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II. — Ins.vxity and Diu'Nkkxxes.s. jVoi.. HI. — DisAiui.iTiEs (IF rviniK.'^, Aokxcy; DrRK.^is; Accident, I(i.nor- AX( E .VNl) Ml.STAKE; Co.NSENT; O.MISSItlX.S AND ATTKMPT:*. jVoi.. IV. — Special Deiexce.s to Ckime.s Aoaixst the Plhlic. jVoL. v.— Special Defexxes to Cri.me.s Aoaixst Persons and Property. SAN PRANCISCO: SUMNER WHITNEY & CO., Law Plblisher8 and Law Booksellkkb. 1886. J ] Copyright, IS*"., 11 Y JOH.V l>. LAWSilV. THE ADJUDGED CASES ON DEFENCES TO CRIME. VOL. V. INCLCmSO SPECIAL DEFENCES TO CHIMES AliAIVST TUB I'UOPEUTr AND I'liHSONS OF INOIVlDl'Al.g, VI7. ; I ORG Km- : riJAUn AND FALSE PRETENSES; LARCENY; RECEIV- ING STOLEN I'ROI'ERTV; ROIJBERY; AKDUCTION ; SEDUC- TION; ASSAULT; ASSAULT AND BATTERY; ASSAULT WITH INTENT; FALSE IMPRISONMENT; RAPE AND HOMICIDE. WITH NOTES. *»llk' BY JOHN D. LAWSON. »t SAN FRANCISCO: SUMNER WHITNEY & CO., La.w Publishers and Law Brx>KSKLLEB8. 1886. O r\ "U 1 o^^ Enteral aocortling to Act of Congress in the year lS8fl, liy JOHN I). LAWSON, In the office of the Librarian of Congress, at Washington. % PRPJFACE. This vohniio completing tho rciniiiiiiiiLr Offenses against the Property of Individuals, embraces the crimes of Forgery, Fraud, False Pretenses, Larceny, Receiving Stolen Goods and Kob- lurv. It also includes all Ollenses Against the Persons of Indi- viduals, not emi)raced within the volume treating of Offenses ;i;:ainst the Public alone. (Vol. IV. ) The topics in this volume are Abduction, Seduction, Assault, Assault and Battery, Assault with Intent, False Imprisonment and Ivai)e, and also Homicide. L'lider the latter head will be found all the adjudged defences to a clKU'ge of murder or manslaughter, not already (Mubraced in Vols. I. and II., where the Defences of Self-Defenee, Insanity and Diunkcnness are particularly treated. J. D. L. Aruii., 188<1. This — the preface to the last volume of the series — is a proper place to review the object, arrangement, and contents of this undertaking. oaJKCT. The object which has l)eeii in the mind of both compiler and publisher is to bring together in as few volumes as possible all t:)e reported cases in which a particular defence has been set up 0:1 a trial or in an appellate court. In England the reports of Criminal Cases are for tlie most part contained in some thirty-fivo volumes devoted to Criminal Cases alone, the remainder being scattered here and there throughout the several hundred volumes (V) VI I-UKrACK. of tlu' decisions of the Courts. .f ('..minon L:iw. A .•ompicto sot of tlu-s.. spocial volumes is, l.o\v.>v."r, not e:isy to ol.tain : somo ..f tlu, vohuurs aivvvi-y .'..stly, im.l U'^^■ inm'titioners iu tin- Uuitnl States l,;.v,. iioiu- to the .■xpcusr of colhvtin;,' them. Th.'U as to tlu- Ciiiuiual Cases n..t iuelude.l in theui, only on<' who was al.lf to rousult wheuever he n.i-ht .lesiro it, all the Ku-lisli Comuioa Law U.^portsfroui Kspinasse to the last volume of the KuglishLaw Kepoi-ts, coul.l l.riug them witiiiu his roaeh. Tlie Amenean case. on criminal law are - unlike the Vjy^\\.h ca^es _ nearly all con- tainc.l in the -eneral reports. We have (.'W speeial eriminal reports. Auylhin.ir like a eomplete collection of Anu-rican crimi- nal case law was therefore out of the .luestiou, except to .uie wh.) was f(U-tunate euoujzh to to ho iil)lo to consult a cu,>,ph'te collec- tion of the American Keports, State ami Federal, To brinj;, therefore, all the criminal cases