that grouiul. ■). Verdict not KiNoixd the DE.iui'.E ok the oeeense.— Uiidi-r a statute which makes the bill of exceptions part of the record, and it appeal's that the <'har;;e was nmrder in the first degree; that tlie evidence was of that degnv! and no other; and that no (piestion was raised as to the degree, a gi neral verdict of murder will be suliicieutly certain as to the degree. Copclant? iuul E<1(jc)'hj, attorneys for the dcfendaut. The Attorn: if-ilencnd., for the stato. niNouAM, J. I. The cvidoiico tondini:;' to show that the de- i'ciHliUit was |»ic.sont at the inurdor, aiding' and iibettiiiii," C, was ollVred and received, not for the j)ni'})ose of showing tliat the •lerendiint was present as a |)i'incii)al, nor for the pin-pose of inlerrino' from liis pr(\scni:0 that he liad been an accessory, but as a pitrt of C^."s testimony, tendin;^- to [)rove the allegation of the indictment that ('. mui'|»te(l l»y the state, sustained by the court, and acted upon by iMith parties, and the whole trial had proceeded, as he desired and ])roposed it should, on the ground that tlieciuestion of hisbciii;/ a ])rinci[ial was excluded from the considei'ation of the jurv. Under the resti'ictions asked by him, adopted by tln^ state, and conlinned by tiie court, there was in the case no evidence to which such instruction couhl be applied. If one who is a principal cannot bo convicted as accessory l)efore the fact in tiie same felony, the reason must be that tiic crime of being accessory merges in the crime of being princi- pal, and the t-wo crinuis become one, as C's crime of assaidt with intent to kill merged in his crime of murder, for the pur- pose of ])reventing the j)unishment of both. Had the defend- ant been convicted as a principal on the former indictinent. STATE V. BUZZELL, the judgment would have been conchisive evidence for the state, and against him, in any other case between the same parties, that he waa a principal. Com. r. M^PUcc, 3 Cush., 181; Com. v. Austin, 97 Mass., 51)5, 507; Com. v. J'Amnn, 101 Mass., 25; State v. Lang, G3 Me., 215, 220; Reg. v. BlaJcemore, •1 Den. Cr. C, 410; Queen v. Ilanghton, 1 El. & Bl,, 501. If, on tliis indictment, the judgment of accpiittal on the former indictment is conclusive evidence for him, and against the state, that ho was not a principal, and if it is evidence for the state as well as for him,— if the estoppel is mutual, — the fact is incontrovertibly established, in this case, that he was not a principal; and it is a point adjudicated between these parties tiiat there was no crime of his in which liis crime of being iiccossorv could merge ; that merger was impossil »le because he was not a ])i'incipal. Tlie question could have been raised by a ploa of his guilt as a principal, a replication of his acquittal, and a denuirrer to the replication. As such a plea Avould be had, it is not necessary to consider whether such a rc[)lication would ])(> good. On tliis indictment fo convicted of either when lie had heen previously convicted of neither. State v. Archer, 54 N. II., 4(1.-), 408; Stffte v. Sni/Jer, 50 K II., 150, 155, 159; State v. Emerson, 53 X. II., «U9; State v. Zeai'/'tt, 32 Mc, 183; State v. Smith, 43 Yt., 324; Com. v. Squire, 1 Met., 258, 204,205; Com. V. J/'/V/v>, 3 Cush., ISl, 185; Com. v. BurJce,U Gray, 100; Com. V. Baheman, 105 Mass., 53, 01 ; Com. v. Bean, 109 Mass., 'iVd, 351, 352; State v. She^urd, 7 Couu., 54; State v. Parmelee, 414: AMERICAN CRIMINAL REPORTS. 9 Conn,, 259 ; People v. Smith, 57 Barb., 40 ; Bamett v. People, nt lU., 3-^5, 3.30, ,331; Peg. v. JSTeale, 1 C. & K., .501; 8. 6'., 1 Den. Cr. C, 30; Peg. v. Button, 11 A. & E. (N. S.), 929, 047, 948; I>ank rrosecutions, liuss. it Ry., 378; 3 Inst., 130; 2 Hawk. r. C, ch. 29, sec. 1; 1 Iluss. CiC, 31; 1 Eisli. Cr. L., sec. COS; Lewis, Cr. L., .')99; Bick. Cr. Pr., 15. If he wei'o accused of connnitting the crimes of arson and murder by tlie single act of ilring' a liouse, tliore would be a ques- tion on a ])lca of former conviction wlictlier lie could be tried for either crime after he had been convicted of the other. A'/r/^ ■y. Cooper, 1 (Jreen (N". J.), 301. If he were acquitted of either on the ground that iu! did not set the fire and was not present ■when it was set, and then, being indicted for the other, pleaded the judijmeut of acquittal, and proved his necessary averment of the identity of the alleged act (1 Cr. Ev., sec. 532; 3 Gr. Ev.. sec. 30; Morgan c. Burr, 58 X. 11., 470), there would be a ques- tion whetlun' he could be twice put in jeopardy for the single alleged act. lie would contend that for all the purposes of the criminal law between the same parties such a judgment was con- clusive, and that the fact of his not being a principal in (iring the house was established by such a judgment acquitting him of either crime, and was an indisputable fact ow an indictment for the other. If he was not such a principal in one case, he could not be in the other. But if he were accpiitted of the murder on the ground that the person alleged to have been murdered was not killed by the lire, or was wrongly named in the indictment {State V. MkUnj, 14 N. II.. 304, 300; ^ Com. v. Cliesleg, 107 Mass., 223; 1 Bennett ct IF. Cr. Cas., 2d cd., 53.5), the acciuittal would not sustain his plea of not guilty to a subsequent indictment for the arson. If, not having been convicted of the murder, he were indicted for the arson, and pleaded that the act ciiarged was murder as well as arson, his ph^a would be had on dcMuurrei', and if, not having been convicted of tiie ai-son, he were indicted for the murder, and pleaded that tlie act charged was ars;)n as well as murder, his plea woidd be bad on demurrer. I'here would be no such merger as v.'ould prevcMit his l)eing convicted of either of the crinu's committed by the single act. At the ti-ial of this case, on the plea of not guilty of an act of an accessory committed at one time and place, proof of another act, committed by the defendant as a princi- WILLIAMS V. THE STATE. 415 pal, at a subsequent time and at a different place, AVould not maintain his plea. III. "VVlictliGv a verdict of guilty of murder, not in terms tinding the degree, is insudicient when the record shows the degree found by the jury, is a question not raised in this case. Section 2 of ch. 204 of the (Sreneral Statutes is applicable only to a case in which the defendant is found guilty of murder. But if the record did not show that the jury found C. guilty of murder in the first degree, it might be argued that the judg- ment against the accessory could not bo capital. It appears by the bill of exceptions, which is a part of the record (Gen, St., ch. 189, sec. !)), that the cliarge was that C.'s crime was murder [n the first degree; tliat the evidence was of that degree and no other; and that no (pu>stion was raised as to the degree. It appears, therefore, with certainty, by the record, that the ver- dict of the defendant's guilt included the finding of C.'s guilt of the first degree. IV. The defendant's non-accejjtancc of the invitation to ac- company the juiy a portion of the time on the view is no ground for reversing the judgment. Excejytions overruled. Foster, Stanley and Clark, JJ., did not sit; the others con- curred. Wrr.MAMs V. The State. (60 Md., 403.) Murder : Polling jury — Void verdict. Whore the jury is polU^il in a murder ease, it is the duty of each juror to say for liiiiiself whether he finds the prisoner guilty of iimrdcr in the first or second der/rce. Each juror must desionatf, DEauKE.-— Where the respcmse of each juror in such ease is simply "guilty," without a de)ii;;iiation of the degree of guilt, such verdict is a luiUity. And the fact that the clerk, immediately after polling the jmy, called upon them to hearken to the verdict as the court had recorded it — " your foreman saith that J. W., the prisoner at the bar, is guilty of murder in the first degree, and so say you all" — (lous not ailtict the question. 416 AMERICAN CRIMINAL REPORTS. Appeal as upon Writ of Error from the Circuit Court for Howard County. • Wm. A. Hammond and Henry E. Wootton, for the plaintill' in error. Charles J. 21. Gwinn, attorney-general, for tlie defendant in error. * RoniNsox, J., delivered the opinion of the court. The i)la'mt[f in error was tried in the circuit court foi- Howard county on an indictiiuMit for murder; and the jury, when tliey came to the bar to (h^liver their verdict, declared l)y their foreman that he was guilty of murder in f/tejird degree. IJefore the verdict was recorded, the plaintiff in error de- manded a poll of the jury; and each juror, when called upon to answer for himself and in his own language, responded "• guilty,'' without specifying the degree of murder. Xow. murder in the iirst degree is ))unishable by death, and murder in the second degree by continement in the penitentiary. The code, therefore, provides that on an indictment for murder the jury shall, if they lind the ])ei'son " guilty," ascertain in their verdict ivhether It he murder In the first or second degree. \ general verdict of " guilty " on an indictment for mui'der is ii f/ad verdict, i\nd on such a verdict no judgment can be pro- nounced. Ford V. Thi' State, \2 Md., 511. The prisoner wns entitled, as a matter of right, to a poll ol' the jury, and he could not be convicted exc(>])t upon the con- currence of each juror. Upon the poll, it was the duty of each juror to say for himself wh(!th(ir he found the prisonei' guilty of murder in the first or second degree. AVe all know that jurors sometimes, upon the poll, dissent from the verdict declared for them by their foreman, and it is for the jjui-posc of compelling each juror to declare his own verdict, in his own language, that a j)oll of the panel is allowed. Upon the \M)\\ in this case, there was not a single juror, who, in finding the prisoner guilty, ascertained the degree of murder as requirful by the code. On the contrary, the verdict was "guilty," and such a verdict is, as we have said, on an indictment for murder. a nullity. The fact that the clerk, immediately after polling the jury, called upon them to hearken to the verdict, as the court had HOPT r. UTAH. 417 recorded it — "Your foreman saith that Jason Williams, the prisoner jvt the bar, is guilty of murder in the first degree, and so say you all," — does not affect the question. It was to this verdict as delivered by the foreman, and to which the assent of each juror was to l)e inferred from his silence, that the plaintiiT had objected, and to test which ho had demanded the panel should be polled. And when polled not a single juror declared the prisoner guilty of murder in the first degree. AVe do not see how this case differs in principle from ForcTn Case, 12 ]\rd., .'iU. TTjnm the poll in that case, the foreman answered, ''(Juilty of murder in the first degree," and each of the remaining jurors responded "guilty," without specifying the degree of murder. And the court held tliis to be a bad verdict, and bad, too, because each juror did not, in answer to the poll, specify the degree of murder. In this case, as in that, the verdict rendered on the poll is a defective verdict, and we must I'overse the judgment and award a new trial. Judgment reversed, and new trial awarded. IIoPT v. Utah. (110 U. S., .574.) MuuDEU: Triers — Evidence — Covfei^sion — Witnesses — Statute in refer- ciiee to. 1. MniDKR — DEfiREE OF, TO BE roiND BY THE .itTiY. — Under a statute which (U'lines the crime of umnhr and lixes the degrees tliereof, it is error for the <"ourt to say, in its cliarf^e to the jury, that the offense, by wlionis(R'ver eonunitted, was that of murder in the first depree. 2. Trieiis — Presence of AtcrsED before. — Under a statute wliieh pro- vides that, '• if the indictment is for felony, the defendant must l)e per- sonally ])n'sent at the trial," the presence of the defendant cannot be disjR'nsed with before triers appointed l)y tlie court for the triid of the snfflci(Miry of a cause of challenge to a juror. 3. Evidence, hearsay. — On the (luestion as to the identification of the body of the j)erH«)n alleged to lune been nnirdered, it is not competent to show by the .surgeon who made the 2v>st-inortem examination of tlic body of a corpse claimed by the ]>rosecu(ion to be that of the murdered person, that the body was identified to liim by another. Vol. IV -27 AMERICAN CRIMINAL REPORTS. Confession of acccsed, when admissible against him. — The .idmis- sibility of a confession of Ruilt is addressed, in the first instance, to the discretion of the court. It must be subjected to careful scnitinj% and received with great caution. "When freely and voluntarily made, it is evidence of the most satisfactory character, but the presumption upon which weight is given to such evidence, namely, that one who is imio- cent will not imperil his safety or j rejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements held cut by one in authority (ouchin;!; the charge preferred, or because of a threat or promise by or in the presence of such person, with reference thereto. ■Witnesses — Statute wnir ii removes common law pisabimty of, not EX POST facto. — Statutory alterations which do not increase the pun- ishment, nor change the ingredients of the offense or the ultimate facts necessai-y to establish guilt, and which only remove existing restrictions upon the competencj- of certain classes of persons as witnesses, relate to modes of procedure only, in v>hich no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Error to the Supremo Court of the Territory of Utuli. Thomas J/an/uiIl and Zee J. S/iarj), for i)laiiifin" in error. 2faurij, assistant attorney -general, for defendant in error. ]\rr. Justice IIaklan delivered the opinion of the court. AVe are now required to determine whether the court of orioinal jurisdiction, in its conduct of the last trial, comniilted any error to tlie prejudice of the substantial rights of the de- fendant. I. The validity of the judgment is questioned upon the ground that a part of the ])roeeedings in the trial court were conducted in tlie absence of the defendant. The Crimiiud Code of Proccdui'c of Utah, section 21 S. pro- vides that, " If the indictment is for a felony, the defendant must be personally present at the trial; but if for a misde- meanor, the trial may bo had in the absence of the defendant; if, however, his presence is necessary for the purpose of identi- iication, the court nuiy, upon application of the ])rosc('nting attorney, by an order or warrant, require the pcr,sonal attend- ance of the defendant at the trial." The same code provides that a juror may be challenged by either party for actual bias, that is, "for the existence of n state of mind which leads to a just inference in reference to IIOPT V. UTAH. 419 llie case tluit lie will not act with ontire impartiality " (sections 239, 241); such a challenge, if tho facts he denied, must bo ti'ied by tliree impartial triors, not on the jury panel, and ap- pointed by the court (section 24^(>); the juror so challenged '• may bo examined as a witness to ])rovc or disprove the chal- lenge, and must answer every question pei'tinent to the in- (juir}' " (section 249); " other witnesses may also be exa.niined on cither side, and the rules of evidence applicable to tlio trial of other issues govern the admission or exclusion of evidence on the trial of the challenge" (section S.'O); "on the trial of the challenge for actual bias, when tho evidence is concluded, the court must instruct the triers that it is their duty to find the cliallenge time, if in their opinion the evidence wan-ants tho conclusion that the juror has such a bias against the party challenging him, as to render him not impartial, and that if from tho evidence they believe him IVee from sucli bias, tliey must find the cluiUenge not true; that a hy[)othetical oj)inion on hearsay or information supjiosed to be true is of itself no evidence of bias suHicient to disijualify a juror. Tlie court can give no other instruction" (seciion 2.") 2); "tho triers must thereui)on find tho challenge either true or not true, and their (leciriion is final. If they find it true the juror must bo ex- cluded" (section 2r.n). It a])pears that six jurors were sejiarately challenged by the defendant for actual bias. The grounds of challenge in each case wero denied by the district attorney. For each juror triers were appointed, who. being duly sworn, were, " before proceeding to try the challenge," instructed as recpiired by seclicm 252 of tho Criminal ("ode; after which, in each case, the triers took the jui'or from the court room into a difFei'cnt room and tried tho grounds of challenge out of the presence as well of tho court as of the defendant and his counsel. Their findings wore rotui-ned into court, and tho challenge, being found not true, tlie jurors so clinllengod resumed their seats among those summoned to try the case. Of the six challeng(nl for actual bias, four Avere subsequently challenged by tho " the trial, in his absence, of those clial- Icui^es of jurors was so iri'e<;ular as to vitiate all t!>e subso- ([uent proceedings. This point is well taken. The Criminal (.'ode of Utah does not authorize the trial by triers of grounds of challenge to bo had apart fi'om the court, and in the absence of tlu; defendant. The specific |)rovision made for the examination of witnesses "on either sin the evidence is concluded," and before the triois nud\(> a linding, to instruct them as to their duties. In the case boiore us tlio instructions to the triers were; given before the latter proceeded Avith the trial of tlie challenges. l?ut all doubt upd l>y counsel, is found foi* this position, in decisions coustruing particular statutes in which the woi'd "trial" is used. Without stop])ing to distinguish thoscM^ases from the one before us. oi' to examine llioi grounds upon which they are placed, it is suHiciont to say lliat the pui'posi? of tla^ foregoing ])rovisions of the Utah Criminal ("ode is, in prosecutions for felonies, to prevent any steps being taken, in the absence of IIOPT r. UTAH. 421 I the accused and after tliocasc is called for trial, which involves Ills substantial ri«>lits. The i'(>(]uii'enient is, not that he must ho j)ers()nall\' j)reseiit at the trial by the jurv, but "at the trial." The code, we have seen, prescribes /^rounds for challenjie by either party of jui'ors proposed. And |)rovision is ex))i'essly made for the " ti'ial " of such challen,i>es, some by the court, others l)y trici's. The prisoner is entitled to an impartial jury ccunposed of persons not discpialilied l)v statute, and his life or liberty may depend upon the aid which, by his personal prcs- eiu'e, he may j^ivcsto counsel and to the court and trici-s, in the selection of jurors. The lu'cessities of the defense may not bo nu't by the ))resence of his eounsel only. For every ])ur))ose, therefore, involved in the i-etpiirement that the defeiulant shall be ])('isonally ])resent at the trial, where the indictment is for felony, the trial commences at least from the tinu^ when the work of impanelin<>' the jury beg-ins. Hut it is said that the riyht of the accused to be ]>resent before; the triers was waived by his failure to object to their retirement from the court room, or to their trial of the several challeng-es in his absence. "We are of opinion that it was not within the jiower of the accused or his eounsel to dis])ense with the statutory reipiirc- nuMit as to his persoiud presence at the trial. The argument to the contrary lUH'ossarily proceeds u|)on the de- prived of his life or liberty, and that the chief object of the ])rosecution is to ])unish him for the; crinu' cliarii'ed. I'ut this is a mistak(Mi view as well of the relations which the accused holds to the public as of the end of human punislunent. The iiatiu'al life, says l)laclvstoiu\ "cannot legally be (lis|)ose(l of or destroyed by any individual, lU'ither by Ihe person himself, nor by any other of his fellow civatures, nu>rely upon their own authority." 1 151. Com., l.').''). The public has an intei'cst in his life and libei'ty. >>either can be lawfully taken except in the mode prescribed by law. That which the law makes es- sential in i)roceeding's involving* the de])rivation of life or lib- erty cannot be dis|)ensed with or aifected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the oll'ense 422 AMERICAN CULMINAL REPORTS. ooininittcd. but the ])revonti»)n of future olTonsos of the samo kind. -I- 151. Com., 11. Such I)(>in<,f the rehition which the citi- 7/JU holds to the public, and the; ((bjcct of punishment for pub- lic wrong's, the le«^-islatui'e has deenu^d it essential to the protection of one whose life or liberty is involved in a prosecu- tion for felony, that he shall bo pci'soiudly present at the ti-ial, that is, at evei'y sta<^'e of the trial vv-Iumi his substantial rights may bo ad'ected by the ])roceedings a absence of the accused. 2. Another assignment of error relati^s to the action of tlit! court in jjci'mitting the surg(H)n who lind made a jxisl-niiifli m, e.xainination of the i)ody of a corpse whicli was claimed by the ])ro:-;ecution to be that of .lohn V. Turner, to state that one; F«)\vl(>r identilled tlu> !)ody to him. The surge(jn testilied that the l>ody examined by him v.m;; on the platform at tlu^ raili'oad (h^pot in Salt Lake ("ity, in a wooden case and coilin. The fe.tlier of the deccMsed t(>stilii>d that he did not communicate p{>rsonally with the surgeon, noi' see that his son's bodv was delivered to him; that he Ii"i it ; the railroad depot in Salt hake ("ity, in a W(jo(len closed in a box; and the fact that the body of the dec . was originally placed in such a colIin was ])roved by a wi, ; wlm ])ut it in the coilin. And yet there was testimony siiowiii^ (h; there was a body in the same depot, at or about the time re- ferred to by the surge, )n, which, having been i)laced in a metal- lic case covered by a wooden box, liad been shipped from EcIkj, by rail, to Salt Lake City; also that it showed injuries " generally similar " to tho de- ceased l(>tt at th(! raih'oad depot was tlie same as that shij)ped from Kc'hcj to Salt Lake City. It was. perhaps, to this part of tlie case the court referred when, in tlic eharge to the juiy, it said tliat the ])rosecutiou "has inti-oduced a vast amount of circumstantial evidence." Be this as it may, it was a material (jucstion before the jury whether the body examined by the sui',ii;'eon was the same one that the fatlier of the deceased liad left at the (le[H)t, and, therefore, the body of tlic ])erson for whose murder the defendant and Emerson were indicted. If it wi;s uot, then all that he said was imnmterial. If it was, the »>vid('iic(> otiicrwise connecting defendant with the death of John K. TunuM', tiie statements of that witness as to the condition of the corpse, the nature of the injuries — whether necessarily fatal oi' not — observable npon the body examined by him, and how the blows, apparent upon inspection of it, were probably indicted, became of great consequence in their bearing upon the guilt or innocence of the defendant of the crime of mur- nsequer.tly his answer could only place before the jury the statement of some one not inider oath, and who, being absent, could not bo su])jected to tlic ordeal of a cross- examination. The question plainly called for hearsay evidence, which, in its legal sense, "denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part on the veracity and ('omi)etency of some other person." 1 Greenleaf, Ev., § 09; 1 Phil. Ev., lil'.t. The general rule, subject to certain well estab- tablished excei>ti()ns as old as the rule itself — applicable in civil eases, and, therefore, to be rigidly enforced where life or liberty is at stake, — was stated in 2[tma Queen v. Hepburn^ 7 ('ranch, 290, 295, to be, "that hearsay evidence is incompe- tent to establish any specific fact, Avhich fact is in its nature 424 AilERICAN CRIiHNAL REPORTS. susceptible of being proved by ^vitnesses who speak from their own knowledge." " That this species of testimony," the court further said, si)eiiking by Chief .fustico JMarsliall, " sui)- posed some better testimony whicli miglit be a(Uluced in the j)articular case, is not the sole grounil of its exclusion. Its in- trinsic wealaiess, its incompetency to sjitisl'y tiie miiul of tlie existence of the fact, and the frauds whicli might be i)racticed under its cover, combine to support the rule that lu.«irsiiy evi- dence is inadmissible." The s[>ecillc fact to bii estal>lish(Ml by proof of what some one else siiid to the sui-geon as to the iden- tity of the body submitted to his examuuitiou was that it was the body of John F. Turner. AVhat Fowler — who was not even sliowtj to have been placed in charge of the body nor commissioned to deliver it to the surgeon, ncu' to be ac(piainted witli the deceased - said in tlie absence of the prisoner as to the identity of the body, was plainly heai-say evidence witiiin th(5 rule rec(»gnized in all the adjudged cases. As such it slioukl, upon the showing nuide, have been excluded. !). The next assignment of error relates to that pru-tion of the eliarge which represents the court as siiying: "That an atrocious and dastardly murder has been committi'd by .some l)ers(m is appaivnt, but in your deli b(!rat ions you should bo careful not to be inlluenced by any hiding." Uy tlie statutes of Utah. " mui'ck^r |)(!r|)('t rated \ty poison, lying in wait, or any other kind of wilful, (h-libcratc, malicious or premeditated killing; or committed in the p 'i|K!ti"ilion of, or attem[>t to ])erpetrate, any arson, rape, burglary <»/■ roldx'i'v; or peri)etrated fi'om a premeditated design, unlawfully and maliciously to ell'ectthe death of any other human b(Mng other than him who is killed; or perp(!ti'at(>d by any act greatly dan- gerous to the lives of otluii's, and evideiu-ing a dcpi-aved mind, regardless of human life, is murdisr in the lirst dcgrci!; and any other homicide, conunittcMl under such (;ii'ctimslaiic(s as would have constituted murd<>r at common law, is murdei- in the second degree." ('om|)iled Laws Utah, lsT;5, p. ."isr*. The ])nnishment ui nuu'der in the (irst degnn^ is death, oi-, upon the recommendation of t\u) jury, impi-isonment at hard labor in the i)enit(!ntiary, at tin; discretion of the court; whih? the pun- ishment for umrder in the second ilegroe is impi'isonnu;nt ut IIOPT V. UTAH. rt25 hard labor in tlio penitentiary for not loss than live nor more than iifteen years. Id., 5SG. In view of tliese statutory ])rovisions, to which the attention of the jury was called, it is clear that the observation ])y the court, that "an atrocious and dasfardly murder has been coni- niitled by some ])erson,'' was, naturally, regarded by them as an instructicin that the olfense, by whomsoever committed, was murder in tlie iii-st degree, whereas it was for the jury, having been infoi-med as to what was murder, by the laws of Ttah, to s;iy wlu>tlu>r the facts made a case of murder in tlie lirst degree or murder in the seccnid degree. It was competent for the judge, under the statutes of Utah, to state to the jury "all matters of law necessary for their in- foi-mation," and, couseipiently, to inlorm them what those stat- utes dt'lined as murder in the lirst degree and murder in the secdiid degree. J.atvs of Utali, 1S7S, p. 1:>0; Code of Crim. ]'r(»c., >,',^ L*^.")— k Ihit it is (^x|)ressly declaivd by the Code of Criiuiiiai Procedui'c^ that, while lie may "state the testimony and tU'clare tiie law," he "must not charge the jury in respect to matters of fact." Sec. :i.')7. The error committed was not cuivd l)y lh(( ]>revious ()l)servatiou of the judge that by the lausof I'tiih the jury are "the sole judges of the credibility of the witnesses and »»f tiie weiglit of the evidence and of the facts." It is rather more correct to say that the elfect of that ol)servatiou was destroyed l>y liie statement at iiie conclusion of the charge that tiie murder, by v, liomsoever committed, was an atrocious and dastardly one, and therefore, as the jury niiglit infei', in view of tlu^ hmguage of the statute, was mur- der ill the lirst (h'gree. The [)risoner had the right to the judg- ment of the jury ujioii the facts, uninHuenced by any direction from the court as to the weight of evidence. For the reasons stated the judgment of the supreme court of tlie territory must bi> revei'sed and the case remanded, with directions that tiie verdict and judgment bo set aside ami a new trial ordered. The assignments of error, however, present other cpiestions of iiiiportance, which, as they are likely to arise upon another trial, we deem projier to examine. 4. The Jirst of these (piestions relates to the action of the court in permittin>«-Carr, called us a witness for the defense, to 420 amehican criminal reports. give m evidence a confession of the pi'isoner. That confession tended to implicate the accused in tlie crime charged. Tlie adinissibihty of sucli evidence so hirgely depends npon the special circumstances connected with the coni"es:;ion that it is dillicult, if not impossible, to formulate a rule that will com- prehend all cases. As the question is necessarily aihlresscd, in the lirst instance, to the judge, and since his discretion nu;st ho controlled by all the attendant circumstances, the courts have Avisely forborne to mark Avitli absolute precision the limits of admission and exclusion. It is unnecessary, in this cas(\ that Ave should lay down any general rule on the su])ject; for we are satisfied that the action of the trial court can bo sustained upon grounds which, according to the weight of autlinrity, are suillcieut to admit confessions made by the accused to one in authority. It appears that the defendant Avas arrested at the railroad depot in Cheyenne, Wyoming, by the witness Carr, wh;) is a detective, on the charge nuulo in the indictment. Tiic falln'r of the deceased, pi'escut at the time, was ujuch excited, and may have made a motion to draw a revolver on the w it- ness m;;y have ])revented him from drawing a wcaniu. and thiidvs he told him to do nothing i-ash. At the a!'re^;t a lai'ge crowd gathered around the defendant: (^ii'r hurried him n[\' ti» jail, sending Avith him a policeman, while he remaine(l behind, out of the hearing of the policeujan and the defendanl. In two or three minutes ho joined them, and immediately the accused commenced making a confession. What conversation, if any, occui'red betwei-n (he latter and the ])oliceman during the brief period of two or three minutes jn'eceding the confes- sion Avas not known to the witness. So far as witness knew, the bill of exc(>|)tions stales, ''the confession Avas voluntary and unindueiu'ed by hopes of reward or f(Mr of piuiishmeiit; Ik; held out no indueenient, and did not know of any induee- nnmt IxMiig held out to defendant to confess." This was all the evideiu'e showing or tending to sliow that the confession Avas A'oluiuary or uninlhienced l)y hope of reward or fear of punishment. While s(nu<' of the adjudged cases indicate distrust of con- fessions which aj'o not judicial, it is certain, as observed by IIOPT v. UT.VH. 427 Baron Pnrlcc in Hcrjhm r. DaM. 2 Den, Cv. Cas., 430, 445, tliat the I'lilo against their admissibility has been sonietin^os cavi'iecl too fai', and in its application jnstico and common sense have too fi'e(]uently boon saci-ificnl at the slirino of mercy. A con- fession, if fi'cely and voluntivvily made, is evidence of the most satisfactoiy character. Such a confession, said Eyro (C. B., 1 Leach, 2^V.)\ "is deserving!: of the liighest credit, because it is ]iresun\ed to flow from the stroiii:;-(>st son-;o of g"uiU, and, tliei'O- fore, it is admitted as ])ro()f of tlie crime to wliich it refers." Ek'mentary writei-s of authority concur in sayin<>' that, ■while from the very nature of such evidence it must be sub- jected to carefid scrutiny and received witli ,;rreat caution, a (lehbci'ate, voluntary confession of ^-uilt is anion;.'' the most elfectuid ])r(»ofs in the law. und constitutes the stron'i,-e.;t evi- dence ayainst the party ma.king' it that can Ik; iviven of tho facts stated in such confession. 1 Greeideaf. Ev., -;$ L*15; 1 Arc]d)old, Cr. PL, 1-2.5; 1 rhillipps, Ev., 5:i;5-:U; Starkio, Ev.,73. But the ])resum])tion npon which Avciglit is !j;iven to such evidence, numely, that one wlio is innocent will nof imperil his safety or prejudice liis interests by an mitriie stntenient, ceases when llie confession appears to have been made either in con- siMiueiu':> of inducements of a teu»poral na'ure, liehl out by one in autliority, toueiiin,i>' the char_v;e preferred, or bt^eause of a tlu'eat oi- promise by or in Ihe pr(\-!{Mice of such person, which, opci'ating' upon tlie tears or ho]ies of tlu) accused, in refei'enec to the chai^g'e, (le[)rives liim of tliat freedom of will or self-control essential to mal:e his confc^ssion vohmtary within tlio meaning of tlio hiw. Tested by these conditions, tlu-re secuis to have been no reason to e.\clud(^ the confession of tlie accused; for tho existence of any sucli inducements, threats or pi'omises seems to have been n(\g'atived by tlie stato- lueut of the einaimstances iiiuh-r which it was made. But it is coiiteiKhHl that the court ei-red in not excluding this proof until the prosecution produced the policeman and proved that nothing was said or done by him, in the ;ibsence of Carr, wliii-h unduly inlluenceil the making of the confession. Tho argument is that, jiossibly, the ]ioliceinan olfered such induco- ineuts, or made such threats or promises, that the prisoner, Avhen joined by CaiT, was not in a condition of mind to niako 428 AMERICAN CRIMINAL REPORTS. a confession wliich tlie law would deem volimtiiry. This posi- tion, although plausible, is not sustained by authority', nor c(ju- sistcnt with sound reason. The circumstances narrated by tlie Avitness ])roved the confession to be voluntary, so far as iuiy- tliing- was said or d(me by him on the immediate occasion. There was nothini,' disclosed which made it the (hity of tlie court to require, as a condition precedent to the admission of the evidence, that the prosecution should call the policeiuiiu and show tliat he had not, when alone with the accused, unduly inlluenced him to make a confession. In Pn.i- V. Chirrs, 4 CaiT. cV: I'ayne, L'lM; X C, .'} Kussell on Ci'imes (Sharswood's ed.), 4.'>I, 4.'):*, the i)rosecution pro[)osc(l to give in evidence a confession made by the accused before the coroner. It ap])earin,<'' that a magistrate had ]>reviously an intei'view with the prisoner, it was suggested that, iis li(> may have b(>en told liy that oHicer that it was lu'ttei' to con- fess, the prosecution should call him. Hut the court said that, ■while it would l)e fair in the prosecutoi's to call th(? magistrate, it would not compel them to do so, but, if they Kussell (»n Crimes, id.. 4:!:*, it appeared that a jn-isoner, being in the custody of two constables on a charge of arson, a third peison went into the room. The prisoner imnuvliately asked him to go into anotln r room, as he wished to speak to him. They went into tiiat room and the pt-isoner made a, statement to that person. It was contended that tiie constabl(>s ought to be called to prove that they ha may have induced the prisoner to make the statement; otherwise lie must, in all cases, call the magistrates or constables before whom or in whos(> custody the prisoucM- has been." In Jiex V. \V(ifii('i\ ;{ Iluss. on Crimes (Sliarswood's ed.), ^'.Vl, the ])risoner, when before the committing magisti-ati', having' been duly cautioned, madc^ a. confessioii, in which he alluded to one j)reviously made to a constable. It was i-e- niarked by the C(mrt that although it was not deenunl neces- Bary that a constable, in whose custody a prisoner had been, IIOPT V. UTAH. 429 sliould 1)',^ onllod in ovoiy cnso, yet, in view of tlio reference to liini, he should be called. The constable bein;;- called proved that lie did nf)t nse any undue means to obtain a confession, but he disclosed the fact that he had i-eceived the prisoner from another constable, to whom the jM-isoner hvA made some state- ments. As it did not a]ipe;ir that any confession was nuido to the latter, and only a])peared that ;i statement was made that mi<^ht either be a ccmfession or a denial, or an exculpation, the court would not riMjuire him to be calh^l. S. ('., lIosco(>'s ('rim. ]']v. (7th Amer. ed.), ~)4~^>. Jiosco(( (p. 'u>i) states the rule to be, that, "in order to induce the court to call another olllcer in whose custody the ]U'isoner has been, it must appear either that souK^ inducement has been used by or some express reference made to such oHicer." JJussell says: " Vov the purpose of in- tnuhicin;."' a conH^ssicm in evidence, it is unnecessary, in gen- eral, to do more than negative any ])romise or inducement held out hy the person to whom the conl'es.sion was made." A"ol. 3, p. 4:{'l. While a confession made to one in authority should not go to the jury unless it app(Nirs to the court to have been volun- tary, yet as the plaintilf in ei'ror chose to let its admissibihty rest upf)n the case nuidc by the detective, without any intima- tion that it would be dilferent if the ])oliceman was examined, and since there was nothing in the circumstances suggesting collusion between the onicers. we do not thiidc the court was bound to exclude the confession n[)on the sole ground that the 1)()1 iceman was not introdu(!ed. 5. The last relates to the action of the court in admitting, as a witness in behalf of the prosecution, Emerson, then serv- ing (mt a sentence of conlinement in the penitentiary for the crime of murder, and the judgment against whom had never been reversed. ]Iis testimony tended to implicate the defend- ant in the crime charged against him. Objection was made to his competency as a witness, but the objection was over- ruled. At the time the homicide was committed, and when the indictment was returned, it was provided by the criminal j)rocedure act of Utah of ISTS, that " the rules for determining the competency of witnesses in civil actions are ap[)licable also to criminal actions and proceedings, except as otherwise pro- 430 AMEPtlCAN CRIMINAL REPORTS. vidod in this act." Ami tlio civil pvacticc act of that territory provided, section 374, tliat ''all persons, withont exception, otherwise than as specified in tliis cha])ter, may l)e v/ilnesscs in any action or proceeding-. Facts which, by the eomnion law, would cause the exclusion of witnesses, may still beslKnvn for (he purpose of affecting their credibility." Compiled L:i\vs T'tah, .")(>.'». Further, section 378, that " ]iersons against whom judgment has been rcnderepend upon the inquiry whether they were, when called to testify, excluded by the rules determining their comi)etency in civil action ;. If competent in civil actions, when calh'd, they were, for that reason, competent in criminal proceedings. The pai'pose was to have one rule on the subject applicable alike; in civil and criminal proceedings. But it is insisted that the act of 1SS2, so construed, would, as to this case, be an ex j^od facto law, within the meaning of the constitution of the United States, in that it permitted the crime charged to be established by witnesses whoui the law, at the time the liomicide was committed, made incompetent to testify in any case whatever. The provision of the constitution which prohibits tin* slates from passing ex ptMfado laws was examined in J\fhuj v. Mis- soui'i, 107 LT. S., 221. The whole subject was there fully KOPT V. UTAH. 431 and carefully consitlored. The court, in view of the adjudged cases, as well as upon principle, held that a provision of the constitution of ^lissouri denying to the prisoner, cliarged with murder in the first degree, tlio benelit of the law as it was at tlie commission of offense — under wliich a conviction of mur- der in tlie second degree was an acquittal of niurdor in the 'first degree, even though such judgment of conviction was subsecjucntiy reversed — was in conllict with the constitution of tlie United States. Tliat decision proceeded upon the ground that tlie state con- stitution (le[)rivod the accused of a substantial right which the law gave him when the offense was committed, and, therefore, in its ap[)lication to that offense and its consequences altered the situation of the party to his disadvantage. 15y the law as established when the oU'ensc was committed, Kring could not have been punished with death after his con- viction of murder in the second degree, whereas, by the abro- gation of that law by the constitutional provision subsequently adopted, ho could thereafter bo tried and convicted of murder in the lii-st degree, and subjected to the punishment of death. Thus the judgment of conviction of murder in the second degree was de])rived of all force as evidence to estaitlish his absolute immunity thereafter from punishment for murder in the lirst degree. This was held to be the deprivation of a substantial right which the accused had at the time the alleged olfense was committed. But there are no such features in the case before us. Stat- utes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to llieir passage; for they do not attach criminality to any act ]>feviously done, and which was innocent when done; nor ag- gravate any crime theretofore committed ; nor provide a greater l)unishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof wliich was made necessary to con- viction when the crime was committed. The crime for which the present defendant was indicted, the ])unislimeut prv^scribcd therefor, and the ([uantity or the degree of proof necessary to establish his g'uiltj all remained unaf- 482 a:\ierican crdiinal reports. footed by tlio subsoqucnt statute. Any statutory altovation of the Ic^gjil rules of evidence which would authorize conviction iil)on less ])roof, in amount or dei^ree, than was re(|uired when the olfense was coniniittod, nii^ht, in respect of that olfense. be obnoxicnis to the constitutional inhibition upon er pout fmio laws. I'ut alterations which do not increase the punishniont. nor ohauiie the ini'ee of proof essential to conviction — only remove existin<; restrictions ui)on the ooni- petoncy of certain classes of ])ers(ms as Avitnesses, relat(\ to modes of pi'ocedure only, in which no one can be said to h;ive a vested right, and which the state, upon grounds of ]nil)lic policy, may regulate at pl(?nsure. Such regulations of llic mode in which the facts constituting guilt nuiy he placed before the jury can b(nnad(Mi)iplical)le to ])rosecutioiis oi'ti'iiils thereaft(M' had without reference to the date of the connnissioii of the oll'onse chariicd. Jndymi'nt rti'e):s(ul. NoTF.. — I'lrliiiiiiiar;/ inquiry. — Tlu> iiKjuiry whetlu'r confessions wero inado under such cireunistiinces as to nialie tlicni comitetcnt cviilencc is a preliminary one to be niado by tlie court, in whicli a full investi,i:jation slioultl be liad, with a view to determine the competency of the ])ropose'l confi's;.ions. and it is for the juiIko, after such investi};atioi), to determine wliether the confession, or any part of it, shall be admitted in evidence or n(jt. Such an investigation o\iji;ht not to be made within the hearing of the jury. SimmoHS V. State, 61 Miss., 21:5. •' While the jury is a component of the vourt, it is not Ji part f>f its duty to determine upon the comjietency of evidence, nor is it necessary that it should be present while the jiidj^o examines a witn(>ss to tletcrmiiu! upon the competency of his tc.-itimony." Kniincr v. State, 01 Miss., l.")S; Hall r. State, O.TOa., 00. It is a (piestion for the jmlge, in every case, to determine whether or not the alleged words of inducement were aitually such as to inchice tho prisoner to make a confession of guilt. 1{. v. Garner, 1 Den. ('. C, !]2!). Admissions by a jn'isoner chargoil with murder, induced i)y a promise from the i)rose- cuting attorney, that, if the prisoner would tell what he knew of tho nnu-der. he would do all he couM to save him, are not admissible; nor can state- ments made by the ])risoner to other jx^sons before such promise is with- drawn be received against him. Simmons r. State, 01 Miss., 213. The words, "you had better tell the truth," have sometimes been lield or said to render a subsecpicnt confession inadmissible, because they would probably bo understood to mean that it would be better to say somethin;r. and til ;t "tho truth" in the mind of tho speaker implied a confession of HOPT r. UTAH. 433 ffnilt The Qiiecn r. Jarvis, L. R., 1 C. C, 90, 09; Rcrfina v. Fennel! , 14 Cox, C. C, 607; Begina r. Doherfij, 13 Cox. C. C, 23. But similar words, wiien not implying that the speaker expected a confession, but only the truth, have been held or said not to render a subsequent confession inail- uussible. The Queen v. Reeve, L. R., 1 C. C, 303; S. C, 12 Cox, C. C, 179; Ite'jina v. Baldey, 5 Cox, C. C, r)23-529. The words, " you had better own up," were held to be equivalent to saying, "you had better confess," sind therefore rendered a confession inadmissible. Com v. Nott, 135 Ma.ss., 272. When it apjx^aied that in the middle of thij night, after the officer who liad arrested the prisoner had retired for rest, the prisoner, instead of being allowed the same privilege, was visited by three persons in succession, whose mission appears to h.ave l)een to obtain confessions by impressing upon the mind of the prisoner that it would be better for him and he would get off easier by making a confession. None of tliese iwrsons was the ofiicer in charge ; but their admission to the cell at such an unreasonal)le hour car- ried with it an implication of the officer's consent to their admissimi, etc. Mr. Justice Cooley, commenting ujioii this state of facts, in delivering the opinion of the court in People v. WoJeott, 51 Mich., 612, says: " No reliance can he placed upon admissions of guilt so obtained ; for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them. The cases of Fitatc v. Phelps, 11 Vt., 110: S. C. 34 Am. Dec, 072: Shite v. Walker, 34 Vt., 290; Heetor v. State, 2 Mo.. 100: S. C, 22 Am. Dec, 454; Stater. Bosticic, 4 HaiT., 503; State v. Guild, 10 N. J., 103: S. C, 18 Am. Dec, 404; Spears v. State, 2 Ohio St., 583; Coii). v. Tai/lur, 10 Gray, 190; Smith V. State, 10 Ind., 100; Miller r. People. 39 111., l.-iT; Cain v. State, 18 Tex., 387; Darin i\ State, 2 Tex. App.. 588; Van liuren v. State. 24 Miss., .-.12; Jordan v. State, 32 Miss., 382: People v. Barrie, 49 Cal.. 342: State v. York, 37 N. H., 175; Miller v. State, 40 Ala., 54; Porter v. State, 55 Ala., 95; State v. Whitfield, 70 N. C, 3.")0, :uid State v. Hagan, 54 Mo., 192, may all be cited in sujiport of tlic \ icw.s here expressed, and the list might easily te iiicrc.'i.sed very considerably. The ciuse of Flagg v. People, 40 Mich., 700, has sufficient resemblance to the one before us to render what is there said ill iK>iut, and we refer to it for a further expression of our views on the gen- eral subject." CorpuH dclieti. — A confession is not evidence in any case m the absence of i)r()of of the corpus delieti, but that fact need not be proved beyond the jKissibility of a doubt, but is to be found by the jury like any ether fact in the case. Gray v. Com., 101 Pa. St., 380. See, also, Williams et al. v. The People, 101 111., 382. Mental condition of accused at time of making. — Wlien confessions of the accused are introduced in evidence against him, if qualified to testify under the statute in his own behalf, he ought to be permitted to explain his mental condition at the time he made the confessions, and the inducements and motives operating upon his mind, in order that the jury may be afforded an opportunity to judge of their proper value as evidence. Simmons v. State, 61 Miss., 243. See, also, Com. v. Brayman, 136 Mass., 438. Vol. IV — 28 434 AMERICAN CRIMINAL REPORTS. Keenan v. The People. (104 111., 385.) New trial : Newly discovered evidence. New trial granted when witness discovers that he was honesti^t MISTAKEN IN HIS TESTIMONY AS TO CERTAIN JfATERIAL FACTS.— On the trial of ono for murder, the only evidence connecting the accused with the crime, which was committed in the city of Cliicago, was the testi- mony of a saloon-keeper of that city, who testified to facts and circum- stances pointing very strongly towards his guilt or participatio-.i in the homicide, no witness seeing the murder or identifying the party who committed the act. The prisoner denied all the material facts in tins witness' testimony, and testified to being absent in the country on the night of the murder, when the sal(X)n-kecper said lie was in his place of business, about 10 or 13 o'clock, the accuse«l stating that early in the morning after the murder took place he boarded a freight ti'ain going into the city, as it was moving slowly, and conci^iled himself in a car, the contents of which ho descrilied, to some extent. In this he was in some measure corrol)orated by other witnesses as to the facts and cir- cumstances detailed by him, and as to the contents of one of the cai-s on that morning train, thus presenting a question to the Jiu'v ns to whose story and version were true, or ontitlefi to belief. To rebut the prison- er's statement, witnesses were called who testirK;d that the car doors on such freight train were shut, and sealed with tin sejils, which, on exuin- in.ation, after the arrival of the train in Chicago, were found to in no evidence of having Iwen broken, the witnesses exi)ri'.«siiig tlie opinion tliat the car could not have l)een entered without disturbing the seals so as to be readily detected. The jury found the accused guilty, thereby giving no credit to his evidence. On motion for a new trial, allidavits of several persons were protluced, one of them being a witness who had testified for the people, who, after exiwrimenting with car doors fastened and sealed as the cars on the train sj)oken of were, state, when he gave bail and was enlarged; that Kee- nan was in the same jail with him, until about three weoks before the witness got out on bail, but not in the same cell ; that some time in June, 18S0, Keenan was taken from the jail to the penitentiary; and on the morning of the da}' Keenan was talcen away, Keenan stopped at the door of witness' cell, and hiinded to him certain ])ai)ers and a package of clothing to take home, saying, when he gave the papers: "Kead that, and don't let any one see it." These notes the witness pro- duced, and they were read to the jury, and were as follows; "Friend Lot: When you Avrite to me sine your name Frank Younjir, In all vour letters send vour address if them ])iirtys should turn up, let me know by saying business is bad, and if they should trow up their guts you put a mark on the end of the paper like the one is on this but not so big, just so that I can see it. If them parties sliouhl turn up, and say that thing is yours and that you gave it to mo, you keep still and I will say it is mine and get you out of it, if I got to put myself onto it don't fail to write and sine vour name Frank voung by by." " Friend Lot : tell Kitt Mcquaind and Frank McQuaid to 438 AMERICAN CRIMINAL REPORTS. write to me good by lott I liope that you will get out you may have ray best regard to all friends. You dont noe how bad I feel as bad as a stub-tail mule in fly tinie. I wish to god that you was out lott I will feel weary until you will get out good by." Ilabercorn further testified that he and Ivcenan, while in jail together, often talked about the TIcnsley murder; that ho was afraid the revolver would bo traced to him, anm- mitted. "Wallace, of Avhom llabercoi'u spoke as playing pool Avitli him, was not called by the prosecution. I'eing called by tho defense, he testified that he had been an em[iloye(! of the linn of Fuller & Fuller for six years; had known the witness Ilabercorn for about three or four years, and utjcd to be in his saloon nearly every night ; that on the night of the murder (November 12, 187D) he played pool in Ilabercorn's saloon, and it must have been along towards midnight before he left, and KEENAN r. TEE PEOPLE. 