relevant to the piose.aition or defence of a criminal accusation into a few volumes within the means of any practitioner, has been the ohject of this publi- cation. AURA.NGKMEXT. In the arranixemeut of the reported eases on Defences to Crime those Defences which were ol a gi-ueral nature tirst claimed atten- tion. One of the most important of these was that of Self-Defcnce - the riirht to defend one's person or property, or the person or property of another by force an.l to take and destroy life er property in so doing. Through a business arrangement with tho oriirinal' pul)lisher, the publishers of this series were enabled tn obt'iun the admirable collectinn of these cases already made by Messrs. Horrigan and Thompson and this volume became there- fore Vol. I. of the series In a similar manner Mr. Lawson's collection of cases on Insanity and Drunkenness became Vol. II. — i>i^nuity an.l drunk- enness being also general defences under certain circumstances to nil manner of crimes. mm I'HKFXCK. Vli A comitlfto s(>t I ohtaiu : t ; that it was an act of Omission and not of Commission. All the general dcfL-ncos to crime having been thus shown, in i the lirst three volumes, tiie remainingtwo contain special delences to particular crimes, arrangeiirtion, I Ailultery> Affray, i IVuratrv, 1 bawdy Iloueas, r)i:.'amy, iBla-plieniy, [Breaking Jail, liiilu'rv, Drunkenness, Election Ollenses, Escape, Extortion, Forcil)lc Entry, Fornieation, Gaming, Incest, Indecent Exposure, Curving Concealed Weapons. Lewdness, k'oinpounding Felony, ICoiuealing Birth, IC'dii'^piracy, [Counterfeiting, ICnu'lty to Animals, D.MTtion, Ili-orderly Houses, l>i-turbing Worship, Disturbing the Peace, Liquor Selling, Malicious Mischief, Miscegeuiition, Misfeasance in Otlice, Neglect of Children, Nuisance, Obscene Language, Obscene Literature, 01)structinir Officers, vili OI)^tni('liii«; Trains, ()l>-is|iiit the I'l-oiH-rty of Individuals, viz.: Aison, lilackniailinir. IJurirlaiy, iMiihozzIi'iuciit, ThroalcMi- ing. In volunu! V. arc ti'catcd lir-it, the riMnaininy the profes- sion. It may safely he said that these live volumes contain .as much matter as twelve vnluiaes of the ordinary law reports. The page is larger than usual, the type small and compact, yet clear ; and in numher of pages each volume is double Xlw size of (he usual law hook. In this way only have the compiler and ptd)- Ii>her hcen ahl(> to pilace this eiiorniius amount ol" case law within the limits of live liooks. The huge amount of matter AM y IX aids, akinir, Lil.el, 1)1" (illi'iiso-f iii^.iinst i voliiiiH^ coiitiviiis :\" of Individuals, '.U'luciit, 'riii'calon- iiLT on't'iisos uiTiiinsl Fraud, False Prc- iohlxM'v : f Individuals, viz. : isault with Intent, I'les, and the cnor- ve volumes will l)e ted l»y the profef- volunios contain as ■ law reports. The 'oinpact, yet clear ; bio the size of the compiler and pid)- iiount of case law amount of matter 111 these volumes tnny tiiMf : — ritKFACK. ,' 1)0 seen hv a <:lanc." at the Hul.-joined lolM IN IIVV, VUI.IMP.S. 101 Hi inoL' 1070 laiii r«:'.;'.4 \'o.of yo.o/ I irhnltXo.of : and Cite'l. 17:i 4'.h; r.i;:. •js;j 10'.'4 ii;:.H 1,1(1 fi'.'O 1 COtl .t u . • • » .'■.s;i8 In iH. other l.nuieh of the law has s.. compU-le a colloetioii .f ,ases h.'.Mi made, in so convenient and so inexpensive a form, A< already said in another place, this series is not intended to take the place of the treatises; it rather supplements them, by presenting the authorities which are cited in the treatises, as they arc ici)orted in the original sources. The series will be of peculiar value not alone to the defence lawyer, bi" to the iMiosncrriNMi attouney as well, in enabling him to anticipa ) all adju.licated defences on the part of his oppon.mt. And Volumes I. and II. contain not only all tin- cases of sue ccssful defences but, also, all the cases in which a defence of the kind has been either sustained or overruled. mm y" CONTENTS. l'Ai;(;f.i;y ....•••• 'AIM' II. FiiAiD ANi> Falsi. ^ul.■rI•■.^^.^•.s . . > ■ inO-:;:)i' 'AIM' 111. Laiukny .■)',i.!-('..".H ■AIM" IV. Hkckivini; .Stoi.kn Fuoi-kuty .... ('i;l!t-(J8;! 'AIM' \. RoBDKitv ("mS-I-T^l* CIIAPTKR VIII. tUIMKS AGAINST TlIK I'KHSONS OI' INDlVinl'AL.S. I'.'iKT I. Ardiction — .Skijiction I'AIM' II. AsSAlI-T A.s-D Hattkuy .... I'ARr HI. Ka:!-. i'.Vlir JV. Homicide 7l>;;-782 78;!-H71» 8S((-'.ll(> (xl) I [Th' Abri Alir Abr MU Ada Adii AiUi A ill Ah All Air Aid All All Ml An An An An An All All At Ar At Ai Al Ai TABLE OF CASES. rtcvl in full is in.Iicate.l by black fljrnres. .The pa.c- ou which the case is r.portc.l m fuli is In.Uca e.i oy -..m; ' Thus: R. i>. .Ulams, I R. ."^ R. ->24, is reported iu full o.i pa-e, o 47.] I « II ■' C & P. 450. p. 582. Abbott,' R. ;. I l).'n. 2T;i. pp. 135, 1^,0, W.^, 141, 148, •JSU, 2-..0, ;180. .\bruluiin. State «. 10 Ala. 928. p. 836. I Abrani, Stale v. 10 Ala. ',129. p. 871, ; Abrams v. People, t! llun, 41)1. P]). 450, 557. Adams, R. u. 1 R. & R- -'-'*• P- «*'• Adams, R. tJ. 3 C. & P. s-i Adams, Commonwealth v. 114 Mass. 323 ; 19 Am. Dec. pp, 808, ». 1 • Addis, R.v. 1 Cox, 78. p. 5L \h Ki, People v. 20 Cal. 178. p. 529. All Kun«, State y. 17 Nev.3(!l. p. 873. Aircv, K. V. 2 East, 30. p. 2(;2. Aldrich V. People, 101 111. If.. P- ««J5. Alger, People i'. 1 Park. 1333. p. 777. AU.n r. State, 15 Tex. (App.) 150. p. 285. Alkn V. State, 12 Tex. (App.) 190. pp. 534, 539, 583. Alien I'. State, 10 Tox. (App.) 150. pp. :i75, 3.t.. Al.xan.ler, State v. M Mo. 148. pp. 1027, 1070. Mlre.l, Stale v. 84 N. C. 749. p_. 380. \nies' Case, 2Cireeul. 305. p. 73. Miihcrst V. Skinner. 12 East, 270. p. 178. ViKible's Case, 24 Gratt. 503. pp. 2.52, 541. Vnderson's Case, 1 City II. R»'C, 103. p. 710. Anderson, R. -'. 2 East's P. C. 772. pp. 504, 510. Anderson v. State, Hast. 008. p, 871. Anderson, State v. 47 Iowa. 142. p. 254. Anderson, People'.i'. 14 Johns. 294; 7 Am. Dec. 402. Andre v. State, 5 Iowa, 389. pp. 729, 743, 7<5. Andrews, Commonwealth v. 2 Mass. 14. pp. 505, 509, olO. Ann V. State, 11 Humph. 159. p. 068. Anonvmous Case, 3 Cox, 137. p. 87». An-her, R. v. Dears, C. C. 449. pp. 281, 346. Archer, R. u. Cox, 618. p. 342. pp. 445, 450, 539, 501, 503. XIV TAIU.K or CASES. AniiL'a, r.'ople r. iA c'al. 371. \>. SW). An •> r. Dcliiiucri.', I Str. ."lOl; 1 Siiilth'.H Lil. Cas. L'jt'. (lib vi\.). pp. 402, 41 .Vnii.-itroiiLi ('. I't'oplc, 70 N. Y. 44. pp. 755, 75ii. Aniolil, State ?•. 55 Mo. HO. p. IHO, Arnohl r. Steeves, 10 Won. I. 51 ! . p. Ml Am, P.'ople r. »; Cal. '.'Os. pp. <»I7, 1 1;!'.". Aniiulcrs Ca.sc, 1 Low. 115. pp. i;G3, (IG4. Ar-coit, K, r. (', C. &. V. 411.^. pp. 54, S3. A-kiii'-, riiiU'il Stati'.sr. 4 Crancli, 1»8. p. 871. Asliit, K. !'.•-' hi':uii, ',154. p. 401'. A-tl.'V, H. r. -2 Husl's P. O. 3-.".>. p. 705. Atkinson's (Ja.Sf, •.' I{ii-s. 117. ]). 54s. AiisUii, lY'ople r. 1 I'ark. C. C. 154. n. 11J)2. Bahcock, IVopK' '•. 7 .Johns. UOl ; 5 Am. Doc. 25*! Bailiy r. Stale, 5s Ala. 415. p. 557. Bailey r. State, 5J hid. 4';.'