439 mn' that he does not remember of seeing Keenan there that night ; that he supposes if lie had come up and spoken to Ilabercorn he woukl have seen liim, but might not remember it. If there had been (puirreling he would remember it. If Keenan had interrupted the game to borroAv a revolver of Ilabercorn, and soon after again interrupted the game to get a bottle of ■\vhislcy, it is likely it would have attracted his attention, — but he saw no such thing as that. Witness said his memory was not very good. Keenan testifies, in his own behalf, that he had known Ilabercorn some eight months before the date of this murder; thai lie spent much time at his saloon; that he knew Conners and Kilcy, and associated with them; had roomed awhile with Kilcy, and had been with them at Ilabercorn's ; tha't he saw Ilabercorn on the 11th and 12th of N^ovember, 1ST9, — on the 12tli in the forenoon and also about 4 or 5 o'clock in the after- noon, — and that he was again .it the saloon and saw him there about 1(» o'clock on the morning of the 14th of Xovembcr, shortly before he was arrested on the bridge, but he sweai's ho was not at that saloon on the evening of the 12th in company with Kilcy and Connei's; that Ilabercorn never lent to him a rcvol'.er in his life; that he met Ilabercorn often while they were in jail at the same time; that lit had sent notes by Ilaber- corn to other fellows around the jail when Keenan was con- (incd ill his cell and Ilabercorn was working in the halls; that he never saw the notes read in evidence until they were pro- duced on the trial ; that he never wrote such a thing in his life; that the handwriting of the notes is not his, although in some respects it is like his writing, but something different; that he never wrote tl:em or gave them to Ilabercorn; that he did giv(; Ilabercorn his clothes, and may have given him a note with them; that ho had given him a note about a burglary,— the Finiger matter, — and he thinks the end of it was ''good l)ye." It was that burglary to which he (witness) had pleaded guilty, and he did so to keep Ilabercorn out of trouble; that Ilabercorn and others were with him when that burglary was committed on tho 11th of Xovember, 1870; that it is true Ilabercorn brought to him his clothes after the return of wit- ness from the penitentiary, but nothing was said about the Ilensloy murder, and that he does not know where Riley or Conners is. AIMERICAN CRIMINAL REPORTS. Keenan also testified that in the afternoon of the 12th oi November, 1879, at about 4 or 5 o'clock, he left Ilabercorn's saloon and went to the corner of Kinzio street and Westein avenue, and between G and 7 o'clock heboiu'ded a freight train and went to Oak Park, a station about nine miles Avest - Oak Park, they cauglit a f roiglit train there. It was moving slowly, and they got on about 4 o'clock on the morning of the 13th; that they went into a freight car through the end doors, between the cars; that that car was not em})ty, but contained some stove-pipe and some bales or bundles of some kind, con- taining something soft, it a[)[)eared like; it was dark in tlu> car; they staid in the car till it readied (Miicago, about (! or 7 o'cloclc in tl»e morning (it was about dayliglit), and they got f»ff on Kinzic street, west of Western avenue, and that al'tci' getting off tluit train that morning, he, Keenan, came d jwii on Ilalstead street, near Jackson, and there got his breaklast. The Avitness also testified that he loitered aliout tlie city through the dav of tlie l-'Uli, and or that nljAit lie lod-icd at his own room on Harrison street, coming in about S or !' o'clock, and that on the 1-ttli, about noon, Avhen ciossing the river, going oast, he was ai-rosted on the bridge, and aCtci-u few days' confinemont at the station was coinmittod to jail upon two charges of burglary, and has been a pj'isoner ever since. In corroboration of Koenan's story as to his whoroabouts on the night of the 12th and the nioi-ning of the l.'Uluthe tiaic of the mui'der), he produced crodiblci witnesses, oni[)ioyeos ol the railroad coni[)any, who testified, in substance, that freight trains did pass on the railroad leading fi'om Chicago to Oak Park, towards Oak Park, on the night of iho, I'ith, and returned to Chicago through Oak Park on the morning of the l"th about the time indicated bv his testimony; and by other wit- nesses, that about one and a half miles south of Oak i'ark, on KEENAN V. THE PEOPLE. the roadside, tliere Avas at that time a house occupied by a family, and that at that ])hice there was then kept alierco dog, mucli yiveu to barking in a threatening manner at niglit; and that at tiiat time there was an invalid in that family whoso Avants rctpiired attention frequently through the night, and that it was the custom on such occasions to have a light iu the room occM[)iod by the invalid. To fiirtlier corroborate this story of Iveenan, Mr. Birdsall, a clerk in the freight department of the company oi>crating the railroad in quosiion, testilied that in June or July, 1881, the attorney employed in Keenan's defense called upon him with a memuraiulum, and at his request witness examined the record to ascertain the contents of the freight cars which came in through Oak Park on the train indicated on the morning of November 10, ISTi', and that to do so he had to search books of that year wliich had been ])ut away for safe-keeping; that on examination it was fountl tiiat a freight car, lunnbered r)(!l4, of that train contained, among other freight, twenty- eight biigs rs of freight cars in such a manner that, in their opinion, the door so sealed could not be opened and closed again Avithout ^naking the violation of the seal apparent to an inspector, and also showing that the cars of the train which brought in on that morning this car num- ber 5G14 were duly inspected at Park station, and also at the station on State street, and the result of the inspection then and there Avas entered on their seal records, and that from those seal records it appeared that both at Park station and at the State street station, the end doors of the car numbored 5014 Avere both scaled Avith a tin strip, in the manner described by the Avitnesscs, and that the seals Avere on the doors on both ends of the car in good order on the arrival of the train at both of these stations. On this evidence it became absolutely necessary tliat the jury should determine Avhothcr Ifabercorn or Kconan had spoken the truth in tlie matters Avherein their testimony is at variance. The jurv found tlie prisoner guilty, and thereby nec- essarily found that his (Keenan's) story of his trip to Oiik Park Avas manufactured and false. It cannot be known that they would have so found in the absence of the testimony iven to Ilabercorn bv Keenan in tli<^ jail are probably forgeries, and not in the handwriting of Keenan. Xotliing Avas presented on the hearing of the motion tending to break the force of tliese alKiUivits, and no reason is sng- gested why tliey are not entitled to belief. The trutliiulness of Waite is conceded by the prosecution, wlio produced liim as a witness. If it be not true that tliese seaknl cars can be thus opened without detection in that way, it is a fact easy of proof, "We must believe it is true. If this be so, it is plain that Kee- nan (lid not have a fair trial before that jury. Ilis story had at the trial to bo Aveighod against that of Ilabercorn by the jury, Avhile under the belief that it Avas impossible that this car could have been opened and closed in the Avay he stated Avith- out immediate discoA'ery of the fact that the car had been oponed. This of itself Avas decisive against the trutli of liis story. The motion for a neAV trial ought to have been granted. It Avas error to deny it. For this error the judgment of convic- tion is reversed, and the cause renuuuled for a new trial. Jvdijment reversed. Walker, Sueloox and Scuolfield, JJ., dissent. Note. — Tlio decision in the aliovo v\wv will coninicnd itself to the pinfes- sion 08 eminently just under its own peculiar circumstances. The witness, U4: AMERICAN CRI5IINAL REPORTS. on the trial of the cause, testified to a conclusion which he himself believed to he true, derived from his daily observations in the usual and ordinary course of his busineas. He had not experimented as to whether the car doors could be opened without appreciable injuiy to the seals, and in this respect the case ditlers from tlie one wherein a witness would make affidavit that he had knowingly testified falsely upon the trial. See the following recent cases wliich sustain the views expressed in the nia.jniity ojtinion: Ileskeiv v. The f^'ate, 14 Tex. App., COO; 'The State v. Uui-- tis, 77 Mo,, 207. State v. Dame. (CO N. H., 479.) Nuisa;;ce : Disorderly house — Character of its frequenters. 1. Nlisance — Immatkuial AVKiniENT. — It is necessary to prove mattm- of descripti«m only where the averment, of which the descriptive matter forms a part, is material. 2. Same — Dis()Ri>KRi,v housk — Chauacteu ov those who frequent it.— The indictment being for keeiniig a disorderly house, an aveniicnt therein that " in the sjiid house c<'rtiiin evil-disposed jiersons, as well men as women of evil Jiame, lame and conversation, to eonu' together," etc., is immaterial — miglit be rejected as sur^jlusaye, and it was, lliere- fore, uimecess^uy to prove it. Cojxiand t5 Edtjerhj, lor tlie di'tVtuliuit. I'ke Attovney-Gcnert'l and Solicitor, for the state. Stanley, J. Tlie validity of the defendant's exception de- pends on \\'Iietlier there was a variance between the alleviations in the indictment and the proof. The iiHlictnient was for keeping jt disoiderly lioiise; and it contained an avernient lliat '"in the said lioii.se certain evil-disposed [x-i'sons, as wel' men as women, of evil name, fam(> and conveisatioii. to coitic to- gether, did caTise and procure, and the said ]»cinoiis in the said lionse, at unlawful times, as well in the night as in tiic day. on the days and times aforesaid, there to lie and remain, drinlvini;. ti[)pling, cursing, swearing, «]uarreling and otherwise iiiisheiiav- ing themselves unlawfully, did permit and suH'er." If lliis averment was unnecessary, the reipiest was [tropei'ly rel'iiscd. It is necessary to prove matter of d('scri})tion only when the averment, of which the descriptive matter forms a part, is material. Bish. Cr. Prac. sees. 4S4, IST; Stat)' r. (ojip, V> N. ir., 212; State e. Ballr,/, ;31 X. H., r>21; AV.r >'. .)/,/>/, I Doug,, 193; Hex v. rij>pctf, IT. R, 2?,r>. STATE V. DAME. 445 Ecjccting tho averment recited, and the indictment charges, with proper allegations of time and place, tlic keoj)ing of a dis- orderly lionso, to the great injury and common nuisance of all tlie peaccal)]e citizens of tho state there residing, inliahiting and passing, contniry to the statute, etc. The olfcnse is keei)ing a disorderly house. The allegation rejected is of facts which go to show that tho general cliarge is well founded, or, in other words, a statement of the evidence upon which tho charge is based. Hawkins says that "an indictment chiii'ging a man witli a nuisance in respect of a fact Avliich is lawful in itself, as the ei'ecting of an inn, etc., and only becomes unlawful from the particular circumstances, is insuUicient, nnless it sot forth some circumstances which make it unlawrul in its own nature, as keeping a bawdy house. 2 Hawk. P. C. (ed. 1824), 311. It is no more necessary to allege the facts which go to show it to bo a disorderly house, than it is to allege who are disturbed thereby, and this, it is said, is unnecessary. ICinfj v. P('oj)/e, S3 N. Y., 587. In tho case of a common scold, it is not necessary to prove the expressions used. It is sutlicient to pi'ovo generalh^ that she is always scolding. J'Anmii i\ Stiuirt, 1 T. II., 748, 7r)4: Rexv. ^';//,"Russ. & U., 431; Clavhv. IW!a/>}, 2 Atlc, 330; 1 IJuss. Cr., 43(1; J?ex v. Rof/icr, 1 B. & C, 272; l^ex r. Bivon, 10 Mod., 32(1; L\'.v v. Mason, 1 Leach (4th ed.), 487, 401, 403; 2 Hawk. P. C, ch. 25, sec. 50; Dav. Prec. Ind., 140, 108; Shtto r. BaUrij, 21 X. IT., 343; !^tnt is aimed is not a nuisance in itself, but becomes so only by reason of particular circumstances, this special matier must 1h» shown (2 Pish. C. L., sec. 813^ but tho n\\) is otherwise if the thing is m itself a nuisance. The avcr- ni(H\t referred to might have been rejected as surplusage. It was, Iheri'foro, not necessary to prove it. Judgment on the verdict. Tt.AKK, .1,, did not sit; tho others concurred. N'vnK, — Kvidonoe of general n^putation of a house is admissible as tending to show the fact that it is kept as a bawdy house. The Territory v. Stone, 2 Dftk., 155. 44C AMERICAN CRIMINAL REPORTS. In rb Rolfs, Petitioner. (30 Kan., 738.) Nuisance : Ordinance — Habeas corpus — Trial by jury — Appeal. 1. The police judge of the city of Leavenworth has exclusive jurisdittion over all oiTcnses against the city ordinances, and the city 1ms iK)\vor to jninish them by fine, imprisonment, or lal)or on the streets. 2. The keeping of a hog-peii may bo a nuisance, and as such a violation of the criminal law, and punishable under the statute. 3. Wliere a party is held under process issued upon any final judgment of a court of competent jurisdiction, the inquiry in habeas corpus is limited to the validity «f the judgment, or to the question whetlter it is stayed or has spent its force; more irregularities will not justifj' a di.schoi-ge. 4. The legislature cannot deprive a party of his right to a ti'ial by jury, in a criminal charge, before a jtistice of the peace. Such trial must be given cither there or on appeal, the constitution guarantying a trial by jury in all prosecutions, 5. There Ixiing no specific provision in the charter of the city of Leaven- worth concerning appeals, where the fine is $20 or less, such right may be foimd under the laws regulating the proceedings in justices' coiu-ts in criminal cases, and the petitioner is entitled to his appeal in this ca.se upon filing a proper bond. C. The appeal being formally denied by the police judge, the failure to fur- nisli the bond should not i>rejudice the petitioner, if he supply the omis- sion promptly. At Chambers. 77. T. Green and W. Green, for petitioner. il/. 3nies Moore, for respondent. Brkwer, J. This is an application in habeas corpus brought by the petitioner, alleging that he is illegally restrained by one W. D. Shallcross, marshal of the city of Leavenworth. The respondent returns that he holds the petitioner in custody by virtue of a commitment issued by the police judge of the city of Leavenworth, reciting u conviction of the petitioner on a charge of locating and maintaining a nuisance, and a sentence to pay a fine of $10 and costs. Upon tlie heai'ing before nic, the facts of the case have been fully developed, and a nuinbor of (picstions presented and argued. As a sulKcient statoment of the fact.?, it may be siiid that the petitioner was brouglit befoi'e the police judge on a charge of locating and maintuiu- ing a nuisance, the particular nuisance complained of being a IN RE ROLFS, PETITIONER. 447 hog-pcn ; that upon the calling of the case for trial he challenged the surticicncy of the complaint, which challenge was overruled. He entered a plea of not guilty and demanded a trial by jury, which demand was also refused. The case was tried before the police judge, and the petitioner found guilty and sentenccil to pay a fine of $10 and costs. All these facts appear on tlie docket of the police judge. A commitment was issued on the sentence to the city marslial, who placed the petitioner in the city jail, and has since compelled him to work on the pub- lic streets. Immediately after the conviction the petitioner de- manded an appeal to the district court, which was refused during the same day. For the purpose of prosecuting pro- ceedings in error in the district court, he tendered a bond to the police judge, ■with sufficient securities, which bond the police judge declined to receive or approve, or in any manner to stay the o]ieration of the sentence. This states all the facts nec- essary to present the questions discussed by counsel, and in reference to many of them I have little doubt, and shall simply state, in a word, the propositions which I think dispose of those questions: 1. Wliere a party is held under process, issued upon any final judgment of a court of competent jurisdiction, the incpiiry in habeas corpus is limited to the question, was the judgment void, or has it been stayed, stqierseded, or otlierwise spent its force. No mere errors or irregularities in the proceedings will justify a discharge. Code Civil Proc, § 071, par. 2; E.v parte Pltil- lips, 7 Kan., 4S; Ex parte Nije, 8 Kan., 100; In re Scrafonl, 21 Kan., 735; In re Pettij, 22 Kan., 477; In re GohhmUh, 24 Kan., 757. 2. The police judge lias exclusive original juris:liction over all offenses against the ordinances of the city. Citv Charter, §51. 3. The ci'v has power to punish any criminal violation of its ordinances ly line, conlinement in the city prison, or lal)or on the streets. Chapter 17, ^§ 417, 418, 410, Dassler and Shafer's Compilation of City Ordinances, i;]2. These sections are within the powers conferred by article 3, § 11, par. 37, of the act in- corporating cities of the first class, passed in 1S81, and amended by chapter 34, Laws 1SS;>, and do not trespass upon any con- stitutional provision. For it is undoubted that the legislature us AMERICAN CRIMINAL REPORTS. may punish any criminal violation of its statutes by confine- ment and hard labor, and may likewise delegate to municipal corporations similar powei's in reference to violation of their ordinances. 1 Dill. Mun. Corp. (3d ed.), §§ 411, 428, Avith au- thorities cited in the notes. 4. The keeping of a hog-pen may be a nuisance, and, as such, a violation of criminal law; one which was punishable as a nuisance at the common law, and is punishable under our stat- utes. Steph. K P., §§ 2350, 2303; City Charter, § 11, par. 11. 5, Said paragra]>h 11 authorizes the city council " to make regulations to secure the general health of the city; to prevent and remove nuisances; and to make, prescribe and enforce regulations for the clearing and kee[)ing in order of all slaughter-houses, ... or other places where offensive matter is kept or permitted to accumulate." Under this grant of power the city council may ]>rovide for punishment by fine and imprisonment of any party guilty of a nuisance, which, like the keej)ing of a hog-pon, may bo dangerous to the public health. 1 Dill. :N[un. Corp. (3d ed.), §§ 375, 370, and cases cited in the notes. Passing by these general propositions, which, to my mind, are clear, and which dispose of many of ttio questions dis- cussed by counsel, I come to the only matter Avhich presents any dilficult}' or causes me any embarrassment. That question may be thus stated : The constitution, in its bill of righlf? (soctioii 5), provides that "the right of trial by jury shall be inviolate," and section 10, that "in all prosecutions the accused shall be allowed to appear and defend in person or by counsel; to de- mand the nature and cause of the accusation against him; to meet the witnesses face to face; and to have conpulsory proc ess to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jur}' of the county or district in Avhich the offense is alleged to have been committed." Again, the maintaining of a public nuisance, Avhich is of a character to endanger the public health, is a criminal act, and a prosecution therefor is a prosecution for a criminal olfense, and not a proceeding to collect a debt or enforcement of a mere municipal regulation, and therefore is to be controlled by the ordinary rules concerning criminal prosecutions. ]Veif.~> I- V. Concordia, 14 Kan., 4GG. Again, the city charter, sec. 53, IN RE ROLFS, PETITIONER. 449 authorizes summary trials by the police judge, without a jury, of all violations of city ordinances, and by section 00 denies an appeal unless the fine assessed exceeds $20, or the imprison- ment one month. ITence, the petitioner having been lined only $10, has, notwithstanding his demand for a public trial by an impartial jury of the district, been convicted of a crim- inal offense and punished in defiance of the constitutional guaranty. Can such a judgment be sustained ? Was he con- stitutionally entitled to a jury? If so, was the deprivation of tliis constitutional right a mere irrefjularitv, which did not avoid the judgment, and is not subject to review in haheas cor- pus? In the case of C/fi/ of Fmpoi'id v. Volmer, 12 Kan., 022, it was held by the supreme court that a summary trial without a jury, in a municipal court, could be sustained if the defend- ant lia60 AMERICAN CRUHNAL REPORTS. vision that in all pt'osccntions the accused shall be entitled to a speedy public trial by ixn impartial jury, Kow, the Pennsyl- vania coustitution reads that in prosecution by indictment oi- infonnation the accused shall be entitled to a speedy publi(^ trial by an imparti.'il jury. And of similar import is the })ro- vision in other constitutions. Obviously, thi!4 rcsti'icts the right of jury trial to cases which at common law were prose- cuted by indictment or information, and these, as is well known, were offenses of the higher grade, while ordinary petty offenvses were tried upon a simple complaint. Such a constitutional provision is not as bi'oad as ours, which says, iv all proHecutiotis. I know that there is to-day nuich hostih* criticism on juries, a criticism intcnsilied by the not infrecpK^nt failure of juries to ignore prejudice and res|)ond to the de- mands of absolute justice. But whatever theories I may have individually as t<» the proi)riety of jury trials, or what notions I may have of the wisdom of the system, I may not as an officer of the law disregard its j)Iain i>rovisions. Ifti h,f M'i'ipio 4'iit IS as to a judge the beginning and tlui end, the ject a party ti> trial befoiv a jus- tice of the peace <»n a criminal diargi? witluMit a right of triiil by jury, either there or on api)eal. No more can it authorize a municipal coi'poration, one of its creations, to j)uuish a party for a criminal matter witixbrfnight by the state tliroctly or any por|)oi'ation created by the state, without in some way and before some tribunal being secure a trial by jury, and the cases on this subject cannot all be rc(!onciUMl, The general ])rinciples applicable to its solution, however, are plain. Violations of municipal by- laws pr(>per, such as fall within the description of municipal police regulaticjns, as, foi' exam|)le, those concerning markets, streets, water-works, city otllces, etc., aiul which relate to acts and omissions that are not eud»raced in the general criminal legislation of the state, the legislature may autliorize to be |)rosccuted, in a summary mii.nnei', by and in the name of the corporation, and need not i)rovide for a trial by jury. Such acts and omissions are not crimes or misdemeanors to which the constitutional rights of trial by jury extetul," And again: "Where the actor omission sought to be pun- ished by imi)risonment under a municipal ordiiumce is in its nature not peculiai'ly an offense against the municipality, but rather against the public; at large, where it falls within the l(*gal or counnon law noti(m of a Ciime or misdemeanor, and especially where, biding of such a nature, it is emb'-aced iti the (Viminal (^xle of the state, there the constitutional guaranties int(in(led to siscure the lilnM-ty of the citi/.en, and the right to a trial by jury cannot be ('vaded by the nature of the powers vested in the municipal corporation or the nature of the juris- diction conferred up(m the municipal courts," l>ut the ((uestion now occurs whether the defendant is, by tlie statutes, denied an appeal to the district court. There is ('(M'tainly no express denial; but it is claiuunl that no appeal is giv(uj, and, therefore, that the summary conviction before the 452 AMERICAN CRIMINAL REPORTS. police judge is final. Section GO of the charter provides that. " in all cases before the police judge wherein the line assessed exceeds >y20, or the inij)risonnK'nt one month, an appeal may be taken by the defendant." This is tlie single provision of the charter in respect to appeals. By implication, and upon the rule, crpressio nnius exduslo alterhifi, it is contended tlitit an appeal in a case like the one at bar is denied, the line being under $20. Conceding this to be a fair construction of tlio section, if there wore notliing else toucliing on the matter, yet. as such a construction would overthrow some of the powois conferred by otlier sections of the charter upon tlie ])olici' judge, and is therefore to be avoided, if })ossible, I tliinlc a way of escape from the difficulty may be fouml witiiout resorting' to any judicial legislation. Section 0."> provides that, "in iill cases not specilically herein provided for, the process and |)i«)- ceedings shall be governed b}- the laws regulating ])rooeodin^s in justice's court in criminal cases." Now, there is no spei-ilic provision in the city charter concerning appeals in cases wIkmc the line is i?iio or less. They are neither, in terms, granted nor denied. The only denial claimed is one by implication, and from the silence of the charter. There being no spi'cilic provision, 1 think we may fairly look to the statute concci'iiin^- proceedings in justices' courts in criminal cases. Here we find appeals allowed, but under somewhat ditferent conditions, and. in that respect, establishing a dilFerent rule from that pre- scribed by the charter in the cases to which it applies Tliat statute controls this case, provides an appeal, and, under tlie rule laid down in ('itij <>f Knqxn'la v. J^o/jihr, ,suj>ra, auatams the validity of the [lowers conferred upon the police judge. I think, therefore, without any judicial legislation, it can prop erly be held that the petitioner was entitled to an appeal; and ii entitled to an appeal, and if he has taken the proper st(>ps to secure such a[>peal, the judgment and sentence must be held to have been vacated, and he thereaftei" hn properly held in custody. It is true the testimony fails to show that an a))|ieiil bond was tendered within time, but, as an apjieal was foi'ni.illy denied by the police judge, I think the petitioner should not be prejudiced l>y such omission, jn-oviding one be tcn«lei'ed immediately. My conclusion, therefore, is that the petitioner IS entitled to a discharge, upon tendering an appeal bond, with THE PEOPLE V. MULLER. 45?, suflBcient securities, conditioned according to the requirements of the justices' act in criminal cases. Tlie conclusion which I have announced has been readied with some embarrassment and considerable doubt, and if tlie city desires to have the opinion of my associates on the supreme bench, the (piestion will be reserved for their consideration at tiie ensuing September term, and the case continued for final (irder until after its adjournment; the petitioner in the mean time being- required to give his personal recognizance to appear at such time and abide the further order. The Pkople v. Muller. (9G N. Y., 408.) Obscene literatukr : Evidence — Experts. 1. Expert testimony not admissible, etc.— On the trial of an indictment uiiiliT tlio clause of the Penal Code wliich makes the selling, loaninp;. j^ivin^ away or showing of an ohscene or indecent book, writing, pict- ure or i»liotograi)h a misdemeanor, the question of obscenity or inde- cency is one that falls within the range of ordinary intelligence, and does not rerniire the testimony of an expert in literature or art. 2. Same. — On the trial of an indictment for selling obscene and indecent photographs, the defendant called as a witness an artist, and asked him wiiether there is a distinguishing line, as understood by artists, between pure and obscene and indecent art. Tliis was objected to and excluded. IMd, no error. If the qui'stion was intended simply to bring out the fact that pictures might be either decent or indecent, and tiiat the canons of jiuro art would accept tlioso of one class and reject the others, it was properlj' rejected an an attempt to prove a self-evident proposition; but if the (piestion was intended to be followed by proof that, according to the artist's standanl, the photograplis w^ere not obscene or indecent, it was propi'rly rejected, aa such proof was incompetent. It was likewise held tliat tiio intent of tlie defendant in selling the ph()tograi»hs was not an element in determining his guilt, and that therefore evidence of intent was incompetent. Ai»pcul fr(jm judgment of tlie General Term of the Supreme Court. John D, Toicnxond, for appellant. John Vincent, for respondent. AxDHKWs, J. Tbe first count in the indictment charges the defendant with selling indecent and obscene photograplis, rep- 154 AMERICAN CRIMINAL REPORTS. resenting nude females in lewd, obscene, indecent, scandalous and lajcivious attitudes and postures, and in the second count charges him with having in his ])ossession divers lewd, scandal- ous, obscene and indecent photogra])hs of the same chaiactor, with intent to sell the same. Section 317 of the Penal (Jodo declares, among other things, that a person who sells, lends, gives away, or offers to give away, or shows, or has in his pos- session with intent to sell or give away, or to show, or adver- tises, or otherwise offers for loan, gift, sale or distribution, an obscene or indecent bock, writing, paper, picture, drawing oi- photograph, is guilty of a misdemeanor. The evidence on the trial in support of the indictment related to nine photographs produced before the jury, which were proved to have boon sold by the defendant in the onfinary course of his employ- ment as a clerk in a store for the sale of books, pictures and ])hotographs, in the city of New York. The record ctjntiiins no special description of the photographs, except that it ap- pears that they represented nude females, and were j)h()t<) gra])hic copies of painting's which had been exhibited in tiu! salon in Paris, and one of them at the centennial exhibition in Philadelphia, and that among them were pictures »lesignat(!!l '•La Asphyxie," "After the liath,"' and "La IJaigneuse." The jury by their verdict of guilty necessarily found tliut the photographs were obscene and ind 'cnt. The exliil)its were produced on the argument of the apj-eal at the general term, and the court in its o})inion expressed its concurn'iKu! with the linding of the jury, saying that they might very W(^ll have found that the photographs were both indecent and oh scene. They were not ])ro(luced in this court, and we aro unable to pass uymn the (piestion of their obscenity or indc cenoy from an inspection of tlio pictures themselves. If the defendant's counsel desired to insist in this coui't that, the photograplis were not in fact indecent or obscene, and that tiiis a])poared from the photographs themselves, and that the finding of the jury was thei'cfore without evidencie to su|)i)urt it, it was his duty to have furnished them as a ])art of tlui record, or to have insiste;l upon their production by the dis triet attorney. Upon the case as presented wo must assume that the pictures were of the character described in the indict- ment. But exceptions were taken by the defendant on the trial THE PEOPLE V. MULLER. 455 which render it necessary to consider to some extent the scope of tiie statute, the method of tryin;:^- the issue of obscen- ity and indecency, and the relevancy of proof of an innocent intent on the i)art of a defendant changed with a viohition of the statute. It is to be observed tliat tlic statute does not un- dei'take to define obseene or inck^cent pictures or publications. liut tlie words used in the statute are themselves descri[)tive. They are words in common use, and every person of ordinary intelliroved that one of them had been publicly exhibited in Phihuleli)liia. But this did not, as matter of law, exclude a linding by the jury that the photograplis were obscene and indecent. It is not impossible, certainly, that the public exhibition of indecent pictures may have been permitted in Paris or Philadelphia, and the fact that a picture had been publicly exhibited would not necessarily determine its character as decent or indecent. In- deed there is but little scope for proof bearing u])on the issue of decency or t)l)acenity, beyond the evidence furnished bj' the picture itself. The question which was excluded, if intended to bring out the fact that pictures might be either decent or indecent, and that the canons of pure art would accept those of one class and reject those of the other, was proj)erly ovef- ruled as an attempt to prove a self-evident proposition. If the (piestion was intended to be followed by proof that, according to the standard of judgment atlopted anil recognized by artists, the photogi'aphs in question were noi. obscenlaco of the jury, and the latter would have no function to discharge. The testimony of experts is not admissible upon matters of jutlg- TUE PEOPLE V. 3IULLER. 467 ment within the knowledge and experience of ordinary jury- men. 1 Greenl. Ev., 440. Tlie question wlictlier a picture or writing is obscene is one of the plainest that can be presented to a jury, and. under the guidance of a discreet judge there is little danger of their reaching a wrong conclusion. The opin- ions of witnesses would not aid the jury in reaching a conclu- sion, and their admission would contravene the general rule that facts and not opinions are to be given in evidence. The defendant's counsel at the conclusion of tlie evidence made several requests to charge, which were denied by the trial judge. The leading purpose of those requests was to induce the court to lay down the rule that the intent of a defendant in selling a picture claimed to be indecent and obscene is an important element in determining his guilt. The statute makes tlie selling of an obscene and indecent picture a misdemeanor. There is no exception by reason of any special intent in mak- ing the sale. The object of the statute was to sup[)ress the ti'utfic in obscene publications, and to pi'otect the community against tlie contamination and pollution arising from their ex- hibition and distribution. It would, Ave conceive, be no answer to an indictment under the statute for the sale of an obscene picture, that it was sold to a person not liable to be injured by it, or that it was a picture, in respect to execution, of dis- tinguished merit. In Jicf/ina v. Jllcldln, siqn'a, the question was whether a curtain book was obscene and liable to seizure for that reason under an English statute. It ai)peared that it was i)ublished to expose the alleged immoralities of private confession in the Roman Catholic church. But the court hav- ing found that passages purporting to be extracts from the \vritings of Iloman Catholics were obscene in fact, it was held that the intent of the publication, however innocent, was no answer to the proceeding. We do not doubt that whether a publication is obscene or not may in some cases depend on circumstances. For example, a medical book for the instruction of medical men may con- tain illustrations suitable and proper as a part of the work, but which, if detached and published alone for circulation, might be deemed indecent within the statute. In the present case there was no evidence to which the requests to charge were applicable. The pictures in question were kept for general 458 AMERICAN CRIMINAL REPORTS. sale, except tliat thoy were not sold to boys undor twenty -one years of a',^o. The requests, as applied to the cas(\ were ji series of abstract propositions having no relation to the issii(\ and Avere on that ground, independently of any other consid- eration, pro})erly denied. We find no error in the recoi-d. Tlie case seems to have been fairly tried, and was submitted to the jury in a careful charge, and with the verdict of the jurv this court cannot interfere. The statute is an important one. and while it should have a reasonable, and not a sti-ained, con- struction, at tlie same time it ought to have such a jn'actical interj)retation by the court and jury as will subserve the im- portant purpose of its enactment. The judgment should be alllrmcd. All concur. Juclfjmcnt affirmed. State v. BurrrAix. (89N. C, 571.) Ordinance: Toinis and cities — lidailing. 1. Town ordinancos must be subordinate to and harmonize with the f;oii- eral law of the state,unless special ix)wers ai'e conferred upon tlie town by its charter. 2. Therefore, in the absence of special authority over the subject, it mtx held that an ordinance prohibiting the sale of liquor within the cdrpo- rate limits of a town is void, as the general law allows retailing upon obtaining license. Attomeij-GciK'ral, for the state. Mr. J. C. L. llarr'tH^ for defendant. IMkukimox, J. .Municipal ordinances and by-laws must al- ways be subordinate to and harmoni/.e with the genei-nl laws of the state, unless in cases where special powers are conferred upon the municipality to pass ordinances inconsistent with the general law. Nor can numicij)alities, by ordinances, create offenses known to the general laws of the state, and provide for the punishment of the same, unless they have s|)ecial au- thority so to provide, conferi-ed either by some general or special statute. Hence, when an offense is indictable in the STATE V. BRIITAIN. 459 superior court, a city or town ordinance, making the same act, or substiiiitially tiio same act, an offense punisluible by lino or imprisonniont, sucli ordinance is void. It may bo tliat the legislature lias power to authorize a town to make an offense against the state a separate offense against the town, but this could bo done only by an express grant of authority. Towtt of WasliliKjtoii V. IIavimo)t(l, 70 N. C, y;>; State v. Lamjston, 88 N. C, (;!J2. The statutes of this state make it indictable to soil spirituous licpiors by a measure less than a (piart witiiout Jirst having ob- tained a license so to do. The Code, g^ 107(5, 15701. These statutes embrace and apply to "the town of Henderson ville." It ai)i)ears from the record that that town has an onlinance that prohibits, within its corporate limits, the sale of "spiritu- ous, vinous aiul malt li(piors;" declares such a sale a imlsance^ and that all |)(>rsons offending against it shall be punished by a fine, or imprisoned in the town prison. Now, "the town of Henderson ville" has no special power conferred upon it by law to prohibit the sale of liquors; it cannot do so, certainly, as to retailing spirituous liquors by a measure less than a (piart, by virtue of its general powers, be- cause the general laws of the state have provided that persons may so retail there, lirst having obtained a license so to do, and made it indictable to retail without a license. The ordinance in question, first, prohibits a business allowed and I'egulated by the general law of the state; secondly, it creates an otfense and provides the punishment therefor, em- l)raced by an offense punishable by the like general law. It is plainly inconsistent witli and undertakes to supersede a law of the state. It is therefore void. It nuiy be said that if the ordinance is void as to spiritnous iicpiors, it is not so as to vinous and malt liquors. We are not (;alled upon to decide that question. The proof was that the defendant sold liquors, and it must be taken that he sold spirituous licpiors. Most generally the term "liquors " in.;.iiea spirituous liijuors; and besides, if the prosecutor insisted that the defendant sold vinous and malt liquors, the onus was on him to show the fact. The warrant is informal, but it is unnecessary to decide the ;<;'H*;vif ', 460 AMERICAN CRIMINAL REPORTS. question raised as to its validity, as the exception we have con- sidered disposes of the case. Tliere is no error, and the judgment must be affirmed. Let this be certified. No error. Affirmed. Edwards v. Co^raoN wealth. Andekson v. Same. (78 Va„ 39.) Pardon: Ita effects. 1. PARDONBYGOVEnNOR.— The governor's pardon relieves the offender not only of the punishment annexed to the offense of whioh he vas ton- victed, but, also, of all penalties and consequences, inclusive of the ad- ditional punishment imposabic, not byjoason of tlie scnti'Tict) for the second offense alone, Juit in consecjuence of that sentence a\td the sen- tence in the former case, v.x'ccpt, liowever, political disabilities growinj; out of his conviction and sentence. Such pardon does not restore an office forfeited, or rights that have become vested in otiiers by reason of tlie conviction and sentence. li STATKStENT. — E. wius couvictcd in corporation court of D. of felony in M.nrch, 1883, and sentenced to confinement in the jienitentiary. In July, 1883, lie was arraigned in the circuit court of Uiclimond, ui)on an information alleging that he had been before convicted and sen- tenced for a like offense, to wit, in March, 1881. He pleaded a full p.-u- don from the governor for the first offense, granted in A])ril, 1882. A demurrer to tliis i)lea was sustained, and lie was senteiict'd to a furtlicr term of five years in the penit'Mitiary, under Co. 371), he was arraigned in the circuit court of the city of Kichmond, upon an information filed by the attovne} for the c«jiamon\voalth, alleging that he had been convicted of a felony in the said corporation court on the 0th day of ^larch, 1881, and sentenced therefor to iuiprisoinnent in the peniten- tiary. Tlie information was filed upon information given to the said circuit court by the superintendent of the penitentiary, in whose custody the accused then was in pursuance of the sentence pronounced by the said corporation court at its March term, 188;}. The accused, upon his arraignment, pleaded in bar of the proceedings a full pardon of the governor for the lirst offense, which was granted on the 25th day of April, 1882. The attorney for the common wealtl demurred to the plea, and the demurrer was sustained, and the accused afterwards sen- tenced to undergo a further confinement in the penitentiary for the term of five years, commencing from the expiration of the term of confinement he was then undergoing. The single question now to be determined relates to the operation and effect of the pardon relied on. A pardon is defined to be a remission of guilt. Its effect, under the English law, is thus stated by Ilawkins in his Pleas of the Crown : " The pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy of all other consequences of the crime that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good Avitness notwithstanding the attainder or conviction; because the pardon makes him, as it were, a new man." In the early case of CmJdlngton v. Wi/h'ns, Ilobart, 81, the plaintiff brought an action against the defendant for denounc- ing him as a thief. The defendant pleaded that the plaintiff TK'^- i'ROPttrtY OF m l^.W SOCIETY 462 AMERICAN CrJMINAL REPORTS. had been guilty of stealing six shoop. The plaintifT replied that after the felony, and before the jmblication of the oljjee- tionable \vors and forfeitures annc^xed to the offense for which the i)ardon is granted, ami to give him a new credit and capacity. The same ])rinciples apply to a panhm of the president of the United States, (hiifcil Stati's v. Wilm/i, 7 Peters, 15(». In En parte (utrlaml^ 4 Wall., :>."»l). the supreme court held the petitioner, having received a full pardon for all offenses by him committed arising fi'oiu ])articipation in the rebellion, was re lieved from all jienalties and disabilities attached to the com- mission of his offense, and was placed beycmd the reach of punishment so far as the offense was concerned; that it was not within the constitutional power of congress to inflict punisli ment beyond the reach of executive clemeiu'v, and accordingly that ho could not be excluded, by reason of the offense for which he had been pardoned, from continuino- in the enjoy- ment of the right previously accpiired to api)ear as counselor and attorney in tlnit court. In delivering the opinion of the court, Afr. Justice Field said: '' A i)ar(lon iviu-hes both the punishment prescribed for the offense and the guilt of the olfenn from attaching; if granted after conviction, it removes the ])enalties and disabilities, and re- stores him to all his civil rights — it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation: it does not restore ollices forfeited, or property or interests vested in others in conse- quence of the conviction and judgment." And the same EDWARDS V. COMMONWEALTH, 463 learned judge, in dolivcrinfr the opinion of the court in the later case of Varlme v, Tlie IDuted Sto.te.% 10 AVall., 147, said: "There has been some difference of opinion among the mem- bers of the court as to cases covered l>y the pardon of tlie president, but there has been none as to the elFect and opera- tion of a pardon in cases wliere it apphes. All have agreed that tlic pardon not merely releases the olfender from punish- ment prescribed for the olfense, but that it obliterates in legal contemplation tiie offense itself." In Ofthoni v. United Sty the constitution of Virginia, the govemor is empowered to grant reprieves and pardons after comj'id'ion, except when the j)i'ose('ution has been carried on by the house of delegates, and to renut fines and penalties in such cases and under such nil(?s and regulations as may be i)rescribed by law. lie is also (Mn|t(>wered to remove political disa1)ilitios consequent upon convicticm for offenses, and to commute capital ])unishment. ('oust., art. IV, 5, It will tiius be seen that certiiin restrictions are here imposed ii|)on the exercise of the i)ardoning i)ower whicli are not found in the laws of England or of the United States. r>ut subject to these rest I'ict ions, the effect of the governoi's ])ardon must \\o. determined by the Siimo rules which apply to a pardon by the British crown or by the president of the United States. By the pardon in question, ther(>t'ore, the plaintdf in error was not oidy mlieved of the ])unishment annexed to the offense for which he had been convicteuld be afterwards sentenced to the penitentiary in this state. And that additional puuishmer*^ ha , been imposed in this case, not hy reason «>f the sentence for the second offense alone, but hi conseciuence of that sentence ond the sentence in the former case, Both causes must exist together to produce the effect contemplated by the statute; in the absence of either, no case is made for the imposition of the additional punishment the 464 AMERICAN CRIMINAL REPORTS. i ^'Jttiily. f.'- statute prescribes. But as the first offense was in legal con- templation blotted out, and its consequences removed by tlie pardon of the governor, it must be regarded, for the pur|)()S(\s of this case, as though it had never been committed. It fol- lows, therefore, that the judgment of the circuit court, sustain- ing the demurrer to the prisoner's plea, is erroneous and nuist be reversed. A like order will be entered in tlie case of Anderson v. Tin- Commonwealth^ in which tlie same question is involved, and was heard with tliis. The judgment was as follows: This day came again as well the plaintiff in error by liis attoi'uey, as the attorney -general on behalf of the common- wealth, and the court, having maturely considered the tran- script of tlio record of the judgment aforesaid and tlie arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said circuit court erred in sustaining the demurrer to the special plea of pardon of the said plaintilF in error, ami in rejecting the said plea, and in overruling the said plaintiff's motion in arrest of judgment, and in sentencing him to confinement in the })enitentiary for the term of five years, commencing from the expiration of the term of confinement therein to which he bad l)een sentenced by the said corporation court of the town of Danville, on tlic day of ]\rarch, 1883; and that, instead of doing so, the said circuit court ought to have overi'uled the said denuu-rcr and sustained the said plea, .and dismissed and operation of section .']G02 of the code. 2. The affidavit the plaintiff in an action of detinue is re- quired to make serves its purpose when the order of seizure is made. It is purely cavtlonfiry — a pledge of good faitli in the comniencoment of the suit, required to prevent an al)useof the extraordinary power to disturb and displace the possession of tlie defendant, before he has had the opportunity of being heard in defense of it, and before judgment ])ronouncing it wrongful. When the order is made, the force of tlio affidavit is exhausted, and it is not evidence in any subsequent stage of the suit. To constitute indictable perjury, the matter or thing sworn to must bo material to the issue, or to the point of inquiry. The mnferiality is not, as is argued by tlio counsel for appellant, confined, when the oath is taken in a judicial proceeding, to matters which are involved in the issues of facts formed during the coui-se of the proceeding. Nor is it essen- tial that the affidavit should be capable of being used as evi- dence on the trial of such issues. It is enougli that the mattei- falsely sworn to is material to the jwint of inquiry at the time it was made. Oaths are of frequent necessity at the com- mencement or during the progress of judicial proceedings. Avhich are matters of evidence only to procure the exercise of some particular power from the court, or from some officer charged with the exercise of power, and which can exert n(» influence on the final judgment, or in any subsequent stage of JACOBS V. STATE. 467 the proceeding. Thus, formerly, an affidavit to hold a defend- ant in civil case to bail may have been false, and may have been made at the commencement, or pending the suit ; or bail may falsely swear, or others may falsely swear as to their suffi- ciency ; or an affidavit may be falsely made to procure a writ of arrest, or as foundation for proceeding to compel another to keep the peace. The force of the false oath, as matter of evidence, is exhausted when the point of inquiry is determined. Yet, in each case, the essential quality of indictable perjury, m((ferJi(lity to the point of inquiry, exists. Hawkins, bk. 1, ch. 00; Pratt V. Price, 11 Wend., 127; State v. Johnson, 7 Blackf., 41); Whit" V. State, 1 S. & M., 149. All such false oatlis tend to the abuse of the administration of justice, .and are indictable perjuries, though not affecting the principal judgment to be rendered in the cause. A plaintiff, in an action of detinue, Avlio is without riglit or title which will support tlie action, and Avho wilfully and corruptly swears falsely to an affidavit of ownership, thereby procuring an order of seizure from the officer issuing the summons — an order the officer cannot Avithhold if the plaintiff also executes a proper bond — is guilty of legal perjury. J5. It is said by Mr. Chitty that, " in former times, indict- ments for ])orjury were exccodingly prolix and d;uig(M'ous," And it seems certain that at common law it was deemed necessary the indictment should with great particularity set fortii the proceeding in whicli the oath was taken, and the character and jurisdiction of the court or officer administering it. Prosecutions for the offense were embarrassed by this par- ticularity, and as is recited in the preamble to the act of 23 Geo. 2, c. 11, § 3, sometimes thereby the guilty were en- abled to escape unpunished. 2 Russ. Cr., 021; 2 Bish. Cr. Vw, § 901. The evil, it was the purpose of that act to remove; ami it dispensed with the necessity of setting out in the indict- ment the pleadings, or any part of the record or proceedings, or the commission or authority of the court or person before Avhom the perjury was committed; declaring it sufficient to set forth the substance of the offense charged upon the defendant, and by what court, or before whom, the oath or affirmation was taken, averring such court or such person or persons had com p(^tent authority to administer the samo, with proper averments to falsify the matter or matters wherein perjury was assigned. 468 AMERICAN CRIMINAL REPORTS. This act was adopted in terms by the territorial legislature in 1807 (Aik. Dig., 118, § 22), and it was part of the Penal Code of IS-tl (Clay's Dig., 445, § 35). The present statute is not materially variant, and reads: "In an indictment for per- jury, or subornation of perjury, it is not necessary to set fortli the pleadings, record or proceedings with which the false oath is connected, nor the commission or authority of the court or pei*son before whom the perjury was committed ; it is sufficient to state tlie substance of the proceedings, the name of the court or officer before whom the oath was taken, and that such court or officer liad authority to administer it, Avith the neces- sary allegations of the falsity of the matter on which < le per- jury is assigned." Code of 1870, § 4813. It is said by Judge Gaston, the principal effect of the act of 23 Geo. 2 "was to substitute in the indictment the general averment of a compe- tent authority to administer the oath, in the place of a specilic averinent of the facts showing such authority, and to make the question whetlier the oath was or was not taken before a competent jurisdiction a compound question of fact and law, to be decided by the petit jury under the advice of the court." State V. Gall'imore, 2 Ired., 375-0. Under the present statute a general averment of autlu)rity to administer tlie oath is suffi- cient. In addition to this general averment, the indictment must set forth the snhsfanec of the proceedings, that it may dis- tinctly apj)ear the oath was not extra-judicial — that it was taken on an occasion, in reference to a fact material, and before a court or officer having authority to administer it ; when if false, it is the subject of legal perjury. An indictment not setting out enough of the proceedings to disclose these facts is not sufficient under the statute. Or if it sets out the proceedings. and does not disclose the oath was lawfully administered, it is insufficient. The present indictment avers only that the appellant had commenced an action of detinue before a justice of the peace, and had made affidavit of his ownership of the chattels sued for, which is averred to be false. The purpose of making the affidavit is not shown, nor is it shown that it was used, or attempted to be used, in the course of the suit. The affidavit was not authorized by law, unless the apjiellant had applied for an order of seizure of the chattels. If no such application was JACOBS V. STATE. 469 made or no sncli order obtained, the affidavit was extra-judicial, the justice was without authority to take it, and it is not the subject of indictable perjury. People -y. i^oj?, 25 Mich., 492; People V. Gulfje, 20 Mich., 30. The allegations of the indict- ment may bo true, and the affidavit may have been improperly extorted by tlie justice as a condition on which he would enter- tain the suit, and issue process for the appearance of the defend- ant. Or it may have been ignorantly made, to be used as evidence on behalf of the appellant on the final trial before the justice. Tiiere must be an oath authorized by law, and the indictment must show it alfirmatively. It does not appear fi'om the present indictment that the justice had authority to administer the affidavit, and it could only be made to appear by the averment that the appellant had applied for an order of seizure under the statute. If such application and oi'dor of seizure was made, the substance of the proceedings are not stated, and tlie indictment is not in conformity to the statute. 4. The occasion of administering the oath must be correctly stated in the indictment. The proceeding, if judicial, in which it was administered must be accurately described, so that it is capable of being identified. 2 Chit. Cr. Law, 307. The names of the i)arties to the proceeding are essential to its identitj', and, if incorrectly stated, the variance is fatal to the prosecution. The suit described in the indictment was against Cobbs, while that of which evidence was given was against Cobb. The n.'imes are not idem sonans, Humphrey v. Whltten, 17 Ala., 30. The api)ellant Avas entitled to the fourth charge requested. We do not deem it necessary, in the present state of the rec- ord, to consider any other question which the case may involve. If they should arise again, it will be probably in a different mode. The judgment must be reversed and the cause re- manded. The prisoner will remain in custody until discharged by due 0001*80 of law. hv! 470 AMERICAN CRIMINAL REPORTS. .(■'.. Freemaii v. The State. (10 Fla., 553.) Perjury : Different statements. 1. It is not sufficient to show that defendant made different STATEMENTS. — In tlio trial on an indictment for perjury, to secure a con- viction it is not sufficient to prove that the defendant, at different times, testified to two opposite things irreconcilable with each other. There must he testimony outside of liis own contradictory statements as to which of such statements is false. 2. Ordinances must be proved. — Courts cannot take cognizance of the ordinances of an incorporated town. They are subjects of proof. In an indictment for jierjury, a.ssigned upon testimony given in a mayor's court jn the trial for a violation of a municipal ordinance, the indict- ment should so charge it, and tlie evidence should prove it. Writ of Error to the Circuit Court for Madison County. O. J. StnpUng, for pliiintiff in error. The Attorney-General, for the state. Mr. Justice Van Valkenuuugu delivered the opinion of the COUl't. On the 13th day of April, 1882, the grand jury of Madison county found a bill of indictment against Eli Freeman for perjury. The perjury alleged consisted in this: On the Ttli day of January, 1882, one Gilbert Armstrong was tried before F. AV. Pope, mayor of the town of Madison, for betting with one Josei)h Allen at a game of chance called "pulling the string." Tiiis plaintiff in error, Eli Freeman, was called as a witness, and testified "that they (meaning the said Armstrong and Allen) were betting, and there was money up, and I held th o stakes, and that they and each of them then and there had money in his hands to abide the result of said game of chance." I'hat afterwards, and on the same day, in another matter wherein one Joseph Allen was tried before F. W. Pope, mayor of the town of Madis(m, for betting with one Gilbert Armstrong at a game of chance called "pulling the string," the plaintiff in error was called as a witness to prove such betting, and wil- fully and corruptly swore " that there was no betting done and I did not see any money staked," meaning thereby to say that there was no money bet by the said Joseph Allen and the FREEMAN v. THE STATE. 471 said Gilbert Armstrong, or staked upon the result of the saiti game of chance called " pulling the string," on the said 7th day of January, 1882. The cause was tried and the prisoner found guilty. Counsel then moved for new trial, which motion was denied, and the cause comes here on writ of error. The errors assigned are as follows: I. The court erred in overruling defendant's motion for new trial, for that J. L. Bunting, a juror, had pronounced and ex- pressed an opinion in such cause. II. The evidence was insufficient to support a verdict of guilty. III. The verdict was contrary to law. IV. And for other causes. Nothing appears in the record to sustain in any way the fust alleged error. It is made one of the grounds of the mo- tion for a now trial, but the bill of exceptions is silent upon the subject, having in it no suggestion or evidence to support it. The second error assigned depends entirely upon the evi- dence takon upon the trial of the cause. The first witness, B. C. Pollard, testified that the town of Madison was incorpo- rated; that he was marshal of the town; that on the 7th day of January, 1882, he arrested Gilbert Armstrong and Joe Allen and took them before F. W. Pope, mayor of said town, for betting and gambling at a game of chance called "pulling the string;" that Eli Freeman, this plaintiff in error, was a witness before such mayor in the cause of The Town of Mad- ison V. Joe Allen, and swore that there was no betting or gam- bling at the game of chance called "pulling the string" between Gilbert Armstrong and Joe Allen on the said 7th of January, 1882, and that there was no money up or staked be- tween them, AY. A. Baker testified that he was present at a mayor's court, in the town of Madison, on the 7th day of January, A. D. 1 S82 ; that Eli Freeman was sworn in the case of Town of Madison v. Gllhert Anmtwng, charged with betting and gam- bling at a game of chance called " pulling the string," and stated under oath that there was betting and gambling between the said Armstrong and one Joe Allen ; that money was up ; that he, Freeman, held the stakes. 