. p. 55'.i. naiiihani. U. r. 1 Salk. ;'.7',». p. !{.j!>. Baker, People f. 8 Pliila. (U:!. p. ;15S. Bak.T, n.r. 1 Moody, I'lll. p. '.'7. Baker, People c.'.m; N. V. :'.I0. p. ;57l. Baker (■. State, 14 Tex. i^Api'.) •'■■V-i- V 389. Baker c. State, ;!4 (tliio St. . '.10. p. 3SS. P.aker r. Stale, 11 Tcv. (App.) -.'(l'.'. p. 583. Baldwin, Coninionwcaltli v. U liray, I'."7. pp. 40, 5t, 81 Ball, B. V. Car. v^ M. L'4!». pp. 1311, 141. Hallard, Tnited States v. \:'. Int. K. U. 11)5. pp. IlM, Il'S. Baniis, ("'oiiunonwealili v. ;> .Mass. ;!{i7. p. i)83. Bank, H. r. K. .<: H. 4l'1. p. 5.j7. Barcus r. State, 4!) Miss. 17. p. S76. Barl'.eld r. Slate, 2'.t (ia. lL'7. p. 51. Barker r. State, 48 Ind. li;;!. p. S19. llarnard, U. v. 7 C. v*i P. 7.-<4. p. 381. Barnes, H. r. 10 Cox, l'55. pp. 4»1, 578. Barnes, It. c. 'J Den. 5!i; JO L. .1. M. C.!U. p. l'J7. Barnes, U. >\ 5 Cux, 11:'.. p. 545. Barne.-, R. r. 1 Den. Ji P. (15. p. 545. Barnes r. State, itTex. (App.) li'S. p. 71.'L'. Barnes r. State, 4'.t Miss. 17. p. 835. Barn.-tt. U. r. 2 Uuss. Cr. (7tli An), ed.) 117. p. 502. Baninm c. State, 15 Ohio, 717. pp. 4'.t, 75. Bartlett, State v. 11 Vt. 0,50. iip. 500,512, 515. Birton, 11. V. 1 Mooily, 141. p. 'JS. Bates, H. r. 3 Cox, 201. p. 34i:. IJattini;, People v. 4'," IIow. Pr. 392. p. IloO. Bav.aril r. Maleoni, 2 Kast, 33. p. 178. He.dl r. State, 15 Ind. 378. p. 515. Bealoha, People f. 17 Cal. 395. !>. 1047. Beanian, U. r. U. & -M. 4:!3. p. 417. Beasley v. State, 18 A'a. 5;'.4. pp. 834, 835. Deatly v. Slate, CI Miss. 18. p. 557. p. 804,307, 35;, 385. T.vm.K p.) ■-'■''■ Pi«- -tMK ■•-rt. ail.li r. Stiltf, -'."> Tf\. ."Tl. p. ■|"''^. aj;. 1! ,-. St;it.>, ( l!:ixl. -l-"-'- I'- •'»<<>• ■l];iiil)n.l::.', U. '• '• Ivi^'- l^"'- P- '""• |];. novi.li's c. St:itf, li T.'X. (App.) :;:•<. p. IKW. lUiR'tl, Stall' r. ;'. Bivv. ol 1. p. .M'T. ]{. nni'tt, State i-. U Iowa, 4711. 1>. ">1-'- H iivm, r.'oplo r. t! Cal. :.'J.5. pp. J^'i', ''01, IM)-.'. Ki.MKr. suite, L' T.'X. (.Vpp.) 148. p. .Vil. llkTtU's, U. r. \:\ V. C. ('. 1'. "iOT. p. :{:.-.. jllittililU', rnitt'd Stat.'s >-. 1 Woods, iir.l. pp. l-'^!, 1"J4. |]i,tt>, H. r. I5'll, '-'0. I'..'>7S. llU'ville V. Stat.', It! Tex. (App.) :0. pp. HUS, ■*:•'. Ilii. r.'i', State r. 27 Conn. Si'O. i). TilT. |l5i!;'.:si-. People, 8 Barb. 547. p. li'i». |l?i-'-'S r. Slate, :.'li (;a. 7'.';5. p. litDH. luillanl V. State, :;i) Tex. :tt;9. p. .'>,5!>. hiinu'ley, IJ. '•• ^ C'. .<: 1'. 'id:.'. i>. MS. |l5inl, H. r. IL' Cox, 1.'57. p. 543. jUir.l r. State, IC Tex. CA')p.) J-''^. PP. 530, •J'i:'- |]$inl-.'y.', H- '•■ -tl C. & 1'. :;88. p. 548. Hirk.t, H. r. 4 C. i 1'. 21.;. p. 572. I ITsliop r. Small, f.:? Me. 12. p. 117. r, tli.k r. State, 40 Tex. 117. p. 1185. lihiek '• State, 8 Tex. (App.) 321). p. 871!. ,™ lil.ieklMirn c. State, 44 Tex. 475. p. i'.42. I li.aekwell, State v. 1" Ala. 7i>. p. Silj. lUa.lesr. IUi;i;s, 7 L. T. (s. .s.) 7;>.b: U II. L. Oa.s. .;21. pp. I.V.>, 4.;.), 4.;i, 4r,5. I!:ak.' r. Allen, Mo.ir.', f.lO. p. 5. r.;;ui.h;inl V. Fisk, 2 N. II. lll'H. p. 571. 3 lilaueluir.l, People f. HO N. Y. 314. pp. 2-<(;, 889, :!77. lUaii.Uord r. State, 10 Tes. (App.) ':27, p. i;72. H o.hIow, Stat.' r. 45 WU. 279. p. .S2«. 2i; Am. Dee. 341, .. 548. lU.inl i-. Conimonw.'altli, 4 Leigh, i'. 15 lak V. State, 32 Iowa, 430. p. 721>. Boaz r. Tate, 43 Ind. (50. p. 821 . Ho-hllink r. Inglis, 3 Kast, 3;i"!. p. 2fi«. I'.on.l .-. I'a.lelfor.i, 13 Ma.ss. 304. i). 4ltt lionsall f. State, 35 In.t. 4(!0. p. 710. Boutien, R. !