472 AMERICAN CRIMINAL REPORTS. Afterwards, and on the same day, Joe Allen was arrested and taken before the mayor for betting and gambling at the game of chance called " pulling the string;" that before the trial Eli Freeman was sworn as a witness, and testified tluit there was no betting and gambling at the said game, and tliat there was no money up to abide the result of the said game of cluince ; was present at both trials ; supposed it to be half an hour between the trials. F. W. Poi)e, mayor of the towii of Madison, administered the oath to Freeman in both cases. C. S. Church testified that he was present at the mayor'-j court, in town of Madison, on the 7th day of January, 1882 ; that Gilbert Armstrong and Joe Allen were tried by F. W. Pope, mayor of the town of Madison, on that day for bntting and gambling at a game of cl)ance called "pulling the string." Freeman was sworn as a witness in both cases. In the case against Armstrong he swore there was betting and gambling done between the said Armstrong and Allen; that he. Free- man, held money staked to abide the result of the said game of chance. In the case against Allen, Freeman stated that there was no betting; that ho did not hold the stakes, nor did he see any money up. Madison is an incorporated town, and F. W. Pope is tlie mayor. Freeman was sworn in both cases by the mayor. This is the substance of all the evidence, and it ap[)ears that the plaintiff in error made two distinct state- ments under oath regarding one transaction, that is, the bet- ting and gambling of Armstrong and Allen at a game of chance called " pulling the string." There is no evidence to prove which of the two statements is the true one, or which is the false one. " Where the defendant has made two distinct statements under oath, one directly the reveree of the othei', it is not enough to produce the one in evidence to prove tlio oath to be false." Wharton, Crim. Law, § 2275. (3ther evidence should luive been produced to show which statement was the true one and which the false, in order to convict the prisoner. Mr. Bishop in his Commentaries on the Criminal Law, § lo-ll, says : " If a witness testifies either in two different causes, or in one cause at different examinations, or at one examination, to two opposite things irreconcilable with each other, he commits perjury in making the false statement, but not in making the true one, and though what he said when he told the truth may FREEMAN v. THE STATE. 473 be shown in evidence against him on an indictment for the falsoliood, yet there must be testimony outside of his own con- tradictory statements as to which of tV jm is false." J? ■ the present indictment Avas found against him, in Avliicli the j)orjury assignod is the testifying, under the circumstances iibovo stated, that ho never was in prison in this state or any other state. Oil the jM-rt of the accused tlio point made is that tho false nuitter so stated by tho accused before tlio commissioner was not nuiterial matter, witliin the meaning of the statute, and, therefore, tho crime created by the statute was not committed. An essential clement of tho otfensf^ created by the statute (section r>;5J)2, II. S.) is tho materiality of tho matter charged to have been falsely stated. The words employed in the stat- ute are "nuiterial matter." Those words were, doubtless, adopted from the common law, and thoy must be given a sig- nilication broad enough to cover at least cases of i)erjury at conuncm law. Tho rule of the common law, in regard to ])er- jury, is thus stated by Arc] i bold: "Every question in cross- exiunination, which goes to the witness' credit, is nuiterial for this purpose." Archb. Crim. PI. & Proc., SIT (Eng. ed.). Tho same rule Avas declared by the twelve judges in licfj. v. Gih- W.V, 9.Cox,C. C, 105. The in(]uiry hero, therefore, is Avhethor the imprisonment of the accused in this state and in IS^ew Jersey was calculated to injure his character and so to impeach his credit as a Avitness; for it is not to bo doubted that, Avhen the accused oiFered him- self as a Avitness, he placed himself upon the same footing as any other Avitness, and was liable to be impeached in liie same manner. Upon this question our opinion is that the matter stated by the accused as a witness had an obvious bearing upon the character of the Avitness, and could properl}^ bo considered by the commissioner in determining Avhat credit Avas to bo given to the testimony of the Avitness in respect to the crime with Avhich ho stood charged. In liefj. v. Lnveij, 3 Car. *fe K., 'in, the accused, Avhen a Avitness, had falsely sworn tliat she had never been tried in the Central criminal court, and had neA'or been in custody at tho Thames jwlice station. On her trial for perjury these statements Avero ruled to be material nuitter, and the conviction Avas sustained. In Com. v. Bonder, 97 Mass., 587, a Avitness had been asked " if ho had been in the house of correction for any crime." Objection to tho question on the ground that the record Avas the best evidence Avas AvaiA-^ed, and 476 AHIERICAN CRimXAL REPORTS. the case turned upon the materiality of the question. The matter was held to be material. The present case is stronger, for here no objection wliatever was interposed to the inquiry respecting the imprisonment of the accused. Having made no objection to tie inquiry, and gained all the advantages to bo secured by his false statement, it may perbaps be tliat it dt-'s not lie in liis mouth now to say that his statement was not material. See lierj. v. Gihhons, svjfra; Reg. v. ^lullanij, Leigh & C, 503. But, however this may be, it is our opinion that tlie statement he made was material matter, within the moan- ing of the statute, because calculated to affect his credit as a witness. The otlier points discussed have received our attention, and are thought to be untenable. They are not such as require attention in this opinion. The motions are denied. The PEorr.i: v. !Morax. (-18 Mich., 639.) Practice: Additional icitncsscs pluccd on information. The indorhkmknt upon an information, after going to trial, of the names of additional witnesses, is giound for a new trial, if done without leave of court. Exceptions before judgment from Recorder's Court of De- troit. Information for burglary. lint. Jacob J. Van, JUper, attorney -general, for the people John C. Donndbj (Jh'ennan & Donnelly), for defenda On filing the information the prosecuting attorney indoi'scd on the information the names of certain witnesses, and when the case came on for trial and l)eft)re the trial was entered u[)(tii or jury called he indorsed on the inf()rmation the names of a number of other witnesses. This was done without any appli- cation to or ])ermission from the court. On the trial theso witnesses wei*c called on behalf of the people and the defend- WOODSON V. THE STATE. m ant's counsel objected to their being sworn. The objection was ovt Tilled and tlie witnesses were examined. The coiu't held that the case came Avithin the ruling of Peo- ple V. JMl, 48 Mich., 482 (4 Amer. Cr. Eep., 000), with refer- ence to the indorsing the names of witnesses on the information, and directed a new trial. United States v. IIathilton'. (109 u. s., m.) Practice; Certificate of division — Motion to quash — Discretion of court. On certificate of division of opinion between tlie judges of the circuit court of the United States for the middle district of Tennessee. 3Ir. Justice Bradley delivered the opinion of the court. The certificate of division in this case was made on a di- vision in opinion between the judges on a motion to quash the indictment. As a motion to quash is always addressed to the discretion of the court, a decision ujHm it is not error, and cannot be reviewed on a writ of error. In the case of United States V. Iioxcnhurgh, 7 Wall., h%% avc decided tlie precise point that this court cannot talce cognizance of a division of opinion between tlic judges of a circuit court upon a motion to quash an indictment. This decision was reatiirmed in United States V. Avery, 13 Wall., 251, and in United States v. Canda, de- cided at October term, 1881. The case, not being properly before us, is dismissed. ' WooDsox V. The State. (19 Fla., 549.) VRfLdiCE: EscajKil convict. An apprllate court will dismiss appeal of escaped cojtvict.— An appellate court will refuse to hear a criminal case on a writ of error where the plaintiflE in error has escaped and is not within the control of the court below, either actually, by being in custody, or constructively, by being out ou bail. 478 AMERICAN CRDHNAL REPORTS. 2. Same. — On a motion, where it appeared to the court fli.at the plaintiff in error liad broken jail and escaped from custody, leaving his cansc pemling in court : Ordered: That the writ of error be disniisseil at tlio next term of the court, unless it is made to appear to the court on or before that time that the plaintiff in error is in the custody of tlie proper officer of the law. Motion to dismiss writ of eri'or to the Circuit Coui't for Franklin County. T/te Attorney- General, for the motion. John, W. Malone, contra, Mr. Justice Van YALKEXBunan delivered the opinion of the court. Thomas "Woodson was indicted, tried and convicted of a felony at the spring term of the circuit court held in and ft)r Franklin county in May, A. D. 1882, For tlic olfcnso lie was sentenced to six montlis' imprisonment in the penitentiary. Afterwards he applied for and obtained a writ of error to this court, assigning certain errors as appearing in the indictment as well as upon the trial of the cause. AVhile the cause was tlius pending in this court he broke jail and absconded. The sheriff of Franklin county certilies to tliis court that he broke jail on tlie night of the 7th of June, 1882, and that lie has no knowledge or information of his whereabouts; that he came from Columbus, Georgia. The attorney -geneial now moves that an order be made directing that the writ of error bo dis- missed on the third Monday of January next, unless tlie said Woodson shall, in the mean time, surrender himself to the cus- tody of the shorilf of Franklin county or of the court. The rule is well settled that an appellate court will I'ofuso to hear a criminal case on a writ of error wiion the plaintilF in error has escaped and is not within the control of the court below, either aetuallv, bv bcin}; in custody, or constructivelv, by being out on bail. In the case of The PtapU v. Genet, 5!) N. Y., the court in discussing this (piestion use this language: "AVhen a jierson charged with felony has escaped out of custody, no order or judgment, if any should be made, can bo enforced against him, and courts will not give their time to proceedings which, for their elfectiveness, must depend upon the consent of the person charged with the crime." ..." All the cases RICHARDSON v. THE COMMONWEALTH. 479 which consider the question seem to concur in the view that an escaped prisoner cannot take any action before the court." In Common ivealth v. Andrews, 97 Mass., 543, Bigelow, C. J., speaking for the court, says: "Tlie defendant, by escaping from jail, where he was held for tlie purpose of prosecuting these exceptions, and abiding the judgment of tlie court thereon, has voluntarily withdrawn himself from the jurisdic- tion of the court. He is not present in person, nor can he be heard by attorney. A hearing would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be |)ronounced and executed upon him." The supreme court of the United States, in Smith v. United States, 94 U. S., 97, adopted the same rule, holding that the court will refuse to hear a criminal caso unless the convicted party suing out the writ of error is whore he can be made to respond to any judgment which may be rendered. See, also, Sherman v. The Commonwealth, 14 Grattan, 077; Zeftwiehv. The Commomvealth, 20 Grattan, 710; Anoni/nious, 31 j\[c., .592. See, also. The People v. liedinger, 55 Cal, 290, where the authorities are all cited and the question fully dis- cussed. The motion of the attorney-general is granted, and an order will be entered that the writ of error be dismissed on the third Morulay of January next, unless it shall bo made to appear to this court, on or before that day, that the said plaintiff in error is in custody of the sheriff of Franklin county or other proper officer of the law. RicnAKDSoN V. The Commonwealtk. (70 Va., 1007.) Practice: Grand juries — Intoxicating liquors — Sale hy the gallon. Plea in abatement. — A pica in abatement will not lie to an indictment for that the court, if a suflicient number of the jurors summoned are not in attendance, causes tlie required number to be returned from the couutij (it large. Nor for tliat two or more of the gi'and jury which foiuid the indictment had served on another grand jury at the same term. How they voted on the indictment as members of the first grand jury could not properly be inquired into. Nor for that the sheriff or 480 AMERICAN CRIMINAL REPORTS. his deputy were in the grand jury's room when they were deliboratin(» and examining witnesses upon whose testimony the indictment waa found. 3. Sai^ bv the gallon — Deltverv in rARCEl^,— At trial of indictment founded on a statute proliibiting the sale of liquor by retail in quantities less than one gallon, the jury asked of the court the question: "As a distiller, has the defendant a right to sell one gallon of liijuor, and receive pay therefor, and deliver it in less (|uantities at dilTorent times?" To which the jury received for answer, " The court doth instruct tho jury that, to constitute a i,;ile by tho gallon, there muKt bo. a sale and delivery to the buyer of an entire gallon; that a contract for a gallon, and the delivery of the same in parcels at dilTerent times, is a violation of the law. Held: The instruction correctly expounded the law. Salts of liquor, in the mode suggested in the question of the jury, would bo mere shifts to violate tho statute. Bohert A. Richardson, for the a]>pellant. F. S. Blah', attorney -general, for the commonwealth. AxDKUsox, J., delivered the opinion of the conrt. The court is of opinion that there is no error in therulinp^of the court below rejecting the first plea in abatement. The statute expressly authorizes and recpiires the court, if a sutfi- cient number of tlie jurors summoned are not in attendance to constitute a grand jury, to cause a sulficient number to bo re- turned from the bystanders, or from the county or corporation at large. They may be summoned from a list, but tiu^ Judge, if he thinks jn-oper, is ex]m>ssly authorized to dispense with tiie list. Code of 1873, ch. 200, § 5. The court is further of opinion that the court did not err in rejecting the defendant's second plea in abatement. The fact that two of tlie jurors who were mend)ers of the grand jury which found the indictment against the defendant had served on anotlier special grand jury at the same term of the couit did not disqualify them to serve upon the grand jury which found the indictment. How they voted upon the indictment as members of the former grand jury was a matter which could not be properly inquired into. The court is further of opinion that there is no error in the ruling of the court below rejecting tho defendant's thii-d ])left in abatement. There is no case that we are aware of which has held that the indictment by a grand jury is vitiated merely because the sheriflf or his deputy were in their room while they RICHARDSON v. THE COMMONWEALTH Avere doliberating and examining witnesses upon whose testi- mony tlie indictment was found. They are olhcers in attend- ance u})on the grand jury, and in the performance of their (Uities it is often necessary for them to enter the grand jury room, and it may he whilst they are engaged in deliberating or hearing testimony on the case before them. There is no averment or intimation in the plea that they excited or at- tcmj)tcd to influence the jury in any way in the formation of their opinions. After the jury had retired to consider of their verdict, they sent into the cou** he following question: " As a distiller, has the defendant a right to sell one gallon of liquor, receiving pay therefor, and delivering it in less quantities at different times?" The court called the jury in and gave them the fol- lowing instruction: "The court doth instruct the jury that to constitute a sale by the gallon, there must be a sale and de- livery to the buyer of an entire gallon — that a conti'act for a gallon, and the deliveiy of the same in parcels at different times, is a violation of the law." To the giving this instruc- tion to the jui'v the defendant exce))ted, and his bill of excep- tions was signed, sealed any section I of act ai)proved March 8, 1880, that no person shall sell wine, ardent spirits, etc., within the limits of this commonwealth, either by wholesale or retail, or to be drunk at the place where sold, or in any other way, without having first obtained license, and then only in the manner thereinafter provi*' 'd in said act; and by secticm 1'2 of the same act, a liceuse*! distiller or manufacturer of alcoholic liquors, on the payment of his specific license tax, "shall have the privilege of selling the ))roducts of his distillations in quantities not less than one gallon, at any j)lace within the state of A'irginia." The distiller, then, has the privilege of selling in no other way — that is, in quantities not less than one gallon. It was evidently the design and i)ut'pose of the legislature to so i»rovide that distilleries should Jiot be a place of resort for idlers and drunkards and tipi)lers to procure ardent spirits for immediate use, and which would be promotive of di-unkenness, and lead to disorder and disturbances of the |)eace, whilst the legitimate wants of sober people should not be denied, it gave to the distiller, who had i)aid his license tax, the pi-ivilege of Vol.. IV — ;n 4S2 AMERICAN CRIMINAL REPORTS. 1 JT selling in quantities of not less tlian one gallon. But the pur- pose of the law would be defeated by the interpretation tiiat the distiller might contract to sell to a party a gallon of whiskey and mete it out to him in small quantities, an.}, of a pint or half pint at a time, as he might call for it. AVe are of opinion that such sales of spirituous liquor would bo more dhifts to violate the statute. In State V. Poteet, SG N. C, 012, one received sundry drinks of spirituous liquor in payment of a debt — the seller to have credit for each drink until the debt was satislied. Held a vio- lation of the statute against retailing in quantities less than a quart without license. The court observed that the instruction given the Jury by the court is fully sustained by the decision in State V. Klrkham, 1 Ired., 381: the facts of which were that the defendant was applied to by the prosecutor to purchase some spirituous liquor; the defendant told him he could not sell less than a quart. The prosecutor agreed to purchase a quart, provided the defendant would permit him to take it in small quantities, as he might want it, until the quart was taken ; to which defendant agreed. During that day the prosecutor took three half-i)ints, and some twelve months or more there- after he got the other half-pint, and paid for the quart. It was held that this was a violation of the law prohibiting the sale of spirits by the small measure without a license. The court is of opinion that there is no error in the instruc- tions given by the court below to the jury in the case in hand. Upon the whole the court is of opinion to alllrm the judg- ment of the court below. Judgment ajjlnned. TnE State v. Steisiqek. (61 Iowa, 633.) PnAcncE: Indictment — Copy. Wlien an inrlictment is lost or miKlaid, aftor arrai;::nment of tlio accused, the court has power to substitute a copy and prcK-eed to trial upon tho record thus mode, the same as upon the original indictment. ROOKS V. THE STATE.' 433 C. W. Kirl'patrich, for appellant. Smith McPherson^ attorney -general, for the stato. RoTiinocK, J. In the case of The State v. liivers, 58 Iowa, 102, it was hold that wliere an indictment had been lost or mis- laid after the arraignment of the accused, it was within tho power of the court to substitute a copy and proceed upon the record thus made the same as upon an original indictment. It is claimed in this case tluit there was no proper evidence that the paper offered as a copy was a true copy of the original ia- dictmont. It is true the record does not show that the copy was ccrtillcd to be a true copy by the clerk of the court. But it appears that the original was in the files of the court during all the in'climinary proceedings, and the evidence showed that the paper presented was a true copy. This evidence was in no way controverted or denied. The court found it to be a copy upon such evidence, and, for aught that appears, the evidence offered was the best evidence which was obtainable. No othcar question is presented in the case. Affirmed. Rooks v. The Statk (C5 Ga., 330.) VnAcncE: Separating witnesses — Venue. 1. DlfiOREDIKNCE TO RULE SEPARATINO, RENDERS WITNESS axm^': 7 OP COW- TEMPT, BUT NOT INCOMPETENT. — Wliile we think it a sound rule of pra»- ticc, in putting witnesses under the rule, to swear all of them on both sides and send them out of hearing until called to testify, still we know of no law which renders a witness in<'0Tui)etent because he has heard Bome of the testimony on the side omxised to that on which he was called. It might be a ground to attach the witness, but not to exclude him. 2. In a criminal case the venue must be proved beyond a reasonable doabtk Before Judge Speer, Monroe Superior Court. Berner cfe Turner and IT. C Peeples^ for plaintiff in error. F. D. Dismuke, solicitor-general, and Stvtoart i& JIall, for the state. 484 AMERICAN CRIMINAL REPORTS. Crawford, Jistice. Homy Rooks was convicted of ma- licious mischief in the court below, and by his bill of exceptions claims that the errors committed entitled him to a new trial. He submits : 1. That Robert Lyon, a witness for liim, was not ])ermitted to testify in his behalf, because, after havin<>; been sworn and " put under the rule," he was present in the court room and heard the testimony of the witnesses on the part of the state. The law is that " in all cases either party has the right to have the witnesses of the other party examined out of the bearing of each other." Whilst this is the rule of law upon this subject, yet it is the practice of the courts, whenever re- quested, to have all the witnesses, both for the state and the ac- cused, called in and sworn, and then instructed to retire beyond the limits of the court room, and there remain without com- munication with any one as to what may have been sworn in the case, until they are called to the stand themaelvcs to testify. We recognize this as a sound rule of practice, and think that the court should take proper care to effect this object as far as practicable and convenient; yet we know of no legal riglit ex- isting in one party to have a witness excluded from the stiind because he happened to be present when the witnesses of the other party were testifying. Nor do we think that the court itself should go to the extent of depriving a party of the testi- mony of his witness, because that witness has disobeyed tlie order given touching his presence in the court room at an im- proper time. At most it was only an irregularity, and nuiy have amounted toa contemj^t for which the witness might have been lined; but to e,rrhir the information, to bo indorsed thorpon nftcr tlio ronimcnoo- mont. of 1 1' trial, and to |)i^rinit Hiit;h witnow to testify <>ii tlio part of tlio stalo ill a criminal proaouutiim over dofendant's objection, t. Secondary evidence held incomi'ktent to show defendant had no PEKMiT. — In a criminal prosecution against a dt.'fendaiit forsellinj; in- toxicatinj^ liipiors without taking out or having a permit, tho county attorney ti'stilled that he was ac(|uainto.l with tho probate Jnd'^c? of tho county; that he understood Im wjui absent from home; that the book which ho [iroduced was the joinnal of permits l.ept by the i)robate judge; tiiat it contained all the druggists' permits issued by the i)robato judge; that he had looked into tho other journals kept by tho i)ro- bate judge, and had been unable to llnd any reconl of permits therein; tliat he hail freipiently licard tho probate juut, as we understand it, there is nothing in them or any other statute which would have tho elfect of prohibiting a witness from testifying whoso name had become known to the prosecution after the commencement of the trial, and without his name being indorsed upon the infor- miition at all. Nor tlo we think that such a prohibition, if it did exist, would, as a rule, bo calculated to promote justice. Cases, as is well known to every practitioner at the bar, often occur where during tho pi'ogress of a trial a necessity arises for the introduction of certain kinds of testimony which could not have been known or anticipated on tlie part of the prose- cution before the commencement of the trial; as, for example, if it siiould bo within the power of the prosecution, and justice should re(|uiro the impeachment of a witness sworn on the defense, and such witness had boon hitherto entirely unknown to the prosecuting attorney. Tn such a case the universal practice has boen to call and examine witnesses without regard to their having been previously named and summoned, or even thought of." In State v. Medlicott, Kan., 257, this decision was approved, 488 AMi:UIC'AN CIMMINAr. UKPOIMS. and it was licld not er.or t(» permit a witness on tlio part of the state in a criminal prosecution, wlioso name lias become known to the pi(jsecutor after the commencement of the iriai, to testify, even thougli the name of tiie witness has not been indorsed upon the information. While the names of the wit- nesses upon the information will inform a defendant by wiiom it is expected the char^Lje therein set forth is to bo sustained, and thus enable him, to some extent, to prejKire for his defenst;, uiid while it is the duty of the prosecuting attorney to indorse upon such information the names of the witnesses known to him at the time of liling of the same, and expected to be used upon the trial, yet the court, in the furtherance of justice, within its discretion, ou<^ht to have the power, and, in our o|)inion, does have the ])ower, to ])ermit the name of any witness to be indorsed upon the information at any time, even after tlie trial has actually commenced. Said section 07 is not a condition to the qualification of a witness. As a j^eneral rule, the court should allow the names of the witnesses of the state to be in- dorsed up(m the information after the commencement of the trial, if it be important so to do; but. of course, if the defend- ant is taken by surprise thereby, the court should extend to him all possible facilities for a fair, full and impartial trial, and, if necessary, may delay or even continue the heai'inr the commencement of the trial. The |)rosecution ou^ht not to be defeated sim])ly l)ecause the county attoi'ney does nf»t indorse the names of the witnesses at the time of the lilinu^ the information, or before the trial; for often, during tht; ijrot^ress of the trial, a necessity arises for the introduction of evidence which could not have been anticipateil on the part of the pi-os- ecution before the commencement thereof. If the court shall be convinc(!d that the county attorney had purposely failed to indorse on the information the names of the witnesses known to him at the time of lllin*^ the same, to render it dillicult for the defendant to prepare his defense, the court may, un; answered ho did. The (luestion was tiicn asked what book it was. AVitness answered that it was the "Journal of Permits" kept by tho ])rolKite judge; that it contuined all the druggists' jx'rinits issued by the probate judge of Wyandotte county; that he had looked into the other jom-nals ke[)t by the probate judge and had been unable to lind any record of permits therein; that he had frequently liciird f'abh? testify in licpior cases, and he had always testilied that all of the records of pi'ruiits were k('[)t in tliis book. Thereu|)on the defendant moved the court to strike out all of this testimony, but the court overruled the motion. On cross- examination the witness testilied as follows: "The probate judge litis another journid; one in which ho keeps a record of the l)usiness of his court. K. E. Cable is the custodian of this book; I am not. I went into his ollico to-day and got the book. Cable was not there. There were other joui'nals in his oillce. The one he kept the rc'cord of his court in was th(>re. This book contained nothing but blanks for recording- druggists' permits.'' The defendant moved also to strike out this evidence. This motion was also overruled, and the state then olFered in evi'V'Uce the book produced by the witness as the " Journal of Permits." To the introduction of this book tho (h^fendant objected. This objection was overruled. Most of the evidence of (ribson was wholly incompetent; but some of it immaterial. That which was hearsay was prejudicial. Even if it were ])()ssil)le for the witness to iden- tify the book produced by him. he was not competent to in- form the court or its contents or to state wiiat was co|)ied in 490 A]MERICAN CRIMINAL REPORTS. the other journals of the probate judge, nor ouf:jht lie to have testiiied as to the statements made by Cable in other cases. As the introduction of the journal of permits ^vas ])i'cce(led and based upon hearsay and incompetent evidence, the boolc ought not to have been received. It is claimed, however, that the county attorney h a competent witness to testify to the is- suance or non-issuai'co of permits to sell intoxicating liquors, because section 30 of the prohibitor}"- act makes it the duty of the probate judge, when application is made to him for a per- mit to manufacture or sell such liquors, to notify the county attorney, who is to appear and advise with the probate judge Avith reference to tlie issuance of the permit and the ai)i)r()val of the bond. Notwithstanding this, the statute docs not au- thorize a county attorney to issue any permit or keep the ivc- ords thereof. If he sliould advise the probate judge not to issue a permit, and tiie probate judge, contrary to his advice, should grant the permit, such permit would be undoubtedly valid witliin the statute. Again, if the probate judge should issue a permit without notifying or advising tlie county attor- ney, the permit would authorize the applicant to sell intoxicat- ing li([Uors for the ])urposo namod in the statute. The county attorney cannot have jjcrsonal knowledge in all cases of the granting of ^icrmits, and he is not the jjersoa to te.;lify of his own knowledge as to their issuance or non-issu;ir)c(>. In S'afe v. Sjhineltn)', 27 Kan., IDO, it was held, where tho probate judge, who was aocpiainted with tho deteudant, testi- iied he had not issued to him any permit to sell intoxicating liquors, that this was prhaa fac'ie evidence the defendii.it hail no permit. This riding rested upon the fact liiat the i)roliil)- itory act casts the duty resj)ecting i)ermits ajjon the ]>ei'.s()n holding the ollice of probate judge, and provides that no p^T- mits can issue without th.e act of tho judge. A coujity attor- ney is not tho custodian of the journuls or ollicial I'ccords of the probate judge, or the pi-obate court, and is not authori/tul to issue any permit; and, therefore, the rule adopted in ISlala '0. ISclnocltei', fiuj}ra, does not apply to a county attorney. For tho error pointed out, tho judgment of tho district court must bo reversed and the cause remanded for another triaL (All tho justices concurring.) TERRITORY v. SHIPLEY. 491 Teijritouy v. Siiiplkt. (4 Mont., 4G8.) Practice: Amtujnment and plea — Indictment. 1. Presumed that defendant was arraigned, etc.— Where the record dooa not disclose thiit the prisoner was arraigned and pleaded, the ar- raignment and plea will bo presumed, unless there bo something wliich aflirmatively shows their absence. 2. Dkscuiition of the stolen property.— Where in an indictment the stt)len ])roperty is described as " sundry bank-bills, issued on the au- thority of the United States, usually known as ' greenbacks,' amounting in all to the sum of OWJ," such description is not suflicient to supix>rt the indictment, or enalile the jury to determine that the stolen chattels are the s-ame referred to in the indictment. The numlier, kind and do- nomination of the bills ought to be given, or a good and suflicient excuse for not doing so set forth in the indictment. From Third District, Lewis and Clarke Counties. J. K. Toole, for a])})o]lnnt. T. J. Loioevij^ district attorney, for respondent. GAMiKAiTri, J. Tlic record in this case does not show that tlic defoncUint was arraiofned and ])loaded to the indictment. This is assigned as one of the reasons for the reversal of tho judguient. No objection appeal'.^ to have been made ujionthis ground in tho court bek)w, anti the defeniUmt was duly tried after (Unnurrer. AVe cannot reverse the judgment for the rea- son alone that the record does not show an arraignment and a plea by the (U'feiulant. AVhere the record docs not, as in this case, disclose such arraignment and plea, unless there is some- thing to show aHirniativcly that tlie defendant was not ar- I'aigned and did not })lead, such arraignment will be i)resumed. But the defendant denuuTod lo the indictment, alleging, among other reasons thoi'cfoi', tho following, viz. : "That there is no suillcient description of the property alleged to bo stolen to put the defendant on his defense." The description of the property all(>ged to have been stolen in tlie indictment was as follows: " Suiulry bank-bills, issued by nuthority of the United States of Anuu'ica. usually kiu)wn as ' greenbacks," amounting in all to the sum of !?IS;», of the value of 8l^'>i" ""'hI sundry bank-bills, issued by the authority of tlu; Uniteu States of 492 AMERICAN CRIMINAL REPORTS. America, usually known as ' greenUicks,' amounting, in the aggregate, to $580, of the value of $581)." This description fails to give the number, kind, or denomina- tion of the bank-l)ills. It is this failure which it is claimed constitutes the insutliciency of the description of the i)roperty, and renders the indictment consequently bad. One of the principal objects to be accouiplished by an accurate, precise and certain description of ])roperty alleged to be stolen, in an indictment for larceny, is that the jur}' nuiy be able to decide whether the chattel proved to have been stoleJi is the very same as that described in the indictment. It should, therefore, be described with sulficient certaint}' to enabh^ the jury to so determine. Viewed in the light of this rule the description complained of does not accouiplish this oi)ject. There is not such a certainty of description as that a jury t'onld find, if the property should be proven as dosciibed, that it was the very same propei'ty alleged to have been stolen in the indictnient. A general description of the i)ropeii:y as "sundiy bank-bills, issued by authority of the United States of America, usiiallv known as 'greenbacks,' amounting in all t«. sSnISO," or '*in tlio aggregate to 8r)8!t," is plainly not a (l(.>scrij)tion with sullicient precision and certainty as to be a cttm[)liance with the ab:)VO rule. The description sliouhl also be such in an indictment as that if the defendant is tried he may be enabled to plead his conviction or acquittal to a subsequent indictment relating to the same pi'operty. It is true that the identity of the property may be shown by other evidence, but a failure to propei-ly de- scribe the pro[»LM'ty will riMider the proof of such idcMitity more diHicult. So far as the defendant could rely upon the description of the property in this indictment against a subse- quent accusation relating to the same property, it is obnoxious to the objection of the insulliciency of the description tiuM'eof. Again, another object of a description is to iiUorm the de- fendant, with sulKcient certainty and |)recision, of the partic- ular transaction constituting the olfense witli which he is charged, as that lie maybe able to prepare his defense thereto. We cannot think that this obj(;ct is attained where, as i?i this case, in which bank-notes or cnrrency are the allegeil subjects of larceny, the description merely states the kind of money generally and the aggregate amount thereof, without stating TEKRITOltY V. SHIPLEY. 493 tlie nmnl>er and kind or denomination ot the notes. This kind (jf j)n)perty is as susceptible of this kind of description as coin oi money, and in such a case "the number of the pieces and their (kuiomination, and wlietiier of silver or gold or copper, should be stated, and regularly the value of each." Jfenoin r. The People, 2() :Mich., t>08. The description, therefore, of the property does not comply with what are regarded as fun- damental recpiirements in relation to describing the property alleged to be stolen, in indictments for larceny. These require- ments have, as their ultimate object, fairness towards the de- fendant. Any desci'iption, therefore, -which is not set forth witli suflicient certainty to satisfy the above requirements, or assign a good and sufilcient reason for the failure so to do, may be taken advantage of by demurrer. The facts which are thus required to be set out are not indeed essential con- stituents of the crime. They are not vital to the accusation, l)eing merely matters of descri})tion. But where they are not set forth, the reason for the non-compliance with these rules should be stated in the indictment. The allegation that such tacts are "unknown to the grand jury," when such is the case, would be an excuse for such non-compliance. This is not a mere formal allegation, for it has often been held that if "it be known that the particular fact was known to iho grand jury the indictment would be bad, or that the judgment should be arrested or reversed, or the defendant acquitted." 1 Bish. Trim. Pros., I5(»n, ;>,(I2, and cases cited. The indictment under considej'atifjn does not comply with the above requirements in. I'elation to ])recision and certainty of description, or assign any excuse therefor. These recpiirements are, in our opinion, reasonable, and not only do not conHict, but are in harmony, with our legislative provisions in relatin is as to wliat was deceiused's attitude at tlie time of the fatal encounter, recent threats may hcconio relevant to show that this attitude w.as one liostilo to the defendant, even thou>:;li such tln-ents were not cojnnuiiiiciited to defendant. Tlio evidence is not relevant to sliow the »//'(> aniiiio of the; defendant, but it may bo relevant to sliow th.at, at the time of the meeting, the deceased was seeking defendant's life. Error to the Supreme Court of the Territory of Utah. Mr. George IT. WlUiam!^, for the plaintiff in error. Mr. Solicitor-General PhiUijJS, contra. Mr. Justice MiLu:n delivered the opinion of the court. Section 3 of the act of congress of June 23, ISTl (18 Stat., 254r), allows a writ of error from this court to the supreme court of the territory of Utah, where the defendant has been convicted of bigamy or iiolygamy, or has been sentenced to death for any crime. The present writ is brought under that statute to obtain. a review of a sentence of death agiiiust plaiutiir in error for the murder of John Ki-amer, commonly called Dutch John, in Salt Lake City. The only error insisted upon by counsel, who argued this case orally, was the rejection of testimony offei'cd by the prisoner, as shown by the follow- ing e.Ktract from the bill of exceptions: "The defendant, on the trial of this cause, called Robert IIcslop as a witness in his defense, who testified: "That, iust a short time before the shootinjj:, the deceased 'o' showed him a pistol which he (deceased) then liad upon his person. Deceased at this time was sitting on a box on the opposite sid(! of the sti-eet from the Salt Lake House, and in front of Reirirel's store. WIGGINS V. PEOPLE. 4m " The prosocntini^ attorney admitted that this was after tho deceased was ejected from defendant's saloon. " Whereupon the counsel for the defendant asked witness the following question : "What, if any, tlireats did the deceased make against tho dcfenchmt at this time? — which was objected to by tho prose- cuting attorney, for the reason it was immaterial. " Tho objection was sustained by the court, and the defend- ant, by his counsel, then and there duly excepted. " Defendant's counsel then asked witness what, if anything, did deceased then say concerning the defendant? " (Objected to by prosecuting attorney as incompetent.) "Defendant's counsel thereupon stated that they expected to prove by tliis witness that in that conversation, a short timo pi'ior to the killing, the deceased, in the liearing of said wit- ness, made the threat that he would kill the defendant before ho went to bed on the night of the homicide, which threats wo cannot bring home to the knowledge of the defendant. "AVhich was objected to by the counsel for tho prosecution, because it was incompetent. " The objection was sustained by the court, to Avhich the de- fendant then and there excepted. " This witness and several others testified that the deceased's general character was bad, and that ho was a dangerous, vio- lent, vindictive and brutal man." Althougli there is some conflict of authority as to the admis- sion of threats of tho deceased against the prisoner in a case of liomicide, where the threats had not been communicated to him, there is a modification of the doctrine in more recent times, estiiblished by the decisions of courts of high autliority, which is very well stated by AVharton, in his work on Crimii^al Liiw, § 1027. " Where the question is as to what was deceased's attitude at the timo of the fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant, oven though such threats were not communicated to defendant. Tho evidence is not relevant to show the quo arumo of the defendant, but it may bo relevant to show that, at the time of the meeting, the deceased was socking defend- ant's life." Sfoh's V. People of New Yot'l\ 53 N. Y., \U\ Knmerv. State, \^ Ga., 194; Carn^Ml v. Peojde, IG HI., 18; 496 ^XMERICAN CRIMINAL REPORTS. JToller V. State, ?>7 Ind., 57; People v. Arnold, 15 Cal., 470; Peoph V. Scro(/f/! )!.><, 37 id., ♦!7r». Counsel for the government, conceding tliis principle to bo sound, sustains the ruling of the court below, on the ground that t' lere is no evidence in the case to show any hostile move- ment or altitude of the deceased towards the prisoner at the tii7'e oi /'; tal shot, and that there is conclusive evidence to the coi. . i'n support of this latter position, he relies on the testimony of Thomas Dobson, the only witness of the meetin ; •vhich I'^^ulted in the death of deceased by a pistol shot from deJ . ndau.. Before criticising jiobson's testimony, it is necessary to state some preliminary matters. It appeal's that, on the night of the homicide, the deceased and a num of similar character, called Bill ]}ean, got into a quarrel, in a drWdcing-saloon ke])t by defendant, in which they both drew pistols. Defendant interjMjsed and took their pistols from them, and turned them out of his saloon by different doors. He gave liean his pistol as he turned him out. and asserts that he also returned the deceased ///.«< pistol; but of this there is doubt. Shortly after this, he started homewards, and fell in com})any with Dobson, who was a night watchman of Salt Lake Citv. As thev went along the street. Bean was dis- covered in the n^cess of a doorway on the sidewalk with a pistol in his liands, and defendant went up to liim, took it away from him, and he ran down the street. Passing on, Dobson and defendant came in front of a hotel, the Salt Lake House, where the homicide occurred, of which Dobson, the only Avitness, tells his story thus: " As I came down street about 2 o'clock in the morning, I saw Dutch John sitting on the carriage steps of the Salt Lake House, with his face resting on his hands, apparently in a stupor or asleep. Wiggins, the defendant, was with me. He (Wig- gins) jumped to my rear and immediately the tiring com- menced. I do not know, and cannot tell, who fired the first shot. At the first report I turned round and saw the blaz(^ of the second shot from a pistol in the hands of Wiggins. I had advanced to the cari'iage steps and said, '.Jack, don't kill him.' Wiggins then jumped on the carriage stej)s and fired another shot, which passed right by in front of me and went into WIGGINS t'. PEOPLE. 49T I. the body of Dutch John. Dutch John grabbed me around the legs, and we fell over the steps into the street. When I turned and saw the lirst shot from Wiggins' pistol, I saw Dutch John's hands raised and heard him cry out, ' Don't kill me, I am not armed.' Immediately after the firing ceased Wiggins stooped down as if to pick up something, and when he raised up ho had something in his left hand, but I cannot tell whether it was a pistol or not. At the same time Wiggins made the remark to the deceased, * You wanted to kill me,' or ' You tried to kill me,' I am not sure which expression was used." If we are to believe implicitly all that is here said by this witness, we do not see in it conclusive evidence that defendant fired the first shot and that no previous demonstration was made by deceased. On the conti'ary, he sii ys he does not know, and cannot tell, who fired the fii'st sliot. lie does say that when the vision of Dutch John mot their eyes the defendant "jumped behind witness and iuiviedlatehf (tiiat is, just after) "the firing commenced." He also says that, immediately after the firing ceased, defendant stooped down as if to pick up something, and arose with something in his hand. We do not think that this statement proves at all, certainly not conclnsiv^ely, that deceased did iwt fire the first shot. Either there must have been some reason for defendant's jump- ing behind witness, and he must have picked up a pistol which fell from the hands of deceased, or he was guilty of consum- mate acting for the purpose of dec(?iving witness, and making evidence to defend himself from the charge of murder which he intended to commit. It is difficult to believe that, on a sudden encounter, an}"^ one would have such cool deliberation ; and it is much more rea. sonable to believe that the seeking of safety by jumping behind the witness was caused by some movement or other evidence of hostile intent by deceased which escaped the less vigilant eye of witness, and that it was the display of tli^ pistol Avhich the defendant afterwards picked up. This latter vicAV is sup- ported by other testimony, to be presently noticed. But it is pertinent here to remark that both the effect of this witness' testimony and his credibility were to be weighed by the jury, and that doubt was thrown on the latter by showing that, in the preliminary examination, he had made statements at vari- VoL. IV -88 498 AMERICAN CRIMINAL REPORTS. ance with what ho now stated, which were more favorahlo to defendant. Take all those to^^ether, and we think the court had no ri^^iit. to assume that it was beyond doubt tliat defeiKhint had coin- inenced the assault which resulted in d<^ath, by lirini;- tlie lirst shot, without any cause, real or api)arent. In this we are con- Hrmod by other parts ol' the testimony displayed in the bill of cxcei)tio?i;-;. It is nowhere asserted that defendant fired more than three? shots. A witness, however, who was within lunirinfi^, swears positively that he heard four shots. In agreeuKMit with this, it is proved, without contradiction, that when dei'endaut was arrested, immediately after the shooting-, tlireo pistols were found on hiui. Of one of these, three l)arrels were em])ty; of anothei", one; and the third was fidly loaded. The police officer who arrested defendant says of these pistols: "Tlic one identilied as Dutch -lohn's had one chamber empty; the one identilied as IJean's had tlirce chamlKMN empty; and the deri'in^^erwas loaded,'' It is a fair infer(Mu;e that the three empty barrels were those lie liad dischar,tol with him is a concession uv.uh' by the jn'osccitin;^" attorney on the trial. It will 1)0 seiMi, in the extract fr<»m the bill of exceptions fii-st given, that the witness Ileslop testilies positively, that, just a shoi't time before the shootin<»', the deceased showed him a pis tol, which he tluni had on his person, while sittin<:;on a l)ox on the side of the street opposite the sceiUM)f (he homicide; and the prosecution admitted that this was after the deceast^d had, been ojtx.'ted from the sidoon. Here, then, was a inan who had a few hours or minutes l)ef(»re, had adilliculty. in which [)istols were drawn; who was known to Ik? (*f desperate and vinl within a few min utes precculing- the fatal encounter, and that j»istol was, after the encounter, picked up (m the sidewalk, where it oc(!urre(U with a chamber em]>ty. Also, stronf]^ evith^nce to show that one more shot was fired than defendant had fired. i»nd the probability that it came from the pistol of deceased at tluit time. WIGGINS c. PEOPLE. 490 !Now, when, under all these circumstances, the witness, and the only witness who was present at the encounter, swears tliat he cannot tell where the first shot came from, though he knows that defendant only fired three, it must be very apparent that if the person to whom tjie deceased exliiliited that pistol a few minutes before the shootin*^ liad been permitted to tell the jury that deceased tlien said " he would Icill defendant before lie went to bed that night," it would have tended strongly to show where that liret shot came from, and how that pistol, with one chamber emptied, came to be found on the ground. This testinu)ny might, in the state of mind ju-oduced on the jury by the other evidence we have considered, have turned the scale in favor of detendant. At all events, we are of opinion that in that condition of things it was relevant to the issue, and should have been admitted. Judgment reversed, with directions to set aside the verdict, and grant a new trial. Mr. .lustice CMKroun, dissenting. Murder is the charge preferred against the prisoner, Avhich, at common law, is defined to be, when a person of sound mem- ory and discretion unlawfully killoth any I'easonable creature in being, and in the peace of the state, with malice aforethought, either express or im])lied. Modern statutes defining murder in many cases allix degrees to the offense, according to the nature and aggravation of the circmnstances under which the act of liouiicide is committed. Oll'enses against the lives and persons of individuals arc de- fined l)y the statutes of Utah as follows: Whoever kills any human being, with malice aforethought, the statute of the ter- ritory enacts, is guilty of nnu'der; and the succeeding section of the same act ]irovides that all mui'der per])etrated 1\7 ])oison, or by lying in wait, or by any other kind of wilful, deliljerate and premeditated killing, or which is committed in the perpe- tration, or attempt to perpetrate, any one of the offenses therein enumerated, is murder of the first degree, and shall be punished with death. Laws Utah, 51, c. 21, tit. 2, sees. 4, 5. Pursuant to that enactnu;nt, th(^ grand jury of the third judicial district, in due form of law, preferred an indictment against the prisoner for the murder of John Kramer, charging 500 AMERICAN CRIMINAL REPORTS. that he, the jn'isonor, did, at the time and in the manner nnd by the means therein described, feloniously, wilfully, dnlil)or- ately, prcmeditatedly, and with malice aforethought, kill and murder the deceased, contrary to the form of the statute in such case made and provided, and against the peace and dig- nity of the people of the United States resident in the said territory. Sufficient appears to show that the prisoner was arraigiu^d in due form of law, and that he pleaded to the indictment that he was not guilty, as requu'ed by the statute of the teri'itory; that, material witnesses for the prisoner being absent, the in- dictment was, on his motion, continued to the next term of tlio court. Both parties being ready at the succeeding term of the court, the jury was duly imi)aneled, and sworn well and truly to try the issue, as provided by law. Witnesses wore called and examined by the prosecution and for the defense, and the cause was regularly committed to the jury having the prisoner in charge. None of these proceedings are called in question; and it ap- pears that the jury retired, and, having duly considered tlu> case, returned into court, and gave their verdict that the prisoner is guilty of murder in the lirst degree. Sentence in due form of law was rendered by the court, as more fully appears in the record; and the prisoner excepted to the rulings and instructions of the court, and appealed to the supreme court of the territory, as he had by law a right to do, where the judgment of the subordinate court was affirmed. Laws Utah, 6<{, c. 31, see. 5. Error lies from that court to the supreme court in criminal cases, where the accused has been sentenced to capital punish- ment; and the record shows that the prisoner sued out a writ of error, and removed the cause into this court. 18 Stat., 2.'>4. Four errors are assigned in the transcript: 1. That the couit, orred in affirming the judgment of the district court. 2. That the court erred in holding that the affidavit offered to jH-oeure a continuance Avas insufficient. 3. That the court erred in sus- taining the ruling of the district court, that the uncommuni- cated threats of the deceased, made in connection with the exhibition of a pistol a short time before the homicide, were in- admissible in evidence to the jury. 4. That the court erred in WIGGINS V. PEOPLE. 501 overruling the exceptions of the prisoner to the instructions given to the jury by the district court. • Two of the errors assigned — to wit, the second and fourth — liaving been a})andoncd licro in the argument for the prisoner, the re-exaniination of the case will be confined to the third as- signed error, as the only remaining one which deserves any special consideration. Exi)ert testimony, not in any Avay contradicted, was intro- (hiced by the prosecnitor, to the effect that the witness saw the deceased immediately after he came to his death, and he testi- fied that he made a. poHt-movtem, examination of the body the next day; that the deceased received two pistol wounds; that one shot struck him in the side, a little back of a middle lino from the hollow of the arm down and just at the border of the ribs; and the witness stated that he examined that wound, but that hp did not trace the ball, as the other wound was the one tliat proved fatal; that the other shot struck him in the chin, and that, ranging downward, it cut the external jugular vein, tlic ball burying itself in the muscles of the shoulder, and that the deceased bled to death from that wound; and the witness added, to the effect that from the course the ball took, and the wounds it made in its course, the deceased must have been sitting at the time with his head bowed down and resting on his breast. Deatii ensued immediately, and the record discloses what im- mediately preceded the homicide and what occurred at the time it was committed. Beyond doubt, the homicide occurred al)out 2 o'clock in the morning; and it is equally certain that it was effected by the described shots from a pistol. Prior to that time, — say about 1 o'clock or a little Liter, — the deceased, with six or seven other persons, was in the saloon of the pris- oner, and it api)ears tljat the tleceased and two of the others lijid a difficulty, and that one of tlieui was struck over the liead in tlie affray, llevolvers were drawn • by the deceased and one Bean, when the prisoner interfered and took the pistols from both of them, and in the scuffle struck the deceased over the head. lie then put Bean out of the back door, gave him his pistol, and told him to go home; and he put the de- ceased out of the front door, and told him to go home. Half an hour or more later the prisoner came dow n the street with one of the witnesses for the prosecution, and when they SOS AMERICAN CRIMINAL REl'ORTS. -:S*5-'!fr§| arrived in front of the Salt Lake llouso tlio witness states that lio saw deceased sittinj^- on tliu earria^^esleps of the liotel, witli his face i-esting on his hands, appaiuMilIv in a stupor or itslecp; that the prisoner jinn[)ed to tlie rear of tlie witness, and that the lirin^t^ immediately connneneed; tliat tlie witnes.i did iiui k)U)w, an infeiTed as to its clfect from the fact that the n he was sitting in front of a store op])osite the Salt Lake House. TvtO <]ucstions were asked the witness, as follows: 1. What, if any, threats did the deceased make against the prisoner? 