-. K. & R. 25'J. pp. 85, 81). Boston & Lowell R. Co., Coraraonwealth v. 12C Mass. fil. p. 1130. liost.m vt .Maine R. Co., Commonwealth r. 133 Ma.ss. 383. p. 1 'i'2». Boston (t Maine R. Co. Commonwealth v. 121) Mans. 50o. |). WW. Bost.m & Worcester R. Co., Commonwealtli v. 11 Cush. 512. p. ll:'.0. Bostwick r. State, 11 Tex. (App.) 120. 1185. Boutt, R. r. 2 C. & R. t!o4. p. 15. B .niton, R. r. 1 Den. 508. p. 337. Bow.lenr. State, 2 Tex. (App.) 50. p. 850 Bowiler I'. State, 41 MUs. 570. p. 874. B )weu, Uuited States c. 2 Cranch, 14;;. p. 505. XVI TAIll.i; OF CASK.S. UowiT, H. '•• 1 Cowp, i'.lM. p. :$.'»<>. Hoxk-y ('. ('.uninoiiwialtli. L't (iratt. t;55. p. 902. Biiycc I'. I'fiipli', :>o S. V. liU. p. Toi'i. IJoytl, State r. ;l City II. !!<■(■. .".7. pp. >ni'', >uS. Hrvd, K. >\ :, Cox, .'.o-j. p. U'.t. Hoyiitoii, CoiiKiioiiwialth r. -' Ma.ss. 78. p. i!8. Bracket' i. c I Co.\, l'71. i>. .M."., Hrackett, |{. r. 1 M. v^. Bi-iuly, n. r. L'l; r, c. t^. 15. i:;. p. ;!n8. Brady, State r. L'7 la. ! •.'!:. p. 5J7. Brainley, U. i'. 1 1{. vt K. 47S. p. iSL>. Bniiiiley, K. '•. s Cox, »i;"<. p. "i44. Bnittoii '•. Slate, 10 Iliitnph. 10:!. pp. M-', 1012. Bruiiiion i-. Slate, •-':» Iiid. 403. pi>. 'I'-'h '"'■ Brings, State 1', :!1 Vl. :.01. p. 75. Briley, Slate r. h l',,rt. 47:!. p. 871. Brill r. State, 1 T. x. (.Vpp.) ">7l'. p. :>■':'. Brisiow ('. Wri;:lit, 2 Doiiu'. ('>!'•'<■ PP- -"D, 11:''7. Brill ('. State, 7 Uiimph. 4.'>. p. 712. Broekiiian, State r. Hi Mo. 5i:i;. p. '.•.■)4. Bromage r. l*ro»-i.r, 4 B. & C. ■.*5o. p. W\. Brook.-i, K. r. 8 C. & P. -'iij. |ip. I.JL', 540. Brook.s, U. I'. 1 F. .<: F. 50j. p. 874. Brooks V. State, ;!5 Ohio St. 4ti. p.55'.». Brown, Stale r. 12 .Miiiu. 5;i8. p. lljii. Brown, Stale y. 1 Ilayw. lOO. pp.501, 515. Brown r. State, ;W Tex. 482. pp. . Brown r. I'eople, 1(1 IIilu, 535. p. i!71. Brown r. I'eople. 80 111. 2;l'J. pp. 81, ':i. liurri. !:,'.■'.< 1. I'- -'"• [iMn'.'W r. State, IJ Afk. <;^. l>p. 1"'N -■'•■• -;"• -"■ •'''^• (iirtnw.s n. V. llCoN, -'•"'^. !'!>• -4'». •'•'■'•• ir.urnnvs, Staic r. 11 Irod. 477. !>.:',>•<. Ii;!iit, Stat.! V. as. C. (UK. p. •".<;<.). liii-li, IVoiile r. :; Park. .-..->-'. pl'. -"■"'. "''•'''• HuiaT, St:ito r. i;.-, N. C. :10'.>. |..y.l.:. Hiiilrr. U. '•. -' C. ><: K. :Mii. P- '><*^. p.iitliT, r.ople !•. .■! IMrk. Cr. K. :'.77. p. n>:'.;5. Sutler's I'a.-e. p. 1 1'L (CalibaKc K. ' loaily, IVople pp. 4711, .'1. .; Hill, 4110. iip. 4t;, '.!.>. pp. 074, 'nS. p. lilj. p. 70. CalvMi, State r. L'li N..r. (L.) L'd Caiiipbi-1!, U. '•. M(.... 17'.t. p. .">48. fami)l)rll, II. r. -' Leai'li, «142. p. .".SO. Caaipiiii '•. Stat.', 1 T.-x. (.Vpp.) li»^. Caiitir V. State, " Lea, ;5.")0. p. ;>7.".. Cai;\v.)o.l, Statu ». 12 Stow. :'.iiO. p. .'^:'.o. Caii.un-y estate, 11 Ohl.) St. lio. s r. Faiieourt, 5 T. K. 4>J. p. 71. raiii.-y f. Ilopple's Il.irs, 17 Olil.i, ;10. c.ifii.y'H Ca-io, MiK). ;''7>1. p. '.'7. Cainot, I'liiU'il Stales r. L' ("rancli, 4';'.>. p. Ciipeiiter !•. rcDpU'.H Barb. (iOH. l>p. 71.' J, Carpenter, U. r. 11 Cox. C'lO. p. ;!7s. C.iipeiit.r, State v. 7t N. V.-[V2. p. 041. Carr.>ll r. S'aie, 1':! Ala.i's. p. «:i'.i. Carter, Stale y. 72 N. t". 444. i). 5^-'. Cariwri-ht, R. v. R. >fc R- 107. p. 588. Carnvrij^lit v. Green, « Ves. 405. p. oas I'. Stat.', 12 Tex. (Aiip.) 59. p. o8.'{. Caswell r. State, Yerg. 14'.i. p. ii"2. Casieilow V. State, 15 Tex. (App.) 5.