2. What, if anything, did the deceased say concerning the prisoner ? Objection was made to each question, and both were excluded 1 WIGGINS V. PEOPLE. WMk by the court, and the prisonor excepted to tlio respective rul- iii<^'S, lliul the quest i(jns bccu aduiitted, the prisoner expected to ])rov(! tluit tlie deceiised made the threat that lie wouhl kill the piist)ti(!r hi'l'ore he went to bed that night; but the defense admitted that the evidence would not show that the pi'isoner had l:.iowled,i>e of the threat at the time of the kiliiui,'. Due exception was taken to the ruliui^, which is the basis of the assignment of error not waived by the [n-isonei'. Evidence was also inlroduced by the defense that the general character of the deceased was bad, and that he was a (hmgerous, violent and brutal man. Subscxjuent to tlie jifTray in the saloon, and before the homi- cide, the deceased had a conversation with another witness called and examined by the prosecution. lie said that the prisoner ha. That when, froni the nature of tlu; attack, there; is reasonable ground to believe that there is a design to destroy his life or to commit any felony u|)on his jierson, the killing the assailant will be excusabU; homicide, although it should afterwards appear that no felony was intended. Learned jurists excepted at the time to the third j)roposition, WIGGINS V. PEOPLE. 507 as too favorable to the accused ; but it is safe to affirm that the legal profession liave come to the conclusion that it is sound law, in a case wliere it is applicable. Support to that proposi- tion is found in numerous cases of hlgli authority, to a few of wliich reference will be nuide. AVhen one without fault is attacked by another, under such circumstances as to furnish reasonable ground for a])prehend- ing a design to take away his life or do him some groat bodily liarui, and there is reasonable grh\ 2 Comst., 197; Peojjh' v. McLeod, 1 Hill, 420; 1 Hawk. P. C, ch. !», sec. 1, p. TO. Two other eases decided in the same state have adopted the same rule of docision, and it appears to bo well founded in roiison and justice. P(ittrij/?e,4:C} Barb., OSa ; People IK SiiUivKn, ;3 Sold., 400; Shite v. S/onn, 47 Mo., ('.12; Wliart. on Homicide, 212; Sf((f<' v. Ihdyr,! Jones (N. C), 272; Com. v. Dnint, 58 Penn. St., J». Unless the party has reasonable ground of apprehension at the time, thy justilicaticm will fail; it being settled law that a hare fear, r.naccomi>anied by any overt act indicative of the sui)[)osed intention, will not warrant the i)arty entertaining such fears in killing the other party by way of precaution, if tluu-e be no actual danger at the time. 1 East, I*. C, 272; Ros. (Jrim. Ev. (7th Am. ed.), TOS; State v. Scott, 4 Ired., 401); Sf^fe. V. //a./'r/'.s, 4 Jones, H»0; Dill v. State, 25 Ala., 15; Dyson. V. State, 20 Miss., 302; l/olme.>< r. State, 23 Ala., 24; Carroll v. State, 23 id., 33. Two gi'ounds are assumed in support of the proposition that the evidence of previous threats ought to have been admitted: 1. That itwouUl have conlii-med the other evidence introduced by th(! ju-isoner to prove that he committed the act of homi- (Mde in self-defense. 2. That it would have aided the jury in determining which of the parties lired the lirst shot. Kenuirks already made are sulficieiit to show that a bare 608 AMERICAN CRIMINAL REPORTS. m fear of danger to life, unaccompanied by any overt act or manifestation indicative of a felonious intent to tluit effect, will not justify the person entertaining such fears in killing the supposed assailant. Such a defense is not made out, unless all the conditions of the proposition before explained concur in the immediate circumstances which attend the act of homicide. When a person apprehends that another, manifesting by his attitude a hostile intention, is about to take his life, or to do him enormous bodily harm, and there is reasonable ground for believing the danger imminent that such design will be ac- complished, he may, if no other practicable means of escape are at hand, oppose force by force, and may even kill the assail- ant, if that be necessarj'^ to avoid the apj)rehended danger; but he must act and decide as to the necessity and the force of the circumstances at liis peril, and with the understanding that his conduct is subject to judicial investigation and review. Apply that rule to the case before the court, and it is clear that there was no evidence in the case tending to show that the prisoner killed the deceased in self-defense. Proof to that effect is entirely wanting, and every attending circumstance disproves the theory, and shows that such a defense, if it was set up in the court below, was utterly destitute of every pre- tense of foundation, as appears from the following circum- stances: 1. That the prisoner was not alone. 2. That when he, in com|)any with the night-watchman, approached the hotel, the deceased was sitting on the steps asleej) or in a stupe )i', ap- parently unaware of their approach. t5. That the prisoner might have pass(;d on, turned back, or stood still, in iJerlVct safety. 4. That if he feared anything his needful protection was at hand. 5. That the deceased neither si)ok(! nor moved, and was as harmless as if he had been inanimate matter. stiou being that the modern decisions su])})ort tliat proposition. Criminal homicide, in order that it may amount to murder, must have boon ])ei'[)etratcd witli malice aforetliought; and the prosecutif)n, to ])rove the ingredient of malice, may introduce evidence of lying in wait, antecedent menaces, former grudges, or any formed (h^ign or concerted scheme to do the deceased bodily harm. Malice is the essential criterion by which mur- der is dirftinguislied from manslaughter, and of course it must be charged in the indictmi-nt and proved at the trial. Acts, conduct and declarations of the kind, if done or made by the prisoner, ai'c clearly admissible when oll'ered by the prosecu- tion; but the case is generally ditferent when the eviilence is offered in res])rct to the deceased. Years ago, evidence was offered in a case of manslaughter to show that the deceased was well known by the defendant and others as a drunken, nst ration at the time of the kiUing, taken in connection with such character and threats, lie induces a reasonable belief on the part of the sla3'er that it is necessary to deprive him of life in order to save his own or to |)revont some felony upon his person. Prlvhett v. State, 22 Ala., ;V.); (V>///, r. IIUJUwiK 2 (iray. 2'.)4. Kxcei)tional cases arise where it is held that the evidence should 1k5 rcH'eived as conrirnuitory of other evidence in the case tending to su])[)ort the theory that the killing was in self- defense. Cases of that character may be found where courts have ruled that evidence of the kind may be admitted even though the prisoner l»ad no knowledge of tlie stime at the time of the allejicd felonious lunnicidc; but there is not a well-con- sidored cjiso to be found anywhere, in which it is lield that evi- dence of jtrevious threats is admissible as substantive proof that the act of homicide was committed in self-defense, nor which shows that such evidence is achnissilvic for any purpose, whether the threats were known or unknown to the prisoner, except to coudrin or explain other evidence in the case, tend- ing to justify or excuse; the homicidal act, as having been com- mitted in oi)posing force to force in defense of life, or to avoijl enormous bodily harm. 2 Whart. Cr. L. (0th cd.), 1020 ; 1 Hale, P. C, 481. M-2 AMERICAN CRIMINAL REPORTS. ,' ■ :iS Provided the uttering of the threats was known to the pris- oner, the tendency of modern decisions is to admit tlio evi- dence, even if the other evidence to support the theory of self-defense is shght, and to exchide it in all cases where the threats have not been communicated, unless the circumstances tend strongly to inculpate the deceased as the first aggressor. People V. Lamh, 2 Keyes, 4(50; Powell v. State, 10 Ala., 577; Dupree v. State, 33 id., 380. Examples, almost without number, are found in the reported cases which support those propositions, to a few of which ref- erence will be made. Violent threats were made by the deceased against the prisoner in the case of StoJces v. l^eople, 53 IS". Y., 174; and the court held that proof of the same was admissible, whether known to the jn-isoner or not, inasmuch as otlier evidence had been given making it a question for the jury whether the homicidal act was or was not perpetrated by the prisoner in defending himself against an attempt of the deceased to take his life or to commit a felony upon his person. Authorities to sliow that fear only is not sufficient to justify the taking of tlie life of another have already been referred to, of which there are many more. State v. Collins, 32 Iowa, 38; Whart. Homicide, 407. Pursuant to that rule, it was held in the case of Xeicmmh v. State, 37 Miss., 400, that the belief on the part of tlie accused that the deceased designed to kill him is no excuse for the homicidal fict, unless the deceased at the time made some at- tempt to execute such a design, and thereby induced the accused reasonably to believe that he intended to do so iumie diatel}'. Hence, the court held that it w.as not com[)etent for the accused to introduce evidence of an assault that the de- ceased committed on him six weeks before, nor to give evidence of previous uncommunicated threats, the other evidence sliow- ing that the deceased at the time of the killing made no hostile demonstration against the accused calculated to show that the accused was in any danger of life or limb. Actual danger of the kind, or a reasonable belief of such actual danger, must exist at the time, else the justification will fail. Repeated threats, even of a desperate and lawless man, will not and ought not to authorize the person threatened to WIGGINS V. PEOPLE. 513 take tlie life of the threatener, nor will any demonstration of hostility, short of a manifest attempt to commit a felony, justify a measure so extreme. Keasonable doubt upon that subject cannot be entertained ; but the supreme court of Kentucky decided that, where one's life had been repeatedly threatened by such an enemy, and it appeared that he had recently been exposed to an attempt by tlie same person to assassinate him, an5T. Where the evidence of previous threats is necessary, in con- nection with the other evidence, to make out a case of self- defense, the supreme court of Indiana hold that the evidence is admissil)le. S/io/fer v. State, 37 Ind., (U. Jurists and text-writers appear to concur that antecedent threats aJfme, whether communicated oi* not, will not justify a subsetpient deadly assault by the other pai'ty, unless the party who made the previous threats manifests, at the time of the act, a design to carry the thi'cats into immediate effect. I*eoj>/e V. Si't'oygim, 37 C'al., s as well where the evidence is direct as where it is circiunstantial. In the lat- ter case it is projier for the judj^o to further instruct the jury so as to aid them in reaching a conclusion on the circumstances proved. 2. If any part of a singh; instruction ought not to bo given, tlie action of the trial court in rejecting the whole will always be aflirmed. W. A. Ham's and S. M. FranJd'm, for appellant. Marshall, attorney-general, for res})ondent. By the Court. Defendant was found gu'^ty of grand lar- ceny on circumstantial evidence. Counsel for defendant re- PEOPLE V. DAVIS. 615 qiiostod the court to charge the jury as follows : " The following principle of law is of universal application m all cases based on circumstantial evidence. It is not sufficient that the cix*- cunistances ]iroved coincide with, account for, and thnrelore render i)robable, the hypothesis sought to be established, but the hypothesis contended for by the i)rosecution must be estab- lislied to an ahuolute moral certainty, to the entire exclusion of any rational prohahllUtj of any other hyjiothesis being true, or the jury must llnd the defendant not guilty." The ofJ'ered iii- struction was by the court rejected as "superfluous — included in other instructions." An insli'uction with reference to circumstantial evidenco would not have been "superfluous." The charge, given in din'f.ont foiins, that the jury must be satisfied of defendant's guilt "beyond a reasonable doubt," is a legal pro])osition ap- plicable to all criminal cases, as well where the evidence is di- rect as where it is circumstantial, and the court might very pro])et'ly have instructed the juiy fui'ther in such manner as would have assisted them in reaching a correct conclusion upon the ciroimfitnneen ]n'oved. Tlie rule as laid down by Greenlcaf is : "Where a criminal chai'gc is to l)e proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with every other rational conclusion." 1 GreenL Ev., § ;34. The rule was adopted and approved in People u. jS-/n/trr, 2^ Cal., 400, and followed in Peoph i\ Strong, 30 Cal^ 154. Ami in People v. Ant/ion;/, 5<] Cal., 400, this court held an instruction not objectionable which read : " It is not suffi- cient that the circumstances proved coincide with, account for, and therefore render ])rol)able. the hypothesis sought to be es- tablished by the prosecution, but they must exclude to a moral certainty every other hypothesis but the single one of guilt," etc. But Avhen it is urged here that the court below erred in re- jecting an instruction recpiested, we ai-e justitied m reversing the judgment only Avhen it appears that it was the duty of the court to give tlie instruction exactly as rociucstcd. It has been repcatidly hold that if any part of a single instruction ought not to luive been given, the action of the trial court in reject- ing tht whole will be affirmed; and this result must follow AMERICAN CRIMINAL REPORTS. when any part of a siny;l« instruction is so worded as tiiat it may have a tendency to mislead tbo jury, as well as wiien a part directly declares that to be law which is not law. A philologist may be able to say that the word "absolute," in the instruction rei[uested and rejected, adds no force to the words •'moral certainty." But the Avord suggests a degi'ee of cer- tainty greater thari tliat moral certainty which can be reiu'hcd upon such evidence as is securable in courts of justice. If tlic learned judge of the court below had stricken out the word ''absolute" we certainly couhl not have held that it was erior on his part. It follows that it was not error to decline to giv(! the instruction as it was present«Hl. Judgment and order ajjinned. State v. Balco. (31 Kan., 405.) Practice : Arguvient of prosecutor — Libel. Prosectjtok should not comment on failure op refendant to tes- tify. — In a riminal action, wliere the prosecuting attornoj', in niakin« Lis argument to the jury, chiinis that the defemhmt is guilty J)ecausc lie failed to testify in the case and deny the facts alleged against him. and the defend.uit is, i^ftti wards found guilty by the jury, held, that for such ii-regularity on the pjirt of the prosecuting attorney, the defend.-mt, oii his motion, should be granted a new trial, and that a mere i" ' from the court to the jury, that the jury should not pay an dh to what was said by the prosecuting attorney with regard to l nfend- ant's failure to testify, is not sulKcient to cure the error conniui h d by the prosecuting attorney. PRIVILE(iES OF THE PRESS — GOOD FAITH OF PUBLISHER. — In a cHni- hial prosecution for libel, evidence Wiis introduced tending to show tliat the defendant, who wsis an elector of Chase county, Kansas, circniatcfl an article among the voters of such county containing sonii' things tlmt were untrue and derogatory to the character of the prosecuting wit- ness, who was then a candidate for the otlice of county attorney of sai in good faith, — such article was privileged, and the defendant sluiuld l)e acquitted, although the princi- pal matters contained in the article may have been untrue in fact, ami derogatory to the character of the prosecuting witness. STATE f. BALCH. Appeal from Chase County. 617 S. jV. M'ood, Madden Bran, and ^Yaters c6 Ensv^inger, for appoUants, W. A. Johmtoii, attorney-general, and S. P. Young, for the state, Vai.entink, J. This -was a criminal prosecution against George I'alch and R. ]\[. Watson for an alleged criminal libel. The case was tried before the court and a jury, and the defend- ants were found guilty and eacii sentenced to pay a line of $10, and eacli adjudged to ])ay one-half the costs of the suit. The defendants now ai)peal to this court. The alleged lil^el was the circulation, on November (!, 1882, in Cliase coiuity, Kansas, of the following printed article, to wit: " Voters of Chase County: The people of Chase county have not forgotten the mutilation or changing of llie election re- turns one year ago, and is it not time the people should know wlio the parties Avere that made tlie clianges? The facts look- ing in that direction have, as yet, never been made public, and perhaps never will, but circumstances often show facts that cannot be controverted, and in this case, if Mr. Norton was guilty of the said mutilation, was not ]Vlr. Carswcll e(pu\lly so^ It is said upon reliable authority that ]\Ir. Norton and Mr. Carswell were together all the evening and the night this deed was committed, in fact sh^pt together in Mr. Norton's room in the court-house. If they were together, as it is said, is it possible that ^Ir. Norton would do so dastardly a trick without the knowledge and consent, if not the assistance, of ]\ri'. Carswell I Voters, think of this. Also, that it is a well known fact that this said Carswell worked for and sufjported, with all his might. Mr. Norton, for the oltice of sheriff of Chase county. Can you consent to intrust in the hands of a charac- tor such as an action of this kind would indicate, the most iin- p >rtant ollice in the county, that of county attorney? "Gkokoe Balch." It appears from the evidence, among other things, as follows: "That the defendant R. M. Watson was given the manuscript from which the alleged lil)elous article was * set up ' and printed by ont^ Harris; that the name of George Balch, defendant, 618 AMERICAN CUIMINAL REPORTS. was signed tlicrcto ; that ncitlior the manuscript nor his sigmv turo was in the handwriting of tho det'cndaut George ijak;h; that dc^fendant "Watson set up tlic article alleged to be libelous, printed it and delivered it, and gave all the printed copies to the said Harris, and was paid for the same as a job printer, which was the only connection ho was shown to have had with the alleged libelous article; that the prosL-cuting wit- ness, C. 11. Carswell, was at the time tho regular democratic nominee for county attorney, to be voted for at the Novem- ber election, A. D. 1.S82; that the prosecuting witne.w, Cars- weU, did not procure, cause or know of the changes or alterations made in the election returns, as stated in said alleged libel; that the defendant George lialch admitted to the prosecuting witness, Carswell, that ho had published said alleged libelous article." In November, 1881, the time rcfernid to in the alleged libol- aus article, there were three candidates for sherilf — William Norton, F, II. ijaiTington and the dc'IV'ndant IJalcii, — and llie changes refen-ed to were niiule by taking votes from IJakli and i>arrington and adding them to Norton. The evidence furtluu* shows: "That i)ro.secuting witness, Carswell, sla did to P. J. Norton, in the presence of oneC. lierst, that ' they iind made too many changes from IJalch to Norton; that tliey should have taken less votes from hiin (lialcli) and more iVoni Barrington; that tho greenbackers were watching every vote for their candidates;' that Jjalch, the defendiint, was at the time greenback candidate for sheriff, and has be(?n at all times and for years past a legal voter of Chase county, Kansas." Tho defendant George I'alch did not ai)pear j'.s a witnes;;, and did not testify in the case; and whether the defendant K. M. Watson was a witness or testiiied in the case the reccji'd docs not show. After all tho evidence was introduced in the case, and aft(>r tlio charge of the coui-t was given to the jury, the county at- torney proceeded to make an argunu'ut in the case, when the following proceedings occurred, as is shown by the i-ecord, ivhich procee(|ings read as follows: "The o])ening aruunu'nt of tho plaintilf was nuule by the county attoi'ney, who, in tiie course of his remarks to the jury, said 'that it was in evidence that tho libel charged in the information was circidated all STATE V. BALCH. 619 i;u; over tlio county with the name of the dcfcndnnt George Etilch printtMl thereto; that tlie dofcuchmt Balch know it was so circulated; that this tact made a prima fao/'e cix'io agamst him; tliat tlio defendant Balch had not olFercd any testimony denyin.>' that he signed and circulated the libel; that he had failed to go on the witness stand [emphasizing and pointing to the witness chair] and deny that he had not signed or circu- lated tliat libel.' Here the county attorney was requested to stop by defendants' counsel, who then and there excepted to the remarks of said county attorney ; that upon the attention of the court being called to the said remarks he informed the county attorney that they were improper and could not be made, and stated to the jury that they should not pay any attention to the same; tliat under the law the defendants, or cither of them, had a perfect right to refrain from testifying witlio'it having the failure to testify commented on or even alluded to by the state; that the jury would violate their duty if tliev (considered at all the failure of defendant Balch to tes- tify. That tlun-eap:)n the county attorney turned to the jury and stated to them ' that he had forgotten, and had probably gone beyond what he should have done,' and proceeded in his argument without further allaaion to the defendant Ealch's failure to testify." There are several questions involved in this case, and some of them are dillieult. The lirst question that we shall consider is witli reference to the statement made by the county attorney to the jury, calling their attention to the fact that the defend- ant IJalch had not testified in the case and had not denied, as a witness, that he had signed and circulated the alleged libelous article. This statement was in violation of law, and under our own statutes, and the decisions of other courts under similar statutes, we think it will require a reversal of the judgment of the court below and the granting of a new trial. Section 215 of the Criminal Code provides, among other things, that de- fendants in criminal cases may testify in their own behalf if they choose to do so; bat also provides "that the neglect or refusal of the p(^rson on trial to testily . . . shall not raise any |>rosumption of guilt, nor shall that circumstance be re- f(MTed to by any attorney pros HUiting in the case, nor shall the same bo considered by the court or jury before wh.om the trial 520 AMERICAN CRIMINAL REPORTS. takes place." Laws 1871, oh. 118, sec. 1; Comp. Laws 1879. eh. 82, sec. 215. The decisions above referred to are as follows: Loncj v. State, 56 Ind., 182; .S'. O., 26 Amer. Rep., 19; Hatch v. State, 8 Tex. Ct. A])p., 416; S. C, 34 Amer. Kep„ 751; Comm.onwed libelous article was circulated only among the voters of C'hase county. STATE V. BALCH. 521 and for the purpose of giving tliem truthful information con- cerning the character of C. II. Carswell, who was then a can- didate for the ottice of county attorney, and merely for the purpose of enabling such voters to vote intelligently upon the question as to who was the most suitable person to lill such othce, and the same was circulated in good faith and for no bad purpose, then that the defendants should be acquitted. One of said instructions roads as follows: "(I) It is proper, justifuible, and considered in law privileged, for any voter to discuss publicly, in writing or orally, the qualifications, attain- niouts, character and acts of any person who offers himself as a candidate for a public office, and who as such candidate so- licits the votes of voters for such oflfice. But such discussion must be for the purpose of ascertaining the truth in relation to such candidate, tiiat an intelligent ballot niay bo cast for or against such candidate, and must be confined to such purpose, and within roasonaldo limits; and if such discussion shall be actuated by malice, or for the purpose of injuring such person, it cannot be considered justifiable or privileged." The court I'cfiised to give each and all of the instructions asked for by tlie defendants; and, in lieu of the instructions asked for by the defendants, gave the following instructions: " Ihit it is projx'r at this jwint to instruct you that the general rule that the law ])resumos malice from the fact of the publica- tion of libelous matter, unless truth and good motives are shown, is subject to some exceptions. The law recognizes, under certain peculiar circumstances, what ace termed privileged com- municati piildic benefit, or was the occa- sion simply a cloak to cover malice^ Malice in such cases need not be hatred or ill-will, but any nn-kless or wanton disposition to do a wrongful act without excuse or justificati(m." 523 AMERICAN CRIMINAL REPORTS. Prior to tlie giving of the foregoing instructions the court hiul given all necessary instructions with roft'icnce to the gen- eral law of libel, and the law of this case, except tliat it luul not given any instructions with rctercnce to privileged com- munications or conditionally-privileged communications. Tlieso yivior instructions, without the modilications contained in these subsequent instructions, would have icijuired the jury to llnd the defendants guilty. They were, in substance, tluit, if tlie sujjposed libelous matter contained in said circular was dcfam- iitory and untrue, malice should bo pi'esumcd, and the defend- ants found guilty, notwithstanding the fact that the publication thereof might have been in good faith, and the defendants might have believed the same to be ti'ue. And thcsubi,e(pieiit instructions above quoted, relating to privileg(>d communica- tions, were given as modilications, explanations, limitations or exceptions to the rule of law previously enunciated. The court itself seems to call them " cxcej)tions." It is dilllcult to say that the instructions of the court below arc erroaeous; and yet that portion of the instructions relating to privileged com- munications is so vague and indelinite as i!ossil)ly to i'end(M- tlio entire instructions, taken as a whole, misleading, delusive; and erroneous. The court docs not say that any communicalicjns may ever bo so privileged as to overturn the rule of ])resimip- tive malice, or to render such rule; inapplicable or not relevant under the facts of the case; but the coui-t simply s:iys that in s;)me cases, and under " jieculiar circumstances,"' " the rule is relaxed." Neither does the court say in express terms that the communications might under any circumstances be so |)iivi- legcd as to authorize an acquittal of the defendauls. ^'ouu'- thing of this kind, wo thiidc. ought to have becMi said. 'J'lie instructions with regard to constructive or pr»^sumptivi> malid^ recpiired it, and the instructions with reference to pi-ivih^ged communications should have I)een nuido more explicit and delinitc than they were. If the supposed libelous article was circulated only among the votei's of Chase county, iind only for the purpose of giving what the def(Midants believed to ho truthful information, and only for tiio ])urpose rtf cnablin;;' such voters to cast theii- ballots more intelligently, and the whole thing' was (lo?ie in good faith. W(» think the article was ]ti'i\i- loged and the defeiidiints should have been aeipiitled. allhougli the principal uuiW.ers (fintaim'd in the arliele were untnu! in EX PARTE SONTAG. 523 fact, and (lorofi:atory to tlic charactor of tlie prosocutlng wife- iiL'SS. Sco Touush. Shuul. 6i Lib., fJ.^ ^41, 24^, 244:, 247, 200; 2 Wliart. Criin. Law (8th cd.), § 1G3G; 1 Kuss. Ci\, 244, 245; Com. V. Chipj), 4 j\[ass., 103; Sweeney v. B.tker, 13 W. 'Va., 100, 183; 8. 6'., 31 Ainer. IJcp., 758, 75'J; Wh'dc v. Nicholls, 44 U. S. (3 How.), 200; Brow v. Hatlumay, 95 Mass. (13 Allen), 231); LewiH v. dnqmuin, 10 K Y., 309; 'KJ'incU v. CoHy, 4!'. K. Y., 427; note to 2litn8te)' v. Lomh, 23 Amor. Law r.eg. (N, S.), 22 ct scq.; Bi'Hjfjs v. Garrett, 18 Cent. Law J., 109, and note, ])ago 112. Generally, we think, a person may in good I'uith ])ublish whatever he may honestly believe to be true, and essential to tlie protection of his own interests, or the interests of the per- son or persons to whom lie makes the publication, Avitliout committing any public oll'ense, although what he publishes may in fact not be true, and may be injurious to the character of others. And we further think that every voter is interested in electing to oflice none but persons of good moral character, and such only as are reasonably qualified to perform the duties of the ollice. This applies with great force to the election of county attorneys. Willi the view that we have taken of the questions already discussed, it is not necessary to discuss any of the other ques- tions raised in this case. The judgment of the court below will bo reversed, and causo remanded for a new trial. (All the justices concurring.) Ex Pautb Sontao. (C4Cal., 525.) Practice: Grand juror. A grand juror cannot be foiupcUod to disclose liow bo Ci- any otbcr juror voted upon an indictni(!nt, but be may be re luireJtogivo tlio testimony of a pai'ticular witness in a matter before tbem. In Bank. Darwhi <('; Murphy, for petitioner. Tyltir tC' Fhiornoy, for r(>s|)ondent. U i 524 AMERICAN CRBIINAL REPORTS. (>;{ and i>2(», it is a])|)arent that the excep- tion stated in the fornun- section isinteiuled to apply only to the clause which innnediately succeeds it — "You will not, except v'lii'i) /v'(/*ti:/U section, 920, may bo given its ctTect; tlie last chiuso s]),"cifyin,';^ the matters with rer.pect towhieh a grand jnror /iiff;//)e tvj n >'/•/'// io make diseh)sui'e "in the due course of judicial ])roceedings." The inquiry must be confined to such matters, that is to say, the grand juror can only be required to state what was the testimony of a Avitness examined before the grand jury. It has been argued with much ingenuity that the i)i'ovision of the law "which authorizes a motion to set aside an indict- ment Avliero it has not l)een " fouiul "' as i)rescribe(l by the code is of no benefit to a defendiint unless he is permitted to prove that it was not duly found by the testimony of the grand jiuors themselves, who are alone pi'csent when an indictment is voted upon. Penal Code, 91)5. It is contended that the right to move on the ground that the indictment was not pi'o])erly found necessarily includes the right to prove the fact by liio testimony of those only who can know the fact. IJut there arc many legal rights which cannot be established by certain witnesses. Thus it is well settled that a petit juror cannot im- peach his verdict, although a defendant nuiy move for now trial on the ground of unfaii'uess in its rendition. P<;nple v. Wi/man, 15 Cal., 70. AVc can imagine cases in which it might be possible to prove that less than twelve voted for an indictment without resorting to the testimony of the grand jurors them- selves. The mere inconvenience or diiliculty of proving the fact ought not to overrule the many grave objections to a procedure not only not directly authorized, but expressly forbidden by the code, which may interfere with the coui[)lete freedom of ex- posure of alleged oifensos which it is the design of the inUit'.i- tion of grand juries to secure, and con'.lict with other )>rineiples of public ]>oliey, which are subserved by keeping inviolate the secrets of the grand jury room — exc(^pt when their disclosure is absolutely necessary. Xo serious injury can arise from pro- hibiting the question asked the petitioner. The cases must bo rare, indeed, in which a forenmn will dare altem[)t to practice fraud upon his fellow juroi-s by indorsiug and presenting a bill not in fact foiuul, and if siieli a fraud is praxstieed tlui law will provide a proper punishment by direct proceedings against the party guilty of the fraud. Finallv. as said bv Ilvliind. J., in Sf,tf,> r. Bdh »'. '20 Mo.. J-|v, PEOPLE V. REESE. 627 oJ58, an innocont porson will not bo injured by limiting the in- ([iiiry, for he can always vindicate himself in a trial on tho merits. Let tho petitioner bo discharged from custody. People v. Reese and others. (2 Pac. Rop. (4 Utah), Gl.) Practice: Juror — Waiver. Wlicro, in a criminal procotHlinp:, a man prosents him:^olf in court in obedi- ence to a siiu\nions requiriiij; Iiiiii to api;e!ir as a juror, and stat< s thrt lie is a citizen of tiie United Stales, and the defendant h:is no reason to doulit the truth of tlie statv>inent, tho riglit to a jury of tswlve eitizcr.s of the United States is not waived by an examination of tlie in'oixwcd juror touching his other (|ualirications. If, after verdict, the defendant learns that the juror was mistaken, and that lie was not a citizen of the United States, ho is entitled to a new trial, it not apjK'aring that there was any negligence on the part of t!ie defendant that would work a waiver of the constitutional riglit to a proper jury. A defendant has the right to presume tliat none but the naaies of citizens of the United States arc upon the list from which jurors ai-e drawn. P. J. F«?i Zz7ndants knew or had reason to believe that Morris was not a citizen, until after the verdict. These statements were not denied by the prosecution, but were admitted to be true. The juror, upon his examination under oath as to his qualilications, said he was a citizen of the United States. The motion for a new trial was overruled, and judg- ment was rendered on tho verdict. The defendants appealed to this court. 528 AMERICAN CRIMINAL REPORTS, Tlie only c|uesti()Ti before us is, Did tlio court below err in overruling tlie motion^ The act of con;L,'re.ss, approved June 23, ISTl, commonly known as the Poland bill, provides tlmt the clerk of the district coiu't in each judicial district, and the judge of })rol)ate of the county in whicli the district court is next to be holden, shall prepare a jury list of two hundi'ed names, citizens of the United States, from which j^rand and petit jurors sliall be drawn. The criminal procedure act of this territory provides that "every male citizen of the United States is an eligible juror, who is over twenty -one years of age, and who possesses certain other tpialifications specifically stated." The jui'ors being drawn from this list, prepared in the light of these two statutory [)rovisions, a defendant may reasonably presume that the names of none but citizer.s of the United States are ui)on it, and we are of the opinion that wlicu a man presents himself in court, in obedience to a summons requiring him to aj)pear as a juror, and, in answer to a (|iies- tion put to him under the direction of tlic court as to his qualiiications as a juror, says he is a citizen of the United States, and the defendant in a criminal cause, charged witli a felony, has no reason to doubt tiie truthfulness of said state- ment, such defendant may examine such jiu'or as to his (p;ali- lications inider tlie territorial statutes without further refei'entc to the primal or fundamental qualilication of citizensliip, al- though after the verdict he may learn that the jiu'cn- was mistaken in his statement, and that in fact he was not a citi- zen, and not thereby waive his right to a trial by a constitu- tional jury of twelve men, possessing the qualiiications of citizenship. Hill v. I^eople, IG Mich., 351; Quhi/i v. IlaUnrt, 52 Vt., 3(»5. As there was not only no intention to waive this (pialification, but no negligence or want of watchfulness on the part of the defendants, which ordinarily would work a waiver of a right, we cannot hold that the facts in this case are such as should dei)rive the defendants of this impor- tant constitutional right. The court is therefore of the o[)inion that the motion for a new trial ought to have been sustained and a new trial granted; that the judgment of the district court l)e reversed, the case remanded, and a new trial ordered. i:r;; STATE V. MOSLEY. 529 State v. Moslet. (31 Knp., 355.) Practice : Principal and accessory — Retnarks of prosecutor. 1. The statute authorizes the charging of an accessory before the fact aa a principal. State v. Cassadij, 13 Kan., 550. 'i. Upon tlie trial of an accessory l)ofore the fact, the record of the conviction of tlie principal is proof i^rima facie of that fact ; hut this is not con- clusive, and other evitlenco of the commission of the crime by the prin- cipal is admissible. 3. Upon the trial of a defendant charged with a criminal offense the latter rested without testifying. Tiio state introduced a witness and offered to i)rovo certain facts, to which the defendant objected as not being l)r()i)er rebuttid. Thereui)on the county attorney said to the court, in the hearing and presence of the Jury: " Your Honor, we liad a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and, he having failed to do so, we claim the right to introduce it now." Held, that these remarks to the court were not such an infringement upon the statute forbidding the prosecuting attorney to refer to the fact that the ilefeiulant did not testify in his own behalf as requires us, under the cir- cumstances of this case, to grant a new trial. Ajipcal from Lyon County. W. A. Jolniston, attorney -gen oral, J. Jay Buck and ./, W. F< Ighnn, for tlie state. I^eyto)), Sanders tt? Peyton, for ap[)ellant. IIoKTON, C. J. On June 5, 1882, Mary Isabel Martin and her son, E. D. Afosley, were Jointly cliarged witli the murder of Loraine M. Iveiger, avIio died May 28, 1882, from the effect of ])oison. The trial of Mary Isabel ]\Iartin, the mother, was commenced on June 12, 1882. A verdict of guilty of murder in the lirst degree was rendered against lier, and on Decem- ber 29, 1882, she was sentenced. The defendant Mosley was tried in February following, and convicted of murder in the first degree for counseling, aiding and abetting his mother in the commission of the murder of Mrs. Keiger. Upon the trial the record of the conviction of JVIary Isabel Martin was intro- duced in evidence, and the court also permitted witnesses to testify to statements made by her a half hour after Mrs. Keiger died, tending to show she was guilty of poisoning her. The court instructed the jury that the record of the conviction of Mrs. Martin was prhna facie evidence of her guilt. All of Vol. IV — 84 ci ■;■-:) 530 AMERICAN CRIMINAL REPORTS, these rulings are complained of. Tbo objections, liowevoi", are unavailing. Section 287, cli. PA, Coinp. Laws 1ST!>, roads: "Every person who shall ho a principal in the second device in the commission of any felony, or who sliall be an ae- cessory to any murder or other felony bel'oi'e the fiutt, shall, upon ccmviction, be adjudged guilty of the oU'ense in the same degree and punislied in the same manner as herein prescrilu'il with resp(^ct to the principal in the first degree." And section 115, ch. S*2, Comp. Laws 1ST!>, provides: '' Any jxM-son who coun- sels, aids or abets in the commission of any oU'ense may ho charged, tried and convicted in the same manner as if he were a principal." AVhile these sections of the statute auth'.»,".; Rnjlna v. JlmjIhK, V. d quietly, it nuist be taken that she was consenting to the act, aiul that tiie ]»ris()ncr shouhl be accpiitted. l>ut the court refused so to charge, and said tliat the nu're submission of a child when in the power of a sti'ong man, and most probably acted ajM)!! by feai', can by no means be taken to be such consent as will justify the pi'isoner in ])oint of law. The .s/'.i'/h aiul last re(|uest was, in substance, that tiie court charged tliat the ell'eet of certain statements of two of (I(>fend- ant's witut^sses, whicli had been contradicted by other wit- nesses, should discredit their testinutny to such extent as to oblige the jury to disregard not only their statements which had been contiadicted, but the whole evidence of those wit- i\esses. This rwiuest was too broad, and llu; court did right in not charging as ret] nested. The witnesses reierred to were exaniiiu'd fully, and the con- tradiction related only to part of their evidence. They were not impeadu'd by proof of geiu'ial had character for veracity, but by showing tliat they had made pi-eviously some state- nu'nts on a material point in direct antagonism with what they stated on the trial. Tortious of the testimony of those wit- nesses ju>t contradicteil were unlavorable to the accused. One of these witnesses was a physician, who saw the child soon after OO-i AMERICAN CRIMINAL REPORTS. the crime was alleged to have been committed, lie gave evi- dence on the question of penetration, and also as to symptoms of a disease which, it was alleged, the child was afflicted with soon after the occurrence. He also swore that defendant was diseased. These portions of his testimony were favorable lo the state, and the state had the right to have such evidence re- main in the case. The counsel of the prisoner also excepted to the charge as delivered on the question of reasonable doubt. On this sub- ject the court not only said to the jury that the defendan* should have the benefit of anv reasonable doubt, but also t( 'd them what such benefit was. The language used by the pro- siding judge was, " You should recognize the well-settled jirin clple of law, that every man is ijinocent until proved guilty, and give him the benefit of the I'casonablc doubt. Having done this, if you are sati:;fied of his guilt, you should return your verdict, or, if the disclosures arc not sullicicnt to satisfy you, you should acquit him." The judgment is affirmed. Alduicu iri' Ai.. V. Tnio Pkopi.e. (U)l 111., 10.) Receivixo S'nn.KN Cioons: ('(inccahnoitofsamc — Erklciicc. 1. Receivixo stolen ooods and conceaunu saju^ for gain, etc.— Puooi Nr.CESSAUV. — III order to convict uii in riH'eiviiig th(^ ])ro|)erty, notwilhstanding the license. 3. RECElVlNd STOLEN I'ltorKUTV — Ml'ST BE WITH CHIMINAI. INTENT.— Wlnic a defendant, on behalf of the owner, reicives h(ol(>n goods from the thiuf, for tlio houcbt purfioLio of rtstoriug theui to the owaer without 'M ALDRICH V. THE PEOPLE. 535 fee or reward, or the expectation of any pecuniary compensation, and in fact imnioiliatcly after obtaining; tlioir possession restores all lie re- ceives to the owner, and is not acting in concert or connection with the yai-ty steal ing to make a profit out of the transaction, he will not be guilty, under the btatute. Writ of Error to the Criminal Court of Cook County; the 1 Ton. Elliott Anthony, .Judge, presiding. John Lyle Kiiuj^ for the plaintiff in error. Mr. Luther Laflln Mills, state's attorney, for the people. Mr. Chief Justice Craig delivered the opinion of tlie court. This was an indictment in tlie criminal court of Cook county against Charles Aldi'icli and Emanuel Isiuics. for larceny. In two of the counts it was charged, in the indictment, that for their own gain, and to prevent the owners from again ])ossess- ing their pro[)erty, the defendants did buy, receive and aid in concealing tlie goods of certain named persons, lately before feloniously stolen, the defendants well knowing they were stolen. Tlie jury before whom the cause was tried returned a verdict of guilty of receiving stolen property, and found the property to bo of the value of $(5,000. The court overruled a motion for a new trial, and rendered iiidgment on the verdict, and tlie defendants sued out this wj'it of error. In order to obtain a chnir understanding of the ipiestions presented by the record, a brief statement of the facts seems necessary. On Friday night, November 20, 1880, four persons, ]\riko Bauer, Nick IJauer, Herman Schroeder and IMathew Ash, stole a trunk from the Clifton House, in Chicago, belonging to J. 11. Morrow, which contained jewelry belonging to Eaton & Faas, and Ernest Tlioma, of Xew York, of the value of from $7,000 to $8,000. l\[orrow had the goods for sale as agent of the owners. ( )n th(> night the trunk was stolen, one of the thieves, Mike IJauer, told the vic<>-presi(lent of tli(^ Union ,\;i. tional I'ank that the goods or money should !)(> retui'ued. On the same day Aldrich paid ovei' to \a\\\ si;(M> of the money, to l)e paid to the party who had the goods, through Isaacs, u ho alone knew such party. Out of the money thus reciMved l)y Levi he paid over >>ir»0 to Isaacs. Tln^ !i^+'>'* Isaacs paid to I'auer. who had thc! goods, as he testilied; hut IJauer says he only i-cccIvcmI of Isaacs ."<:!( mi. However that may l)e, upon tln^ i)ayment ol' the money 1<» Bauer, on AVednesflay evening, he took the goods, and, in com- pany with Isaacs, carried them to a cigar store and barlter shop on States street. Then Isaacs nolilied Levi wIkm'c the goods could be found, and he notified .Mdrich. who went to the place designated, found the goods, and within ten mimites cai'ried them in unopened packages. j>recisely as he had fomid them, to the Clifton IIous(^ ami delivered them to Morrow. I5au(M^ i-epresented to Isaacs that the packages returned eon lained all theg'oods which had hcen stolen; those helonging tc Eatim & Faas, and also those belong-ing' to Thoma, and Isaacs and Aldricih both understood this to be the case; hut, upon a subse(jucnt examination, it is claimed there was a shortage of aomc ^Ij^OO. ALDRICH V. THE PEOPLE. 537 These are, in brief, the substantial facts, as we understand the testimony. In the argument a number of questions have been presented in regard to tlie admission and excUision of evidence, but we have concUidcd to base our decision on tlie merits of tlie case, and hence it will not be necessary to notice these (luestions. The indictment in this case was found, and tlie conviction had, under section 2:59, cha]>ter 38, of tlie Criminal Code, lie- vised Statutes 1874, p. 388, which declares: "Every person who, for his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or anything the stealing of which is declared to be larceny, or property o1)taineh)ny in receiving the jirojierty, notwithstanding the license. Wharton, sec. 181»1. Under our statute there is another essential fact t(j be proven — that is. that i!ie dcK'iid- ant, for iiis own gain, or to prtnciit the owner fioni again pos- sessing his property, bought. receive(l or aided in coiU'(>aHng stoUai <>'oods. There is no doubt. IVomi tJHM'viiUMU'e in tiiiscase. in regard to tlie fact that the dffendants knew the goods were stol(Mi. Theii- knowledge is a conceded fact. It is also an un- disputed fact that the stolen goods, in passing from the custody of the thieves to Moi'row, the agent of the owners, passed ■i'- ';. 688 AMERICAN CRIMINAL REPORTS. through the hands, first, of defendant Isaacs, and second, through tlio hands of defendant Aldrich. The question in the case is then narrowed down to this: Whether defenchmts received the goods for tlieir own gain or to prevent the owner from again possessing his property. Tliis, in our judgment, is the turning point upon wliich the decision of the case must hinge. In the disposition of tlie question we will consider the case, first, as to the defendant Aldrich, and second, jis to the defendant Isaacs, as the facts relating to e;u;h deiVndant are somewhat different. It is not claimed that Aldrich undei'took to secure the return of the goods for any fee or reward whatever, or that lie ex- pected to make any money out of the transaction. On the contrary, it was proven by the prosecution that all he wanted Avas the reputation of recovering the goods. I'pon this point ^Fori'ow testified : " Prior to the time the goods were returned Aldrich said he didn't exi)cct to make a cent out of the trans- action; said this on Monday; he nevci" asked for any compen- sation, or made offer, bargain or ])roposition for compensation; he said all he wauled was the glory of beating the otlii^r fel- lows in getting the goods." The city authorities and Pinker- ton were after the goods. He never asked a dollar. It is true ho retained in his jjossession SlOOof the money which ^[orrow gave to him, 1)ut this was not kept for his own benejit, but for the benelit of Morrow. Upon this jjoint t!ie s;ime witness testi- fied ; "On Wedncsslav niiilit he said he had <>'ot all the {"'oods, instead of a ])art, and tliat he had saved me sKlo." How could ho save for JMorrow -^100 if the money was retained for his services? This could not b(( the case, as Ik; had paid over to Levi all he received of Morrow (\\;cei)t this isloo. It is aj)parent, fi-om the evidence, thai no agr(»ement was ever made under whicii Aldi-ieh was paid anything foi" his services — that he expect(Ml nothing and i'e('(Mve(l nothing for the s(M'vices he r(Mid(n'ed in securing the I'eturu of the goods. How can it then be said that iu' receivi'd tlie goods for his own gain? Xor did lu; i'eceiv(^ the goods to i)revent the owner from again possessing his proi^uM'ty. but, on the other liami, he received tluMu for the V(M'y purpose of restoring llieni lo tin ownci', which he did within ten luinutes from the time tlio\ carao intL- his possession. ALDRICH V. THE PEOPLE. 539 Wo will now consider the testimony as to the dofcndant Isaacs. lie was a ])awni)i"()kcr, and on the ni^^lit the goods were stolen lie was approaelied by one of the theivos, and re- quested to buy the goods. This he i-efused to do, but, having obtained information as to tlie cust«}dy of the goods, he under- took, afterwards, to assist Aldrieh in the consummation of his scheme to obtain the goods and restore them to llie owner. There was no contnict or agreement inider wliicli he was to receive any pay for what he miglit do in tlie ])!'emises. All that he did was done as a favor to lielp Aldrieli, wlio wanted the credit of getting the goods returnc'l. Levi, who iiekl §000 to be paid for the return of the goods, luuuhHl Isaacs $450, and retained the l»a1aneo until it coukl be ascei'taimnl that all the goods weri! returned. Tliis sum Isaacs test i lied he paid over to IJauer, but I'auer sweai's that Isaacs oidy paid him S300, l)i'omising to ])ay the l)alance tlie next day. This is the only evidence contained in the record tending to show money m the hands of Isaacs as compensation for what he did in the transaction. ^^'(Mlo not regard tlie evidence sutHcient. Con- (teding that the credibility of the two men is cMpial, whicli is iiuite as favorabk* a view on the side of the jirosecution as they could aslc, it would leave the matter standing one oath a,gainst another, which, under the circumstances of the case, (jould iu)t be regarded as establishing the fact beyond a rea- sonable doubt. Again, if Isaacs had been endeavoring to make money out of the transaction, it is strange he did not avail of the oppor- tunity to buy all the goods for the S(>(IU for himself, and say nothing to tin' detectives in regard to the nialter. This would have been the course he doubtless would have adopted had li< undtM'takeii to get the gooils for his own gain. The fact that he did not take this eoui'se is a circumstance tending to corroborate his evidence that all he did was without pa,y or reward. If, then, Isaacs received no compensation, and laid no arrangement undei' which he was to bo paid for what he miglit do, we p(>rceive no ground upon which it can be deter- mined that he receiv»>d the goods tor his v)wn gain, ov that ho received theii\ to prevent the owner iVom again possessing his proptM'ty, within the meaning of the statute. It may, however, be said, that as the goods passed through AMERICAN CRimNAL REPORTS. ■si* A iff M ■ defendants' hands they should bo held liable for the shortage of §;1,J}00, and in this way they received the goods for their own gain. If tliey retained the goods that were missing there might be force in the position, but from the evidence that was impossible. Isaacs only saw the property on two occasions, lirst on Sunday, when he looked it over in tiio ])resence of Eauer, who docs not pretend that Isaacs olfered to take any part of the goods; again on Wednesday evening, Avhon tlu^ goods were curried by liauer from Fourth avenue, in ]iaclcages, to the cigar store. AVhile Isaacs was in company with IJauci', at the time, it docs not appear that he in any manner handled the goods. As to Aldrich, his oidy posscssicm of the property "was during the ten minutes which it took him to carry the goods from the cigar store to tiie hotel, wlien the propei'ty was in ])ackag('s and unopened. We can see no gi'oiind upon which it can, from the evidence, be claimed that either of the de- fendants can be held liable for the shortage in the goods. The more reasonable view is, that the missing articles were taken by the thieves an, and the fact tiiat .Mdrich, in his first interview with Morrow, in sub stance said it would reijuirc ^1,40() to obtain the property, the long p(>ndency of the negotiations as to the amount to be i)ai(l. and the fact that ^ritto more "'as ]»aid to Aldrich than was demanded by the thieves, ai'e facts which prov(! motive of gain. As we undei'stand the evidence, the defendants could not at any tinu^ have ol)tained possession of the pro|)erty so it coidd be returned without paying the thieves tlu^ amount of money money to be j)aid to the thieves, it is ti'ue, Ahlrich, in his lirst interview with Mt>i'row. expivssed the opiii ion that !?1,40(> would be ivipiired to obtain the i)i'operty, au'l this nuiy be regarded as a circumstam*e against him; but his subsecpient conduct, agreeing to obtain the property for one- half that sum, or as much less as he could, clearly repels tlw inference that he was seeking to uv.ika any gain out of the transaction. It has been suggested that Levi was a myth - ALDRICH c. THE PEOPLE. 