-j1. p. 583. ,^^cai.) V. State, 'J Fla. 1<'.3. P- 8!"1'. ^'Javanai;h, People v. (12 How. Pr. I'^T. p. 878. ICayle's Ca.se, 8 Co. ;',:l; Yelv. M. p. ii75. Cha.lwick, R. r. 2 .Mood. & R. 545. p. 1»2. Cliamberlaln t'. State, 8 Wriixht, 4:51. p. 490. Chambers, People v. IS Cal. 382. p. 529. Chai'iMef, Cominoiivveallh t'. Thatch. 187. — Channel, R. v. 2 Sir. 7'.»3. p. 867. ChapiiiaiJ, Q. v. ii. 4'.o;. Chapmau ti. State, 2 Head, 50. p. 358. h ;', 7ll.-).71.;. ll'.»7 p. 78. .will rAULK OK CASKS. Clmpiiiun r. Liitlirop, flf'ow. 111. mi. I'CH, 20'J, I'liarli's r. Stale, i\ Kni,'. (Ark.) :1M'.I. pi). .S"<1, »s:.'. CImrlfH r. State, 11 Ark. ;'.'."0. p. '.idl. Chase, ('(imiin)iiweallli v. !• Tick. !.">. p. 57!. ('li.iIliains.CDiiiuKiinvcaltli r. It Wrlijlit, ISl. p. I'.tQ. riifik r. State, I!.". I ml. IT:.', p. lins. Cheek t'. State, 1 CoMw. 1 7J. p. I'.Ml. Cheeseinaii, H. r. ;!('ii>l]. I'- 1, p. 1111. Ch.Try's Cii.'.) ^L.'."). p. I!-*'.!. Cliovin, Stale c. 7 Iowa, :.'04. p. HC'.i. Christi.ati I-. Cuiiiiiioiiwealtli, L':'. (iratt. '.K>\. p. ',100. Chri.xtupher, U. r. Bell, •_>;. pp. .i:]2, :>.".'.!. Chuiiii, Slate r. i;i Mo. L';!.;. p. ;;(;i. Chiirehill r. Wilkiiis, 1 T. It. 117. p. 11;17. Cliilte )•. Suite, l'.> Minn. L'71. p. ;>J'.i. Clark, U. v. H. .■; U. isi. p. ;;.!s. Clark, I'e.iple v. 7 N. Y. lis."., p. iD'ii'. Clark V. I'.'cplf, 1 I'ark. C. C. .'..-.i;. p. ll,ji;. Clark, I'eoplu 1'. ;".;i .Mich. Ill', p. "TO Clark V. State, 7 Tex. :.7. p. I'.-'l. Clark, State r. IL' .Mo. (App.) 5'.>:!. p. 717, Clarke V. State, 8 Ohio St. C.'U). p. T.'j. Clayton r. State, 1,5 Tex. (.Vpp.) 2-'I. p. oS). Clifforii, Commonwealth r. S Cu.«i!i. 215. jip. (»5»S, 718. Cliffonl, St.ite r. It Nev. 71'. p. ■>.')11. Clinch, K. )'. -2 Leaeh, i;it. p. IHl. Cline r. Stilt.', l:; Tex. 49-1. p. liSO. Clinton. K. ,-. Ir. Kep. 4 C. L. ''.. p. ."0. Closs, K. r. I). ><: H. 4i;0. pp. 12, I'.i, -JO, 117. Clonuli, People- r. 17 Wend. ;!51 ; ;U Am. Dec. .■>0;'.. |)p. 2"«, u74. Cocheeo r. Strafford, .'.I N. 11. 481. p. ".71. Codrinjjton, U. r. I C. vt P. "iCI. pp. L'.xn, 364, '">'<■<. Coffmaii V. Cominouweullh, 10 Hu.sli, 41)5. p. 1140. Co(j;an, U. r. 'J Leach, ,^<«. [). 3L'4. Coplell, People r. 1 Hill, 'M. pp. 441), 560. Coggins, 1!. ?•. IL' Cox, :)17. p. CJ.s. Cole ('. Goodwin, I'J Wend. i;54, p. 815. Cole 1'. State, 40 Tex. 147. p. 77(1. Coh-, R. r. -J Cox, ;!4I. p. SiiT Col .nan. State v. (1 Rich. 185 pp. 987, 115,). CoUlcott, R. V. R. &. R.212; 4 Taunt. :100. p. l'I. Coliiu.s, Commonwealth w. 1 Mass. IIH. pj). 5U5, 512. Collins, R. V. 2 -M. & K. 4iil. p. '■•2. Colby V. State, 55 -Via. 84. p. 375. Col'iuilt V. State, 31 Tex. 650. p. 877, Colvin V. State, 11 Ired. 3(11. p. 75. Combnin, R. v. pp. 101, 104. Cornbruiie, R. v. 1 Wils. 301. p. 356. Conant, United Stales v. p. 129. Conger, People v. 1 Wheeler, 448. p. 307. TAIU.R OF CASKS. roiikonrl-rht r. Pfn|)lf, ;!o lll.-jiU. p. j;;;;. (■(miior's Cum-, |i. '.<•<. Connor, R. v. •_' (W K. 518. p. si;;). C'liroy, I'.'uple r.-JS. V. Crini. Ilcp. l'47. pp. lO.'j'i, ll.VI. I "iifoy, Stiito r. is Mo. jJi'l. p. :.5'J. f 'iistantiii, The C Kf)!), Atl. 321. p. anc. roiiwuy, Stale v. is Mo. ;ii>l. pp. .150, 71!). C.iok t'. State, 14 Tox. (App.) !•(;. pp. 4iv,i, M:\, 5H«. I .">k r. Stat.', 11 Tex. (App.) l',>. p. 1185. I'.'ok, Coininoiiwciiltli v. V2 Mote. 'M. pp. 7-'5, 7-'7, 775, 7»2. Cooley, Commonwealth v. Gray, 350. pp. 313, 811. CoopiT, V. R. -J C. .<. K. 581!. p. {>,S. loopor's, Marjrarft ('a.»o, li Str. Il'K;. p. :.>oi. (■'i|i'laii(l, Slate v. .mi X. C. 601. |). 575. ("pclnnU, R. ;■•. 5 -'ox, 'JiMt. p. -(45. Cornetti'.s Ca.se, '.'.' .\. Y. 85. p. 1055. ('(inilsli, R. V. DtMri, .(i>5. p. 57s. Cotton r. State, 11 Tex. L'liO. p. 5.!8. t otton !'. State, 31 Mis.s, ,505. p. 1 1 II , ' 'Wley r. People, 83 N. Y. iiA. p. 11' .. Co\ V. Troy, 5 H. & A. 474. p. 334. I niwford, state r. 34 Iowa, 40. p. 77i;. Civws V. State, 3 Cold. 350. p. 717. Crisp, Q. V. U Mod. 175. p. 305. Crockett V. State, 14 Tex. (A|ii).) 2J(i. \> 589. Cro-han v. State, i.>l' \\'is. 444. i)p. 7G7, 780. Crone, K. v. p. 07i;. Crosby, R. v. 1 Cox, 10. p. 373. Cro.ssley, R. r. 2 Moo. i R. 17. p. L'80. Crow, State v. I Ired. 375. p. 8(57. I'rouey, Peoples. 5ii Cal. 3(;. p. 1110. Cro/iur V. People, 1 Park. 453. p. 775. Cro/.ier V. People, i Park. Cr. 457. pp. 74ii, 747, 750. Crump, R. v. 1 C. & P. ()58. pp. 553, 720. fniitemlcn, R. v. « Jur. 2(!7. p. 5:i7. Ciilcii, R. r. 5C. & P. 110. p. 'J7. dillins. Commonwealth v. 1 Mass. 118. |)p. uO'.i, 511. Clip r. State, 1 Port. 33; 20 Am. Dec. 357. pp. 5(i5, 508. I'uuimings r. Mehols, 13N. II. 420. p. 574. Cuimnings r. State, 1 Harr. & J. 340. p. 504. Ciimiingham v. People, 4 Hun, 455. pp. 38, 3:t, i\A. Ciirtis, State v. 70 Mo. 5i)4. pp. 1070, 1071, 1072, 1081, UoU. Curtis r. State, Col. pp. 533. Curry v. State. 4 Tex. (.Ipp.) 574. pp. 8'J3, 894, S'J'.t, 008. Curry v. R., 2 Moody 281. p. 97. Dalton, People r. 2 Wheeler, 101. p 307 I);ily V. People, 32 Hun, 182. p. 1083. Hanger, R. v. Dears. & B. 307. p. 328, 388. Darry v. People, 10 N. Y. 120. pp. OGl, 990, 1135. David, R. V. C, & P. 178. p. C47. XIX XX TV mm; or CA^KS. niividson, Commoiuvciilili r. i cnsli. ;';'.. |i, .;7l. Davis' Case, i; I',:isl's 1'. ( ', 7ii(',. p. CM'.i. Davis r, Spfiiccr, l'I N. \. ,'.;iO. p. lu'.it. Davis r. Siatf, II' Tex. L'Jtl. p. s\)i . Davis r. Slate, .H Tox. (App.) .".li). p. 1 INM. Davis \. I'unliic r, Slutc, 1 IIIU, !li;. |ip. 7'.i,",, 7;ii;, t<(\S. Dav's, Stale r. ,".;i Iowa, LT)!'. p. '.i;i. Davis, Statu v. I Iri'(l. 1 ■.',"., pp. si;!, ans. Davis, U. t'. i; C. .<: I'. 17S. p.d.V). Davis, U. I,'. 7 C. & 1*. 7S:). p.sll. Davis, United States d. 5 Mass. ;j:.i;. ji. r>i'M. Davies, H, v. Dears. (WO. p. .■)")',(. Dawe.s r. IVcli, 8 T. ]{. ;!;ii;. p. L'lir,, Dawiviiis V. State, 58 .Via ;i7il; :.':• .Viii. !{■ p. 7.M. pp. SS.'», ■ji'\, Dawson, U. v. 1 Straii;;e. p. l;i',i. Deal, Stale v. til N. C. L'70. p. .-,s:i. Dean, Stale v. II Iowa, 7:1. p. m\>. Dean, State i'. 4;i Iowa, 7.'.; .■'.I .Un. Ke|i. 14::. ji. 44S. Deaiie v. Clayton, 7 Taunt, .jlf<. p. 8;W. Deaves, R. »i. II Cox, ;'.l'". p. ,■>.»!►. De IJare, I'niied States v.Ci Hiss. :;:.S. p. (;((-,». Deeriii},' c. State, It Tex. (Ap|).) .V.f.i. pp. ,-.s:), ,-,!(0. Deerinfi, K. . 1 1 Cox, l".iS. pp. 413, T.-ls. De Ilart, State v. tl J5axt. 22:.'. p. ;185. Delyon, Stale v. 1 Day, :'•.>'.. pp. :'>i'A. Dempsey v. State, :'. Tex. (.Vpp.) ■42',t. p. 11(^1,). Denny, U.v. 1 Cox, 17S. p. :t7. Devino V. Pco|)le, 2i) Hun, 1)8. p. 5"):!. Diclilnsun, U. v. It. v't ]{. 4 11). p. ,>,j4, Diy;nowilty v. State, 17 Tex. .'551. p. r.t2. Dillinglmin v. Stale, ■". Ohio St. 2(10. jip. l.")S, ;;75. Dinsniore, State v. 12 .VUen, 235. p. Iii71. Dixon v. Baldwin, 5 Kast, 175. ]), 2(18. Dixon r. State, 13 T(!X. (.Vpp.) 4S0. p. oS3. Dixon, ]{. c. Dears, 580. pp.4;U, 55!). Dixon's Case, o M. & S. 11. j). 17<1. Doepl. 474. Doeriniiw. State, 41) Ind. CO. pii. fSlS, 870, 877. Dolan, U. v. t! Cox, 440; 1 Dears. 4:li!. pp. (155, (!5G, G51), (1('>5, (177, 658. Donahoo v. State, 12 Tex. (App.) 2117. [). 