541 that no such pei-son ever lived. Tlio fact tliat ho was never seen or heard of after the night the goods wei'e returned looks somewhat siis])icioiis, but we must bo controlled by the evi- dence i?i the recoi'd, and unless Isaacs, Aldrich, and also the I'atlier of Aldrich, are guilty of Avilful perjury, theu Levi was no myth, but was in Cliicago at tlie time of this occurrence, and ])articii)ated therein, as testilied by the dofoiidants. We have given the evidence in the record a carelul consider- ation, and the only conclusion we have been al)le to reach is that it has not boon establisheir own gain, or to prevent the owners from again possessing their ])roperty. On the other hand, the only logical conclusion that can reasonably bo reached from the evidence is that defendants undei'took, on l)ehalf of the owners, to obtain a return oF llie goods without coinjuMisation or reward, and that all the goods which came into tluMr possession weiv in good faith returiunl to the owners. If it had been proven in this case tliat the defendants had entei'od into negotiations with Morrow to secure a retiu'n of the stolon goods in ])ursuanc(^ of a ))iior arrangement or under- standing with the persons who had stolon* the property, with the intent or ])urposo of making a, profit out of the transaction, we would not hesitate to hold that they were guilty, under the statute. A i)arty cannot shield himself behind a supposed agency, growing out of an agreement made with the owner of stolen goods for their return, whore it appears ho is acting in con- jmiction with the thieves to make a gain or ])ro(lt out of the trausaction. Hut whore the defendants are not actuated by the motive of gain, ;ts they were not in this case, and do not aid in socrc^ting the propoi-ty, we do not understand that a conviction can be had. The judgnent will be reversed and the cause remanded. Judijinent reversed. Note. — It is absolutely essential to a conviction for having received stolen money for gain, knowing it to have been istolen, that the prosecution should prove, beyond a reasonable doubt, that a larceny of the money had been conunitted. This fact, being what is known n.s the co/'jjk.s' dclidi, could not be established alone by the confession of the accused that the money foiuul on them was part proceeds of u robbery. Williams et at. v. The. People, 101 in., 832. 542 AJIERICAN CRIMINAL REPORTS. In The rcnple v. Hennessey, 15 \V(>nil., 147, tho court, in Inyinp it down that tlio c-onfi'ssion.s of a party to an individual niiri-ly, uncorroborated by circumstances, and without proof aliimdc tliat a criin«> Iina been coniniitted, will not Justify a conviction, observeil: "The truth is, no court will ever rely upon a confession nlone, when it is ajiparent that there is evidence aliiiiKle to [id\e that an olTeiise has been couuuitted," See, also, 1 Grcenleaf, Ev., sec. 217. Gvilti/ liiioirlrdrfc — Ofhrr oc/'*. — To show guilty knowledijjo, other in- stances of receiviuf;; may be jn-oved, even though they be tho subject of other indictments antecedent to the receiving in y the immediate power of execution, and acting together without autliority of law, did then and there feloniously disturlj the public ])eace, . . . and did taia> unlawful and forcible ])ussession uf the jiroperty of the Stormout Mining Company, . , . and did by the use of force and violence, and threats to use force and violence, accompanied by the immediate power of execution, unlaw- fully, forcibly a)ul feloniously drive away from the possession of said property, to wit, the J>uckeye and Savage mines, one W. «T. Allen, and other em))loyees of said coni])any, having charge and control of said property and mines and engaged at work thereon, and did feloui*nisly ami unlawfully, by the use of force and violence as aforesaid, compel and force said Allen and said employees to stop and tpiit woi'k thereon, and leave the same, and then and there took forcil>lc possession of the same, to the gi'cat danuige of said company, and to the terror and disturbance of said employees, and of the public ])eace, conti'ary to the form of the statutes of Utah territory in such case nuule and provided, and against the peace and dignity of the ])eople aforesaid. Each of the defendants l)leaded '' not (jnUtyT No one of the dcil'endanls requiring a separate trial, they v,(M'e jointly tried, and the jury found a verdict of guilty as to all of them. A motion for a new trial was overruled and the case was ai)peale(l to this court. The error fii'st alleged is the overruling of the challenge, on the i)art of the defendants, ol" John kowder, one of the jurors, who upon his t-oh- dire said he had heard a report of the facts of the case, from which he had formed an opinion, which he believed to be true, but he did not know that he had ^, IMAGE EVALUATION TEST TARGET (MT-3) ' v. Com., 74 Pa. St., 458; Peo2)le v. BeynoMs, 16 Cal, 128; Gardne>^ v. People, 3 S' im., S3. In closely balanced cases, the appearance of the juror, the mannei* in which he is examined by the counsel, and its effect upon him, sometimes justly have great weight with the trial judge. In view of this, the court, in Ortwein v. Com., 76 Pa. St., 414, said : " Much Aveight, there- fore, is to be given to the judgment of the court below, in whose presenco the juror appears, and by whom his manner and conduct, as well as his language, are' scrutinized." The defendant Murphy for himself alone, and not for him- self and the other defendants, peremptorily challenged the juror Pairg, which challenge was objected to by the prosecu- tion, and the objection sustained by the court. In support of this challenge it was claimed under the act of congress, June 23, 1874 (known as the Poland bill), providing that "each party, whether in civil or criminal cases, shall be allowed three peremptory challenges, except in capital cases, where the prosecution and defense shall each be allowed fifteen chal- lenges," that each individual defendant had the right to three peremptory challenges, and in support of this ^laim the coun- sel urges that in criminal cases eacli defendant must plead for himself in person ; each makes a separate issue with the people on the question of his guilt. If convicted, each must suffer punishment for himself, or each may be pardoned on his own merits. One can appeal without affecting another. In all this, it is claimed, there is a distinction between criminal and civil cases. In a civil case one judgment only is recorded ; one satisfaction pays for all ; and therefore, in a criminal case, tho VOL.IV — 85 5iG AMERICAN CRIMINAL REPORTS. •Is , trial is necessarily separate, to a certain extent ; in other words, the word " party," as used in the statute, means each individual defendant. This reasoning, although plausible and ingenious, is not good. If it is, these thirteen defendants had the right to make in the aggregate thirty-nine peremptory challenges. The vords "each party " seem to have the same force in the first clause of the provision above quoted as the words " prosecu- tion and defense " have in the last clause. Each of these ex- pressions are s\'nonymous with either party to the action, — the plaintiff and defendant, — regardless as to whether one or more than one person is included as plaintiff or defendant. The word " party " has its legal and technical import and sig- nification, Avhich is to be given to it at all times, except when by its use it is clearly intended that some other meaning or in- tent is given to it. State v. Heed, 47 N. II., 4<)(>. Bouvior says : " A party in law may be said to be those united in interest in the performance of an act ; it may then be composed of one or more persons. . . ." In /Sloiie v. Segur, 11 Allen, 5GS, the court says : "It imports the person or persons in whom a joint legal right, interest or title is vested, or against wliom a joint liability exists, and is properly applio'l to one person or many persons, according to the subject-matter of tiie eontruct or cause of action, and relates to or embraces a sole or joint interest or title or liability." With this definition, accepted and announced by high legal authority in both civil and criminal cases as the correct import of the word, it is not at all probable that, if the use or ftirco intended to bo given to it in the statute had been such as is claimed by appellants, such intention would not have been expressed in unmistakable language, and such an important matter not left open to construction, with the ordinary legal and technical sense of the word opposed to such intended use. If our national legislature intended that the words "each party," in the provision in question, should mean one thing in a civil action and another and quite different thing in a crim- inal action, the language used is. an instance of negligent and bungling legislation never before equaietl, we believe, in any act passed by that body. But such was not the intent, and the construction claimed by a[)j)ellants is an instance of ex- treme forced construction inconsistent with the letter and PEOPLE V. O'LAUGHLIN, 'cjich spirit of the statute, and the intention of its makers. The right of peremptory challenge is sanctioned by the statute, and the defendants were entitled to the full benefit of it, but no greater than the legal signification of the language used gives to them. By this claim of the appellants we are asked in effect to interpolate in the statute an exception containing a provision that the word "party" in crimti.rl cases means each individual defendant, whether one or 7»i( re. This we cannot do. We have no pov.^er to insert qualifications, engraft Gxce[>- tions or make modifications with the intenvion of creatinff a provision not expressed in the statute, Sedg. St. & Const. Law, 320. By the statute riot is made a felony, and section 202 of the criminal procedure act give^ to any defendant jointly in- dicted with another or others, for a felony, the right to a separate trial, if he requires it. All the defendants having waived this privilege and declared their election to bo tried jointly, their defense was joint and not several, and no one of them had authority to control the conduct of the defense. Their challenges should have been joint, not several. People v. JlcCdller, 8 Cal., 303; People v. lluujer, 1 Parker, Crim. II., 505. The defendant Enright ])ercmpt()rily challeged the jni'or Sander. This challenge was nuide under the provision of sec- tion 238 of the crimiiuil procedure act of 1878, which, by its terms, purports to give the defendant in a case like this five peremptory challenges. The defendants having jointly availed themselves of the provisions of the act of congress fixing the number of peremptory challenges at three, could not be allowed to make individual peremptory challenges under the statute of the territory. The challenge was properly over- rubd. li l)on the request of the counsel for the defendants, with the assent of the counsel for the people, the court ordered that all witnesses should be excluded from the court room during the opening statement of counsel for the prosecution and the ex- amination of witnesses. After the opening statement on the part of prosecution had been mans other 10 author n a riot, led." nition of e out tlio t, by the statute of this territory, is defined to be any use of force or violence disturbing the public peace, or any threat to use such force and violence, if accompanied by immediate power of exe- cution, by two or more persons acting together and without authority of law." Comp. Laws, p. 614, § SOo-l. From this definition we can determine Avhat it is necessary to prove in order to make out a case of riot : (1) A riot cannot be com- mitted by one person alone. The statute provides that there must be two or more pei-sons. Therefore, in order to make out a case, it is incumbent upon the prosecution to prove beyond a reasonable doubt that there were two or more of the defend- ants engaged in what they allege was the riot. (2) That two or more persons acted without the authority of law, and that they so acted together. (3) That the two or more persons so acting without authority of law used or threatened to use either force or violence, either one or the other. (4) That the two or more persons so acting together without authority of law, and using or threatening to use force or violence, were accom[)anied with — liad present with — them the immediate power of executing their purpose. (5) That two or more per- sons so acting together without authority of law, and using force or violence, or threatening to use force or violence, ac- companied by immediate power of execution, disturbed the public peace." One of the elements of riot as defined by our statute is the use of force or violence, or threatening to use force or violence, if such threatening is accompanied by imme- diate power of execution. It was not necessary, in order to use the force meant by the statute, that the defendants and those accomi)anyjng them should have been armed with guns, pistols or clul>s, or any kind of weapons. The facts, if you find such to be the facts, that they, accompanied by a large body of men, marched in a procession, under the command or direction of these persons, to the Savage mine and hoisting works, and there were halted by their commanding officers, who selected from among them a committee who ordered or de- manded, or stated the demand of this body of men to the per- sons in charge of the works, namely, that they must cease working, or that in substance, and that this large body of men remaining outside, near to and in view of the persons employed by the Stormout Company, and in charge of said works,— these im AMERICAN CRIMINAL REPORTS. facts, if you find them to exist, and find from thorn, and all the circumstances in evidence in the case, that the officers and men having in charge said works and property of said com- pany feared or believed that bodily hai'm to thenisolves, or sevei'e injury or damage to the said works or property in tlieir charge, would result from a refusal to comply with the com- mand or request, and that the circumstances in which suclj officers and men in charge of such works or property were placed were such as would in your opinion justify such belief in the minds of persons possessed of ordinary lirmncss and rea- son, are a sufficient use of force to make out, so far as the ele- ment of force is necessary, a charge of riot." In regard to what constituted a disturbance of the public- peace, within the intent of the statute, the court instructed the jury in substance as follows: " If the defendants, with others, met in Miners' Union Hall on the 1st day of February, 18S1. and resolved to march in a body through the town of Silver Reef, and to close down the works and mining machinery and property of the Stormout Company, and that they did so march, and by the use of such force as I have before metitioned did order or direct to be closed down tlio said works, and ditl hinder, obstruct and prevent, without authority of law, the said Stormout Company from operating the Savage shaft, and the hoisting works mentioned in the indictment; and if you further lind that by means of and from the manner in which said defendants, and others associated with them, mot in said hall, and from the nuinner in which said marching was done and said works closed down, feelings of fear or terror, of dis- quiet or unrest, and insecurity as to the safety of proj)erty, were created or engendered among the residents of Silver Reef, — then, and in such case, I instruct you that tliis is such u disturbance of the public peace as is contemplated by the stat- ute defining riot, under which the defeniUmts staiid charged." It is claimed with much earnestness that these instructions are erroneous, as they do not correctly state the law as to the amount of force necessary as a component i)art of riot; that there must have been " such actual force or violence as was calculated to inspire people with terror, such as being armed, using threatening speeches, turbulent gestures, or the 'like.'' Our statute in defining riot says, " any use of force or vio- PEOPLE V. O'LAUOHLIN. 553 lence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution," is riot. The words do not imply that such use of or that to use force or violence should be noisy, boisterous or tumultuous, or be accompanied with threatening speeches, or turbulent, or that the men using force, or threatening to use it, need be armed. A riot does not so nmch depend upon the strength of voice as ujjon the intent orpurjjose and the power of immedi- ately executing the purpose. Force in animate or inanimate nature is not necessarily boisterous, nor the execution of it at- tended with noise and turbulence. The man who silently, and perhaps with extreme politeness of numner, administers a few grains of str^'chnine to his unsuspecting victim, uses force, and is just as much an assassin, as the man whose murderous at- tempt is accompanied by the Hash and explosion of gunpow- der in the shot-gun. It is not so much the manner in which a thing is done as tlie execution of intent tluit constitutes the crime. A half dozen brigands may denmnd the pocket-book of a travekH" without the least exliibition of tuibulence or vio- lence in iiiiuiner or gesture, and this demand may be in the form of a re([uest, couciied in terms of the most exquisite po- liteness, and behind it all exists a diabolism that does not lies- itate to take human life u[»on the least resistance or hesitation to delivci'. And is it any the less robbery because the victim chooses to give up his money rather than to further risk his life, allliougli there is in fact no twhibltion of violence, yet every act and word imi)lies not only violence but power and force, a resistance to which endangers human life? O'Lauglilin, in giving the order to tiiose in charge of the Savage shaft, " Vut this could not properly have been, under the evi- dence in the case. It is an inconsistc^ncy that where there is but a single transaction involved, as the ])roi»f shows to have been here, the same jjcrson could have been guilty of botii of the offenses of robbery, and of having received goods obtained by robbery, knowing them to have been so obtain(>d. The ob- jection is not from the joinder of counts, — they are well enough joined. Bennett v. l*e<>pl<', 00 111,, Oo2; I.tjonx v. People, 08 id., 271; Hiner v. People, 34 id., 207. The difliculty is brought into the case by the evidence. The three offenKcs TOBIN V. THE PEOPLE. 557 sees. cliargecl in the indictment are not comprised in robbery. Lar- ceny mij^ht be em\)race(l in it, but it is otherwise witli receiv- ing property obtained by robbery. This imports a distinct and subsequent transaction, and involving anotlier })erson, the re- ceiver receiving the property from some other jwrson Avho had previously obtained it by robbery. The statute implies this in providing that in the prosecution fortius offense it shall not be necessary to aver or to prove that the person who obtained the property by robbery has been convicted. As, then, the prisoner could not, under the evidence in this case, have been guilty of both these offenses, of v. hi 'h one did the jury find him guilty? The proof renders this uncertain. The prosecuting -witness testified that on the night of the 10th day of ^lay, 1SS2, about half-past 10 o'clock, he was, in the street in Chicago, set upon by three men and robbed of a watch and chain. A pawnbroker in Chicago testified that on the morning of the llth of May, 1SS2, Tobin sold him the watch and chain for $4. The defendant Williams testified that he knew nothing of the robbery; that the morning after the robbery was said to have been committed he was eating l>reakfast in a certain restaurant at tlie tal)le with Tobin; that a man, whose name he afterwards learned was Ileaney, came to Tobin and asked him if he knew where he could sell his watch and chain ; that Tobin inquired of witness if ho knew a place, and witness mentioned the pawnbroker's place; that tliereupon IFeaney gave the watch and chain to Tobin to sell, and tliat witness went with Tobin to the pawnbroker's office, where Tobin sold the watch and chain for 84, and gave the money to Ileaney. Tobin testified substantially to the same facts as Williams, and denied all connection with the robbery. It will thus be seen that there was evidence tending to show thnt there was committed but merely the offense of receiving goods obtained by robbery, and, as before remarked, the pris- oner could not properly liave been found guilty of both the offenses of robbery, and of receiving the property obtained by the robbery wl'^re the proof shows that there has been but a single transaction involved. It is uncertain, then, from the evideiice, of which one of these two offenses the prisoner was found guilty. It might have been of the last named one, and if so the judgment of imprisonment in the penitentiary is not m ;«' 558 A5IERICAN CRIfflNAL REPORTS. m. ■warranted by the verdict, as the value of the property obtained by the i-obbery, or received, was not found by the verdict. There cannot be imprisonment in the penitentiary for the offense of receiving property obtained by robber^', unless the value of the property exceeds $15, and in such a case, to jus- tify a sentence of imprisonment in the penitentiary, this court has always held that the verdict must find the value of the property, so as to show it to be a case where, under the law, the punishment of imprisonment in the penitentiary is author- ized. n!yhl« indictment;" hchl that, as the Clime of arson, under the code, was distinguishable into degi-ees, the ver- dict was too general in not finding the degree of the crime of which the defendant was foi'nd guilty. For the same reason, in People v. Coviplwll, 40 Cal., 129, which was a trial for murder, the court helil that the rt ■• '■ ' was too general. STATE V. CARPENTER. 559 State v. Carpenter et al. (54Vt., 551.) Resistinq an officer : Indictment — Judgment — Assmdt. 1. Not necessary to aver how officer acted. — The respondents were indicted for hindering an officer. One of them pleaded guiltj', and moved in arrest of judgment for the insufficiency of the indictment. Held, that it was not necessary that the manner in which the officer was attempting to discharge liis duty sliould be averred in tlie indictment. 2. But it must be alleged that the accused knew, at the time of the hin- drance, that such officer v.-as one of the officers described in the statute, whom it is made a crime to hinder. And if it is not so alleged, such defect may be taken advantage of in arrest of judgment. G. B. Shmo, for the respondent. M. A. Bingham, for the state. The opinion of the court was delivered by RoYCE, J. The respondents were indicted under sec. 4284 of the Revised Laws for hindering an officer in the execution of his office. Fassett was tried and found guilty. Carpenter then witliiU-ew his plea of not guilty and pleaded guilty, and, after verdict and before judgment, moved in arrest of judgment for the insufficiency of the indictment, fjccause it is not alleged tliorein with sufficient particularity and accuracy : 1st. The nature of the officer's official duty and the manner of its execution. It is provided by sec. 2794, R L., that a pcliceman appointed by tlic trustees or bailiffs of an incorporated village shall have the same powers witliin the limits of tlie village in criminal matters as constables. A constable may, without warrant (and it is his official duty virtute officii), interfere to prevent a breach of the peace, and, when an affray takes place in liis presence, may keep the parties in custody until it is over, or take them immediately before a magistrate. 1 Chitty's Crim. Law, 17. And it is not necessary that the manner in wliich he was attempting to discliarge that duty should be averred in the indictment. 2d. Tliat tliero is no sufficient allegation that Carpenter, at tlic time of the alleged assault, hindrance and obstruction, r 1 'I^T' ' 5G0 AMERICAN CRIMINAL REPORTS. knew tliat Laroso was a police officer or acting in such capacity. To constitute the crime, under the statute, of hindering an officer in the execution of his office, it must be shown that the party accused knew, at the time he is charged with hindering such officer, that he was one of the officers described in the statute that it is made a crime to hinder; and that being a fact that must be found to justify a conviction, it was necessary that it should be alleged in a travci*sable form in the indict- ment that the party had such knowledge. It was l;e!d in State v. Downer ct al., 8 Vt., 42+, that it sliould be alleged that the respondent know of the character in whicli the officer claimed to act ; and in State v. Burt ct al., 25 Vt., J)73, an indictment in which no sucli averment was made was held bad upon demurrer. It cannot be presumed that the respondent had such knowledge; and the possession of it was a necessary element to constitute the crime. The indictment was, therefore, fatallv defective for not alleging it. The defect, being one of substance, was not cured by the jilea; and, although it might have been taken advantage of by demurrer, it may l)e urged in arrest of judgment. 4 Bl. Com., .'37.5; 1 Chitty's Crim. Law, 539. The indictment being bad for the reason stated, as charging the respondent with the statute crime of hindering an olllcor in the execution of his office, it is nnnecessarv to notice the other objections that were made to it. The court ovei-rulod the motion; and although the indictment was defective in (he particular above stilted, yet, if it c(mtaine(l a complete desci-ii)- tion of such facts and circumstances as constituted a crime, it Avas properly overi'ubd. In State v. Bxtrt et al., suj»-(i, there was only one count in the indictment, and that was based upon the statute against hindering an officer in the execution of his office; and, although it was held to be bad as charging the commission of a crime under that statute, it being alleged that the respondent made an assault upon the officer, the court held that it was sufficient for a common assaidt at common law, or under the general statute upon the subject of breach of the peace. Here the respondent is charged with having committed an assault and battery upon the officer. That case and State v. Downer et ah, svjpra, are full authorities for hold- ^imm FANNING V. THE STATE. 561 tho ing that the indictment was sufficient as charging tho respond- ent with the crime of having committed an assault and battery upon the officer. There was no error in overruling the motion, and the respondent takes nothing by his exceptions. Note.— See note to Fleetwood v. Com., page 30, " Arrest." i f Fanning v. TnE State. Ife (CGGa., 107.) KoBBERY: Larceny from the person. Distinction between bobbeuy and lauceny fuom the perron.— To con- fititute robbery, as «listingiiished from larceny from the pci-son, thero must be force or intimidation in the act ; therefore, where a thief slipped his h.ond into ihe pocket of a lady and got his finger caught therein, and she felt the hand, and, turning, saw h.iui unconcernedly looking at the houses, and caught him by the oat, which was left with her in making his escape, held, that tho crime is larceny from the person, and not robbery, though the lady's pocket was torn in extracting liis hand. Before Judge Simmons, Fulton Superior Court. Frank A. Arnold, for plaintilf in error. li. II. Hill, J/'., solicitor-general, tor the state. Jackson, Ciiikf Justice. The substantial facts in this case are, that the defendant slipped his hand into a lady's pocket, and furtively took therefrom a purse of money. Before he got the pui-se entirely out, she felt the hand and tried to seize it, but the thief had succeeded and the purse was gone. In extracting hand and purse, the pocket was torn, and when the lady turned she saw the thief looking unconcernedly at the houses on Whitehall street. She rushed upon hiai ajul caught him by the coat, which, in his struggle to escape, was left torn in her possession. Afterwards a policeman arrested and secured him. Tho sole question is. Do these facts make a case of robbery or larceny from the ])orsou under our code? The criminal deed was consummated when the purse was taken from the lady. The subsoarned her daughter was in trouble. He camo to her house and h.ad an interview with her in the pre.senc3 of her husband and her daughter. Mrs. Tlobartson thus relates what occurred: Q. What did you say to him (plaintiff); what were the words? A. I told him this was a nice job he had done; I told him lie must fuKil his promise and not to bring the rest of the family to shame. Cross-examined: Q. I want you to tell the first thing said, who said it, and the answer ? A. IIo bid good evening with mo and said ho was sorry for what he had done. Q. Told you ho was sorry for wliat lie had done ; who spoke next? A. Himself; ho said ho would marry if I waited two weeks, because ho said he owed his sister some money; I told him to fulfil his promise and not bring my family to shame. There is nothing here from which a jury could safely find a previous promise to marry. This view is strengthened by wliat followed. Upon her re-direct examination the same witness related what occurred as follows : RICE V. COMMONWEALTH. sm Q. Tell us v.'hat took placa at tlio cimo Eico cama to yoiD* liouso, whoii you sent for him? A. lie came to talk to mo. Q. AVliat Avas the lirst thin;^ said ? A. Wo bid •^ood evening to_!^ctlicr, and lio told rne ho was sorry for what he had done, and if I should leave it for two weeks, he would marry her; I told him I would not leave it two days; I said I har of the LT fiitlier matters I to tho icr upon H case, it H'mI her e cquiv- as tliat tico, not 10 wholo il a quos- intiir ad- neglect who was (1, wouhl ously uii- )ul(l have nation, of 1 of that record, •ei'sal, bo t judge to say why ri-ijulrei) u resentence, aUhouRh the prisoner did not demand that this question should bo asited. But as tliis error alTocted tlie sentence only, the pris- oner is not entitled to a new trial, but must l)e resentenced utter being BO u^ked. Tills was an indictment agair.it William Trczcvant for mur- der. Mr. Andrew C. Dlhble, for appellant. J/r. Solicitor Jervey, contra. Tho opinion of the court was delivered by Mr. Chief Justick Snrpsox. The defendant was tried and convicted of murder at the May term, 1883, in tho court of sessions for Orangeburg county. AVhen called for sentence, tho question " whether he had anytliing to say why judgment should not be pronounced on him," was omitted. The appeal assigns error on account of this omission. There is no doubt that in capital cases the practice of asking this question before sentence has been universally recognized and followed in this state from the earliest period of our judi- cial history. State v. WnahiiKjfon, 1 Bay, 155. And it seems that it has been the practice, not simply because it was formal and seemly, but because of legal requirement founded upon wise consideration, and, therefore, necessary and indis- pensable. Mr. Archbold (1 Cr. Pr. & PI., G7G) says that in capital cases, before judgment is pronounced upon the defend- ant, it is indispensably necessary that he should bo asked "if he has anything to say why judgment should not bo pro- nounced on him," referring to 1 Chitty, Crim. L., TOO; West v. State, 2 Zabr., 212, and GraiJi/ v. State, 11 Ga., 253; and, also, that this should appear upon the record to have been done. 3 Salk., 358; Mill. Comp., 157; 3 Mod., 205. This is necessary, because, on this occasion, tho defendant may allege any ground in arrest of judgment, or he may plead a pardon, etc. 4 131. Com., 370. He further says, that the omission to do this in cases of minor felonies is not a suf- ficient ground for reversing tho judgment, provided it appears that the prisoner and his counsel were both in court when the sentence is pronounced, and urge nothing against the judgment or in mitigation of the defendant's guilt. Gradij v. State, 11 5ss ought to have been permitted to answer it. Except in the particulars nientioru'd the cause seems to have been fairly and properly tried. All concur. 574 AJIERICAN CRIMINAL KEPOKTS. TKKBiTOKy V. An "Waii and Aii Yen, (4 Mont., 149.) Verdict: Jh/v/ — \Vnircr. 1. Verdict OF eleven persons in capital cask a nullity. — Tlio consti- tution guaranties a jury of twelve men, the common law jury, and tho right to be tried for crime by a jury of that number is not a mere privi- lege of the prisoner, but a legal re(iuu'ement, which cannot be changed by tho consent of tho prisoner. Tho verdict of eleven jurymen in a capital case is a mere nullity, and any judgment rendered thereon against the prisoner is witliout jurisdiction and void. From First District, Madison County. ArmMrong <& Toole, for respondent. Blake t5 Calloway, for appellants. Wade, C. J. This is an indictment for murder. During tho progress of the trial one of the jurymen was excused on account of sioknoss in his family, and thereupon, with thecon- Bcnt of the defendants, the trial proceeded to a linal conclusion before the remaining eleven jurymen, who returned into court a verdict against tho defendants of murder in the first degree. Had the defendants, with tho consent of the ])rosecution and the court, in a capital case, tho right or authority to waive a trial before a jury of twelve men? A common law jury con- sists of twelve persons. That is tho jury secured and guaran- tied by tho constitution. ]>y the law of the land twelve per- sons form a ]iart of the tribunal before whom a defendant charged with a capital crime is to be tried. Can a defendant on his own motion change the tribunal and secure to himself a trial before a jury not authorized by and unknown to tho law? "We know of no authoi'ity authorizing anything of the kind in a capital case. Tnstanc<\s may bo found in tho books in cases of misdemeanors, and also. l)ut more rarely, in cases of felonies, where it has been held that a defendant might waive his right to a jur}' of twelve and consent to be tried by a less number, but the weight of authority in cases of felony is clearly against the proposition. The law has established cer- tain tribunals, with defines] powers and forms of proceedings, for the trial of persons chaigc d with eritne. Security to tlu^ defendant and to the j)ubli(; is only found in a strict compliance TERRITORY v. AH WAH AND AH YEN. 575 ^ with tho law of the land. Jurisdiction comes by following the law. Disorder and uncertainty follow a departure there- from. Neither the prosecution nor the defendant, by any act of tlieir own, can change or modify the law by which criminal trials arc controlled. If, with the consent of the court and tho prosecution, the defendant may have a trial with one juryman less than a constitutional jury, why, with like consent, might he not have a trial with one juryman more than a constitutional jury ? If by his own act the defendant might take one from a lawful jury, we do not see why he might not add one thereto. In either case there would bo a failure of jurisdiction, because jurisdiction aLiaches to and makes valid a verdict when ren- dered by a jury, and a jury is twelve men. In civil actions tho statute expressly provides that in case a jurynum becomes sick and is excused, the trial, with the consent of the parties, may proceed before the remaining eleven jurymen; but even in civil actions this could not bo done except by virtue of a statute au- thorizing it, and hence the statute was enacted. In the absenco of a statute, consent would not confer jurisdiction. By tho consent of the court, prosecution, and defendant, a criminal trial ought not to be converted into a mere arbitration. In the case of Caucemi v. People, 18 N. Y., 130, the court says: "Criminal prosecutions involve public wrongs, a broach of public rights and duties which affect the whole comnumity, considered as a community in its social and aggregate capacity. 3 Bl. Comm. (2d ed.), 45. The end they liavc in view is tho prevention of similar offenses, not atonement or expiation f(,. crime committed. Id., 11. The penalties or punisliments, for tho enforcement of wliich they are a moans to the end, are not within the discretion or control of the parties accused; for no one has a riglit, by his own voluntary act, to surrender his liberty, or part with his life. Tiie state, the public, have an interest in the preservation of the lil)erties find lives of tho citizens, and will not allow them to be taken away ' without due process of law' (Const., art. 1, § 0), wlien forfeited, as they may be, as a punishment for crimes. Criminal prosecutions proceed on the assumption of such a foi-feiture, which, to sus- tain them, must bo ascertained and declared as the law has prescribed. . . . These considerations make it apparent t !iat the right of a defendant in a criminal prosecution to affect, 670 AMERICAN CRiailNAL REl'ORTS. j|.^:i.i ';.?%..■ by consent, tlic conduct of the caso, sliould bo much more lim- ited in civil actions. It should not be permitted to extend so fill' as to work radical changes in great and leading provisions as to the organization of the tribunals, or the mode of proceed- ing prescribed by the constitution and the laws. Effect may justly and safely be given to such consent in many particulars, and the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived; the court may be substituted for triers to dispose of challenges to jurors; secondary, in place of primary, evidence may be received; admission of facts are aUowed; and in similar par- ticulars, as well as in relation to mere formal proceedings gen- erally, consent will render valid what, without it, would l)e erroneous. . . . But when issue is joined upon an indict- ment, the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change. The public ollicer prosecuting for the people has no autiiDvity to consent to such a change, nor has the defendant. Ap})ly'!".g the above reasoning to the present case, the conclusion neces- sarily follows that the consent of the plaintiff in error to the withdrawal of one juror, and that the remaining eleven might render a verdict, could not lawfully be recognized by tiie court at the circuit, and was a nullity. If a ditference of one juror might be waived, there appears to bo no good reason why a dcliciency of eleven miglit not be; and it is diHicult to say why, upon the same principle, the entire jianel might not b(^ dispensed with, and the trial committed to tJie lowrt alone. It would be a highly dangerous innovation in reference to crimi- nal cases, upon the ancient and invaluable instituti(m of trial by jury, and the constitution and laws establishing and secur- intr that mode of trial, for the court to allow of any number short of a full i)anelof twelve jurors, and wo think it ought not to be tolerated." In the case of Sfnfc v. M}>ffrfVff, 41 Mo., 470, Wagner, ,1.. says: " A jury must consist of twelve -men, — no more, no less; no other number is known to the law, — and they Tuust appear upon the record to have rendered their verdict. Jii',r v. Sf. Michaels, 2 Hlack., TM>; Di.ron r. U'lchnnh, 2 llow.,. 771 ; Jiwh- Hon V. Sfot(\iS P.lackf. (Md.), 4*!l; Bi'innt v. Sfatc. f^ liiackf., 601. ' The petit jury,' says Chitty, 'must consist of pre(!isely TERRITORY v. AH WAH AND AH YEN. 57t twelve, and is never to be more or less, and this fact it is neces- sary to insert upon the record. If, therefore, the number re- turned be le.5S than twelve, any verdict must be ineffectual, and the judgment will be reversed on error.' 1 Chit. Crim. Law., 505." After commenting upon the reasons given in the case of Cancemi v. People, Kupra, Judge Wagner furtlier says: "An- other good and sufficient reason, it occurs to us, is that the prisoner's consent cannot cliange the law. His riglit to b(i tried by a jury of twelve men is not a mere privilege; it is a positive requirement of the law. He can unquestionably waive many of his legal rights and privileges. He may agree to certain facts, and dispense with formal proofs; he may c(msent to the introduction of evidence not strictly legal, or forbear to interpose cliallenges to the jurors; but he has no power to con- sent to the creation of a new tribunal, unknown to the law, to try his offense. The law, in its wisdom, has declared what shall be a legal jury in the trial of criminal cases; that it shall be composed of twelve; and defomlant, when he is upon trial, cannot be ])ei'mittcd to change the law, and substitute another and a ditrcrent tribunal to pass upon his guilt or innocence. The law as to criminal ti'ials should be based upon fixed stand- ards, and should be clear, delinite and absolute. If one juror can be withdrawn there is no reason why six or eight may not be, and thus the accused, through persuasion or other causes, may have his life ])iit in jeopardy, or deprived of his liberty throutrh a bodv constituted in a uumner unknown to the law. Aside from the illegality of such a procedure, public policy condemns it. The prisoner is not in a condition to exercise a free and iiulependent choice without often creating prejudice against him.'" In Hill V. People, 10 Mich., 357, the court says: "The true theory, we think, is that the po()])1e. in their political or sov- ereign capacity, assume to provide by law the pro])er tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such ; and upon them, therefore, devolves the responsibility, not only of enacting such laws, Init of carry- ing them into effect, by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance Avith the constitution, which secures his rights. The government, VoL.IV-37 578 AMERICAN CRimNAL REPORTS. 'Wi- the officers of the law, bring the jurors into tlio box ; he has no control over the matter who shall be summoned or c(mipos(^ the panel, upon Aviiich ho may exercise the vi apprehended, and that every step taken in that direction would tend to increase the danger. One act or neglecjt might lie recognized as a waiver in one case, and another in another, until the constitutional safeguards might be sulxstantially frittered away. Tlie only safe course is to meet the danger in litiilnr, and prevent tlic first step in tlx! wrong direction. It is the duty of courts to see that the con- stitutional rights of a defendant in a criminal case shall not 1»(^ violated, however negligent he may be in raising the objection. It is in such cases, empliatically, that consent sliould not be allowed to give jurisdiction." J^ee, also. Peaiile v. (fJVetf, 4H Cal., 25S; Carpenter r. /Sfatc, 4 llow. (Miss.), 1(»3; Jar/,sfm r. State, Blackf., 4G1; Brmrn r. Staf(\ 10 Ind., 49fi; Boiclen v. State, 5 8nocd (Tenn.), SOO; Bell r. State, 44 Ala., J'.O.'J; WUh'ams V. Stat<>, 12 Ohio St., i\±l; AUm v. State, 54 Ind., 4(51 ; 1 liisli. Orim. Proc, § 701; Protf. Jur., § 113; State v. MeCleai', 11 Nov., :?(>, (50. The opiKJsition to these authorities is that of State v. Kauf- man, 51 lowii, 57s {S. C, 2 X. W. Hep., 275), whore it is held that, upon a trial for crime, the dcfcnchmt may waive his right to a trial l»y a jury of twelve men, and with his consent may be tried before eleven jurors. This decision cites for its sujv port the cases of Com. v. Dailcy, 12 Cush., 80; Murphy v. Com.'' I Mete. (Ky.), 305; lyra v. Same, 2 Mete, 1; which caseawcro BURKE V. THE STATE. 579 ; ho has C()lnpoS(^ c placed tlicorios, I'CJit dan inal case, jould not I'liis trial the safe- lie unani- jurors by d that a id no one ; but the very seri- takon in 10 act or *ase, and ds might rse is to }p in tli(! t the con- ill not 1)(^ :)bjcction. d not be rjVeU, 4H acl'mn v. Boxcles r. WiUlamn ; 1 Bish. Cleav, 11 •: V. Kavf- it is held ■ his right sent may ar its sujv yv. Com.-' laseswcrc misdemeanors, and expressly limit their application to misde- meanors only, and therefore cannot properly be cited as author- ity in cases of felony, and especially not in capital cases. Wo therefore hold that the court erred in permitting the trial to proceed to a verdict after the withdrawal of one of the twelve jurors. The verdict of eleven jurymen in a capital case is a more nullity, and any judgment rendered thereon against the defendants is without jurisdiction, and void. This conclusion renders it unnecessary for us to consider any of the other questions presented in the argument of counsel. Reversed and remanded. BuRKK v. The State. (66 Ga., 157.) WrrNESSEs: ^rrcsi o/ — Forgery, 1. Brevity and un'ceiitainty of forcjed instrument no bar to convic- tion. — For forging iin instrument in these terms : " George, let the boy luive $2 worth of wliat ho wants," an indictment will lie; the other con- stituents of forgery concurring, the brevity and uncertainty of this instrument will not prevent a conviction. Such paper was not inad- missible in evidence on account of uncertainty. L'. Arrest of defendant's witnesses in presence of jury.— It is error for the court to order the arrest of the defendant's witnesses in the presence of the jury before whom they have just given their testimony, .and to have them then and tliere arrested on account of what they liave testified. To do so amounts to an intimation from the bench that their evidence is faJse. Before Judge Ilillyer. Fulton Superior Court. L. J. Gk'nn cfe Son and E. A. Angler, for plaintiff in error. H. II. Hill, Jr., solicitor-general, by brief, for the state. (JuAWFortn, Justick. The plaintiff in error was indicted in Fulton superior court for forgery and counterfeiting, and on a second count with uttering and publishing as true a certain forged order, of which the following is a copy : " George, please let the boy have $2 worth of what he Avants. " October the 1st, 1878. W. C. Peck." 5S0 AMERICAN CRIMINAL REPORTS. 1. The defendant demurred to the indictment upon tlie groiinl tiiat the order wliich was charged as a forgery was so incoiuploto and imperfect that no one couhl have been de- frauded by it, and no recovery could have been had upon it by suit. The court overruled the demurrer, and this constitutes the first assignment of error. This ruling of the court was fully sustained and covered bj' the decision in the case of John- son V. The State, G2 Ga., 299. 2. The second objection to the ruling of the court was in admitting in evidence the order itself to the jury, which we hold was legal. 3. Because the court erred in commanding the sheriff to iw- rest Ed. Martin, Bcttie l\rartin and Elizabeth Ward, matciTil witnesses for the defendant, in this, that the order of an'(>st was given in the presence and hearing of the jujy, and said arrest being made in the presence of the jury trying the case, said arrest being made because of the evidence just given in by said witnesses, and such arrest tending to throw discredit upon their testimony to defendant's injury. This ground, when aiudyzed, states that after these wit- nesses had testified the court commanded the sheriff to avrent them, and that the order to arrest was given in the presence and hearing of the jury, and that the arreM was made in the presence of the jury, anreferred against the defendants Man- ning and Ilannam for cons[)iring togetiier to cheat and defraud the prosecutor. The case was removed by certiorari and tried on the civil side at the last summer assizes at Winchester before Lord Coleridge, C. J., and a special jury. The jury wore di- rected that on this indictment they might find one prisoner guilty and accpiit the other. Th(>y returned a verdict of guilty against Manning, but were unable to agree as to Ilannam, and were discharged from giving a verdict. Manning was put under recognizance to surrender to receive judgment in tlui queen's bench division, and the trial of JIannam was postponed. This rule was obtained on the ground of misdirection. Matiikw, J. In this case 1 have come, after considerable doubt, and I confess with great reluctance, to the conclusion that there must be a new trial. The man who was convicted had a perfectly fair trial, and a summing up distinctly in his favor, and every precaution was taken which could be taken to ])revent any evidence being acted on by the jury which could not be legitimate evidence against him. Nevertheless, I am satisfied by the argument of Mr. Charles that there is an imperative rule of law which should have prevented my lord froni informing the jury, as he did, that it was possible in such a case to convict one of the men and to acquit the other. The rule appears to be this: In a charge for consj^iracy in a case like this where there are two defendants, the issue raised is, whether or not both the men are guilty, and if the jury are «■ Tnr; queen v. manning. 583 not satisfied as to the guilt of either, thoji both must be ac- ♦juittcd. In Hex V. Cooke, 5 W & C, 538, the court could not liavo pro- nounced the jud;,Muent they did unless they had assumed the existence of the rule. So in Itog. v. Thompson, 10 Q. B., 832, it appears that the court were of opinion that this rule ex- isted. The authority does not rest there. There is, in addi- tion, a ])assa<^e in the judgment in liohlnxon v. lioh'atnon, and Ijine, 1 S\v. k, Tr., 302, in which tlie rule of law is treated as perfectly clear. 1 Sw. «fe Tr., at p. 31)2. Lastly, there is the judgment of the house of lords in iTConnell v. The Qncnn, 11 ( 'I. it v., 155, which seems to me to be another clear illustration of the rule. It ai)pears to me, tlierefore, that the direction given here was one which should not have been given to the jury, and that there must be a new trial. SfKiMiKX, .1. I have arrived at the same conclusion with great reluctance, aiul entirely upon the autliority of the pas- sage in aConnell v. The Queen, 1 1 CI. k F., 155, p. 230. The decision is of tluOiigliest autliority, and clearly shows that it is a legal impossil»ility that when several persons are indicted For a conspiracy, any verdict should be found which implies that some weiu^ guilty of one conspiracy and some of another. With regard to the other two cases which bear upon the mat- ter, nanu'ly, Uee r. ('aoke, 5 15. »fc C, 5r>S, and Jieff. v. Thomp- son, 10 (i. B., H32, I should have had no difficulty in saying that I thought they left open the matter which O'Connell v. The Queen, 11 ("1. k. V., 155, p. 2;)0, ajjpears to have decided. In Rohlnxon v. Hohinmn and Lone, 1 Sw. & Tr., 3(;2, 1 think the i)art of the judgment relating to the criminal law is a mere dictum. The rule applicable to divorce cases is, as it ajipears to me, founded on common sense, and general principles would be in favor of the contention which is raised on the present oc- casion by the prosecution. I cannot, however, see any distinc- tion between the rule that should apply to the present case and that cited from (TConneU v. The Queen, 11 CI. & F., 155, p. 230, and that being so, I think the direction cannot be sup- ported. Lord Colkridok, C. J. I have some time ago come to the conclusion that I misdirected the jury. At the trial I had not 584 AMERICAN CRimNAL REPORTS. the cases of Rex, v. Cool'e, 5 B. & C, 538, or Reg. v. T/tomj)son, 16 Q. B., 8o2, before me, wliicli I confess seem to me much in point. But wliat influenced me at the time was that it scome- soti and Lane, 1 Sw. & Tr., 3(52, and Stone v. Stone and Apple- ton^ 3 Sw. *fc Tr., (JOS, and other cases of that description, and which is based on the fact that tliat wliich is evidence against one person is by no means necessarily, by om* law, evidence against another. It follows that wheix) there is a joint offense which has to be proved against each person separately, tlie evi- dence which is surtieient to c(mvict one person of the offense may not by any means be sullicient to convict the other. The princi[)les of the practice of the divorce court in this nuitter seem to me to be sound, and they ought to be ai)plled to anal- ogous cases. I am by no means prepared to say that if th«' nuitter were ven Integra, and even in this case if there could have been an appeal from this decision to some other ti'ibunal. [ might not have adhered to my view, and left the i)oint to be settled by higher authority. But 1 feel bouiul by what I now understand to be the e.itablished rule of practice. The earlier cases, it is true, ar*; stated shortly and without much particulai- ity of detail. It may be. if we had all the facts of those cases, they niight turn out to be less in point than they appear to be at present; but still from the time of the 14 lien. 4 {Tliodifs Oa.se, 14 Hen. <», ii.") b), and in note to /**(./• v. Cooh\ 5 B. & ('.. .')41, it has been taken for grant(>d by the judges of these xt day tlie prisoner's wife, in her husband's presence, handed to anotlu'r constable the list tendered in evidence, sajing in her huslwind's hearing, "This is a list of what we Inniglit, and wliat we gave for tliem.' The question reserved wtis wliethcr such list was properly admitted in evidence. Held, by the court (Lord Coleridge, C. J., Grove, Field, Steplien and Smith, JJ.), that the list was clearly admissible in evidence. The followinj^ case was stated for the opinion of this court: " Tlie prisoner, tieorge ^lallory, was tried at the cast riding of Yorksliire quarter sessions, held at Jjcverley, on tlic 9th of April, l:ss+, for receiving certain articles, the property of Agnes Fitzpatrick, knowing the same to have been stolen. The prisoner was a marine store dealer, and it ap[)eared from the evidence that the stolen articles v ere such as he might have bought in the lawful exercise of his business. It was not disputed by the prisoner (who was represented by counsel i that the goods had been actually stolen by the man who brought them to his shop, and the price given by the prisoner for the articles thus became a material (]uestirisoner ro- 'xt day the ■ constable "This is a quoHtioii evidence, eplieu and lis court: st riding tlic 9tli oi)orty of ■11 htolcn. ircil Iroin lie iniglil t WHS not f counsel i nan who ) prisoiK.T tlio case. WiXS iiuicli ;el for tlic articles 1 for each ered sulli trial: le tracinj.', f when h(> could npt Id, and his THE QUEEN v. MALLORY. ggf " William "Winterbottom, superintendent of police, said: 'I went to the prisoner's house on the 31st; prisoner and his wife were there, and the wife in her husband's (Mallory's) presence handed me a list of goods with dates and prices ; she said, " this is the list of wliat we bought and what we gave for them." The prisoner did not speak, but he heard what she said, and saw the list handed to mo. I believe the whole of it is in the wife's handwriting.' This witness then produced the paper, and the counsel for the prosecution tendered it in evidence. " The counsel for the prisoner objected to its admission on the grounds : " 1. That the wife would be the proper person to prove its contents, and the evidence of a wife is not admissible against or fpr the husband. " 2. The pa[)er is neither more nor less than the evidence of the wife against the husband, and is therefore inadmissible. " 3. There is no evidence that the husband knew or saw the contents before it was handed to the superintendent, nor that it was made by his direction, and in a criminal case the wife cannot be the agent of her husband. " I admitted the paper (^wliich was read to the jury by the clerk of the peace), reserving for the consideration of the court of crown cases reserved the question as to whether or not I was right iu doing so. It was proved that the value of the stolen pro[)erty was greater than the sum shown by the paper to have been paid by the prisoner. There was no other evi- dence of the price ho paid. " The jury convicted the prisoner. The question for the court is whether the paper above mentioned was rightly ad- mitted in evidence. If so, the conviction is to stand ; otherwise to be quashed. The list was as follows : 1884. £. s. d. !23 January. Brass rods 1 6 23 " Sheets, table cloths, towels 24 " Blankets, canvas, knives, forkrt, spoons, 3 pillows. . 13 25 " Tea service, 2 cruets, o pillows, piece carpet 13 20 " Featherbed 14 28 " Two feather beds, small looking ^liiss 1 12 20 " One lookinK Rlass ornaments 6 0" liORD CoLKKiDOE, C. J. If tliis luul 1)0011 comuiunicated to the ix)lice in the absence of the pris(jiior by the prisoner's wife, 688 AMERICAN CRIMINAL REPORTS. I niiglit have doubted whether the evidence could have bo(Mi admitted ; but here the prisoner, upon being asked questions, says, in substance, " my wife will make out my answer for mo," and then on the next day another policeman goes there, sees the liusband and the wife together, and then the wife hands over the statement which her husband had ordered her to make out for him. She hands it over as her husband's stateuicnt, and in hie presence, and he never denies this or says that there is any mistake with regard to it. Had he wished to contradict the list or his wife's statement, he could have done so; he did not. and the evidence is clearly admissible. Gkove, Field, Stephen and SMrni, JJ., concurred. Conviction affirmed. d: The Queen v. Maurer. (10 Law Rep., Q. B. Div., 513.) ExTKADiTioN : Jurisdiction — Habeas corpus. The court has no i>ower to review decision of magistrate on ground IT IS AGAINST WEIGHT OF EVIDENCE. — Upou an applitation for a habcan corpus in tlic caso of a fii>j;itive criniinal conuniltod by a police magis- trate, under the extradition act, the court lias no power to review the decision of the magistrate on tlie ground that it wjis against tlic weight of the evidence hiid before liim, there being sufiicient evidcnic before him to give him jurisdiction in the matter. This was an aj)plication for a haheas corpufi in the case of one Maurer, for whose extradition tlio (Jerman government had applied under the treaty between (Jermany and this coun try, in respect of an alleged crime against the bankruptcy laws of Germany, and who had been committed by a police magistrate to await the warrant of the secretary of state for his extradition for such crime. Bowen liowlands, Q. C, moved for a rule nisi accordingly. lie contended that there was no evidence upon the deposition before the magistrate that the prisoner bad been guilty of any bankruptcy crime according to the law of England, and con lavc boon questions, V for Hie," here, socs ands over make out nt, and in ere is any [•adict tiic e did not. affirmed. : ON GROCM) for a hubcor. olico magis- T to review against the iut evidfiit (■ 10 case of >vernmcnt this coun [inkruptcy y a i)olico I state for cordinglj. ilcposition Ity of any , and con THE QUEEN v. MAURER. scqiiontly no evidence of an extradition crinie within the ex- tradition act, JS70, sec. 2G, He further contended, in effect, that the nia<^isti'ate was wrong in deciding, upon the evidence before him, that there was a prima facie case against tlie prisoner of a bankruptcy crime according to the law of this country, and tliat sucli decision was against the weiglit of the evidence. [He cited Ilaguet's Case, 2!) L T. (N. S.), 41 ; Chii-ke on Extradition, 2d ed., p. 15G.] FiRLD, J. I think that this ap[)lication must be refused. It is clear that the provisions, both of the extradition act and the treaty, require that the crime for which the extradition of the criminal is to take place, should be a crime according to the laws of both the contracting states. The ninth and tenth sec- tions of the act provide that, when a fugitive criminal is brought before the police magistrate, lie sluill hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the jn'isoner were brought before him cliarged with an indictable olfonsn in England; and if the for- eign warrant authorizing the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this act) would, acccmling to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the pohce magistrate shall commit him to prison, etc. The counsel for the pris(mor has put forward two grounds for this api)lication. Taking the second ground first, it is that on the balance of the evidence laid before the magistrate such evidence was not suificient to justify the conclusion to which the magistrate came. On that question we were referred to IIiKjucfs Case, 29 L. T. (N. S.), 41, and the observations made on that case in Clarke on Extradition, 2d ed., p. 150, The author there says: "The very important question was raided in that case whether the court woidd examine the suificiency of tlio evidence before the police magistrate, and the court held that it was not called upon to do so. In that case, Martin, IJ., said, in giving judgment: ' The question is, whether this was a proceeding within the jurisdiction of Sir Thomas Henry. I do not say that if there had been no evidence before him, or ho had acted contrary to law, wo would not have discharged the 590 AMERICAN CRIMINAL REPORTS. ^i) prisoner ; but it appears to mo that all the procccflinf^s have been properly taken. This is not a court of appeal from his decision, and it is for him to decide whether or not the evi- dence is sufficient.' This question of the ])o\ver of the court to examine tlie Aveight as well as the competency of the evi- dence before the police magistrate has been much ari^ued and VTr''- ^ly decided in the United States, and will probably bo d' •' i i-^ ' further in England. The case mentioned above is g' y loah' i' not conclusive of the matter." It appears to me, however, that the decision in Ifngurfs C/isc. '"> L. f (N^. S,), 41, is completely in accordance with the princii)les u[«()n \vlr.;h the courts act and have always acted with reference to the adjudications of justices in general, and without that decision I think wo should have come to the same conclusion. The statute savs tiiat the majjistrato shall have the same jurisdiction, as nearly as possible, as if the prisoner were brought before him charged with an indictable offense in England. So long as the magistrate keeps within his jurisdic- tion we have no j)ower to interfere with his decision. It is only when there is no jurisdiction, as when there is no evidence before the magistrate, that we can interfere. It seems to me that in ffiifji(,'f>i Cmr, 29 L. T. (X. S.), 41, all the judges intended to decide that it was not for this court to weigh the evidence, if there was any rcasouable evidence of an extradi- tion crime for the nuigistrate to act upon. If there is such evidence the magistrate is not going beyond his jurisdiction in committing the prisoner upon such evidence. The remaining point is, whether there was any reasonable evidence for the nuigistrate that the prisoner had committed an extraditibal)ly 1)0 above is I witli the lys acted icral, and tlie saino hall have 3 prisoner offense in } jurisdic- It is only evidence sms to nie 10 judges ivcigh the n extradi- c is sucli diction in easonahle ommitted the facts Lgistrate.] from the er of the conditions :mI by the ■ad it ion is contract- 5 that the prisoner is guilty of such crime. There must be sucli evidence as, according to the law of England, Avould justify the magis- trate in committing the prisoner for trial if the alleged crime had been committed in England, It appears to me that in the present case there was such evidence. I agree with my Brother Field that, there being such evidence, we have noth- ing to do with any question as to the weight of the evidence. There is no provision in the act giving any right of appeal to us against the magistrate's conclusion. The only application open to the prisoner is for a writ of haheas corpus, and that a[)plication can only succeed when the magistrate has exceeded his jurisdiction. • Application refused. TiiK Queen v. Holmes, (12 Law Rop,, Q. B. Div., 23.) Fai£E pretkn'ses — Venue — Piace of trial,— H. wrote and posted at N., in England, a letter addressed to G,, at a place out of England, con- taining a false pretense, by means of which he fraudulently induced G. to transmit to N. a draft for ir)0?,, which he there cashed, Held, by the court (liord CoUn-idge, C. J., Denman, ILawkins, Williams and Mathcw, JJ,), that there was jurisdiction to try IL at N. ; that the pretense was made at N., where also the money obtained by means of it was received. Case stated by lIunnLEs^rox, B, '' The prisoner was tried and convicted before me at the assizes at Nottingham, on Thursner had written at Not- tingham a letter containing the pretense, which was proved to bo false, and in consequence ol" which the prosecutor had pjirted with his money. "The letter was written and posted at Nottingham, and re- ceived by the prosecutor, Gabct, at Cawdry, in France, from 592 AMERICAN CRIMINAL REPORTS. u whence a d'-aft for 150^. was sent according to and in com- pliance with the directions of the prisoner contained in his letter. The draft was received by the jn'isonor in Nottingham and cashed there. " It was objected on the part of tlio prisoner that, as the false pretense was made in England, but did not op.orate to obtain the money until it reached its destination in France, no offense was committed over which the English court had jurisdiction. " For the prosecution it was contended that, as the reprcsen tation was made in England and the money received there, tiu; offense was within the English jurisdiction. Jte^j. v. Coolr, 1 F. & F., (54, was quoted. "The only (piest ion for the court is, whether the prisoner could be indicted and tried for the offense in Xottingham. If he could, the conviction is to stand ; if not, the conviction is to be quashed." Lord Coi.kridgk, C. J. This conviction is perfectly proper. The charge was of fraudulently obtaining money by false pre- tenses, and that charge was proved ; but a question is reserved as to whether the ])lace of trial was a corn^ct place in which to try the prisoner. There is no doubt that it was correct; it appears, if authority bo needed, from the case of Hex v. livv- dett, 4 B. & A., 05, that when a letter such as the one in ques- tion is posted the pretense is made, and here it appears the money is actually received and obtained .as well as the letter ■[X)sted in Nottingham. Of the two necessary ingredients of the offense both take place in Nottingham. It maybe that one important part of the offense taking place in Nottingham would be sufficient, but here both ingredients take place at Nottingham, Dexman, J. I think the conviction should be affirmed, and I am disposed to think the case covered by AVr/. v. CooJce, 1 F. & F., 0-1-. In that case it seems to have been hold the man ob- tained the money in Northampton, whore he wrote the letter, though it was paid over in Westminster, so that this would bo an a fortiori case as compared with that. Hawkins, J. There is no doubt about this cas' : the convic- tion is right ; every element occurred at Nottingham ; whatever THE QUEEN v. STEPHENSON, 593 the prisoner did, he did there. If the conviction were quashed it would enable fraudulent people to carry on a profitable trade in false pretenses with impunity. "Williams and Matiiew, JJ., concurred. Lord Colekidgk, C. J. I prefer not to rest my judgment upon lieff. V. Cooike^ 1 F. & F., Gl, because perhaps that convic- tion may have proceeded on the third count of the indictment. In saying this I do not intend to cast any doubt upon the case of Reg. V. Cooke, 1 F. & F., 04, but my judgment is independ- ent of that case. Conviction affirmed. The Queen v. Stephensox and another. (13 Law Rep., Q. B. Div., 331.) Inquest — Destruction of body to prevent. Destroying dead body to prevent holding of inquest thereon.— It ia a misdemeanor to burn or otherwise dispose of a dead body with in- tent thereby to prevent the holding u^wn such body of an intended coroner's inijuost, and so to obstruct a coroner in the execution of his duty, in a case where the inquest is one which the coroner has jurisdic- tion to hold. A coroner has jurisdiction to liold, and is justified in liolding, an inquest, if he honestly believes information which has l^eon given to liim to be true, wliich, if true, would make it his duty to hold such inquest. The following case was stated by Hawkins, J. : " These defendants were tried before me at the assizes holden at Leeds on the 1.5th day of May last, upon an indict- ment in substance charging them Avith having burnt the dead body of an illegitimate infant child (named George Stephen- son), to which the defendant, Elizabeth Stephenson, had re- cently given birth, with the intent to prevent the holding of an inquest upon it. The defendants were both found guilty ; but I deferred passing sentence, and admitted them to bail until the opinion of the court of criminal appeal could be ob- tained upon certain questions of law which I reserved at the request of their counsel. The defendant Elizabeth was, on the 17th of December, 1883, confined of the child in question Vol. IV— 38 rm AMERICAN CRIMINAL REPORTS. at tlio house of a ]\rrs. Atkinson, at Cayton, near Scarborough, in the north riding of Yorkshire, with Avhom it lived until its death on the morning of the 12th of January last. '" On the 9th of January tlie defendant, Elizabeth, took it out for the day — it was then quite well — but on the follow- ing day it was very poorly and had fits, and it remained ill until its death. The dead body remained in the house of Mrs. Atkinson until the night of the following ^londay, when it Avas surreptitiously taken away by the two defendants and burnt, with intent to jii-event the coroner from holding an in- quest upon it. The defendant Ann is the mother of Elizabeth, and they lived together at Cayton in a cottage opposite Mrs, Atkinson's. " It is fair to the defendants to say that there Avas no evi- dence beft of whic \ he had no reason to doubt, as led him to the conclusion that it was his duty to hold an intpiest upon the body. There was no pioof that the inforriiation given to tlie co/cdier vas true, bat the coroner honestly belicn'od it to bo so, aiid it nuist be taken as a fact that if the information was true it Avas the im- poratiA'e duty of the coroner to hold an incpie.-it. The coroner accordingly appointed the afternoon of the following day — Tuesday, the 15th of January — for the holding of sucli inquest, and of this the defendants had kno\v]edy the two defend- ants as above stated. At the close of the case for the prose- cution the learned counsel for the defendants (^[r. Stuart- Wortley for Ann, and Mr. Millor for Elizabeth) ol)jected to th(~ sullicicncy of the indictment that the ])reliminarv averments do not allege that the case AA'as not a proper one for an inquest. or that the proposed inquest Avas one Avhich ought to be held ; that the information on Avhich the coroner acted should havt; THE QUEEN v. STEPHENSON. 50.") borough, until its 1, took it e follow- liiined ill of Mrs. , when it iints iind vr an in- slizabeth. •site Mrs. IS no evi- 1 was clu(; ce, in the T for tlic 1 sucli in- of w])ic I ision that 'liore Avas Vs .IS true, :, nuist he [IS the ini- coroner 1"^ dav- 'h inquest. ! ^londay 3 coroner however, coniin*^, it iken from o defend- tlio prose- >. Stuart- tcd to the avernientsi m inquest, o be held ; lould hav(^ been set out, and it ouglit to have been shown that the case was one in wliich the coroner was bound to hold an inquest. I reserved these objections for tlie opinion of this court. It was then objected tliat there was no evidence of tlie truth of the information given to the coroner. I overruled that ob- jection, and held tluit if the information given to the coroner, and honestly believed by him to be true, was such as, assum- ing its truth, to make it his duty to hohl an inquest, lie was fully justified in directing the inquest to be holden; and that the jurisdiction of a coroner to hold an inquest does not de- pend upon the truth of the information furnished to him, but upon his hona fide belief in the existence of circumstances communicated to liim. which, if true, would make it hi.-, duty to interfere and hold a court of inquiry on view of the body. I gave Ml*. Stuart-Wortley leave, however, to raise this question, if he thought fit, on the argui ^nt of this case. " It must, however, be taken that, assuming the circumstitnces brought to the attention of the coroner to be facts, he was al)un(l;intly justified in the course he took. The learned coun- sel for the defendants further objected that, assuming the coro- ner to have rightly determined to hold the inquest, and the defendants to luive secreth"^ obtained, and burnt and disposed of the body, with the intent to prevent the inquest being held, and so to obstruct the coroner in the execution of his duty, that did not amount to a criminal offense. I held that it did. and, having directed the jury in accordance with these rulings, the jury found both defendants guilty. " I reserved the questions of law above raised for the opin- ion of this court. If my rulings are correct, and any one or more counts of the indictment are good, the conviction is to stand. If otherwise, 'it will bo reversed." S'lrnrf-Worfl^;/ and //. G. T(i>/'o)\ for the defendants. In order to create the offense charged, it is essential to prove that the inquest which the coroner proposed to hold was one which it was his duty to hold. H'cj. v. Prke, 12 Q. B. D., 2-17, 2-lS. It can be no offense to prevent a coroner holding an inquest which it wouUl bo improper or illegal for him to hold. The office of the coroner existed before the Statute do Officio Co- 500 AMERICAN CRIMINAI REPORTS. ronii^oi'is (4 Echv. I., St. 2, A. D. 1270). In that statute (Iki phrase used is "suddenly dead," but the expression has re- ceived a recoju^nizcd nicanin<^, and does not inehide cases of death without violence and from ordinary natural causes. The case of Hex v. JunttvcH of Kent, 11 East, 229, 231, where a man apj)arently in <^o<)d health sat down in a cluiir, in a s!iop, com- plained of a pain in his hip, and suddenly died, hear:^ out this view. The coroner, in that case, held an inquest on the body, and was disallowed his fees bv the majjistrates, on the "round that the in(^uest Wiis not duly hehl; and, upon an application bei .," made to the lvini»;'s bench to interfere by nnuuhtmns to compel the allowance of such fees, that court refused, Lore' Ellenborou^h observin"- that it was hiyflilv illey,al for coronc to obtrude themselves into private families, without any pre- tense of the deceased havinu: died otherwise than bv a natural death. Tn East's Pleas of the Crown it is said: "There ought at least to be a reasonable sus[)icion that the party came to his death by violent or unnatural means." 1 East, P. C, '5S2. In Hide's Ilistoria Placetorum Corona?, it is said: "For though a man die suddenly of a fever, or apo])lexy, or other visitation of (iod. tlie township shall not be amerced, for then the coroner sliould be sent for in every case; but if it bo an unnatural oi' violent death, then, indeed, if the coroner be not sent for to view tlu^ body, the town shall be amerced." Hale, 2 Hist. P. C, 57. In Jarvis on Coronei's (Jarvis on Cor., 4th ed., p. 31) it is said that there is no occasion (except in the case of a person dying in gaol) for the intopfercnce of the coroner, unless there be a reasonable ground of suspicion that the party came to his death by violent and unnatural means. In the present case the child died a natural death, so that the incpiest was one which would have been illegal and unnecessary, had it been held. It is not said that the coi-oner had reasonable ground for believing the alleged facts communicated to him, but merely that he did honestly believe them. The defendants knew, it may be urged, that there was no ground for holding the inquest. Reasonable belief, however, of a coroner in statements made to him will not Justify such coroner in hold- ing an inquest, for his jurisdiction depends upon the fact of a sudden, that is, a violent, death. ■ THE Vt'EEN V. STEPHENSON. jO) ["Williams, J. Is it n('C(>ssiiry for you to go so fivr iis that? It is (]uit() possible for tlit' coroner to be justified in holding an inquest, althou]L!,h it should turn out, when it is held, that it was unneeessarv. It is eiU)Uj^h for you to contend that the par- tics may be justilied in removinjj the body if the inquest is, in fact, needless.] Certainly a case of this land depends upon different consid- erations fi'om a proceeding against a coroner for iin])ro]nM'ly and vexatiously holding an iiKpiest. In /?('./• v. JiiHtlaii of lunt, 11 East, 220, ij:)!, the court exculpated the coroner from intentional iinproi)er practice. In An, 231, the court thought the coroner acted unreason- ably and vexatiously, whereas hero the information, if true, abundantly justified, it is said, the inquest. It is always an offense to obstruct tho execution of an act of parliament, l^'x r. Snuth, 2 Doug., 441, per Ashurst, J.; Arch. Cr. P., p. 3; East's P. C, vol. 1, p. 382. Stuart- Wortley rei)lied. GuovK, J. This conviction should be affirmed. There are two points raised by the case which has been stated ; lirst, is it 598 AMERICAN CRIMINAL REPORTS. indictable at common law to prevent the holding of a coroner's inquisition? and, secondly, is there enough before us to show that the coroner had jurisdiction to hold the inquest? Xo case that has been referred to is absolutely in point, but there are many cases which shew that interference with statutory duties and the preventing of their perfornuuico is a misdemeanor in general at the common law. It is so in cases where statutory provisions arc, as here, for the public benefit, and especially where, as here, the matter is one con- cerning life and death. It is most important to the public that a coroner who on reasonable grounds intends to hold an inquest should not be prevented from so doing. The <,'oiise- quences would otherwise be most formidable, especially iu the case, I fear, of young children, for any one might prevent the holding of an inquest by the destruction of a dead body with impunity, unless it could bo proved that the death had been caused by violence. The only evidence might be the exam- ination of the body itself. It might be that the only witness of the death, vras the murderer of the ])erson found death To hold it no 'jlfense to prevent the administration of the law by preventing an inquest being held, uidess pi'oof could be given of the cause of death, and that it was a violent cause, would sot at naught the i)rotecti(m which there is at ])resent to the jiublic. The intjuest is itself an inquiry into the cause of death, and the ])resent indictment is framed upon this view. The con- trary view involves this i)rop()sit ion: that a coroner should bo certain of the cause of death before he ventures to hold iiis inquest. This is certainly not the law. It is certainly not what the statute governing this matter says. A coroner acts, and ouglit to act, upon information, not upon conclusive evi- dence. He intpjires in cases of su(hlen death whore such in- (juiry is desirable. Ih'octfm (Lib. Ill, l)e Conma, ch. V) and The ^[irrour (Tlie ]\Iirrours of Justice, by Home, p. JJS) show that the statute is but an attirmation or a con(irinati«m of tlu^ common law. In the statute there is notliing about murder. The words are, " suddenly dead ;" and the statute requires an ex- amination of the dead body. The whole wording of the statute shews that it is the bodies that are to be e.xanuned to lind the cause of death. A coroner's intpiiry would be useless if tlu; coroner previously had, by evidence, to satisfy himself of THE QUEEN v. STEPHENSON. 590 the cause of death. In the present case it a]>pears that there was at the least a reasonable suspicion, and, indeed, probably more than a reasonable suspicion. The police informed the coroner ; the information came from parties whose business it was to look into these matters ; probably the coroner honestly lielieved the information thus given to him. It is clear to my mind that in holding an inquest the coroner would onl}' in such a case bo doing his duty, and in this duty the defendants obstruct him by surreptitiously taking away the body and burning it. Their object was to prevent the inquest. The case in 7 Mod. Hep. (case 15) seems to me in point. In the partic- ular case tlic death was violent. That either means appeared to have been a violent one, or it means was discovered to have been a violent one when the inquest Avas held; but Lord Holt seems to indicate that the offense was the burying the child before the inquest so as to obstruct the inquest. If it is a crime to bury, a fortiori it is one to burn a body ; because if you bury, exluunation is possible; but if you burn, the body is de- stroyed and examination is no longer possible. However, here it is enough to say the coroner had a right to hold the inquest, and the ])ris()ners were wrong in secretly and intentionally burning tlic body to obstruct him in his duty of holding such inquest. Stkimiicn-, J. I am of the same opinion. It is a misdemeanor to destroy a body upon wliich an inquisition is about to bo properly lield, with intent to ju'cvent the holding of that in- quest. This appears from many authorities and from the case in 7 Mod. Kep. (case 15). Is it true that it is a misdemeanor to interfere in a case where the coroner is of opinion that an inquest must be held, or is it necessary that the facts should be such that the inquest ought to be held? This matter is not absolutely covered by authority. In one sense we do create new ()(T(Mises, that is to say, that, as a court, we can and do de- fine the law from time to time and apply it to the varying circumstances wliich arise. In Iic(j. v. Price, 12 Q. B. D., 247, 248, I said, " It is a misdemeanor to prevent the holding of an inquest which ought to be held, by disposing of the body. It is essential to this offense that the inquest which it is proposed to lu)!(! is one which ought to be held. The coroner has not 600 AMERICAN CRimNAL REPORTS. absolute riglit to hold inquests in every case in which he chooses to do so. It would be intolerable if he had power to intrude without adequate cause upon the privacy of a family in distress, and to interfere with their arrangements for a funeral. Nothing can justify such interference except a rear sonable suspicion that tliere may have been something peculiar in the death, that it may have been due to other causes than common illness. In such cases the coroner not only may, but ought to, hold an inquest ; and to j)revent him from doing so by disposing of the body in anyway — for an inquest must be held on the view of the body — is a misdemeanor." I say the same thing now, and I concur in my brotlier Grove's view; in- deed, any other view would, in my opinion, bo absurd. If a person destroys a dead body, or removes it to prevent an in- quest being held, lie is guilty of an offense if tlio in{|uest in- tended to be held was one that mi<2,ht lawfullv be hold. As has been said in the course of the argument, a nuin who ob- structs an inquest in this way takes his clianco of the incjuest being one that it was right to hold. It is an obstruction of an officer of justice ; it prevents the doing of that which the statute authorizes him to do. Williams, J. I concur upon the case as reserved. Other collateral questions have been mo< ted and discussed, but what is reserved is, lirst, whether a bona jiih belief in the coroner in information which has been given to him, and winch informa- tion, if true, could justify an in((uest, is suilicicnt. It is (piite clear to me tluit a honujide l)elief in information from reliable sources, which, if true, renders it a coroner's duty to hold an inquest, suiiices to give the coroner jurisdiction. Tlie next (juestion reserved is, wliethor obstruction of the coroner in this duty of liis is, under such circumstances, a misdemeanor; and to that I answer, it most clearly is. With regard to the other questions, wliich, as I say, do not actually arise for decision, I do not propose to discuss them. Mathew, J. I am of the same oi)inion. It is clear, I think, that the coroner must act upon information of other i)ersons, and must hold his inquest, if he believes honestly, and has reasonable grounds for believing, that tluit information is such THE QUEEN v. DE BANKS. 601 as to call for an inquest. It will never do to allow other per- sons to decide for themselves whether they will permit an inquest to be held or not. IIawkixs, J. At the trial I had not any serious doubt upon the matter, but the general importance of the question, as well as its. importance to tlie persons charged, induced me to reserve the case. If a coroner has information Vv'hich, if true, makes it his dut\- to hold an inquest, and he bona fide beUeves that infornuition, he must, 1 think, hold such inquest. Jurisdiction does not depend on actual facts. Jurisdiction to inquire can- not depend upon the actual result of the inquiry. Destroying' tlie body was to make it impossible to hold the inquest — in- (juests being- lield upon the body. 1 am clearly of opinion that the ilercudants committed tlie olfense charged in making it, as tliey did, inq)ossible to hold the inquest, and that the conviction must certainly be aiiirmed. Conviction ajjirined. TuE Ql'ken V. De Banks. (13 L:i\v Rep., Q. B. Div., 20.) Lakceny by bailee. A prisonor was oonviftod of huci'iiy under the following circumstances: Tlie i)rosefUt()r )j,uve a mare of his into tlio care of tlie prisoner, telling hiui that it waa to Ijj nold ou tliu next WedneaJay. On the next Wednesday the proseeutor did not go himself to sell his mare, but sent liis wife, wlio went to wiiere the prisoner was and saw liim riding the mare about a horse fair, and sell lier to a third party, and receive on sucli sale some money. The prosecutor's wife, after such sale, asked the prisoner to give her the money, saying she would pay his expenses. This the i)risoner declined to do, and eventually ho absconded with the money and without accounting. IhhJ, by the court (Lord Coleridge, C. J., tlrove. Field, and Smith, JJ., Stephen, J., dissenting), that there was evidence tlu.t the prisoner Avas a bailee of the money thus paid to him, and that the conviction could be 8Ui>ported. The following case was stated by the deputy chairman of the quarter sessions for the county of Salop : 602 AMERICAN CRIMINAL REPORTS. " The evidenc3, so far as it is material to the point reserved, was as follows: *' Joseph Suker, the prosecutor, proved : ' On Friday, tlie 11th of January, I drove a cliestnut mare into Chester with pris- oner. I left her at Mr. ^\'^ild's, a butcher. I engaged the i)ris- oner to look after her. I said to him, '^Do the niaro avcU, and I will be here on Wednesday morning and will pay yon for your work." He was to have charge of her till I came. I told liim to pay for the keep till I came. I meant him to look after her altogether. I should not have objected to his doing anything else. On Saturday, tlie liitli of January, I saw pris- oner. I asked him how the inare looked, and he said she was as lame as a cat; he said he had removed her to his fat hers house. I said I should l)e at Chester by the lirst train. I told him the mare sliould be sold on the AVednesday morning when I went, as she would not do for me. I sent my wife on that morning. I have never received a farthing from prisoner on account of the mare.' " Annie Sukor, wife of prosecutor, proved: ' I went on "Wed- nesday, the 1 nth of January. I saw prisoner in th(^ street. I asked hi ni if he had sold the mare; he said he had not. I went with him to Wild's sta I )les. Saw mare taken out of the stables into the street. Prisoner Avas riding the mare about the fair, ^h: Foster bought her. Prisoner, ]\[r. Foster and Arthan went to the Queen's Head together. I was outside the door and watched. I saw Foster give prisoner some money. Prisoner came out and shewed me a check. He did not give it me. lie said lie would go to the bank and get it cashed. I asked him for it several times, but he Avould not part. He told me he had sold the mare for I'JA He came out of the bank and said they would not cash him the check. I asked him to give it to me and said I would pay his expenses, lie would not do so. I said he must come with me to Whitchurch, and I must have either the money or the mare. I had great difli- culty in getting him to the station. At AVhitchureh, when we got to the gas works, he bolted down a little alley which leads to the canal. I ran after him and called, but ho did not answer. I have never received any money for the mare.' " Joseph Arthan proved side of chestnut marc by prisoner to Foster, and payment of 15^. to prisoner. THE QUEEN v. DE BANKS, 603 " Robert Thomas, sergeant of police, proved that prisoner absconded from Whitchurch on the 18th of January; prisoner was arrested at Cliester on the 31st of January. " I held there was no evidence to go to the jury of tlie de- fendant's employment as a servant so as to make hin\ guilty of embezzlement. It was then contended on beluilf of the de- fendant that there was no evidence of the larceny of 15^, I left the case to the jury, who found ' that the prisoner had authority to sell the marc and converted the money to his own use,' and a vordict of ' guilty of larceny ' was recorded, "The question reserved for the opinion of the court is whether there was any evidence of larceny which could prop- erly be left to tlio jury." No counsel appeared, , Lord Colkuidok, C. J, This case raises some nice questions of law, I could wish that we had had the advantage of the arsed, cashed, thus shewing that he was not supposed to be obliged to hand over the ])articular check cm- particular coins he might have received, the parties consider- ing that what was rocpiired was that the amount received should be paid, not the specific coins. SMirrr, J. I agree with tlie majority in this matter. The difflculty is on a question of fact, viz., whether the prisoner was a bailee of the money or not. I think tluM-e was some evidence t^iat ho was bound to hand over the particular money ; THE QUEEN v. BRITTLETON. 605 the wife asks for tlic money ; the prisoner in no way objects to pay the money, thoug-li ho will not and does not do it, and the jnry may have found all those statements of the prisoner about the check to bo entii-ely untrue. Co>ivictio7i afj'irmed. * C. D. TiiK Qi:k!:x v. Bimttlktox et al. (12 Law Rep., Q. B. Div., 2G0.) Larceny by wife of husband's property: Evidence — Married icoman's act. Upon the trial of a married woman jointly with another person for larceny of the property of her husband, the husband was called as a witness against his wife. Held, by the court (Lord Coleridge, C. J., Hawkins, Lopes and Mathew, JJ. ; Stephen, J., doubting), tliat the evidence of the husband was improperly received, and that the conviction which had taken place founded upon it was bad as against both tlio prisoners. The following case was stated by the chairman of the quar- ter sessions of the county of Lancaster, holden at Liverpool: "These prisoners were tried before me and other justices at the quarter sef:sions for the county of Lancaster, held by adjournment at Liverpool on the IHth of Juiuuirv, 1S8L " The prisoners Averc tried under one indictment, charging them with stealing certain wearing apparel, household goods, aiul money, the property of Thomas James Ih'ittletou. " The indictment also contained a count for receiving. " Thomas Janu?s Lrittleton was called and sworn as a wit- ness for the prosecution, and stated in evidence tliat the pris- oner, Maria Jane Brittleton, was married to him on the 3d of July, ISSO. It was then objected by counsel, who at my re- quest appeared for prisoner, that Thomas James Brittleton was an incompetent witness against the prisoner, INIaria J ane Brittle- ton, on the ground that sec. 10 of the Married Women's Prop- erty Act, 1SS2 (45 and 40, A^ict., c. 75), did not directly render the evidence of a husl)and admissible against his wife in the cases in which she was subjected to criminal proceeding by the same section, and that the words ' in like manner ' did not coc Al^IERICAN CRIMINAL REPORTS. i '4 y ";■ operate to make the husband a competent witness a^inst his wife. " "Without expressing any opinion as to the validity of the objection, I decided to admit the evidence in order that the point miglit be reserved for the consideration of the court of criminal appeal. " The evidence of Thomas James Brittleton was then ad- mitted, and the case proved ^^'as in substance that the prisoner ]\[aria Jane Urittleton and the prisoner George Bate together left the house of the witness Thomas James Brittleton, on the 29th of December, 1882, taking with them the j^roperty and money mentioned in the indictment. " I left the case to the jury, directing them that if they Avero satisfied that the prisoners feloniously took and carried away the property mentioned in the indictment, they were both guilty of larceny. The jury convicted both prisoners of lar- cen}', and the court sentenced each of (hem to nine months' imprisonment with hard labor. " The questions for the consideration of the court are : " 1. "Was the evidence of Thomas James Brittleton admis- sible against his wife, the prisoner Maria Jane Brittleton? "2. If the evidence of Thomas James Brittleton was im- pi-operly admitted aga'nst his wife, can -the conviction of the prisoner George Bate be supported — the two prisoners being jointly indicted ? " If the lirst question be answered in the negative, the con- viction of the prisoner Maria Jane Brittleton is to Ix; quashed. " If the second question be also answered in the negative, the conviction of the prisoner George Bate is also to be quashed." Loud CoLKurooE, C. J. I should have been glad in this case to have had the assistance of the argument of counsel, since the question raised is one of general importance and depends upon the meaning to be given to a statute which is not absolutely clear. It is a question arising upon the Married "Women's Property Act, 1882, sees. 12 and 1(5. The twelfth section enacts that every woman, whether mar- ried beToye or after the act, shall have in her own name against all persons whomsoever, including her husband, the same civil THE QUEEN v. BRITTLETON. COT rcincdies, and also (subject as regards her husband to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole. And then it proceeds, that in any indict- ment under the section, it shall be sufficient to alleire such property to be her property, and that in any proceeding under the section a husband or wife shall either of them be compe- tent to give evidence against the other. It is difficult to say that this section refers to a case in which the husband is in- dicted ; the section has for its primary object the protection and security of the sepai'ate property of the married woman ; but I suppose the section must mean that where there is an indictment with regard to the wife's separate property, cither may be competent to give evidence, so. that it seems as though a wife could give evidence against her husband. The sixteenth section of the same act* provides that a wife doing any act with respect to any property of her husband, which, if done by the husband with respect to property of the wife, would nuike the husband liable to criminal proceedings by the wife under the act, shall, in like manner, be liable to crimluable proceedings by her husband. Xow, docs that make a husljand a competent witness in an indictment against his wife where the wife is charged with stealing the husband's property ? It does not do so expressly ; it does not in fact so enact ; but only says that the wife stealing her husbaiul's prop- erty shall be liable to criminal proceedings just as the husband when he steals the wife's. I cannot say the matter is free from doubt, but it is always best to adhere to the rule by which we construe the words of acts of parliament to mean that which, in their natural sense, they would be construed to mean, and not to import meanings of their own, or words of our own, into acts of parliament. The legislature has not said that the husband may give evi- dence against the wife in cases of this descrii)tion, and the law apart from this act is that ho cannot. If parliament had altered the law they should and they would have said so ; but they have not said so. I ani therefore of opinion that the evi- dence is not receivable and that the conviction must be quashed against both prisoners. 008 AMERICAN CRIMINAL REPORTS. Hawkins, J. I am of the same opinion, and only wisli to add one tiling, viz.: I think that if the legislature had intended the husband to become an admissible witness against his Avife, the legislature would have expressed itself in clear and intel- ligible terms, and I do not find any expression in clear and in- telligible terms of any such intention. There are no words making the husband an admissible witness, in my opinion. There is a second question here — whether the indictment, being also against another pei-son, the fact of the woman's husband giving evidence will vitiate the conviction as against such other person. The case of Hex v. Smith, 1 Moody, C. C, 289, ap- pears directly in point in this matter, and there is another case which I think also in point, 7iV/. v. Thxympmn, Law Eep., 1 C. C. E., 377, and these cases appear to me to shoAV conclusively that the conviction cannot stand. LoPKS, J. I also think that if the legislature had intended to make so great an alteration in the law the legislature would have expressed itself in unequivocal terms, and that it certainly has not done. Stkphk.v, J. I cannot take quite tlie same view as has been taken by my lord and my brothers, llawkins and Lopes, but at the same time I cannot feel so decided an o[»iiiii'oseciited by a wife for any lliinji,' done with i-esiK'ct lo lier sepai-ate property. I admit that siieli a view goes somewhat l)eyond tlie exact words, and I do not insist ni)on my (*\vii view, and especially as in this jiarticular case the husband and wife were livin<^' together when or immedi- ately before the olfense was committed. Math i;\v, .1 . This conviction must, in my opinion, be quashed ; the act is an aci lor the protection of tlie wife ancl of her projierty, and tlie present case is not, in my judgment, within the act. Conviction quashed. I The Qukkn v. IfoLLis. (12 Q. B. Div., 25.) Larceny: rntpcrti/ itvucurLd from unuUter hy a series of tricks. The two iirisoncrs by a scries of tricks fraudulently induced a bar-maid to pay over money of lier master to tliem, without liaving received from them in return the proper change. Tlie bar-maid liad no authority to jiay over money witliout receiving the pi-oper diange, and had no intention of or knowledge that slie was so doing. Ilvhl, b}' the court (Lord Cole- ridge, C. J., Denman, Hawkins, Williams and Matliow, JJ.), that the inisoners were properly convicted of larceny. This was a case stated by the chairman of the Worcester- shire (piarter sessions. " At the last cpuirter sessions, Tliomas ITollis was tried on a charge of larceny of money, the property of Charles Parkes. lie was indicted jointly with AVilliam Wicks, who pleaded guilty. " The: money, the subject of the indictment, Avas obtained by the trick commonly known as 'i-inging the changes.' The prisoners, IFollis and Wicks, went to an inn kept by'the prose- cutor; Wicks asked the l)ai'-maid for six-penny Avorth of whisky — he put down a half sovereign; the bar-maid gave Vol. IV— 39 610 AMERICAN CRIMINAL REPORTS. him 9..y. in silver (J).v. M. of which was the change she had previously given him) and a half sovereign, and asked her to give him a sovereign for it. She took the money to her mast(>r and rec(Mved from him a sovereign, which she gave to Wicks. Wicks then asked her to fasten his glove, u])on which TloUis remarked, ' Isn't he fussy.' The two prisoners then left, ami in a few minutes afterwards the bar-mai C. 0. II.. ns; 42 L. J. (M. V..), 7:5, 1 overruled .,.rtion. and the jury fcjund the prisoner guilty; and in iv to ques- tions put by me, also found specially that the bar-iniid lijnl no intention to part with the pi'o])erty in the sovereign exc(\ I for full change of the ])risoner's money, and that her master had given her no authority to part with it for other than full con- sideration." The (piestion reserved for the consicUu'ation of the court was, whether the prisoner was properly convicted of larceny. A. F. Go(Is(m, for the prosecution, submitted tliat liq/. v. Middldon. Law Rep., 2 C. (\ !{., ;58; -t2 L. J. (M. C), 73, was decisive of the present case, and that the finding of the jury, that the bar-maid had no right to part Avitli the property, FE0M8 r. O'BRIEN. (!11 I a half k 1 liiivc 1, but lie |)ris()n(M'. im. Il(^ him the I- (t).v. Cul n) ami si ;n for it. Ill him ii 'd her to 10 fussy.' terwai'ds 0(1 in her master's , ami her hority to ; the bar- u such a was com- the proj)- ciouhl not c.(" i;. 'V ' p., 2 jection. y to qncs- 1(1 1i;m1 no ;x(;c I for aster had I full con- U'ation of nvicted of it licfj. r. '.), n, was the jury. property, coui)lc'd with the fact that she never intended to do so, pre- vented any dilliculty as to the conviction. No ccumsel appeared for the prisoner. Loiii) (Joi.KiMiuiK, \j. (J. .1. I cannot see if a person goes into a place and fraudulcMitly, by a series of tricks, obtains posses- sion of propci'ty from another which that other lias no inten- tion of parting with, how the offenses can fail to bo larceny. It is clearly stealing, and the conviction must boaifirmod. 1)k.nma_n, Hawkins, Williams and Matiiew, J J., concurred. Conviction affirmed. FkOMS KT at.., AlM'KLT.ANTS, V. O'BlJIKX. (tl Law Rep., Q. B. Div. 21.) Lauceny : Water stored in pipes. Water siipi)lie. At the hearing of an information before two justices of the county of Durham, charging the respond- ent with having feloniously stolen, taken and carried away two buckets of water, the property of the aj)pollants, and of the value of \(1., it was proved that the a])pellants wore the ownei's of a colliery in the county of Durham, which was luipjilied with water by the Wcardale & Shildon AVater Com- pany, Limited; that the colliery being out of the district in which the water comi)any were authorized to supjily water by their act of parliament, a motor was placed upon the water (•om])any's ground, and the water was brought from the meter to the colliery by moans of underground pipes laid down by the api)ellants ; that the water was then supplied to houses occupied by the appellants' workmen by means of branch l)il)es, to which taps were attached, the workmen being allowed to take watei- from the taps on payment of a fixed price, and that the resijondent was seen to take the water in question C12 A]MERICAN CRIMINAL REPORTS. from one of the taps without having agreed to pay for the same. The respondent having pleaded " not guilty," and desired to i)i' dealt with summaril}'^, the justices declined to convict her of the otrense charged. The (piestion of law for the opinion of the court Avas whether or not water could be the subject of larceny at common law. E. Il'idU'ij, for tlie .appellants, was not required to argue. Gi'(iiii\ for the justices, contended that water could not l>o the subject of hirceny at comnum law, and that this contention was su[)ported by the fact that the legislature had thought it necessary to impose statutory penalties for the taking of water from ])i|)es bohtnging to water eom})anies by lo ami 11 Yict., ch. IT, sec. 5t>, anu'uded by 2(3 and 27 Vict., ch. "j;>, sec. IG. The court (Fiki.d and Matukw, JJ.) were of opinion that water, under the circumstances and in the condition described in the case, could be the subject of a larceny at comnu)n law, and they directed the case to be remitted to the justices with a statement of this o[»inion. Case reiiiitted. IJiDEX. ABDUCTION. , 1. Persox abducted cojtPETENT WITNESS FOR STATE.— On trial of ati in- (lictiiu'iit i'dv unliiwi'ully conveying or takiii;^ away a woman child UHilcrtlu' a,i;(> ol' lil'ti'cn years, with intent towiluic, i»tc.,nn(ler section H'J of tlic crinu's act (New Jersey), she is a competent witness to tes- tily on heliail' of the slate. Sliitcv. Gordon, 1 2. Same — .TrmwDicriON of offense. — If the defemlant bronsht her within this stiile troni another, and herewith the intent set ont in the statute, iMterjKised his will or ])ersuasion between lier and her Rnardian's con- trol, so as to overcome her intention to return to her home, the abduction is accomplished, and lie may be indicted in this state. Id. ABORTION. NoxTors NATt'RE OF Dr.rfis. — The Uiins administered or prescribed to i)ro(ure llie miscarriage of a woman tlien ])re;;iiant with child must be noxious in its natun>: but it is not necessary to prove that it will ]n-oduce that elTect. State r. Gcdickc, DEsciMiUNd THE OFFENSE. — An indictment wliich alleges that the de- fenihiiit unlawfully useil an instrument with intent tojirocurea niiscar- riaije of a woman named, and which di^st'rilies the instrument and the nianai'r in which the Vorkiii, Evidence as to riuou acts.— Acts of the defendant at other times may be shown as tending to jaove the intent of defemlant. and if competent to prove the crime charged, it is no objection that it also tended to t hel' *'i'iiin's -* ^'* defendant used it, is snlUcient. 6 Com. V. 15 prov( Declarations t< crnnes. pliysicians touching pregnancy, see Evidence, 8 and 9. ADMISSIONS AND CONFESSIONS. 1. Al>MlS:^toNS.— It is not erroneous to instruct tlie jury that " admissions ' made in ordinary or random conversations are not generally considered in law as satisfaltory proof."' State of Iowa v. Iioiioraii, 25 CoM-Ks^inN JtADE fNDER pifOMiSE.— Tlic shcrillf and state's attorney tallied with the respondent while in jail. Tliesheritf first testified that no induciMncnls to confess were held out. but afterwards said "that he iire-mned he and the state's attornev both told the res|ioiident Jt would be hetter for her to t"ll the whole story, and the punishment ^^'mld be lihely to be lighter." Ildd, that his tcBtiuiony was not adunssible. Stair i'. Daij, !"•* 8 SvMl' — When there is no conllicting testimony as to what the induce- mi'iit was, the decision of the court below may be reversed by the sti- liiH'ine court. ^ 4 CoNI'i-'-SlON OP ACCUSED. WHEN ADMISSIBLE AGAINST HIM.— The aduiis- si'bihlv of a confession of guilt is addressed, in the first instance, to tho discretion of the court. It umst bo subjected to careful scrutiny, and t)14 AMERICAN CRIMINAL REPORTS. reooivorl Avith preat caution. When freely and voluntarily mado, it ia evi(l«>nco of tlio most satisfactory chaiactcr, but tlic ])rcsuni].tion upon wliich wci,<;lit is given to such evidence, namely, that one wlio is iinio- ccnt will not imperil his safety or j)re,judico his interests by an unlrue statement, ceases when the confession apjiears to hav*> been made eitlier in cDnseciuence of inducements held out by one in authority tonciiing the cliaiKO ]>referred, or because of a threat or jironiise by or in the juesenc*.' of such jjcrson, with reference thereto. Ihqtt w Utah, 417 Rules regulatinj^ the adinissil)ility in evidence of the declarations of an injin-ed jtarty respectinj; his injuries. Doirlcn r. The Slate, 49 ADULTERATION. See Habeas Corpus, ;}. C'onstitltion'at, Law, 10, 11, 13, 13. ADULTERY. 1. 8. Adultery effkctf.d by force. — To constitute tli(> crime of adultery as against the num. the conscMit of tiie woman to tlie carnal intercourse is not indis|jensuble. but the odeiise may I'xist as against him. though the connection was elFected by force and against her will. State v. Donn- faii, 25 2. Institution of prosecution for, by husband or wife.— Under a statute which provides tiiat no pros<'culion can lie connnenced but on tlu' com- plaint of the husl)aiid or wife, appearing i)efore tlie grand jury as a wit- ness in olx'dience to a subjxena, is not a sutlicieiit c<)mpliance with tlie reiiuin^meiits of tlie statuti' to autiiorize a conviction of tiie (U^feiidant; biu it is not incumlpcnt on the state to establisii the fact of the insti- tution of the j)ro;iecntion by tlie husband or wife beyond a reasonable doubt. /(/. Otiii:r acts of Aini.TERY. — Tlu> rule of law is that where the charge is of one act of adultery only, in a single count, to wjiii-h evidence has been given, the jirosecution is not permitted alterwards to introduce evidence of other acts committed at different times and places. /(?_ 4. Coiiabit.vtion. — Sexual intercourse betw(>en persons not married, though living in tlie same house, is not siilllcient, alone, to con.stitiitc the od'ense of cohabiting together as husliand and wife without being maiTied. Taylor v. The State, 'M ALIBI. Burden of proof not oiianoed.— The burden of proof is not changed in a criminal case, when the defendant undertala-s to prove an atihf, and if, by rea.sou of the evidence in relation to such alibi, tlie jury shoul(i doubt the defendant's guilt, he is entitled to an acipiittal, altbougli the jurv may not be al)le to sav that th»' alibi is fully prov<;d. ]\'aiter.'< v. The State, ' 83 APPEAL AND WRIT OF ERROR. 1. When an api)eal or writ of error will lie in behalf of state. Taylor v. The State, ;J0 If there be no specilic jirovision in the charter of a city (in this ciuse the city of Leavenworth) concerning appeals, where the line is !>2(>or leas, sui'h right may be toiiiid under tiu; laws regulating the proceiMl- ings in justices' courts in criminal cases, and in that event the peti- tioner would be entitled to his ai>|H Same — Rules regulating the admissibility in evidence of the declara- tions of un injured party re^4)ecting his injuries, stated and discussed. !1 Same — Sim> the statement of tiie case for special instructions requested which, embodying corr.-ctly the law applicable to the facta, were irn- proiwrly refused in the trial of a teacher for chastising lua pupil. Id. GIG W AMEPJCAN CRIMINAL REPORTS. ASSAULT WITH INTENT TO MURDER. ASSATTT TO MrUO::!! A PF.KSOV OTHER THAN' THE ONE INTKXOED, Oil WITKOI'T INTKXT AS TO ANY rAUTIClTAU OXK — RECKLESSNESS — (JeX- EUAI. MAi.ici:.— Wlicrc a ixtsoii di'libt'i-iitoly wlioots at A., and in the direction of 1?., ami tlu' ball misses A. and strilces H., inflictin.LC a wound, these lacts will siiHicient ly show the intention ol' tlu; person shootin;.;; to kill and murder [{.. aUliou;;li he has no actual nialiee or ill-leriinj;- tow.-ird B., and lie may be convicted of an assiuilt upon B. with intent to kill and murder him. Dinitiniji v. Tlir. People, GO The INTENT. — Where an act, unlawful in itself, is done with delibera- tion and with the intention of killinn' or inllictiiijj; s(>ri(ius boilily harm, though the iiitentioi) be not directed f o any particular jierson. and death ensue, it will lie murdei' at common law. Thus, if a |)arty lircs a j;'""- shot into a ci-owd of jiei-sons with intent to miuMler some one, or when it is done with criminal rei-klessness, the killin;^ will be nnirder, al- though no intentina exisfeil to kill any partitailar lu'rson. /n'I,li'l>. — Where one. without provocation, dis(har.u;eil his ]>is- tol directly at a i;roup of ptTsons. it matters not what |)erson he in- tended to I.ill; or ii'. under such circumstanc<'s, he shoots a person (>thertiian tlie one intended, the act. from its recklessness and want of provocation, will be referr<' 1 to no other cause than malice. Such rei'k- less acts imjily j^eneral malice. Jd. Insanity AS A DKEENsi; — .\s to the ti'.st of lU'sroxsimi.iTY. — Whore roasf)n and judi;iueMt ar.' not overcome, but the iierson charj;'ed with crime at the lime retains the power to choose between rij^iu aibl wronj.;' as t<* the pai'ticiilar a' t doiie. he (•.■mnot escajie responsll acts under the plea of insanity. I>inia r. The People, lltv for his ,12 So if, at the time .a dcidly assault is made, the person makin.; the .as- sault kntwi'-at it was wron.L;- to counnit such an act. and had the power of mi: .1 to chuo-c either to do or not to do it. and ol controllin;;; his <()iiducl in accoriiance with such choit'c, ho will Ih; held anienabi(- to the law, altliou;j;li he w,is not eiilirely and [lerfeclly j;ane. Id. AUTIIEFOIS ACQUIT— AUTREFOIS (X)XVirT. What niKNTiTY of the offkxsks chauoei) is neckssaky TO srri^tRT THE n.EAS Ol' Al TKEl'dlS CONVICT AND OF ACTltEFolS AC(,H IT.— Proof of a din'cri'nt ( I'ime iVoiii the one cliarj;'ed. thon.Lih generally objiM-tionable. is aduiissihlc when both oll'elises JU'e closely linked or comieclcd, espe- cially in tlie rex (/exlir, and also when such pi'oof is pertinent and nec- essary to show intent. .S7i'/*' i\ I'iiien ft III., j>!)0 P'oU.MEIt ACijl ITTAE- W'METIIEll A IIAU TO A RECONII TOOSECFTIOX — JriilSDICTloX ESSEXTIAI. — l''oi::«IE|{ AC(jriTTAI, IN ANoTHI'.k colXTV. — The trial and a'i|uitt:d. in one county, of one ch;ii';j:ed with receiv- ing' stolen j;o(ids, knowin;;' tiiein to liaxc been stolen, is no ii.n' to an indiciment for t!ie same olfeMse in a diilVrent county, uidiss it shall aj)pear tluil the i.U'ense was committe I in the county in which the ac- uniltal wMs had. so as to .nive the circuit court of that conr.ty Jmisdic- tion. An acquittal of a crime by a court havinjj; no jurisdii tinn is no bar to a pro;,. •cut ion for the same oll'ense in a court havinj; Jurisdic- tion. Ctdiiplii II L'. 'I'lie J'eojile, ;i;jH The <;'ener,d rule at r-omtnon law is. that an acipiittal in one co'.nity can only be pie ided in the s!im(^ <'ount,\ , for the reason that all indictments are local ; and if tbi' lirst is laid in tlH> wroii;;' county, the defendant cannot i>e found guilty, and could not liavo been in' le;;';il jeopardy. To this rule there are a tew exceptions, as, in larcony, and in (^aso of a chaii.ne of venue, as in this stati'. " Jd. Samu — Former AcyrirrAi.. to he a iiar, mi'st have uekn in kf.- SI'ECT TO THh; SAME IDENTICAL OFFENSE- .VXI) Till', I'I.EA Ml'ST SO SHOW. — To maku u plcu of a former ucijuittal or conviction a bur to a - Wlioro p'll willi 111 wroiijj; V for liis Cy2 INDEX. 017 RproTiil iiiilictmpiit. jironf of tli;^ facts nllosP'I in tho soroivl must l)n siillii'i(>nt 111 law to have warrautfil a corivictinn upon tlio first iiidift- nioiit of tlii' sami' olfeuso (•liiir;,^!!! in tlic .•iccorHl one, and not of a dif- i^civnt o(ri'iis(- and tliP jil.-a must show tliat tlio offense c'iiartjc I in liolh cases IS the same in law and in fact, and tlie question nmst lie de- termnied l)y tiie facts appearing from tlie record, witliout tiie aid of extrmsic circumstances. 7,;_ r>. Same — Op a plea op former acquittal— Its rkqitisitrs.— A plea of an aiMpMttal of tlie same olfenso in a different countv is defective, in sul)stance, if it fails to show that tlie court of suclf other county had in some le.L^al way a<;(£uir(!d jurisdiction of the snhject-matter, and how such Jurisiliction was acquired, as, liy a chan^^e of venue, or. in case of lurceay. by the defendant haviui,^ taken the stolen i>roi)ertv into such comity. j j. (5. Samk — A I'l.i'.A Mi-ST answer all it rROFi-ssES.— a Kjiecial plea (as a I'ormer aciinittal) to an indictment coiitaiiiinj; several counts, if it fails to answer any one count, is had on ileniurrer. Id. T. Upon the trial of r?. as accessory before the fact to the murder of IT., evi after he had been convicted of the other, he could, on the jilea of not ,!:;iiilty, be convicted of either where he had been previously convicted of neither. Jri, Indecent assault on female child, see K.vi'K, 1. See BuuiiLAKV, ;J. Jkoparoy. Jurisdictiox. bastardy. CrlST OP OI'FKNSr. IS THE REFUSAL OF THE PUTATIVE FATHER TO OIVE ROXD. The n'ist of the oir"iise of bastardy is the refusal of tlie |)ulative father to ni\<' bond for the siii)port of the child. A prosecntion for bastardy is a spi'cies of ]iroti'ctive measure to ]iri'veiit counties beconiiiiL;cliar;;e- able with ]iaiiper bastards. Therefore, the I'onnty to which the bastard is likely to become chargeable lias Jurisdiction of a bastardy case, and not the countv in wliich the child was beyolten or born. ]\'illii';\('i;. — On a trial I'or bi-amy. the state, to (irove the first mar- riaire. ;;ii\e evidence that defenilant and the woman lived toju'ether and held ihemselves out to the world as man and wife for years: that they had a family of cliililren li\ iii,^ with them as their children: tliatshe had si.nned ami acknnwleil.ucl deeds as his wife: and that alter the l)ij;-;unons niarria.^e she had sued for a divorce, he had answered, and the conit had H'nnited her a divorce. Ilcltl, that this evidence was all competent. 1(1. 3. Parol evidence is admissible to show that a paper ofTored as a certilied copy of a decree is a foi'K'er.v. Id, BILL OF E.Xf'EPTIONS. Unless instructions are einliodied in the bill of exceptions, the supremo court cannot judge of their allegod error. Clmiuey v. The State, 204 618 AMERICAN CRIMINAL REPORTJ. BRIBERY. 1. Indictment not bad for uncektainty. — An indictment, under section 6000, Revised Statutes, which charges that delendant C()rrui)tly olTeied and promised to B., amend)er of the liouso of represeutativis of tiio general assembly ot tlie state, with the intent corruptly and feloniously to infiuenee his vote u[)on a certain bill then pending in siu:h house, "a valuattle thing, to wit: stock of the Cinciimati Union Rjiilwivy Comi)any, of the amount and value of $20,000, and a huge amount of money, of great vaUu'," is not bad for uncertainty. It ts not necessary, in addition to such allegation, to recite the facta which give the tidng offered a value, nor to charge that a delinite sum of money was offereil. Watson V. State, 71 8. Same — That defendant was a mesiber of the housr.— A single count in such indictment, which charged that B. was a member of the house, and also a member of a standing connnittee of such house, to which the bill was refen'(;d, and that the olfi-r or jiromise was mad(! to iniluenco his vote tlierefor in the hoiise, and his vote for a favorable rej)ort thereon in the CDmiuittee, is not bad for dui)licity. The charge thus made con- stitutes but one offense under the statute. Id. 3. iNSTRt'CTiON AS TO VALUE OF THING OFFERED. — To charge the jurv, in a trial iqion such indictment, tliat the thing ofTcnnl or ])roinis('(l imist liavi- a value at the very time it is olFered or promised, and while (Ins bill is pending, is error, but not to the ]>rejiidice of the defenihint. It is a crime, under sectii>n (i'.WM). to offeror promise a thing valuable at that time, or whicii will be valuable when, according to the promise, it is to be given or delivered, IiL 4. Variance not fatal. — The indictment in this case alleged that the sum of ^;>(M) was paid to plaintiff in error as a l)ribe l)y one C. B., "ami otiiers whose? names are to the gnuid jnrors imkiiown." Tin; proof showed tiiat the money was |)air tin? allt>g'''tions of the indictment, an act of 1870 ((icorgi.'i) did not alter the law of burglary otherwi.se than to put biu'g- lury, whether <(>nunitted in the day or night, on the same plane in respect to punishment. Id. Autrefois convict— When no rar. — As burglary and larceny com- mitted at the same time are separate and distinct offenses, a (conviction of one is no bar to a i>roso(;ution for the other. The State v. Mar- tin, m BUROLARY AND LARCENY — CRIME CONSISTINO OF DEOREES. — Under the Revised Statutes of Missouri, sec. 1053, which provides " that if ujion INDEX. 01!) the trial of any person for any misdemeanor it shall appear that the facts Riven in cvidcMu^e amount in law to a felony, such person bv reason tliereol" sliall not be entitled to lie acquitted for such misdemeanor; and no jierson tried for sucli misdemeanor shall be liable afterward to be j»rosecuted for felony on the sanu? facts, unless the court shall think fit m its discretion to discrliarKc the Jury from Kivinji any verdict upon sucli trial, and to Haiiic. tlic reasons Kivt'ii by each for refusinjir, and tliat In- was unalilo to iirocnrc afHdavits in sui)i)ort of his motion because of the n'fusai of tlie I'itizens to f;ive the same. Jd. CHARACTER AND REPUTATION. Pi-evious Rood character may be shown. See State of Iowa v. Dono- van, 'iT\. COIMMITMENT. Proc'K'^s of co:\i:mitmf,xt cannot kni,akok nF.roRO. — All ]irocoss after .judniueiit must iiursffe. butcamiot be used to vary orcontrol, tlie Jiidp;- nieiit. And a niemoranduni u|)on tlie commitmejit (•;iniint lie i'esnr(e(l to fiir t'le purpose t)f enlarj^inj;; what the court has solemnly adjudged. lu ir Jdvksoii, 568 Infamous crime, iis to record of conviction for, 2, 3. CONCEALED WEAPONS. Cakryino nsToi.s — Act of Aprii, 1, 1H81, constiti'tionat,. — Sections 1 and 2 of the act of A|)ril 1. 1881 (Arkaiisa.s), |)roliil>ilinj; llie carryinj; of arniv pistols, exrejit uiict)vered and in the haml, is not unconstitu- tional. ■ Hull r. Stale, Ol» Cf^NCEALTNf} DEATH OF CHILD. CONCKAt.lXf! DEATfl OF CiiiM). — The crime of eiideavcriugiirivatcly to con- ci'id t!u' death of a liaslard cliiiil. in violation of (ieii. St.. eh. 'J.^iti. sec. 8 (New Hampshire), may be conunitted, altliougli the lads .are from necessity made known to some one who is re(^uested to iieep them secret. Stater. Hill (tat., 10'2 CONCEALINCl STOLEN PHOPKKTY. A partj' knowinp: property to have been stolen has no right to conceal the same, even with the intention to save iiiiii.-ictl' frnni lo-.s; and a ''huise in an instruition, on the part of the defendant, announcing a ditferent rule, will vitiate the entire instruction. VaiiqibL'll v. I'lic J'cople, ^38 CONSPIRACY. 1. Ixdktmf.nt and triaf. of two, both mcst bi', convicted or acqfit- Ti;i). — Where two persons are indicted for cons) liring together and they are tried together, both imist be acipiittcd or both convicted. Till' (fhii'm I'. Maitiiiiiij, ,'58:2 3. CoNSt'IRATOR-S HKT.r) RI'SI'ONPTBI.E ALTHOrOTf TlfEV DID NOT INTEND TO COMMIT THE PAHTlci'l.AKCKiME. — When part ies are eng.ageil in the com- mission of a crime with malicious intent, and in Uw execution thereof per|ietrate another criminal act notorigin;dly intended, the rniintended act derives its character from the intended crime, and the original malicious intent alfects both acts. The State v. Vines et al., 20(» CONSTITUTIONAL LAW. 1. Jury sf.rvice confixed to the county.— There is no authority in the statutes of Illinois for the selection of grand any jiirnrs scli-ctcil iroiii the fouutv in which tlio oiFi'iise iH alli'<;('(l to liiive liecii coiiimitti'd. ' Id. Section '}. (livisi.)ii 10. of tlic Criminal Code (Illinois), in so far as it au- thori/(sa iiartyto he tried for ;in oU'eiisc conunitted entirely witliin one connly. hut oiu; hundred rods from the cuuuty line, hi the ailjoin- in^;' county, is unconstitutional and void. ' Id. Tliere is a class of oll'eiises that may he conunitted by a I'arty heinK in one county, upon a jierson or tliinj;- hein;;' at tlu' sanie time i'li iinother county, when tlie olfense may not inaptly he deliued as having;- heeti coinmitlcd in eiiher county ; and offenses c'onunittt'd on the county line, or so neur tlierclo as that the distance therefrom is ina|ipreciahle. may with propriety he re.uardeil as havin;^' been conunitted in eitlier county, and hy doin;.;- so no one is deiirived of any constitutional riylit. Id. But where the entire olfense is eomnutted within one county, and at an a|)preciahle diNtiuice from the comity line, as in this case, at a ;t's, or of dealers holdin;;' onlstamlinj;' licenses, althon.uli voiil as to such importers, and perhajis void as to license holders, is valid as toothers. If a law wliii'h is constitutional under ccitain limitations exceeds those liinitatio;is. it inav still be oiierative within tlu'ui and void only for the excess. State, r. Aiiuiii. 113 II. Where a person is imprisoned for refusin.<;- to testify or ai>])ear before a couidv attornev in a proceedinii- under section 8 of the act of March 7, 18S.') (kansaN). which is amendatory of the act i)rohibitinj;' the iuanu- facture and sale of intoxicating- liijuors. he is restrained of his lilierty without "ihw )irocessof law." within the meaniuK of the fonrteeiith amendment to the constitution of the United States, and entitled to be released on liabcitH corpus issued by the United States circuit court, III ir Zichotil, 110 Vr.UDICT dK K.I.F.VICN PKHSOXS IN CAPITAL CASE A NULLITY.— -Tho Consti- tution K'lJiranties a jurv of twelve men, the common law jury, and the ri^ht to be tried for'criine by a jury of that number is not a mere privi- h'i;-e of the i)risoiier. but a le<;i>l i't'"t tlio ri^'lit in liiiii to th<> oxchision of I'verybotly I'lsc. Ho is not aiithori/.oti by llu! jiatcnt laws to mannfactinL' anil sell the patented aitieie in violation of tlie laws of the state. His enjoyment of the iif;ht may bo inixliliod by the exi>;en- eies of the eoiiumuiity to whieh he beloiiKf^, and re^nlated by laws whieh render it snbservient to the j;eneral welfare, if held subject to state control. lil. 13. Patent — In what sense a contract.— A patent is a eontract only as betwei'n the parties to it. namely, the United States on one side and the patentee on the f tliu criminal tO l)c> taken into consideration in prescriltin;; punislin'ment tlicrefor. The |)r<)visi()n, tlierelure. is not limited in its application hy the provision of said code declariiif; that none of its jn-ovisioiis ai>ply to an oft'er.se com- mitted or act done l)el"ore it went into effect. Tltc People v. llaijtnvnl, 124 2. Same. — Nor is the ju-ovision first mentioned limited to oases wliore tho second conviction is for an offense <»t' the same character and v;rado as that which resiiUi'd in the first. Where, therefore, defendant was con- victed of tlu^ crime of for;;('ry in the first de<;ree, charged as a second offtnise, and it appi ared that he had heen jirevionsly convicted of f'or,>;ery in the tliird de,i;rei', held, tliat as tiie " snhse(|uent crime was one which, upon the first conviction. nii;;lit he jiunisiieil, in tlie discretion of tho court, hy imprisonment for life," it lieinj; the second conviction, such punishment was im])erative under the law. Ji{. W. liErEAL OF — I'ii'FECT OF AMicxDMENT.— TIio repeal of a criminal law hy an anienilalory act whicli chan};-es the repealeil act only hy reduc- ing:; the punishment, when the repeal and re-enactment were intended to contiime in force the uninterrupted operation of tlie old statute, will apply to crimes committed hefore the new act took effect; and theof- feiuler may he punished under the law as amended. Hair v. State, 127 ■t. (Jriminal statutes nuist he strictly construed, and no case is brought hy construction within a statute unless it is completely within its wctrds. State, I'. (Iralidiii, 270 r>. Repeal hy implication of a prior statute bj- a later one. Sifred v. Com., See (JRUEi.TY TO Animals. Ejiuezzlement, 7. Civil Puaotice Act — Pkactice, 20. CONTEilPT, 1. Notary pukmo — Povv'er to commit for contempt. — The statutes coi;- fer authority on notaries pul)lic to con\mit to prison any witness who refuses, when dulv sununoned, to give liis tk>i)osition. U. S. (Mis- souri) 187i), i-;^ 2l:!;5; 215(), 4027. E.v parte PricNt. V.U 2. . A ])arty to a suit is under the same ohlif^ation to give hisdeposition as any otlu^r person. Id. ;j. . That a witness resides within the jurisdiction of the court in which the suit is jieiKling. is in good health, and contemplates no prolonged absence, hut expects to be present at tlie trial, is not made by tho stat- ute an exi-eption to the right of a jiarty to the suit to have his dei)osi- tion taken. CONTINUANCE, , Id. Absence of wiTNESsr.s. — One ground for a continuance in a criminal case was tin; al)sence of witnesses: l)ut it did not appear from the affi- davit but that tiu! same facts might be [n-oved by other witnesses. Held, that this ground was not sufficient. Dunn v. The People, .W Same — Want of time for attokney to prepare the defense.— An offense wa.s alleged to have heen connnitted on March 31, and tlie de- fendant wiis arrested on the same day, so that both lie and his counsel were then informed of the natuie and character of the offense with 624 AMKRICAN CIU.MINAL KKl'OUT.S. i i i ■■ Mliicli till' ( tlie ease, as hliiwn Ity the recDi-d. that the del'endant lia 1 anijili' time tn |i|('|)aie t'nr trial. It WAS liclil m> ern>r to refuse a <'<)nlhni;iiice on the ;j,ronnd that (lelViidaiit's counsel had heen so oeeiipied with otiicr cases in tlie circuit nufl appellate coiu'ts that he had not sullicieut time and opportunity to jirepare the case lor trial. Ji)l(\ ' Jiol 4. The jiraiitiii":: of a <'oMtiiiuance is within the le;;;!! discri'tiou of the court per- son ch a rj;t'd to have liei'ii murdered is dead. Tlu^ ](roduclion of the body is certainly the best evidence of that fact; but this is not always possible, JuhiisDii v. Co///,, I in 2. The conclusiveness of circumstantial evidence to establish the fact of death is for the .jury, and not the court, to determine. Thi' court is only concerned in secinuc that iniproiier evidence docs not ,';o to the Jury, ami that they are properly inslriicti'd in such cast's. ///. ;]. In iirosecutions for homicide tlie ('(irjiiis (tclicti nuist be shown tirst, so far as the testimony can be separately .!;ivcn, and especially so far as c!in be shown from iK)iit-iiiini('iii examinations. The J'coplv v. Hall, Wu 4. As to ideiitilication of body of the person alleged to have been murdered. 7/oy// c. Utitli, 4i: See Receivino Stolen (ioous, \. CORRUPTION IN OFFICE, 1, Plkadino. — An indictment under a statute must state n\\ the rirctim- stances whicli constituto the oileuse aa defined in the statute. Ikijid r. The Com,, 14;] INDEX. 025 2. Same.— Tlimifch the ofTonsc, at common law or by statute, is defined in KiMicral term.s, yet the indictment must t!lnirj,'o it suetilicully, and de- Mcend tt) particulars. /d. 3. Same — Officials.— In an indietmont for corrupt misbehavior in ofHce, thu act must be distinctly charged jus done knowiuL'ly and witlicorruiit motives. jfji^ COUNSEL. QUESTlOXIJfa COJIPETENCY OP f'OUXSKL ASSIGNED TO DEFEND AN ACCUSED PERSON.— When the court below assigns counst'l for tlie ilciense of an accusetl person, it will be presumed that he was fully comjjetent to discliarKe the i',;a.',3 or o^);iiiaa, bu!; hL> atatjai vit of a fajt, aai u u.Luisjiblo in evid jacj. Id. ELECTION. Fedt:rat, et.^.ttion — Co^rMTSiioM 07 cm^i:: — Umittid Rtate'; oi^ric:::*., ETC. — Potitioncr.-i w^nv in lictaJ by thu grand jury of thpcriaiiaalcouit duty to lveL'[) disturbiacoo Rhal of the Uaitc 1> . .... arr,' hit siiJ olu..'ti )n b.'t.w.Ki oajS.n,t'i,adc\)aty-.n ir- l Ktat(.'-i. an I a largo niun!)L'r of otliur i),'!'.io.is inrit:' I tliercto liyspcrial roastabhvi of Cm'.i county; that in or^Icr tixjuiill said disturbance iK'titiosiLTs t)olv said S nitli int) crust :).ly and w^>re proce- 1- ing with him to tho olU 'e of the Unite 1 StatiM commissioner to miik > complaint ajjainst him for disturbing the pt'acc, wlienassaulte I and lired upon by a large number of armad m;>;\, ain)ng whom was tli'i decea'.ed, who tlireatene 1 petitioner.s and saiil Kaiitli unless ])etitioners tunic. 1 over said S.uith to the state authorities; that, rcfu.-iing to tromply with thisdeinan 1, tliey were lu-(> I upon, and som • one of the atta'-kiiig])arty killed deceased. Tiie petitioners ]n'ay(> 1 that a writ of lidbcns C)rj>ii:) cniu c'tnii.i issue, directed t > the criminal court of (',)ok county, re piir- ing tiial; court t:» stay all further proi',-;' line's against petitioning, an 1 that the suit be rem )ve 1 under the [irovisions of scL-tion (H;5 of the R 'vise 1 S: itutiM of the Unit.' I St.ite.i. //■/ 1. that the m n-e lioidiu ; of a commisiion as deputy-mir.^hals of the United State.-!, Uiider t!ie cir- cumstance.s set forth in the ])etition, ilid not with Iraw th'.> (rase from the jurisdiction of th;' state courts; that there is no fe leral statute malcing a (li.sturbauce at the polls an oifense against t!ie Uiiite I Siate.s, and as Smith wa.^ violating a state law, |ielitioners had a right to arrest him and tur.i him over t) the state anthoritit's; tint the fa,.'t tliat h ' w.is a deputy-marshal of the United Wtate.s entitled him t.» no morectnsi 'o 'a- tionor protection tlian otlua's engageil in the same disturbance. Hi'ld, also, that the ctuse diir.-ro.l from o!i,' In which de;)uty-nlarsllal^^ of the Unite 1 State.-!, in repelling tVn-ce by force in defen.se of them- th^'lr prisoner.5, sh;jt aiid kille 1 an as.sailant. Stat^'. v. Flflchcr, i.-olves or 157 e:\ibezzle.mcnt. 1. E^TorPiCL nOF.r-? not a pity to cuiMTNAr, {"Asix— The dcr(nlant, who hi I be.'n a i-onnty trea-auvr from IS! I t.) ISiS, w.u in lii't.' I t'nr c n- bezzlemeiit, and the state introduce. 1 in evidenci' the seltlcment sheet wliicli wa.s ma le at the commeiicenii'iit of the defen hint's hist term of olTice, with his certilicate thereon that it wa.s a true statement of cash then in his h 1 1 Is a^ treasurer. VViiereiri m defc 1 laat si>a.;!it t i s'i;)w that the shortage complained of in the indictment o<'(ana'e I duviiig his prior t'-rms of oHice, and more than three years Ud'ore the indict. lunt wa.s fouiiil, and th; '. therefore, the pro.setaitinn was barred by the stat- ute of lim!titioa-i. which tstiin >ay t!i.' c;)nvt refin • 1. IF!l\ th.it t'...^ .. defendant should have been allowed to show, if le could, that ii<> defal- cation took pla<'e within three years next before the linding of the in- dictment. State r. lliitvliiiisitii, KiJ 2. Same. — A dt^feiidant in a criminal case may prov<» the actual facts in dispute, notwithstanding any admissions or confessions lu may have made to the contrary. (Conclusive presumptions and estopjiels have no place in the cruuiiial law ostublisliing tlie ho.ly of the crime charged. Id. INDEX. C27 fads ill lay liavc I liav.' iii> Id. 8. EMUK^ZLEMnNT OP ANY 0FFIC7.U OR " OTIIKR PKRSON."— Act No. 43 of 1871 (Louisiana), providinj; for tlic i)uniKlinient of " any offu-er or other person, cliarsvd with tlu'c-olU'ction, roccii t,safc!-koL'i)in;^, otf., jf iiubliB money, who shall convert it to his own use," et<\, <;learly covers the case o\' a dork of the ailministr.itor of finance of the city of Now Or- leans, guilty of such an at.-t. State v. Exniclos, 1G8 4. One employed to sweep out store, etc.— Wlion goods come into the possession of a servant, out of the ordin.iry course of his employment, but in ])ur.suanco of sjjecial flirections from the mii.stor to receive them, and the servant embezzles the same, \w is indictable under the statute. Til c re fore, where on»* employed by a merchant to swec^) out iiml wail about the store, but not a.s clerk, was authorized by the merchant to tak(! a, lot of shoes and sell them during his visit to .a neighboring to\vn, wliich he did. iuid convertOLl the money to his own use, held, tiiiitho wa.s a servant within the meaning of tiie embezzlement act, and re- ceived tlie gtKKls by virtue of his emjyloyment. Stutii v, Contiu, 1C9 5. V.'ii.vT IS POss:',:i:^ioN of oood;; p.y an employee, belonoinq to em- PLOYICR. — A bank clerk iiaving accets to the funds and becurities of the bank in its vaults, and trusted with their keeping for various puiv looses, may be said to have their poi-set^sioii by vhtue of his employ- ment, within the meaning of sottion T5 of the Cnmimd Code of lUiuoiFi. Ker V. The People, 211 G. Ejiijezzlement — Larceny at common law. — The fact that the felo- nious talcing of monej's and securitii's out of a bank vault by a bank clerk, and converting them to his own use, may bo liUceny at coiit- mt)n law, makes it no kio embezzlement under the statute. It is entirely com]jetent for the legislature to declare what acts shall con- stitute the crime of embezzlement, and fix tho punishment. Id. 7. Statute defining emp.ezzlejient. construed. — The word "ctu-e," aa used in sedion 75 of tiie Criminal Code, relating to embezzlement, is the e(iuivaleiit of "custody," and may mean "charge," "safe-keep- ing," "jireservation," or "security." Tito word "possession," as u^:cil in the same section, has, ])erh;ii;s, a dilferent trnd brotulev meaning than the word "care;" but it may also mean "to keep," "to take or seize bold," "to bold or occui>y." s ilie owner of ])ro|ierty would or nnglit do. And it maiters U{tle wlidlier one or both words ai'e used in an indictmei:t. 1(1. 8. Variance as to ownership of se( i. hities EMBT.zzLi:b. — An indict- meiil i< r eiiiliezzlemcnt ami larcc'iy charged tl'o moiiej', funds and securities embezzled and stolen, as the goods and personal property of A, H and C. partners under tiie name of A, B & Co. The proof showed that lid'ore tlie alleged offense the firm w;i.s composed of A, B. C and D. rtain amount or vauui, without siiecifviiig .my I'.artieulaVs of siidi emliezzlenn>nt, and on the trial evidence n.av lie given of any riieh enibezzlemei.t, frauil- ulent conversion or taking with such intent; aiul it is made mdfl- cient to niaiiitain the iMiiidnunt. that iuiy bullion, money, not«, bank-note, cluvk, draft. I'ill of ex.liMii .•,.• ov other i! ■unity for menty of the eni|)lov('r. of whiitever value or aiiioui.t, was I raudulently con- verted or taken with siidi intent by thederU or employee. In suoh 628 AMERICAN CRDIINAL REPORTS. case it is proper to allow proof of any and all acts of embezzloniont to go to the jixry. if' 10. An indictment for embezzlement substantially in the language Ci the statute is sufficient. Jd, 11. When coukt will not compel an election as to a single act.— On an indictment for embezzlement and larceny of moneys, funds ami securities, there is no error in the court refusing to compel the j)ri)secu- tion to elect upon what alleged act of embezzlement or larceny a con- viction will be asked, as embezzlement may, and most often does, consist of many acts done in a series of years by virtue of the confi- deutiid relations existing between the employer and employee. Id. ERROR, 1. Error will not always reverse — Exclusion of evidence. — Although the court, on the trial of a cause, maj' err iu the exclusion of evidence, or in refusing to allow certain (luestions to be i)ut on cross-examination, yet if the supreme court is fully satisfied, under the facts of the ca.se, that the error coul.l not liave affected the result, the error will afford no gi'ound of reversal. Ritziuan v. The People, 403 2. Same — Instructions. — A .ju bad been removed when tlie .sale was made. It wiis held error i.' the court to refuse, on reiiuest. to cliarge for an iic<|uittal if the Jury found that the defeiKlaut did so be" State, ■iiove and acted upon that belief. i/C.'.S /". 178 2. Cona'ICT cannot be sworn in a cause. — The district court having mI- mittecl tlie testimony of ;i convii'teil felon, notwithstanding tliedefcml- ant's objection, the verdict nf the jury nnist be set aside and a new trial gi'aiitcd, altliongli tlie oliirrtioiinbli' wilni'ss teslilii' de- fendant denies alts to the accused tbe right to " meet the witnesses against him face to face," Iliiir v. State, 127 13. EviDi'.NCE OF COURT RF.PoRTP.R AT FoitMKR TRIAL. — Wbero a court re- porter is sworn as a witness fortbe purpose ol proving the testimony of a deceased witness, and where such reporter testifies that tbe notes of tbe testimony of su<-li deceased witness wei'c accm-ately taken by liim at the time tbe tc.-,timony was given, sucb notes nuiy be used by the re- pnner in giving the testimony of tbe deceased witness, for the purpose of n'freshing his memory, uud if necessary ho may road the testimony to tbe jury. id. 5''.' ' 030 AJIEHICAN CRIMINxiL REPOUTS. :|i# 14. E.1U0II TO itEAD nF.couD OP Divoncn. — It was ormr to roail in tlio hcarinj? of tlio Jury the rocoivl «t' the court in the nt, a« to whether he lijid been eoniplained of and lined by a town grand juror l't)r ill-treat- ment of bis wife. Id, 16. AD:iussiiiiLiTY OF STENOCiUAriiEU's NOTFs. — To eonlva(li( t the resjondent by proving that he had te.-tilie. I ditt'erently on the loriner trial under Uiesunieindi(tnii!nt, thea.dniissihility of the stenographer's notes of bis crosri-oxaniination de[)tMided on their r(>K'vaney; if relevant, admissible; otherwise, not; hence, it was the du|y of counsel to have selected those passaged contra lietory to his last ev'ideucL;. Id. 17. SAira — STENOO?iAPiiEU siioui.D CE swoiiN. — A t tenographov, although a Bworn officer of the court, when he reads his notes of the tc^liinony of .i former trial, as evidence, nuist be sworn like any other witness; but if not, if known to the opj'osite counsel, tlie objection should be raised in season, so that the oversight may l)e corrected. Id. Weio:it Oj' defendant' -i t.c-itim )NY in criminal case, when testi- F»'1N(» IN HIS OWN BEHALF. — On the trial of one for an assault with int(!nt to murder, the c-onrt inslrn credibility and weight to be given to the testimony of the defendant testifying m bis own b<'half, was a matter fcr the jury, and that in weighing the defendant's e\ iavm(>:it, and that the council had, Iiv resohition, ratdie 1 the same, llrld, thit such proof ol the contents of su:!li resohition w;us illegal. Hlnte r. Mit'jnttli, x!7'.> 80. Ol'" THE EVIDENCE AOAINST ONE CHAR lED WITH MUUDK;:. — On the Iri.al of t\v,) pens;).'!-; oa a (;h irg ' Ol' mar ler eomnitt.' 1 on .July 10, IHi!!. by compelling ;i pasuviger t ) jii n i i'ro;u u r.iihv.iy tr.iiii while it wa.'i in motion, t.vo witnc.-i.ivM for th' pe:>;)li! \v>'re allow.- 1 to ti'.tily, over an ol)ie^'tio'.i. th;it thev s:v\v tlio «b'le i hints, an I two ollu'r.i, with whom tJio (1. llMtl in lict '1 for th ! m I/ ler. tojj'ilu'ron t^ le ■anroaii track on .July 8. l^Hl, and that one of tiiem hid a revolver. Held, th; t i-s no legal olijeclion to this te.stimony. Adiiiiis ct id. r. 'I In ■)1 St. Same. — Tn the same case, thi' state's attorney, in the examination of on(>of til I'rople, tbes(! witni'-'Ses, prodm-e I a watch chain, and the witn nd it Lis chain, and that he ha 1 it on wlien he met th(> d<'rcMdaMt.'< and the two ()th(;rs who W(>re indict, 'd. on the evening of July f. 1MS;5, — which Wiis objectisl to. lli'lil, that while the evidence as to the watch chain might properly enough have been exclude I as irrelevant, yet it was not etilH 'i(Mt1v harmlnl t > t'l ' il li it-i t I m I'i its a bni.' slon materia Ci'ror. It w.)nld nut justify an inl'e.-.'.ice tliat the witness had been robbed by the four men. Id. 23. Ramf. — So, too, one of thesis wilncsse:'-, in answer to the incpiiry whether tliere was anything unusual tocanse him to reme;nliei' the t nieof seeing Que of the defendants on the morinng of July H. IKH'i. saiti a man wa.s found (h.-ad that morning, — a stock man, who hail fallen from a train. Held, that the eonciluding part of this evidence repelled any inference tliut this man, Iih), hail been thrown from the train by the .'-ame men, and its adiui::sioa was not error. Jd. INDEX. G31 no 23. At to conduct of nor-fficurou. — It iscTor, in trying: .1 criminal cnso, to i>X(ludo qiK'stions ni ti' tho condiu-t of the prosi'cntion in sookinj!; to indui'o till" witness to '-niijircsLS totitlinony or volunt.iiT im^n'ojicr testi- luony. The People v. Hall, 357 24. ExPFRT test;m iny —Scientific books, f.tc.— Exjicrts cannot bo exiim- incvl u;)on tliy u-ics that ave contrary to tho nnciatrii licte I fu'ts of tlio case; sncli testimony is lo;.;ally iulmisHihle on the tvi"<>u'>il <"'ly, that ordinary jui-ynien have no uncii si>ecial lino\vle(l.u,e as will cnaltle tlicni t.) understand the facts uliown, witliout interiiretation; it must, tliere- fore, he jciven }»y livin;;' witn(>ssos who can l)e cross-examined ; and tho roadiny of ai'ientilic hoolcs to tlie jury, Jis evidence in itsi^lf, is error. Ill, 25. Prophu function of experts.— The pro;)er funirtlon of witnesses sub- lueaajd to j^ive testimony as "experts" is to instruct t'ae court iind jury in matters so far reniDve.l from the onlimuy i)ur;;uits of life, that ju;curato kiiowled.i^e of ilieai can only he .-ralne I by study and ox- fierience; the object bein.u,- 1) ena'.)lel)oth court and jury to ju;l;;e intol- ifj;ently i)f the force and a;)i)licatio:i of the several fauts inti'oduced in evidence. Coijle v. Com., 5)T9 20. Samf. — Opinion of, wiif.n evid::nc;e not confltctini.— In a v»*opcr ca-ic for expert testimony, where the facts are a Imitt vl, or proved by evidence not conllictin;;-, the opinion of an expert upon such facts 13 a Imlssible as a si'ie.itili • dedut-tion. Id. £7. Sa'.if, — I3ut when coxflkting, he cannot nr. asxe!) opinion drawn FitoM wiioi.K EViiK'.Ncr:. — But where the evidence is conllictin.!?, an ex- jieit caimot be aslicd his opinion, aa derived from the whole evidence. T.ie ([ncstions to him shoulil state specili ally the particular facts in evide.ice, hypothelically assumin;? them to b^i true, u;)on which he is to express his opinion. lie should be iislced, l)y independt^nt (jucstions, his opinion as to facts te^lilied to on the o.ie lian'|)on Iv-rance of proof; anrl, in sucli ciuio, tho burth 'n is not on the st it ■ t) satisfy tlio jury of th'.'stuiity of the jnas- oner beyond a reasonable doaUt. Gi'jvjs u. Tin; Sl(ili\ 333 23. Insanity produce:) by intoxication, as a d:::':;nse. — Temporary in- sanity iirotuce.l innnc liat;'iy by intoxication furnishes no excuse for th<' commission of a homicide or other crime, but a lixed insanity does, Uj)iil<)iie 1: The People, 395 C3. Same — Qi'Eation of iwrT. — Whether a party committin-j; a crimo is under th(! iidlnence of a lixel iinanity, or a temiorary one induced immediately by intox'cation, is a (iU(;stion of fact for the jiu\v, and their verdict will not be ilisturbed unless it is ck^arly a.^ainst the evi- diMice. Id. ni. Same. — While it is true th(>rntion, or criminal nc.;li,u;eace, to constitute a (a'iminal olfense. yi't when with- out intoxication the law will impui.- t ) the ail a criminal inte;it, — jus, in tlie case of ;i wanton killiu'; of another witliout jirovocatioii, volun- tary tlrmdcenness is not a\ ai!abl(> todisprnve such intiMt, so as to reduce the crime from murder to manslan rhter. Id. 83. Same. — Voluntary intoxicatioi furnishes noex aue for crime committed u'l ler it-i inllu 'ni';', even it th' int.ixication i< s) extreiuis as to mako th ' an lior ol' the crim • uni'onsiuous of what lio is iloin^, or to t;reute a teniporary insanity. Id. 33. Same — I'iViDENcE of Di'.Fr.NDVNT's PHEVioFs iiAiiiT.'^ OF intoxication.— 0,1 the trial of a delendaul foi- nninler, when insmiity is set up in de- fense, and he is hiiowii to iui\e bittui intoxicated at the time ot the 632 AMERICAN CRIMINAL REPORTS. m' homicide, evirlence of his previous intoxication will ho projiorly re- ceived Irom the prosecution, as bcarinfj; upon tlie ((lU'stion of intoxica- tion at tiie time of the killmg, and of the conduct of the (kifendant while in that state. Jd. 84. EviDENCF, — In rebuttal — Time of admis«iox.— Tlie time of rcceiv- iuK evidence is so niucli a matter of discretion witli tlio court trvin;^ a case, that it will not be a K''""'id for reverriinp; a judf^mciit 1 hat evi- dence is allowed in rebuttal which in strictness is n party, by a l)lo\v with a clod, killed tiie owner, and they all (Ikmi .L!;ot into the wa-;'(in and started toward their homes. A |)arty in pursuit of tluim, 8eekin;j;' to have them arrested. ))assed the w;iji;oii, when ^ome one of them caile 1 out, "Hello, good-lookinj;- fellow! " or soniethint;- liUc tliat, but snvh witness so addressed could not say the defendant was in the wa'j;oii at that time. It appeared, however, from the defendant's own testimony, that lie did not net out of tiie wa.y;on until after tliev reached the next point wliere they stoppeil. Ilrld, that the court prop- erly refused to strike; out of tlic; testimony the words .so spoken to the witness. Ritzman v. The People, 40;} 87. Cross-examination — LATiTrnE allowed. — Great latitude should al- ways be allowed in cross-examination, esiiecially in a capitiil c;ise, and the court should never interpost! exce[>t wiiere there isa manifest aliuse of the rif;:ht. Id. 88. Sjvme. — Where a witness, on a second examination as to a particular transaction, states an imp4)ita d fact omitie(l in jiis previous ;ircnunt of the mattei-, his attention, on ei-oss-exiunination, miiy properly be called to the fai t. and he be required to exjjlain why the omission was made in bis lir;t statement. /(/. 89. CONELicTLNd STATKMKNTS. — So, Oil tile trial of one for nuu'der, the dciith haviii;^' been caused by a blow with a clod from the liaiwl of s')me. one of several trespassers, a witness who was present at the time of the killini;. stated, on his exnmiiiiition in chief, tliiit the derenn called tla; deeeased "a son of a V)itcli." On cross-examination till! witness was iiskecl it in bis I'drmer oxamintition he bad made any such st;ilemeiit ns that. On objeclidii, the court Ix'low lielil that tlie in(|iiirv should be limited to tli<' (piestions actually asked and the answers L;ivi'n in the former ev:iiiiin;it inn. and that tlie ipiestion was improper, llcid. (Iiat the rule laid down by tlie court wiis rather sti'inj;-ent. The iii()iiiry mii^bt well be made, with the view to as •> rtain the motive of the witness in omittiii.L;- the stat<'meiit on his examinalion in chief, in i'a.se it should turn out Ik; had done so. Id. 40. Hearsay. — On the ipiestion ns to the identification of t!ie body of the person alle.i^cil to have been niin'dered. it is not competent |o show by till' siirp'oii who niiide the paxl-niorfeiii examiintioii of the body of a corpse cliiimed by th" prosecution to b<> that of the mnrdeivd l)erson. that the body was iilentitied to him by anotner. lltmt v. Utah, ■ 4ir 41. Em'kut Ti'sTHfONY NOT ADMissiULE, ETC. — Oil the tri;il of Mil indictment under tlie clause of the Penal Code which makes the sellinij,', loiuiiiin', giviii^,' away or showiiij;- of an obscene or indecent book, svritiny;, pict- INDEX. 633 Ure or photo,iji-ap1i a inisflemennor, tlio qupstion of ohsi-otiity or indo- coiicv is one tluit lalls witliiii tlu> vaii;j;(' i)f onliiiarv iiit('lli;4<'ii(X', and docs not rcipiiro tlie toHtiiuouy of an oxnert in litoratni-i- ov art. Tlie People r. Midler, ioi 43. Samk. — On tlio trial of an inilictinpiit for scllin?;; ol>srpne and indocpnt j)li()to<^raphs, the dcfundant callcil as a witness an artist, and askod liim wlu^tlior tlioro is a distin,i;iiisliin,t!; line, as under^^tood l)y artisis, Ix'twi-en pare anil oliswno and indeceiit art. This was oiijecteil to and exelndeil. JTild, no error. If the (inestion was intended simply to l)rin.Lj ont the fact tliat pictnrosnii.s^iit l)c citiier decent or indecent, aiid tliat tiic<-anons of [>nre art wonld accept tlioso of on(! class and reject the others, it was jiroperly rejecteil as an attempt to prove a self-evident jiroposition: hut if the (piestion was intende I (o he followed hy proof that, according;' to tlie artist's standard, the ]»hotoj;'raplis were not oiisceiie or indecent, it was [)roporly rejected, assncli proof was incoinpctont. It was liivcwiso licid that the intent of tli(> defendant in selhn;j; the photoj^'raphs waa iioi an element in det;'i'mininK his f^uilt, and thai therefore ovidenco of intent wius ineoni])i'tent. Id. 43. SkcoXIIAUY EVIDEXllK III'.LD INCOMPKTKNT TO SHOW DEFENDANT TI.VD NO I'KKMrr. — In a criminal prosecution aicainst a ; that it contained all thedrnuiijists' iieniiits issued l)y the probate ,iudj;e; that Ik^ had looked into the other joiu'nals kept by the pn)- l)a(e judj;e, and had been unalile to linl any record of ])ermit.i therein; that lie had fre(|uently heard the iirobab^ jnd.i^e testify in lii|nor cases that all of the records of permits were kept in the book produicil by liim; that the jirobate jud'.ve had another Journal in which lu; kept .1 record of the business of iiis court; that lie went into t!u> ollice of tin* ])rohat(! Judji'e and ^ot the book when the .judj>'e was not there: that there were other jonrtiais in his ollice : that the book containe(l nothin<; l)ut blanks for recordin;; dru'4';-ists' ](ermits. aii(l tlu'renpon, a.u;aiiist tho objection of the defendant, the court periiiitti' I such book or journal of permits to bo introduced in evidence. jIlJU error. Tlic State V. Vank. 485 44. Te^T1:\IONY OE witness not excluded RErAl'SE n^NTRADtrTED IN PAKT. — It is not error to refuse to exclude the whole ti'stimony of a witness from tile case, because parts of his evidence are contradicted by other witnesses. Olifcr v. The Slide, ').\i 45. SED'.i'TKIN — SOCIAE ATTKNTHiNS nut Sl-EKICIENT C'OliRO!U)I{ATI0N. — In a trial for sedii'tioii under pr uniMf of iiiarria.ni", evidence of such so- cial attentions on the part of the defemlant to the prosecutrix, !us nccompaiiyinii' Ikv from elinrch, caliinn' on her ;il lite house of her par- ents, and I here wait inn' on her now and i hen fur two vcars. is not snlli- fi«nl to conolioiale the prmeciitriv'^. testimony to the eifcct that a |>o>mi-.e of marria.;!' was made to her, and will not warrant tho Jnry in lindint;' that Vact in the altirmative. Rier r. Cimi., r)02 4t5. CoNTlMTioN OK l>i".l'i',Nl)A\T.— Where there is testimony chat the tlefend- aiil called on th" pro-\cntrix' ■ mother and expressed i-ontrition for wliat lie had done, and deflai'cd his willinuiiess at the same time to inako amends by innrr> iiii;- the prosei-iitriv altera time, such te-t iinonv in not e\iilence from which a jury could safely tuid a iirevions ])iM'iiisc to marry. Id. 47. Wiiimoi.DlNti Ti:sTiMONV \\\ iMto.-M t TiciN.— Failure on the part of (h,. pvoM'ciition tocidi thefatherv>r the proseciitilv. who was pr<'seiit at the eoiivcrsatioii. loii'>tity to iiarticnlars thereof, was a circiiiiistani'e which Would have jtistili • I ao inrerciice nnl'a\ orahle to tli'' prosrcntion, and tlieioiirl Would !ia\(b''n warranted so to iiist'-uct the jnry Id. G31 AMEKICAN CnnilXAL REPORTS. W k i.3. Sr\Tr:Mr-NT to Tiimo rnn'^ON. — Tratimonyof a convorsntlon h'^twnon t!io (luit'jidait anil a tliiivl i)L'r.;i)!i, in tin) cimrso of wliidi tlio d.-roMljiiit uaiil, i.i roiViviico to tlu; iiuiIUt in li;i;itl, iW.ii " lio vv.nil.l };ivi' (','00 t) f:otUo it, iiii I no inorj; tint liu w.is guilty of th3 criuu," w.u not (svi- dwico of a proniiHu of inarriajo. Id, A"). U.v::'3MM-jNic\TE:)Tim';.\T.^Ar)5iis5inT,'5u:fD-j:ncE!irAiNCiu?rijnTANC?.'5.— In a tri:il for li(vni(;ivlo, wIi.t,' tlu (^ii > itia.i is u< t ) w'.\ it w u ilo -.vLij I'.-i uttitii le at tho tinnj of thu fat'il eiiLvnintcr, voL'ont tlnvat) may bu -oniu ivlok'a.it to s'lUiw tliat tliis attitu 11* wai o:\.' hostile t » tli.' iL'icnlant. even t'lou j;li sir-li tlinvit.-t WlTo not coininirnral.u I to (U-foadarit. Tlio eviilunuj is not rolcva it t> show tli.; lc, 41)1 CD. Rap;!. — Proii-.-utrix may bo iiitjriMjitj 1 ai to \\>x ohJL':!t in p;oin.; t:) tlu plajL' wilier J t!i3 ra;).> wa.i alio pi tj lia/objjn cj.u.ulltjJ. Tlia State V. Ilartnctt, " 07i CI. IlJiiUNO AN'O wi;';; — STATr^nDNT or wik:', in pn7.-',2Mc;H o? iiUinANi) — Aa.Ml-i-ilo.N'. — U.);):it'i;.' trial or" ajiriso it forfi^loaiouily roL'oivin\;st.>lo:i pro,i;Tty, a list of tiie st )K':i a"ti::lts waicli t'.u jn'iso.usr, wlio w.u a marine stoiv dcalpr, ha I b >ii v'>t. ^^'i-* r.'V'ivol in cvLU-ac!! in or.IiT to •il'.o.v th itli;' lia;l l)i>u ;ht t scaiat a'.i nailer v.iluc. Tli ^ciicainstaaeea u 1 lor wiiieli tlie list was Wi'itl.' i \\\:\\' as follows: A [inlicj coastaUlo nslvc 1 t!iL' i>ris;)aer txio i-iiil -r wliea h > In 1 b.m^ht th.) st )!ea prajK-rty, to wliieh tiK' prisoaor i\' ;)li(vl tint his wife sh;)iil I m I'vo oat a list of it, aa 1 oa t!r.' next day tlr.) i>r'sii "/'s wif<', in Inr liinb la I's pr.>;'a',!. haade 1 1 ) an )lluT coastabk- tlr.' list t.'nleri,' I inovideace, siyi:i:^ in her hin'-iaail's liearin ', " T ais is a list of what Wis Ikhi 'iit, aa I wint wa Ravo lor t.ieai. a.! ([iie-.tioa r. 1 w 1 i w 1 !t.i ir sn -h list VV.13 l)ro;K>vly a Imitte I in evi leacL-. ILid, that thcj list w.is dearly a Imis- dble. Tlic Que ■!> v. ]iJ;i:' :>:!\Ti')N' ji^vm s'i;)'.v:i nv iNm ■T fa'i1)::n': ■U: th;> trial of ail inlictauat, t;!iar ;in'^ fov^ery ia Ihe sL'.;-oa:l de;^r< :)» III m ilcin.: a'l 1 ea'ir: of a plat • in t!ie form a a 1 similitii le of a ni't • of a lianl; itirorporate 1 in Havana, nader the laws of Sjiain, wti3;ioi b_^h I'f ol' t'l !'»:•)! >;a!;i ) » tMlili'lt'nt k; in 1 b.va at l! ill II ivaiia an.l saw basiuiss earrie 1 oa tlr.-re: that th. oaa i If •u 'J note-, wiiich wer 'ive las in ) lev: t'nt he saw t!ie;irtir!(Mof a -.sa ria- tioa, aa 1 fraai t!r' n, ;i 1 1 w'l it In saw in a new. , tlu' oHi -ial orrai of the pioveriimeat. In b.'liev.il th > baa'; wa-i in-oraorate 1 u i ler t'lJ h »f S; );im. a e;i vrav. <'oaii.' -te 1 with the Aai -rieaa D v.x'.i Noli C ampaiiy, also testili;,' 1 that ho ea;:;ravod the i)lates from wlii'h tin Keauine notes weiv; ))rinte 1. an 1 that they th •!! in th > vault i of tliat coaiaaiiy. //'/'/, tint th' (!vi It wa* sulli -iv-at to e.;t ihlish t'n lo.Jjal oxii teneo of the bank. The l\'oplc c. D'Arjeimoiii; 2VJ C3. Ctvii. PJtvc'Trcc A'.t not AP:'i,ir',\nr.^.— The provisio!is of the Cado of Civil Proet! lure, in lAin'ciertiii ■ 1 copii's of th;> re 'or Is of forei ra eouti- trio dunce, applicable. ind ia\'.;eribiir.; the ii laaaer of autlieat;e:ilioa, a;'.; iii>t CI. A 1 1 is. nnil'M" no law cat 'tie 1 to a conrn's^ion to ta'ce thi' t;' ■timany of witaeises residin,.; in aiiota;!r state. The Slate (\ Fidj'ord, ;:3 AaoRTioN, other attemats to com nit may be shown, 3. Admiwio?!^ an.t C;)Ni<\'w;ioN's. Adi-'LTKUT, nroaf of oth-a-aets inadmissiule, !J. Aii^ori, inativo !iny bo show; li.l JKZ-^i.HMUNT, variounu-ts of. !). B.UAMY, proof of first iinrria !,e, ct-., 2, ;5. 1?.!IUK,UV, othur actj of, 5. I.MMA- TERIAL AvEini!:.Nr, Dbioui):i;iLY llou.;::, 1. EXPERTS. Eeo Evn)::NCE, '24. 2."), ','(}, ::7, 41, 4.0. 0;;s(;i:ne LiTRnATUiiE, 1, S. INDEX. C35 )in'j; to . TUc, 07J : 111 iicr lit \V>) st WW a liiiis- 530 EirTRADITION. 1. rrjso::r,n can ee 'rrjT:D o:;[,y roi? rii;-, ovvii,: .v.o,,...,.. ^,.., i,^ ......^ >...... .>.,. ...r, v,ii-^.,.„. Foil WinCII EXTKADITED. A jK-rsan cxtnuiite.I iin Icr llii- pmvisioMsof tlio tn-atyof 18k'. Iwtwoen tlu' Ullit.^l Stiit.'s till 1 (!/i';it Di'itJiin, trie 1. cojivicto I iui:l ssiMit'nciMl for tlic crime n;)();i v/iiicli lu- w.is i'x(»m lit '.1, (■.■innot l):Mlct:iiii;' I in ciisto.ly an I prosi'ciiti' 1 for a (lilf-'iv' it crini • tli;i;i tlie o;n; siKviti.'.l in tliu war- rant of t'xtnulition. State r. Vandrrpool, SO;! 2. Con ^Tii'j ;'Ti(>N ov tu :i vr v.— U.i k-r tli-j c;i)-,iHtitutio:i of tlio Unite 1 Stato:% tlic |nv)visio;is of tliis trc.ity nw. part of tlio law of tlic iaml, ciiforc -jihlo by tlie jihlicial tribnniils ia bjlialf of a pjr.iDH :«) clL'taiiiuJ uuJ prose- c'liteil. /(/. 0. Pl.!^.>. TO JUr.ISDI?TION' — T'.LTVIAI. AT^UV.-iT IX l'On''i:JN COUNTIIV. — To .in iii'lictiiioit for (Mnl)i'Z/,lc:ii',':it an;l huv'ony tlie'siili'!it of the UnltoJ States. u;)OTi t'l;; writt.'ii r^'in^'stof tlio j:;ov('riior of this state, issuoJ an fxtrailitioii warrant I > th:' <;-.)veriini.,'at of IVru for the surroa.lor oE tlie ilelViHlait. nailer t!ie tiv'aty with that ^'overnnieiit, to be brou.'^lit baelv to tills eouatry on a ehar,-;(' of huveny ; t'lat on the same day tliia warrant was issiit^l, the se 'r.'tary of state niaik' a written repiest upon tlie Unit:' I States eoasiil aetiii'^ at Lima, to procure tlu? executive of Peru to surrender the ilefeailaat to o:w .Jalian. U!i ler saiil treaty; that no re |U '.4 wa-i vwn- m.i ie by said c;)n>ial, or by JuUan, or by any otiier person, u;)'>:i any of the authoritie i of t'la jj;.>vernm(>nt of Peru for the siirreiiiier of (lelV i lant. nor was any consent or authority given liyaiy of the autliorities or avents of Pern, to Julian or to .any other person, to ai'rest an 1 reni,>ve defendant from Peru; atul tliat Oil A;iril !>. ISS !, wliile t'le di'fen ia:it was domicile 1 at Lima, in Peru, Julian, witli the aid of per«)ns whose nam -s were unlcnown, without nny authority or warrant Irom the aatlioritie s ov diplom.atic a.';,ents of Pv-ru. arreste 1 the defendait. and foreed liini to;,;o tot'alhio, and there place. 1 him on bo;ird ii, vi'ssel and cairied him to Ifonolulu. and at that port liansferre 1 him to anotlier vessel which carrie.l him to !Jan Francisco, California, where he was iirresteil on a re|uisitioa from a I broiu'at to t!iis state for trial. Tlio tl le irovi'rnor ol tl lis slat; court below siHlaine 1 a de;imrrer t() tliis |)Iea. Held, tliat the do- luu •rer w.is projjcrly suslaiae.l. Kcr v. Tlie Peo;>!e, 211 4. Os iu:gi"isiTi(iN, uiaHM.AiMrv ov auu^wt not oim'.n to question. — W! :> I lerson cliai ' 1 with (a'ime in this stat; arreste 1 in a Bister •Stat ■ an 1 bran.^lit here for trial, on a re niisition of the ;;overnor of this state, it was licld that our courts, on tli ■ trial o'i such fugitive, would not in(|uiri' into t'le re,j;ularity of his arrest ;ind surn-nder in such sister state, an 1 tint it di I n )t m itt a- if he ha 1 bv-n illej; lUy arrestJ.l 111 a Corel 111 country and broicdit forcibly ta sueli sister stati Id. r». FiTfirnvi'. I'uoM .nsririo — Ij/Ujamty of aukest not a qukstiox for Till", cornTs. — Wilt re le,^a! steps have been talcen for theaiiprehension and return tothis country of a fu,.;itive from Justice, and he is brou'^ht bacli to tile United Slates, where he is arrest(>d on a requisition of tlio exetaitive of this state and liroir^^ht here for trial, the fact that he may lia\" been ille;,;ally arreste 1 in such foreisu country and ltrou'-;lit to the Unii '1 Stales does not deprive the courts of this state of jurisdiction to tr.> him for any olfense cliarj;ed :i;:;aiiist him, the state not beinsj; a party lo su;di illegal arrest and abduetion. Id. C. LKIIAUTY of AHllKST OF A Fl'UrnVI'; FROM .Il'STIC'K IN A FOllKION CO'JN- TUY NOT NK( KSSAUY To (IIVK ((HIIT .IlIJISniCTlON. — The lulc Sit COIU- nion law is, that the court trvin,^ a party for crime committed within >t invent ii;at(.' the manner of his capture in a for- its Juris liction wi ei^^n state or country, thou ;li his ca;)tiire and return may have beei jilaiiily without a' •liority of law, 7. Right of asym'm to flumtivk fi;om .h stic Id. A fuj:;ilive from Jus- tice hiu no asylum in a forci'^n country when he is guilty of an t>lfen.ie 630 AMERICAN CRIMINAL REPORTS. for whioli lio is liabln or subject to extradition, by treaty between thin ariil the forci;;!! t;ovevmneni. If he is ille^allv and forcibly removed from sueli fori'l^n country, that country ulono has cause of comphiint, and ho cannot comphiin for it. Id, 8. ExTRAnrnoN of FUdrnvES depends on treaty. — Where no treaty exists Itetwccn two governments for tiie extradition of criminals ttei'in;^ from justice, there is no obligation existing that can bo insisted upon to surnniler them for trial to the government from which they havo tied; but as a matter of comity between friendly nations, yreat olfend- ers are usually sin-rendered on request of the government claiming tho right to punisli them. Id, 9. FUCJITIVE, WHEN EXTRADITED, MUST BE TRIED ONLY FOR TIIE CRIMES NAMED IN TREATY. — Where u fugitive from justice has been brought back to the country from which he has lied, dh a warraut of extradi- tion in conformity with tiie terms of a treaty existing between two governmeats, he cannot be iirocceded against or tried for any other otfeiisi's than those mentioned in the treaty, and for which he wa.s ex- tradited, without lirst btung atfordeil an opportunity of returning. But tills doctrine has no ap|)lication where tlie tu,^itive has been brought back forcibly, antl not under the terms of the treaty, or under an extradition warrant. Id, 10. The COURT has no po\vi:r to reviiow decision of maoistrate on GROUND IT IS AOAINST WEiOHT OF EviDiCNCE. — Upon an apjilication for a hiihcan corpKs in the case of a fu_citive criminal comnntted Ity a \k>- lice magistrate, under the extradition act, the court has no power to review the decision of the magistrate on tlie ground that it wa.S against tlu; weiglit of tlie evidence laid bet'nn,' him, there l)eing sulli- cient evidence before him to give him jurisdiction in the mattiir, Tlie Qticeii, V. Muiircr, OaS FALSE PRETENSES. 1. False puktexse — Promise to perform some act in the future. — A false pri'ti'use, to be within the statute, nmst be the assertion of an existing fact, not a promise to perform some act in the future. Coin., V. Ahiove, 230 2. Indictment. — The jiarticular act alleged in the indictment was the pro- curing of tile pi'osecutors indorsement of the del'endaul's )>ri>missory noti\ and the false pretense charged consistecl \n the dele-nlaiit repre- senting to the ))roserutur tliat he would use tht; note soir»t)rsed to take 11]) anil cano-1 aimtlier note of the same amount then abi iit maturing, and ui)on which the |)rose<-iilor was liable as indorser, and for no other purpose, and the indictment charged that tiie defend mt. instead of using it for this purpose, as he pretended he would, used the same for liisown private jan'i)ose. Ilclil. that the indictment did not set out an indictabh; false pretense under the statute. Id, 8. Constructive larceny. — Bv jiroviso of section 111 of the act of ]\Iarch 31. IHliOd'. L.,41(t. Pennsylvania), it is provided "that if, upon the trial of any p.Tsoii indicted for such a misdemeanor (false pretenses), it shall bejiroved that he obtained tlu' iiroperty in (luestion in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be aiMpiitted of such misdemeanor,"' etc. IJcltl, tiiat the distinc- tion between the offenses of constructive larceny and cheating by I'also pretenses is clearly delined, and as neither of the counts in the indict- ment would sustain a charge of larceny, the defendant could not lio convicted of that olFense. Id, 4. An indictment for obtaining goods under false pretenses can bo main- tained against oni; who sells and conveys land for a price, by falsely rejiresenting it to be free from incumbi-anees and the title thereto i)er- fect. when the land is in fact incumbered with a mortgage known to the defendant. State v. Miniduy, 2;)4 INDEX. n;]7 ^on tin's oniovod iipliiint, Id. tri'fity < rtwiiig ■y liiivo olFc'i id- ling tho Id. ATE ON tion for )y a pi)- powor it was ly blllli- )r. The f.«8 5. Venur — Pr,ACR OP tiual.— TI. wrnto and posted at N.. In England, a k'tter addressi'd to (}., at a |>laco out of England, rontninin<; a falf-e pri'tonse, by means of wliicli he frandulciitlv iiidurod (J. to transmit to N. a flraft for 150/., wliirli lie there oaslied. Hfld, tlint there Wius jurisdiction to try II, at N. ; tiiat tlie j)relei)se was made at N., where also the money obtained by means of it wjia received. Tlie Qiteen i\ Holmes, 691 FINE AND IMPRISONMENT. 1. Fine and impihsonment — Costs — Jl'D(Iment for.— Relator was con- victc:l of an ass;iult. The court iinijused a fine of !?5()0. taxn 1 the costs at s:{()().5(), and ordered njlator tol)e imprisoned, as by statute provided, for tlic lino. Held, that section 4(i of the a<'t coneenung cnmes and Iiunishment (1 Comp. L., ;.';i.V.>) autb(n-ized tla; imposition of the fine, and section 074 of the criminal practice art (id., 221)9) authorized the judgment for costs. Staie of \efuda v. District Court, 236 2. JUDfiMENT — IIow ENFOiHEi).— Relator could be imprisoned for the fine. TJie judgment for costs can be enforced only by e.vecution. Id. 8. Alternative i'unisiimext — Fine or imprisonment, or both. — When a statute jmivides an alternative jainishment for an olfense, and further provides that the Jury, in rendering a verdict of guilty, shall " fix the degree of punishment to be inflicted, itidcss tlie mime be Jixed by law," tho jury nmst be instructed and recjuired to lix the kind and extent of the punishment within the limits prescribed by the law. Herron v. The Com., 238 4. General verdict of guilty. — It Avas error for the court to receive a general verdict of " guilty as charged in the indictment," and assess a fine thereou. Id. FORGERY. 1. Scienter must be alleoed. — An indictment alleging, in words of the statute, that the defendant feloniously, and with intent to defraud, did pa.ss, utler and publish a falsely made, fo'';;i-ii, counterfeited and altered obligjitif)nof the United States, nmst further allege that the defendant knew it to be false, forged, counterfeited and altered, or it is insuffi- cient, even after verdict. United States v. Carll, 240 2. The existence of a foreign incorporation may be shown by indi- rect EVIDENCE. — U|)on the trial of an indictment, charging forgery in the second degree, in the making and engraving of a plate in the form and similitude of a note; of a bank incor[Kwate(l in Havana, under the laws of Spain, a witness on behalf of the prosecution testified that he had been at the bank in Hav;..ia ami saw business carried cm there; that the bank issued notes which were received as money; that he saw the articles of a.ssociation. and from them, and what he saw in a new»- paper, the ollicial organ of the government, he believed the bank was incorporated under the laws of Si>ain. An engraver, connected with the American Bank Note Company, also testified that he engraved the plates from which the genuine notes were printed, and that they were then in the vaults of that com|)any. Held, that tlu> evidence was suf- ficient to establish the legal exi.steiice of the bank. The People V. UAr- geueour, 240 8. The indictment chiU'ged that the note so alleged to have been forged was " for the i>ayment of iifty eeiitaro.s.''' Held, that it was not necessary to ileline the meaning of the wonl eeiduvos. Id. 4. Under the statute defining forgery in the second degree, the making and engraving of an ludinishcd plate constitute the olfense. Id. 5. Want of aitiiouity of defendant to make the plate. — Testimony that thegeiuiine plates of tho bank were engraved and retained by the ■> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 "^"^ ■" I.I ■tt lii 12.2 I^ HA *" £ IA& 12.0 11.25 4" Photographic Sciences Corporation ^ 4" 1^ :\ ^^ ^. ^^ as WIST MAIN STRin WnSTn,N.Y. 14SI0 (716)t72-4S03 ;\ V ;« \ 4 y '^ !l iffr '?!'' S< ' ! . i'-il 038 AMERICAN CRIJIINAL IlL:i't>liTS. Bank Noto Cumpnny. with the tt';.timony of tho ii';cnt of Iho l::ii»k in tliis country tt'.nt .10 on(\ ox< o\.t sai;;Tee, were ai);ili(:ihk', as tlie Code of Criiniiial Procedure re;(uires such ; the other con- etituents of for,i;erv concuriinj;, th(» brevity and uncertainty of this instrument will not ju'cvent a conviction. Such ]a;i('r was not inad- miuaible iu evidence on .account of unceilaiiily. Bnr.'.c v. Tie btnlr, 679 FORMER ACQUITTAL, ETC. Sco AcTrir:Fo:3 Acquit — Autrefois Convut. Jziopahdy. Jueisdiction. Lauleny, 8-1!:. FORNICATION. A conviction for, may Lc Buataiuod under an indictment fcr ecduction. Ui(M V. Com., . GG:) FRAUDULENT PACKIITG OF COTTON. Not NrcERSAUY TO SHOW conct^ai.mi^nt ov si:n?;TANCE mixed ■mTiT the COITON. — A [)cnal statute, which provide) tliat "a.iy person wl o fnuidulently packs or bales any c< Iton by platinij, or otherwise," is vio- lateil when persons, who j:;in cotton for toll, witli intent to delraud the owner or the imrchaser thereof, mix sand ur other sui)stanc(>s with tho cotton; nor is it necessary to slmw a concealment of the sand or other bubi-tances in order to ni;d;o out the ofu'iiKo. Uuiiid ct ul. v. tStutc, !J17 8co Indictment, and 7. OAMINO. 1. Oamino — NAViOAr.T.E STREAM NOT A iiioiiwAY. — A navif^ahlc rtrcam IS not a /t?V///(Crtv within the meaning of the statute against gannny (Code of Alubiuna, sec. -i'M::). DicWi/ v. The .SUilv, 121t» 8. JunisDK'TtoN OVER NAViciAiu.E STREAM. — The I'lavinR liaviuR been !'n the middle of the river dixiiliii;; two counties. 1 he coiutj of either couni y hail jurisdiction of the olfense under the statutea. id. INDEX. G30 G^tAND JUR0R3. I?:TOXTr.\TiO!J or" cnANn JCRon.— An iiuliclincnt will not Ic abatod or quiisluul Iccauso one or nioro of the yrnnd jury wore intoxicated wliilo it was under consideration. Allen f. The l^tate, 253 S.VM3 — C )NriiOL OJ" CTJKT ov;;;^ — A Rranl jurjr in not under the con- trol of the court, like a petit jury is, wliile considering of its verdict, and sliould not be so judged. Id, A grand juror cannot be comjielled to disclose liow lie or any other juror vtited ujon an indii^tnicnl, but le may Ic re4 2. Samk — Veudict — JurxniKNT — T!r:TniAT., — A verdict is the b.^si;', of V.\o judgment, a-d when the hitter is reverted because the law uoes net autliorize tl f.,ruu'r, both are kI aside and areuf no ellVtt; ,|iiilgnicnfc for murder Ijcing reverseil anplication of any j.erson who is imjirisoned in violation of tho constitution, or of any law or tre;ity of the United States; and if a person b(> imprisoncul under a state statute which is ia coullict with either, that court haj power to discharge him. In reDi'usiiahaii,Ji:. iO 4. JuiusnicTio.v. — The federal courts have no jurisdiction to discharge a prisoner held under a state statute, n\)im the ground that such staluto IS in violation of the constitution of the state, or in excess of the ])ow- crs which the people of tiie sl;\tt' have conferred on th(>ir legisl.iture. If it s issued upon anv final judgment of a court of competent jurisdiction, the iiuiuiry in litihcas eor/nis is liiiiited to the validity of the judgment, or to llie ipiestion whether it is stayed or lijus spent its force; mere irregularities will not justify a discharge. In re nolfs, 440 7. The c:>uut iia; no powkti to u'Iview P/Ionion o7 maotstuath on OKOUNU IT IS AGAINST WEIGHT (>/ E.vii)i:NCE.— Upon an a^»i)hcation for a liabeas corpus in the case of a fugitive criminal committiHl by a police magistrate, uniler the extradition act, the court has no |)ower to review tin; decision of the magistrate on the ground that it was against the weight of tluM'videniv laid before him, there being iulllcient evi- denie before him to give him jurisdiction in the tuuttcr. The Queen v. Maurer, 583 640 AMERICAN CRIMINAL REPORTS. HUSBAND AND WIFE. See Arson, 3. Bigamy, 2. Evidence, 14, 15, 51. Larceny, 17. IMPRISONMENT. Imprisonment for fine and cost. — In all our penal legislation the word " imjjiisonment " means iuiprisoninent in the county jail or local i)rison, unless expressed to be in the penitentiary; and the statutes providing for the imprisonment of a defendant until tlie fine and costs be paid refer to misdemeanors and not to felonies; and a defendant convicted of a felony and sentenced to the penitentiary for a tixetl term, and the payment of a fine and costy, cannot be continued in jirison after tlia expiration of sjiid term by reason of the non-payment of the fine and costs, either iu the penitentiary or county jail. Cheaney v. The State, 2H See Sentence, 3. INCEST. A brother-in-law and sister-in-law are nearer of kin by affinity than cous- ins, witliin tlie meaning of tlie statute prescribing the punishment of incest. Steivart v. The State, 271 INDECENT EXPOSURE. 1. The crime of indecent exiM)sure is committed if a person intentionally makes such exposure in tlie view of the windows of two neigliboriiig dwelling-houses. Van Houten v. State, '212 2, It is not necessary that any person sliould actually see such exjiosme. if it was made in a public! place witli the intent that it sliould be seen, and persons were there who could have seen if they had looked. Id. INDECENT LETTER TO FEMALE. An averment in an indictment that the defendant "unlawfully, wilfully and wantonly sent " an indecent letter to a fem.ale is not suHicieMl to show an offense under a statute whi
  • ear to the court, to charge a conclusion of law. Slate v. Graham, 1. Must alleoe the facts, not a conclusion op law.— An indictment must allege the sjiecial matter of the whole fact with such certaiiity It is not sulliciiiit 376 2. ClIAUOINO OFFENWK IN LAXOUAOE OF TUF. STATUTE.— It is fillfricieilt. ilS a general rule, to charge a statutory offense in the words of the stat- ute; I'lit when a more jiarticular .statement of the facts is necessary to soi. it forth with recjuisite certainty, they must be averred. I<1, 8. An indictment for st'Uing Ii(|u<)r within three miles of Evening Shade College must aver that tlie sale was not for medii-al purposes by a reg- ular jaacticing |)hysi(iaii, who had made and recorded the afhdavit required by the act. State v. Scarlett, 278 4. Not indorskd true mix. — An indictment will not lie qnaHhed on the ground of its not being indorsed as a "true bill," or signed by the fore- man of the grauil jury. .S7(r/f' r. Ma;/nith, 279 6. Referkino to tiiikd I'KitsoN AS UNKNOWN.— At common law. incases where an indictment ri'iVrred to third parties as jiersoiis to the grand jury unknown, if, upon the trial, it was uuwle to appear that the grand lilMiiiMtt INDEX. C41 iiirj'diil know the names of the persons referred to. the accused would liavo to be ac(iuitted on the ground of a variance between the allega- tions of the indictment and tlie proofs. But it was not necessary for the state to i)rov(! the truth of the allegation beyond a reasonable doubt. Onlhrie v. The State, 78 6. Gfnekic ou technical terms— "Words generally understood amono THE PEOPLE. — Wliere a statute creating an offense declares tlu.t it may be coirniitted l)y certain specified acts or means, "or otherwise," the acts " otlierwise" or different from those specified must be alle;j;ed in siicli a manner as to enable the court to determine from the inilict- ment whether or not they constitute an offense. Daniel et al. v. State, 247 7. Same. — In alleging the acts assumed to be criminal, they should be set forth in unainl)iguous words, understood oy court and jiiry and by the people generally; not in slang words or •u garisms, or words use(l in a technical sense in some i)articular employment or biisiness, but in words belonging to the plain and proper language of the community. I'd. 8. Wilful, deliberate and premeditated — Malice aforetiiouijiit. — In reviewing an indictment for murder, held, that charging the homicide to have been with "malice aforethought" is tantamount to an averment that the act was " wilful, deliberate and premeditated." State V. Iling, 375 0. MriinER — Statutory form — Deliberately, etc.— An indictment cbarging murder, in the lang'tage of sec. 45 (New Jersey) of the criminal ])r(K'edure act, is constitutional and legal, and sufficiently sots forth the nature and cause of tlie accusation without the use of the word.s with "deliberation and premeditation." Graves v. The State, 380 10. What it must show. — Although the Alabama statute has dispensed with many of the allegatitms essential to an indictment for ])er,)ury at common law, it is still neci^ssary, in addition to the general aver- iiiciit of aufhority in the court or officer to administer the oath, to set forth tlie substance of the proceedin.'^s, that it may distinctly aj)- pear the ojitii was not extra-judicial, that it was taken on an occa- sion, in reference to a fact material, and before a court or officer liaving ])ower to adminisfer it. An indictment which does not set forth enough of the proceedings to disclose these facts is insufficient under tlu; statute. Jacul}s c. State, 405 11. Misnomer- Names of parties to proceedings in which the false oath was taken. — The names of the j)arties to the imjceedings in which the false oath was alleged to have been taken ai-e essential to its identity, and, if incorrectly stated, the variance is fatal to the prose- cutis an in- fant incajiable of committing crime, and the onus is on the state to overcome tliis presuuiiition, wliicii the law supplies, by siitisfactoiy evi- dence. Id. INFORMATION. 1. An information is fatally defective which omits to allege that the olTcnso was committed anterior to the day of the filing thereof, wlien tlu< stjit- r.le rtM|uires that the time of the commission of the olfense should lie so stated. Williams v. The State, 2[*2 2. WJU'u the irs'ition of an unn('<'essary word in an . fomintion does not tend to the prejudice of the defendant, and does not prejudice tlie in- formation or tiie description of the olfense, it sliouhi lie disreganlcil. People V. Flores, 485 Placing names of additional witnesses on, see Practice, 1, 2, 3. INQUE.ST. DESTRO'iayq DEAD DODY TO PUKVENT HOLDINO OF INQUEST THEREON.— It is a misdemeanor to burn or otherwise dispose of a dcatl ImmIv with in- tent thereby to prevent th(! holding upon such body of an iiitciidtil coroner's inquest, and so to olstruct a coroner in tlie execution of liis duty, in a ca.se where ihe incpiest is one which the coroner \\i\s jnrisdic- tioii t > hold. A coroner luis jurisdiction to hold, and is jiistitied in holding, an inquest, if he honestly iR-Iieves information which hn-i Ih'i'u given to him to l)e true, which, if true, wouUlmalio it his duty to hold such inquest. 27ie (^ueen r. Stephenson et al., 5U!{ INSANITY. 1. Insanity as a defense — The test of responsibiuty. — Where reason and judgment are not overcome, but the person ihaiged with < rime at the time retains tlu' jiower to cIkmisc between right and wniiig as to the particular act tloiie, lie cannot escape responsibility for his acts under tlie idea of insanity. Dunn i: The People, 0~ INDEX. G43 2. So if, nt the time a deadly asaault is made, the person making the as- sault knew that it was wrong to commit sucli an act, and liad tlie iiower of mind to choose eitlier to do or not to do, and of controlling his conduct, in accordance with such choice, he will be held amenable to the law, although he was not entirely and perfectly sane. Id. See Upntone v. The People, 895; Graves v. State, 380. Murder, intoxication of person on trial for, maj be shown, 8. uVs to insanity produced by intoxication, see Murder, 9, 10, 11, 12, 13. INSTRUCTIONS. 1. Instruction presextino a party's theory.— On the trial of a party for cons)»iracy, wlien the evidenie upon the material jjoints in the case is contliiting, an instruction on the jiart of the accused, which fairly pre- sents the law of the case on the theory contended for by him, ou<;;lit not to lie refused, liaving a basis in the evidence on wliicli to rest. Trask v. The People, 2i)i{ 2. KiCASON'Anr.E noUDT. — In every crimiiial case the defendant is entitled to an instruction as to reasonalile (Umbt: and it is error for the court to rcliise it. no matter how clear the evidence may seem against him. .S7((/t> V. aonce, (JS; The People v. Davis, 514 3. Di'.i'iNED. — A rea-..in:'ble doubt, as used in instructions in crimin.al trials, is one iirisiiig from a candid and impartial investigation of all the evi- dence, and .' uili as in the graver transactions of life would cause a rciisonable ami prudent man to hesitate and pause. Dunn v. The Pcn- 2>l(\ ori 4. Same — Too many instructions.- On a trial upon an indictment for an assault with intent to nuu'der, tlie court, for the defense, ^avo eleven instructions as asked, and twelve others after modifying tliem, iiud refused twenty-three. It was held that tiie rules of law applicable I > till- case weiH' simple and i)l:iiM. iim! (liat the practice of incnmhiT- ing the record with so many instructions was a vicious one, anil it iiu,!;lit not to be enc(Uiraged. Id. 5. Sami: — In the language of the statute.— On a criminal trial an ii.ht: action following the language of the statute, which declares tliat ilruiilvcnness is no excuse for crime, is not eiToneous. Id, 6. If any part of a single instruction ought not to be given, the action of the trial court in rejecting the whole will always be afflrmed. 'The People V. Da via, 514 7. As TO form of verdict in criminal case — As ignoring the rkuit to find for a lesskr offense — Duty of defense to ask a counter INSTUUCTION. — All instruction given for the people on the trial of one lor an assault with intent to murder, directing the jury as to Use lorm (if their verdict in case of conviction, was objected to as error, inas- nunh as the direction to lix the term the defendant sltould serve in the penitentiary, if found ;uilty, ignoreil the right of the jury to liiid liini guilty of a lesser ollensi'. Held, that while not concuri'iiig in siu'li vit'W, if it were correct it was the duty of counsel for the defendant to have asked an instruction that the jury might lind a verdict fiition of the jury to a |)articular part of the evidence, and givuig it undue imi)ortance, and which also gives a construction to a letter of the defendant not warranted by any correct reading. ia proiierly refused. Campbell v. The People, 338 I?'*':. G44 AMERICAN CRIMINAL REPORTS. 0. Same — SiioCLD be ArrucABLE to the case.— AUIioukIi an instruc- tion contains a correct principle of law, yet if it has not the sli;j;lit('st application to tlie facts of tlio ca^jo, ita refusal is proper. lil. 10. Op a reasonable dol'BT. — On the trial of one for murder, an iiiKtmc- tion for the defense that the law in re}j;ard to rejusonable douht applies with f?i'eater force to circunwtantial than to otlier classes of evidence, is erroneous, and properly refused, Adams ct al. v. The I'voplc, ;j.")l 11. It is error in an instruction for the defense to sny that if the <'ircnni- stances are cap.nble of l)einR explained on a theory consistc >t with the innocence of the accused, the jury should accjuit. A theory niinlit lie assumed that the testimony as to his ynilt was false, and on such a theory there could be an explanation of the circumstances consistent with his innot.ence. Jd. 12. And herein, of the policy that many guilty men sHorr^n escai-e rather THAN ONE INNOl'ENT PERSON SHOULD SUFFER.— Oil the triid of two persons uixm a charge of murder, the :n't">ter weight or pre])on(lerau<(' (if evideiu-e sup|M)rts the allegations of the inrlictment, which the court n fused to Kive. Held, that the instruction was properly ri liiscl. (luic iK'infj no policy of the hiw on the subject, or for the cousiderntiun of the jury; that it is not within the puri)ose of the law that any .:;>iilty p»'rson shouhl escape or any iuuoi'eut one b«> convicti'd ; and that il' the f^reati'r weight or i)re|i<>nilerance of the evidence Ik," such as to satisfy the jury, iK'yond a rea.sonabie doubt, of the defendant's guilt, then it would 1k! suflicient to authorize a conviction. /(/. 12. An instruction not reduced to writing must refer to AUTHOniTY.— Where a statute reijuires instructions to be rediui'd to writiii;^ lielore behi^c given by the .pulge to the jury, and provides that such iustruc- tions shall be taken as jiart of the record and deemed subjectsof a|i|ieal, tin? jtidgo cannot give an instruction not reduced to writing utlierwise than by citing the ))age of the Inxik or law nuigazine whiiit e it is taki'u. Ilopt V. The People, ;!(;,") 14. CuEDimLlTY OF WITNESSES.— In revi(>wing an instruction relative to tlie crediiiility of a wituess jiiutly indicted with defemlaut, held, that tlu; attention of the jury may be directed to the peculiar circuiii'-taiicis surrounding any wittiess that are pro|)er to be considered in ilctirmiii- ing the weight to lie attached to Ins testimony. Stiite t: Iliii'j, :i75 15. Stating ABSTRACT PUoi'osiTioN OF LAW.— The giving ti roqniie absolute, literal aceuriu-j' in iiiKtiuctions, it is therefore Huflleient it' the instructions, eoiisiflerwl as a whole, sulistantially present the law of tie cast? fairly to the jury. liitzman v. The People, 408 19. 20, Murder — Degree of, to be found hy the jury.— Under a statute which defines the ci-inie of nmrder and fixes the de^iees thereof, it is error for the court to say, in its charge to the jury, tliat tlie olfcnHe, l.y whomsoever couimitted, was that of murder in the lirst degree. Uopt V. Utah, 417 Charge of the court to the effect that the accused was to be considered innocent until proved guilty, and that if there was reasonahle dciibt. and the disclosures did not satisfy the jurv of Ids guilt, they sliouhl ac(iuit him, is suflicient. Oliver v. The State, i:):'0 Bribery, as to value of thing offered, 3. INTENT. Conspirators held responsible althouoh they did not intend to COMMIT the particular CRIME. — When parties are engaged in the eonunissiou of a crime with malicious intent, and in the exectition tii(;reof perpetrate another criminal act not originally intended, the unintended act derives its character from the intended' crime, and the original malicious intent affects both acts. Stater. Vhiea et al, 290 Assault with Intent to ^Murder, 1, 2, 3, 11. Concealing Stolen Frop- euty, 1. Cruelty to Animals, 3. Evidence, 1, 3, 43. Indecent Exposure. Libel. Keceivino Stolen Goods. INTOXICATING LIQUORS. 1. Intoxtcatino liquors — Pharmacists. — A statute which authorizes pharmacists lawfidly registered to keep si)irituou8 licjuors ft)r c^om- pojinding mev have no control, to be bj'them com- pountled with medicines. State r. Brown, 21)9 2. Single sale.— Under the "Malt Li(iuors Act," approved Ajn-il 4, 1873 (l{ev., p. 4!(4, ij 13,New Jersey), a single sale of any of the li(|Uors men- tioned without license makes the seller liable to indictment as keeper of a disorderly house. State v. Fay, 300 3. Construction of license law with reference to charter. — The act is operative throughout the state except in townships, cities and iu- ocriMmited towns, where laws are in force regulating the sale of such li(juors outside of inns and taverns. Id, 4. Same — " PROiiir.iTiON "' — " Regulation."- Authority corfen-ed upon a town to prohibit all traffic in or sale of intoxicating drinks, with au- thority to license, regidate or orohibit inns or taverns, held, not to em- brace authority to regulate tlie sale of li(iuor8 outside of inns and taverns. Id, 5. The act of April 12, 1875 (Pennsylvania), prohibiting the sale of liciuor on Sunilay, and ])r()vi(ling a penalty by fine, does not repeal, by im])li(a- tio'i, the jnior act of February 2(), iH.")5, prohibiting the sale of li and delivery t«) tJie buyer of an entire Kiill*Jn; that a contract for a gallon, and the delivery of the same in parcelH at different times, is a violiition of the law. Held: The instruction correctly expounded the law. Sales of li(]Uor, in the mode suggested in the (juestion of the jury, would ht) mere shifts to violate the btatute. Eichardsun v. Com., 479 Secondary evidenck held incompetent to show defendant had no PEitMiT. — In a criminal prosecution against a del'enilant f»>r selling in- toxicating li(|tior8 without taking out or having a ju'rmit, the countj' attorney testified that he was ac(|uainted with tlie jirobate judge of tiio county; that he understtKxl he waa absent from home; tliat the book which he i>r; that it contained all the dnij^gists' ix'rmils issued by the Jiroliate judge; that he had looked into the other journals kept by tlu- pro- bate judge, and had been unable to find any record of j)eiiiiits tiici. in; thiit lie had freijuently heard the probate judge? testify in liipKir cases that all of the records of nerniits were kejjf in the b-iok produced by him; that the probate juoge lia'ir//.s Case, 254 6. Same.— The fact that the a<'cused hail lK>en tried under such indictnieiit, convicted of murder, and juilgnieiit jironounced ujiim the verdict, which juilgment was reversed because of error in entering the same (the law having bwn bo modified as to forbid the judgment), will not warrant liis discharge on the gi'ound of former jeopjmly >vhen subseiiuently tried for manslaughter on the Hume indictment. Id, INDEX. C47 Plea of arii-TY whrn no complaint is made no bar to pkosecution.— A j)arty kniiwinp; liiinsolf guilty of a misdemeanor, who bocomi-a h\a own prosecutor, selects his own judge, confesses his guilt, and submits to a judgment entered iipon such a confession, cannot eseaiw i^rosecution in the aitpointed mode by jdeading a former conviction brougiit about under sucli circumstances — such judgment of conviction is a nullity, Drake v. The State, 320. Autrefois A pquit — Autrefois Convict. KismcTioN. Lakceny, 8-11. Justice of the Peace. Ju- JUDGE. Authority op judoe not to be questioned by private party.— In the exercise of his i)ul)lic judicial functions the lawful autliority of a judt^e cannot Im? (luestioned by a private person. The attorney-general, acting on belialf of the state, can alone question, by a writ of (jtio mtr- ran to, his constitutional right to exercise his judicial functions. C'ui/le V. Com., 379 JUDICIAL NOTICE. Courts take judicial notice of the day of the week a certain day of the montli came on. Hubiiison v. State, 5W Courts will not take judicial notice of ordinance, see Perjury, 4. JURISDICTION. 1. Abduction. — I f a person abducts and carries away a woman child within tlu- statutory age, with intent to seduce, etc., from one state to another, he may be indicted and convicted in the latter state, if it be shown tbat he iiiti'r|)os('d his will or jwrsuasion between her and her guard- to detennino the case aocorduig to the evidonoo, and woiiM hiiv<.' to jro according to tlio witnessoH, but that lie ntill had an opinion whidi wnnM go with liini into tho jury box, and tliis he t-ould notK^'t out of" iiin mind ; that lie oould not lit-Ip it ; and that it nii^j^ht aMsist in inthunuunj^ his mt- dic't. To a cjuostion as to whether he would Kive Ids verdift in acconlaiici' ' with the toHtimony of the witneHses, he did not rej'ly, Tlu' (•lia!icn>,'e was overruled, tield, error ; and that the juix>r waifdisijualiiiiHl. JU. 3. Samk. — Another juror teotifled that he hange. Id. 5. Same. — Another juror who declanMl that ho had formed, expressed, and still held an opinion, was aski! 8. GeNEUAL or particular cause of CHAI-I.ENOE — OlNSCIKNTIOUS f)I'IN- lONs. — A juror was excusetl upon the ground that he entertained such conscientious opinions concerning capital i)unishment as would pre- clude his finding defendant guilty of iui otf(>nse punishable with death. llel42 10, Defendants tried jointly entitled to but singij? challenoe.— Where several defendants are tried jointly for a crime, having waived their right to separate trials, they are only entitled to challenge jointly, and may have the same number of challenges as if it were u single de- fendant being tried. Id. INDEX. G40 11. WrrRV NEW TRUTi •WlMi BK GRANTED BY RKASOX OF MISTAKE OP .lUROB AS TO HIS QUALIKICATIOXS. — Wlioi'o a iiiiui pivsoiits liimHelf in court in olK3(liuiico t() a Hununoiis ruijuirinj^ liini to appear as a juror, and istatoH thiit lui is a c'itizon of tlie United States, and the defendant has no reason to doulit the trutli of tlie stateuient, the riyht to a jury of twelve litizi'iia of the United States is not waived by an examination of the innposed juror toucliinK his other iiualitieations. If, after verdiet, the defenchuit learns that the juror was mistaken, and tiiat lie v.-as not a eitlzi'ii of the United States, he is entitled to a new trial, it noi ;i,)peariun that there w;us any nej;ligence on the part of the defendant tiial would work a waiver of the constitutional rijj;ht to a projier jurv. A defendant has the rif^lit to ])resume that none hut the uani(>s of ( ilizens of the United States are ui»on the list from which jurors are di iwn, i\'o>jj/c i\ Hccse and others, 537 JURY. 1. Drawing of jury. — The jury act of 1877 (act 135 of 1877, Michigan) re- <(uires the names of jurors to bo drawn in turn from separates parcels cuiitiiining names from each precinct in the county. Tlure is also a pro- vision for ord»'rin;c talesmen to bo drawn from a sinj^h; township whero the emergencies of the term do not leave time for snmmonin};; tlu-ni from tlie county at lar^e. Hut a jurv drawn three weeks before trial for a particular case of homiciilo is illegal if taken from only part of the townships in the county and those not .ailjoininj? the county seat nor iiiLludinjj tho locality ot the olfense. The I'eoi^lc v. Hall, '3o7 3. Where tho jury is polled in a murder case, it is the duty of each juror to answer for himself whether he finds tho prisoner guilty of murder in th(> lirst de^reo or in the second decree Whero tho response of each in such case is simply KW''ty without a designation of tho degree of guilt, the verdict is a nullity. Williams v. Hie State, 4ir» It JUSTICE OF THE PEACE. Justice of the peace — Has no jurisdiction until a complaint is Fii.K.i). — The jiower conferred on justices of tho ])eace to hear and de- termine prosecutions for misdemeanors cannot betpiickened intoactiv- ily until a coiniilaint is made — until a case is presented ho cannot exi'rcise jurisdiction. Drake v. Slate, 320 Pi.EA OF (iUII-TY WHEN NO COMPLAIN* IS MADE NO BAR TO PROSECU- TION. — A party knowing himself guilty of a misdemeanor, who be- coiiu's his own prosecutor, selects his own judge, ccmfesses his guilt, ami submits to a judgment entered upon such a confession, cannot escape |)rosecution in tiie appointed mt)do by pleading a former con- viction brought about under such circumstances — such judgment of conviction is a nullity. Id, LARCENY. 1. PaUTIN'O VOLUNTARILY \VYXK POSSESSION AND TITLE. — If tllO Owner of tlie goods alleged to have been stolen parts with both the possession and tiie title to the goods to tho alleged thief, then neither the taking uor the conversion is felonious. Murphy v. The People, 323 2. Otherwise when the owner intends that they shall be returned TO HIM, ETC. — But if tho owuer parts with the possession volun- tiirily, but d(X>s not part with the title, expecting and intending that the goods shall bo returned to him, or that they shall be disposed of on his account, in a i)artiiular way, as directed or agreed upon, for liis bonellt, then tho gcMids may lie feloniously converted by tho bailee, 60 as to relate back aud make the taking and conversion a larceny. Id. 650 AMERICAN CRIMINAL REPORTS. -1 B- 8. A general owner of goods may be guilty of larceny in stealing such goods from a special owner. Adams v. Hiate, 331 4. To constitute the crime of larceny in such cases, the taking must be felonious. Id, 5. Name— Variance as to alleged ownership of property.— Ap- pellants were convicted of the crime of grand larceny, for stoaliiig a . horse and wagon, the alleged projierty of one Sang Hop. On the trial of the case the owner of the property stolen testified that ho had two n.ames — a business name and a ijereonal one. Held, that as the owner of tlie pro^ierty was known by the name of Sang Hop, tliat nanio was BufRcient, in legal proceedings, whether he had another name or not. People V, Leong Qiiong, 'dH 6. Same, — The name of the owner of property stolen is not a material i)avt of the offense cliarged. It is only reipiired to identify the transaction, so that tiie defendant, by jjrojjor plea, may protect himself against an- other prosecution for the same offense. Id. 7. Receiving stolen goods- Local jurisdiction op offenses — f:x- ception to the rlTiE. — Under the constitution and laws of tliis state, as at common law. the local jurisdiction of all offensrs is in the county where the offense is conunitttHl. Tlie crime of larceny is made an exception, and the offender mav lie tried in any county to wiiich he carries the stolen ])roiHM'ty, or wfiero it may be fouml, its well as in the county in which tlie property was first taken. Tiiis rule has no ajiplication, however, to any crime other than larceny. The offense of receiving stolen property, or aiding in its coiiceahncnt, knowing it to have lx>en stolen, is not embraced in section 3!);$ of the Criminal Ct)de (Illinois), and the i)erson must be tried in tlie county where the offense was committed. Campbell v. The People, 338 8. Same — Former ACQUITTAL in another county, whether a rar to a SECOND PRosKci'TiON. — The trial and ac(^uittal, in one county, of one charged with receiving stolen goods, knowing tiiein to have lu'cn stolen, is no l)ar to an indictnieiit for the same offense in a didcrcnt cnnnty, unless it sliall apju'ar that tin; offense was committed in the cimnty in which the ac(iuittal was had, so as to give tlie circuit court of that county jurisdiction. An ac(|uittal of a crime by a court liaving no jurisdiction is no bar to a proset.utioii for the same offense in a court having jurisdiction. Id. 9. The general rule at common Jaw is, that an ac^juittal in one county can onlj- be pleaded in the same county, for the reason that all indictments are local; and if the first is laid in the wrong county, tiie defendant cannot be found guilt}', and could not have l)een hi legal joopanly. To this rule there are a few exi-eirtions, as, in larceny, and in case of a change of venue, as in this state. Id. 10. Same — Former acquittal, to be a bar, stost have been in rksi-ei t TO THE same identical OFFENSE — ANU THE PLEA MUST SO SHOW. — To make a i>lea of a former acquittal or conviction a bar to a second indictment, jtroof of the facts alleged in the second must be sullicicnt in law to have warranted a conviction ujwm the first indictment of the same offense charged in the second one, and not of a different offense; and the plea must show that the ofTi'iiso chnrge," such description is not sufficient to siippc^rt the indictment, or enable tlie jury to determine that tlie stolen chatti'ls are the same referiH'il to in the indictment. Tlie munbcr, kind and denomiiiation of the bills ought to l>e given, or a good and sutti- cii'iit excuse for not domg so set forth in the indictment. Territory r. ShqAcy, 491 Larceny by bailee. — A prison*!* was convicted of larceny under the following circumstances : Tlie [irosecutor gave a mare of his into the care of the prisoner, telling tiim that it w£js to be sold on the next Wednesday. On the next WcHlnesda.y the prosecutor did not go him- self to sell liis mare, but sent his wife, who went to where the prisoner was and saw hun riding the mare about a horse fair, and sell her to a third party, and receive on such sjvle some money. The ])rf)secu- tor's wife, after such sale, asked tlie jn-isoner to give lier the mtmey, saying she woubl pay liis expenses. Tliis the prisoiier decluiefl to do, and eventually lie 'bsconden tiling a. proiK'r bond. Jii. 3. The a])peal being formally denied l)v the police jurdinate to and h.armonize with the gen- eral law of the state, ludess siiecial powi'is are conferred upon the town by its charter. ISiate r. Brit tain, -I'ty 6. Then'fore, in the absence of special authoritv over .the subject, it von held that an ordinance j)roliil)iting the sale of liipior within the corpo- rate limits of a town is void, as tlie general law allows retailing ujion obtaining license. Jd. See Intoxicating Liquors, 3, 4. MURDER. 1. What constitutes muroeh — Of the intent. — Intent to kill does not enter into the definition of murder. It is enough if the unlawful killing Ikj dona with mali(!o uforethought, either express or implieil. Adams et at. v. The Peojjie, 851 INDEX. 2. Same.— If a party of men board a railwaj' car, and while the train is run- ning draw (lofi'lly weapons on a pasHoii;;er, and make him hold up his hands while they rob his person, and then by threats and intimidation cause him to jump from the car door, thev commanding him to dc -o, and lie is thereby killed, tliey will be guilty of nmrder. In sucli ease it is not essential that death should be the probable and reasonable result of the act the deceased is forced to do. It is sulHcient that deatli or great bodily harm was the natural result. Forcing a person to do an act which y the court when it was received, tiicie was no error. State v. Biizzelt, 410 19. Degree of, to be found by the .ivry.— Tender n statute winch de- iines tlie crime of murder and fixes the degrees thereof, if is e.vor for the court to say, in its cliarge to the .jury, tiiat tiie olVense. l>y wlioiii- soever committed, was tliat of murder in tlie tirst degree, lloiit r. Utah, 417 20. Same — POLLINO jury.— Where the jury is pcdled in a murder case, it is the duty of each juror to say for iiiniself whether he linds the pris- oner guilty of JUHrficr ut ui;NT it. — The indictment i)eing for kee])ing a disorderly house, an a\erment tiierein that "in tiie said house certain evil-disposed persons, as well men as women of evil name, fame and convi rsation, to come l(i;;ctiier,"' etc., is immaterial — might be rejected as surplusage, and it w;is, tiiere- fore, unnecessary to prt)ve it. Id. 3. IIon-i'EN. — The keeping of a hof;-])en may be a nuisance, and as such .a violation of the criminal law, and ijunishable under the ttatuti'. In re Jiulfs, Petitioner, 440 OBSCENE LITERATURE 1. Expert testimony not admissiule, ¥.tc. — On the trial of an indict- ment under the clause of tlie Penal Codewliich makes tin- selling, loaning, giving away or showing of an obscene or indecent book, writ- ing, jncture or photograph a misdemeanor, the (piestion of obscenity or indecency is one that falls within the range of ordinary intelligence, and does not require the testimony of an exjiert in literature or art. TtiC People v. MuUcr, Ah'S 2. Same. — On the trial of an indictment for selling ol)seene and indecent photogi'aphs, the defendant called as a witness an artist, and asked liim wliether there is a «listinguishing line, as understood by artists, between pure uud obBceue and iudeceut ai't. This was objected to uud vxcludeil. INDEX. 6r >i ITcM, no error. If the question was intended Bimply to brinp; oiit the fact that i)ii'tiiro9 might Ix! eitlier decjent or indecent, and that the taiions of jmn! art would a^'cojjt those of oneclasH and reject the otliera. it was jirojK'rly reje<-t<'d as an attenij)t to prove a self-evident i»ro|K)8i- tion; hut if the (|Uestion was intended to l)e followed by prodf that, accordiii}!; to the artist's standard, the photo^aphs were not olweene or indecent, it was properly rejected, ixa such proof was incompetent. It was likewise held that the intent of the defendant in sellinf? the pho- tographs was iKit an element in determining his guilt, and that there- fore evidence of intent was incomi»etent. Id. OFFICER. See Arrest. Bribery. Corruption in Office. Election. Man- SLAUOHTER. UESISTINO AN OFFICER. ORDINANCE. See Municipal Corporations. Coiu'ts cannot take cognizance of ordinance, see PEltlURY, 4, PARDON 1 . Pardon by ooverxor. — The governor's ])ardon relieves the offender not only of the jiunisliment ani\exed to the offense of which he was con- victed, hut. also, of all jH'nalties and conseipiences, inclusive of the ad- ditional ]iunishmeiit iin])osal)le. not hy reiison of the sentence for the second olfensc alone, hut in conseijuence of that sentence and the sen- tence in the former ciise. crcrpt, however, |M)Iitical disabilities growing cmt of his conviction and sentence. Such pardon does not restore an otlice forfeited, or rights that have Ix'come vested in others by reason of till' conviction and sentence. Edirardx v. Com., 460 J. Statkmf.nt. — E. was convicted in corjioration court of D. of felony in March. 1HH;{, and sentenced to <'oiihiienient in the iK'niteiitiarv. In .Inly. 1HS!{. h(' was arraigned in the circuit court of Ricliinond, upon an infonnation alleging that he had been before convicted and sen- tem-eil for a like otfeiise. towit. in ibircli. 1H8I. He jileaded a full pai'- don from the governor for the first olfense, granted in April, 1HH3. A (h'lnurrer to this [tleawas sustained, annt to the general welfare, if held subject to state control. In re Bi-o.tmdian, 16 2. Patent — In what sense a contract.— A patent is a contract only as iH'tween the parties to it, namely, the United States on one side and the patentee on the other, and tlie rights conferred thereby can extend no further than the right granted to the patentee under the patent laws. Id. See Constitutional Law, -1-14. Habeas Corpus, 3, 4. ^. Vol. IV — 42 (158 AMERICAN CRIMINAL REPORTS. PERJURY. 1. False AFB'iDA\nT. — A plaintiff in an action of detinue, who is with- out right or title whu-li will supimrt the action, and who wilfully and corruptly swears falsely to an aflldavit of ownership, thereby i)ro- curinj;; an order of seizure from thet)Hicer issuing the summons, — an order the ollicer caimot withhold if the plaintitf also executes a proper bond,— is Kui'tj' of legal i)t>rjury, Jacixys v. Stati', 465 2. Materiality op matter falsely sworn to.— An affidavit made at the commencement or |)endingasuit to prtx-ure the exercise of some partic- ular |M)\ve'.' from tlw* court, or fi-om some olHcer ther(Y)f charRed with the exercise of |K)wer, ami which can exert no influence in any suhse- (jueiit stiige of the ])roceedine:, constitutes indictable perjury, if the matter falsely sworn to be materiitl to the point of incjuu-y at tlie time it is made. Id 3. It is not SrKFKaEXT to show that nEKKNDANT MADE DIFFEltKNT STATi'MKNTS. — In the trial on an indictment for per jury, to secure a conviction it is not sufficient tt) prove that the defendant, at different times, testified to two opposite things irrec()ncilai)le with each other. Till ic must be testimony outside of his own contradictory statements as to whicli of such statements is false. Freeman v. The State, 470 4. Ordinances must he proved. — Courts cannot take cognizance of the ordiiianct's of an incf>rporated town. They are subJiHts of jiroof. In an indictment for jicr jury, assigned ujxhi testimony given in a mayor's court ivu the trial for a violiUion of a municipal ordinan(!e, the indict- incJit should so ehai')d to trial upon the reconl thus made, the same as uiK>n the origmal indictment. The State v. Steisiger, 4i*2 6. Presumed that defendant was arraigned, etc.— Where the record does not disclose that tlie prisoner was arraigned and pleaded, the at- INDEX. C59 raij^nmont and plea will be presumed, iinlcas there be Homothing whicii afHrniativoly shows tlieir ansenee. Territoru v. Shiphij, 491 7. Appeal and writ of ekkor— An appellate couut willdismish ap- peal (>!<' escaped convict.— An nppollatu cimrt will i-L-fusc! to hour a criiiiiiial fusn on a writ of error where the ])laintifr in error lias escaped and is not witiiiu the control of tlie court below, either actually, by l»e- inj; in custody, or constructively, by being out on bail. Wuudmn v. The .State, 477 8. Same. — On amotion, where it ai)peared to the court that the plaintitF in error had broken jail and escap(!d from custody, leaving iiis cause pending in court: Ordered: Tliat the writ of error be dismissed at the next term of tlie court, unless it is made to appear to the court on or before that time tiiat the plaintiff in error is in the custody of the proper ollicer of the law. Id. ft. United States courts — Writ ob' error,— Section 3 of the act of con- gress of June 2iJ, 1874, allows a writ of error from the supreme court to the supreme court of tlie territory of Utah, in criminal Ciuses, when t\w accused has l)een convicted of bigamy or jiolj'gamy. or has been sentenced to deatli lor any crime. Wigginn v. The People, etc., 494 10. II. Certificate of division - U. S. V. Hamilton, \-i. -Motion to quash — Discretion of court. 477 Generally — Plea in abatement. — A plea in abatement will not lie to an indictment for that tlie court, if a suiticient numl)er of the jurors suuuiioned are not in attendance, causes the reipiired nuud)er to be re- turned from tlie coniitif at targe. Nor for that two or more of the graiiil jury which found the indictment had served cm another gi'and jury at tli(^ same term. How tliey voted tiee, in jaitting witnesses under the rule, to swear all of tluan on both sides and seiul them out of hearing until i-alled to testify, still we know of no law whicii renders a witness incomi)etent because he has heard some of the testimony on the sid(s opposed to that «m which he wa« called. It niigiit lie a ground to attach the witness, but not to excludes him. Rookti v. The State, 483 Counsel must confine their arouments to the evidence.— Counsel, in their arguments to the jury, are bound to keep within the limits of fair and temjH'rate discussion of the evidence in the ciise. Any violation of this rule entitles the adverse partv to an exception. State i\ Haiitietf, 'd'6; Campbell c. The People, ' 338 Prosecutor should not comment on failure of defendant to tes- tify. — In a criminal action, where the prosecuting attorney, in making his argument to tlie jury, claims that the defendant is guilty because he failed to testify in tins case and deny the facts alleged against him, and tlie defendant is afterwards found guilty by the jury, held, that for such irregularity on the iiart of the prosecuting attorney, the defendant, on Ids motion, should lie gi'anted a new trial, and that a mere instruction from the court to the jury, that the jury should not pay any attention to what was said by the prosecuting attorney with regard to the defend- ant's failure to testify, is not suflk'ient to cure tlie error committed by the prosecuting attorney. State v. Batch, 516 Same. — Ujion the trial of a defendant charged with a criminal offense the latter rested without testifying. The state iiitross. Ex iHtrto. StnitiKj, .Wl! 17. WnKN oaiECTioN MUST UK TAKKN TO iN'incr.MKXT.— If the negative alle- gation that the mother or child did not die, which lessens the puuisli- nient under tliH statute, he necessary in the indictMient. se<'tioii 5:! i>f the criminal |ir arraignment. Tlie Stdtc ii. t'lil- fonl, rt n>. The granting of a contituiancje is within the legal discretion of the court « (/»o, with which this <'ourt will not interfere without manifest cause, So of th(^ ii'fusing of a new trial to the accused. hi, 20. Accused is, luider no law, entitled to a commission to take the t"stimony of witnesses residing in another state. /(/. il. Civil. I'RACTK'E .VCT NOT AiM'l.K!Ain,r,. — The provisions of the Code of Civil l*i"o<'eihu'e. making certilie(l copies of the records of foreign coun- tries evidence, and prescribing the manner of authentication, are not apj)li<'uhle. IVic l'vo}iU' i\ IfAiyviiciHii', 2)0 •i'i. Ri:STKAIMNon a chiirne of nuirder, upon the he.iringof a motion for a new trial, which liasei|uent term, the prisoner hi'oke out into nianif(^statioiisof ragtwuid violence towards theotUceiM, and attem|>tecl to break Jiway. Thereupon handcuffs wer(> jilaced upon his wrists to restrain him. It was lielii there was no error in thus jireserving order and |irot(H-ting the sheriff arid his bailiffs from violence, and that it could not affect the justness of the verdict at the preceding term, nor the sentence following the overruling of tiie motion for a new trial. Ui>Ht(me i\ The Pvaplc, :«».■) 3!$. Where the court ordei-s witnesses to be exclud(>d from the <'ourt roirtn during the op»>ning statement and the taking of tesliniony, it is a mat- t<'r of discretion with tluM-ourt to allow a witness, who has remained through a ndsunderstanding of the order, to testify, anrl then remain during the rest of the trial, i'eoyj/c r. O'Ldiiyhliu, .>)-,> PRESUMPTIONS. Presumption of guilt, see BrKul.AKV, 0. As to t-apacity of infant to com- mit crime, see ISKANTS, 1, 2. As to ai-raignment of defendiuit, see Practice, 6. PRINCIPAL AND ACCESSORY. 1. Tl»e statute of K.ansjw authorizes tin.' charging of aii accessory before the fact us 11 principal. State r, Munleif, ii'JSl 2. Upf>n the trial of an accessory before' tlu.' fact, the record of the conviction of the principal is i)r accused committeil the alleged indecent act against the will of the child. Oliver v. The State, 533 2. There may bo submission by a child of tender years without legal con- sent. Id. 3. Prosecutrix may be interrogated as to her object in going to the place where the rape was alleged to have been committed. The State v. Iliirtnett, 573 RECEIVIN(} STOLEN GOODS. 1. RECEmNO stolen goods and ('(INCEALINO SAME FOR OAIN, E^C— pROOF NECESSARY.— In order to convict under section 23!) of the Criminal Code of Illinois, for receiving and aiding in (;oncealing stolen goods for gain, or to ])ri'vent the owner from receiving the same, etc., it is essential, first, to show that llu- pn)))erty alleged to have been received or con- ceaK'cl was in fact stolen; secondly, that tlieaccusoil received the goods knowing tli(>m to have been stolen, guilty knowledge being an essential ingredient of the crime; and lastly, that the accused, for his own gain, or to prevent tlu- owner from recovering the same, liought, recoivecl, or aided in concealing tlie stolon goods. Aldrich et ul. v. The People. rm 2. When the owner authorizra or licenses another to receive stolen goods, and such other jjorson receives the goods from the tiuef knowing them to hiivo been stolen, with a felonious intent, ho will be guilty of a felony in receiving the proi)orty, notwithstanding the license. Id. :i. Must re wini criminai- intent.— AVliero a defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purpose of restoring them to tlie owner without fee or reward, or the expectation of any ju'cunjarv compensation, and in fact inunediately after obtain- ing their possession restores all lie receives to the owner, and is not act- ing in concert or connection with the i)arty stealing to make a profit out of the transaction, he will not be guilty) under the statute. Id. RESISTING AN OFFICER. 1. Not necessary to aver how officer AcrrED.— The resiiondents were indicted for hindering an olTicer. One of them pleailed guilty, and moved in arrest of judgnu'iit for the insufficiency of the indictment. Held, that it was not necessary that the manner m which tlie officer was attempting to discharge his duty should be averred in the indict- ment. State V. Carpenter et al., ' 559 662 AMERICAN CllIMINAL REPORTS. 2. BtJt it must be alloKo«l thnt the accused know, nt llio time of tin- liiii- dranct'. tliat sucli olHccr wasonoof tiio olHiJ-rHdcHcrilicd in tlic Hlatutc, whom it is ma(Ui a crimo to hinder. And if it is not so allcgod, micli defect may Ihj taken advantat;o of in arrest of judgment. Id. RIOT. 1, Acts wiikii coxstititte hiot. — Where two or nioro persons, acting to- f^ether without autiioritvof l.-iw, use or tlireaton either force or violence accomjiiinied hv immediate jiowerof execution, andtlierchy disturii tlie pnhlic peiKc. tliey are Kidlty of riot. Snllicient force is used to make out tile charge of riot, if tlieir re(|iu'sts or orders are olieyed through a re!u«>nahle fear of injury to pertjou or property. I'coplc v. O'ImikiIi- liii, hii 2. Testimony of a general feehnRof alarm and disijuiet is properly received to show that tliu defendants disturbed the iniblic peace. /(/, ROBBERY. DiSTINfTION BETWKKN ROnilERY AND I.AIU'KNY FROM THE PERRON.— To constitute rolilu'ry. as tiistin^iished from larceny from the p«'rson, tliere must Ih' force or intimidation in the act ; therefore, whereathief slipped his hand into the pocket i)f a lady anil pd his (I ii>;er caught tliercin, and she felt the hand, and, turnin;^, saw liim unconcernedly lookinj:; at the hojises, and caught him l>y tlie coat, which waH left with her in makinfi' his escape, Intd, tiiat the crime is larceny from tlie person, and not rohlu'ry, thou>::h the lady's pocket was torn in extractiuf^ his hand. Fanuiiij r. Tlie Sliitc, "((il FlNDlNd TARTY (lUlI/rY OF TWO OFFENSES OROWINO OITT OF A SIN(iLE TRANSACTION. — A party cannot Im' Ki'i'ty of rohhery ami of havint; re- ceived the same ^oods ohtained by the rohlu'ry, knowinicj them to have been so obtained, where there is but a Min).clc transaction involved, and a verdict fitulinj^ him ^'li'ty of the robbery, auery, iind in- volv(>s some other jierson who had previtnisly obtained tlie property by robbery. Tobin r. The I'eiqtle, 650 3. SEDUCTION. . SOCIAI, ATTENTIONS NOT STTFICIKNT CORROnORATION — In a trial for si'duction under jn-omiseof marriaice. evidence of such social attentions on the )>art of the defendant to the prosecutrix, as accomjianyinfr her from church, callin;:: on her at the house of her ])arents, and then^ waitiu}:: on her now and t'len for two years, is not fiiiflicitnit to corrolt- or.ate the jirosecutrix's testimony to the elfect that a promise of niiir- ria^e wits made to her, and will not warr.ant the jurj- in iindinp; that fact in the allirmative. Rice r. Com., .Wa Contrition of defenpant.— Where there is testimony tliat the r control, tho judg- ment. And memorandum upon the commitments cannot be resorted to for tho [>uri)osc of enlarging what the court haa solemnly adjudgod. Id, STENOGRAPHER. See Evidence, 10, 17. SUNDAY. 1 . The courts take judicial notice of tho day of the week a certain day of the month camb on. Robinson w State, 570 2. SAnnATil BREAKiNd — INDICTMENT FOR. — The cliarging ])art of an in- dictment for Sabbath breaking must show that the offense was com- mitted on sortie Sunday, though the particular Sunday is not important. Id. See Intoxicating Liquors, 5. THREATS. UNCOMMCfNICATED THREATS ADMISSIBLE UNDER CERTAIN CIRCU5IRTANCES. — In a trial for homicide, where the ((Uestion is ;is to what was decca.sed's attitude at the time of the fatal encounter, recent thre.its may become relevant to show that this ;ittituile wiis one hf)stile to the defendant, even though such threats were not communicated to defendant. The evidence is not relevant to show the quo auinio of the defendant, but it may be rel<>vant to show that at the time of the meeting, tho deceased was seeking dofiuidant's life. Witjoiiut v. People, 494 C!onditional threats made by the prisoner are sometimes admissible. The State V. Adams, 393 <](I4 AMERKJAN CRIMINAL REPORTS. TRESPASS. Breaking partition fenck.— A person cannot bo ronvictod of niisilc- moanor for knocking a hoanl off of a jmrtition fcnci', l)('t\v('(>n llu- lots of hinisolf and tlic i)r()si'(iitinK witness, and Ihc coinnion prnp- erty of both. Bnt it seems that to pnll down and destroy it would Ik- criminal trcspitss. Drees v. The State, 5T1 VARIANCE. MiSNOAIER — NaM!i;S OF PARTIES TO PUOCKKOINCiS IN Wlliril THE FAl.SK OATH WAS TAKEN ON TRIAI, OF AN INDICTMENT FOR t'EIMlHY.— Tin names of tlie parties to tlie proceediiij^s in wliicli lh(» fnlse oalh wns alleged to lja\o lH>en taken are essenliid to its identity, ami. il' incor- rectTy stated, the varianee is fatal to the prosecution. JaetihH r. Thr State, Km See Arson. "Adjoinino," " Adjacent," etc. Rhihery, 4. Indictment, "i. Lar(;eny, 5, 6. VENUE. 1. Venue must be proved as laid in the inpictment. — No prin(i|)le is better settleslablished eitiicr i»y the one or the oilier. Jil. S. It nnist be proved beyond a reasonable doubt. J^ooJiH r. State, .|s:i 4. False iretenses — Peace of thiai,.— II. wrote and jiosted at X., in Enjj;la!iil, a letter ad(' I'in;;land, eunlaininu' a false pretense, by means of wliicli he ('randulciitly induced (i. lo transmit to N. a (iral't for 1.")!)/., which he tliere cashed. //(/(/. thai there was juiisdict ion to try II. at N. ; that the pretense was made ai N., where idso the money ohtaineil hy nu'ans of it was n'ceived. Tin' Queen v. J lot men, .V,)! VEROKT. 1. \ Roneral verre, 'SW 3. Alternative I'lNisiiMENT — KiNE ou imi'iusonment, or both.— AVIkh a statide provides an allernati\(' pnnishment for an (id'en^e. and rnillirr provides that the Jury, in rendering' a verdict cf jiuilt\'. viliall " lix llic deuree of putushmi'Ut to he iidlicied. inilcsn the ..■niK' lie Ji.nil hi/ Imr." tite Jury must he instructed and rci|uii'ed to lix (lie kind and exteiil nf th(^ punishment within the limits prescribed liv the law. Ilernui r. The Com.. ' •j;iS ;(. (lENEKAli VEUDU'T oFOiil.TV. — It Was error for the court to receive a H'cueral verdict of "^•uilty as chart;(Ml in the iudii'tmeut,'' and assess a line thereon. Jil. 4. Same — When good. — (in an indictment for receiving; stolen jiroiierlv. and also for aidiuf; in its conceahiu'ut, char;;-ed in two sepai-atc count.f, both of which ri'lati- to bid one and the same transaction, the imnishment for e;i<'h otl'ense. even if distinct ones, he! ni; the same, a genin-al vt^rdict of f;'dlty is pxmI. and will sustain a Judgmeid inlliit- ing a single punishment. Campbell v. Tlte People, ^;W INDEX. ■|s:l Not finding tiik ukorkk ok thk okfensk. — Uiulcr a statute which niiikcs tht* lull of «'xc(![>ti<)ns part of tiio roionl, iinil it apjjeaxs that tln! fharj^t' was iimrdiT in tlu^ lirst tk-^^rci-; that tho evidence waa of (hat (It's^Tcc! iinil no otlu-r; and that no (iiifstion was raised iia to tho decree, la general vi-rdiet of minder will bo sulliiiently certain aa to tlio degn-e. Stdfe r. Jiiizztll, 410 Where the Jury is polled in a murder ciuse, it is the duty of each juror to say for himself whether he tiiids the prisoner guilty of muvdvr in. tlicjirnt or scvoiKldiyrir. WilliantH v. I>''iifc, 415 Hach .HKoit Mi;sT dksionatk 1)I'.'},') Vkukict (»f f.i.f.vf.n TKitsoNS IN cAi'iTAi, CASF, A NrM.iTY.— The con- stitution guaranties a Jury of t\velvi> men, the conunon law Jin-y. and t!ie rigid to l)e tried for crime by a jury of that number is not a mere privilege of the prisoner, but a legal re(|uirement, which cannot be ehanged by tiie consent of the prisoner. The verdict of eleven jin\v- men in a capital case is a nu-re indlity, and any Judgment rendered tlieri'on ag.iinst the prisoner is withont jurisdiction and vt)id. Tvrri- idi-ji V. All Willi (iikI All )'<)!, l''inding defendant gtiilty of two oirenscs tion, see HoiUtKKY.2. See IXSTUUCTIOXS, 7. 574 growing «)ut of a single Irausac- 4. WITNESSES. Undku Till'. lU'M'. — KiuiiT OF ((»iNSF.i. TO CONSULT. — It is error in a criminal case for the court to I'cfuse to allow counsel foi the ■•iccused to considt his witnesses, for no other reason than that they have been put under the rule. Allm r. The Sliili; 2i\2 To lU". SF.PAUATF.P. — l{es|)ondent"s rei|nest, in a case of homicide, that the witnesses may be exanuned separately and not in oiu^ another's presence, should be grantetl. if seasoiiidtlv made. Tliv J'coplf v. Hull, ' :!57 STATITI'. WIIUII KF.MOVKS I'OMMON LAW DISAIIIMTY OF, NOT F,X I'OST FACTO. — Statutoiy alti'rations which do imt increase the i>uiiishment, nor change tht> ingreilients of the otVens(> or tlie idtinnde l.icts neces- .sary to establish guilt, and which only remove e.\i^ting restrictions upon the competency of certain classes of persons as wit nesse;;. i-elate to modes of pro<'ednre oidy, in which no one ciui be said to have a vested right, and which the state, upon grounds of public policy, may ri'gnlate at pleasure, llopt r. lliili. ' 417 DlSdUF.lUF.NCK TO Uri.l-: SKl'AHATINO. KF.NDF.ItS WITNESS (M'lf.TY OF CON- TF.MI'T, HIT NOT INCOMIM'.TKNT.— While we thiidv it a sound rule of prac- tice, in putting witnesses under the rnle, to swear all of them on both sides and sfnd them out of hearing until called to testify, still we know of no law which renders a witness incompetiMit because he has heard some of the testimony on the side opnosed to that on which he was i-alled. It might be a groimd to atla