1185. Donally'.s Case. p. 705. Dord V. People, (i Barb. (171. p. ;?7;5. Douirherty, Conimonweaitli v. 107 Mass. 245. i)p. 870, lOKl. Dovalina «. State, 14 Tex. (.Vpp.; 311. p. 9{». Dowku V. State, U Tex. (App.) (U. 822, 870. Downo V. Richard.son, 5 B. & A. C74. p. 335. Dol)son, State, v. 3 Ilarr. 573. p. 572. Doe, State 79 Ind. <) ; 41 Am. Rep. 51)9. p. 51)2. Donnaily's Case, 1 Leach, 229. pp. (1114, (191), 718. Dow, State v. 12 Tex. (App.) 344. p. 558. Drake v. State, lOOliio St. 211. p. OS. TAiti r, OK f.\si:s. xxi 058. iivw, CoinrnoiiwiiUh r. l:i Tick. ir;t. pp- 1."'*. -'■>l. -"•'■*. ;'■-''•. '•''-'< !l«"« )icw, Ci'iuMiiiiiwiMltli c. t Mass. ;i'.U. i>. «;!'.». )rimtkl, H. r. \>. im. )ii(ll.y's ("iisi', L' Sill. '.il. !>. :■-'. )iilT, U. r. L' Lt;icli, '.'1.".. p. •"••<1. )iiiilci(l, U. r. s:iy, 11^. \>. :;:>>■.. )niui:is, 11. r. i; Uox, r.M). j))!. l:.!'., Ml. )iuili:im y. State, ;iT.\. {.\\>\k) |i;.".. p. lU.".. )mni:i'_'c, H. c. 2 Hurr. ll:'.0. p. :\M. )iirkir, \-|iileil Stales r. I McAU. ITi;. p. 711>. )uitoii r. Solomoiisoii, :; H. >v 1'. ."•*1. p. -';■*■ ;;iL'U't(Mi, K. i'. Dears. ,".7:., p. :.'S'.t. ■.arle, (■uimiionwealth r. 1 Wliail. .'i--'.'). p. IOL'3. '.a-t Hosioii l''erry Co., ('oiiiiii M) l>^(). Mwanls, ]{.»). 5 ('. .<; 1'. .M>. .ihvanis, U.u. CC. v^l 1'. .-..M. '-ail, H. r. I ('i)X, l.'l>. p. '.h;. ;u'i;iiiloii, 1{. v. 'i Ho*, vv r. -Vi.-S. p. "'.ilO. ifliar, ("oiuiuuinvealtli r. 4 ('lark, ;!l.'ii. p. 780. '.li/.abetli I'. State, 1.'7 Tex. ;ll".>. |>p. U.'SJ, llSi;. ;!liiis, 1!. c. U. .*i, 11. lys. p. L'l'.l. ".lliott, 1{. r. 1 Leaeli, 17ri. |>. L'l. .Ills, II. r. -l Cox, 25S. p. ii7. ;ilis. State r. a Coim. isj, p]). ,-,04, :,vi. ;nor, U. ;;. 1 Leach, an;', j). '.'7. jiiiiiencli, State v. 1 West. Hep. 7ilO. p. 111:5. Jiiiiii'i'ieli, State c. l:i Mo. App. \'yi. p. 1 1 1 1. :'.ii;^laii(l, State c. S .loiies (L.), a:';), p. j7.-). I",ii;j:leiiiuii H. State 2 Iml. HI. p. 027. ijuiis c. State, a (i. Greene, 07. pp. 41;!, ."it."). Kiiueli, J'eople f. i:'. Weiid. Ij'.). pp. U'.i;!, 10U8. Kiioeli, H. r. 5 C. ^"i P. 5a',l. pp. 014, 1 !:'.!•. I'.nckson, State v. 4:> Wi.s. 8U. p. 1042. i:rriii<;v. State, 4 Tex. (.Vpp.) 417. p. 87:!. KrsUiiie r. State, 1 Tex. (Api).) 405. pp. 1)40, 042. Krwiii r. State, 2'.t Ohio St. 180. p. 111. C.'^sex, I{. r. 7 Ccx, as4. p. 545. ■".vans V. Kymer, 1 B. & Ail. 528. pp. ;!;52, ;!;!7. Cvuiis V. Stevens, 4 T. K. 225. pp. !H)0. ■'.vans V. People, 4:1 X. Y. .sO. p. 1 1 14. ■:vaiis II. V. \\ Cox, 2:!:!. pp. 314, a87. '.vans, K. r. L. & C. 250. p. 3S". ".vans, K. r. C. i'l M. i;i2. p. 557. iCvaus, State r. 5 C. i P. 555. p. 3S7. XXII TAIll,!'. ol' ( A."«l>. Kvniw r, Si;itc, 1 Minnpli. :'.!•(. p. k(,',. Kvaim I'. Siiiii', I.". Tfx. (App.) 111. p. >:'.. Kv.TM, Stat.' r. Ill Mo. r,V2. pp. !.'>«, ;ir.-.. Kwlnu'tKii. I!, ('.•11 Kn^'. ('. L. ITH. p. I 1''. Kyn , (•(iiiiinniiwi'iillli i'. I S. & U, :'.»7. I'p. HIM), mu. Fiiilntr -•. IVnulc, J N. V.Criiii. Ui'p. .'>.•■;'.. pp. ilt, '''H. Fuhii!'^ I'. .^(lS. p. 717. Faiin, Stall! »'. i'>.'> N. ('. :'.i:. p. :<7'>. raniilii« r. Stall', M ■. Il.mii', It! M. .<•• W. ll.i. p. i'.ir,. Fayi'. (•ciiiiniuiiwi'altli, :'x tirati. '.UJ. pp. 'JIS, :w.i\, ;',7I, .",'il. Fi'arnly, K. .'. I T. U. :'.-'i> p. L"jr. Fcastor, Stall' r. '.'."i M<>. il'.'l. p. 1 1 b;. Frltoii r. Sl:iti', !> Vi'fir. ;i'.'7. i>p. .M."i, 6-17. FtrnU r. ("oiiinionwi'altli, 1 Diiv. l.'ll. p. ,"il-.'. Fli'lds, foiniiKiinvcaltli v. \ Lciyli. •■\x. v]<. '^"'l. 1>04. Fli'lih r. Stalf, 5l' Ala. HI"!, p. II.'.:., Filklns r. I'l-nplf, i;'.i .N. Y. KM. ii. >^7-'. I'iiiillay r. U.an, s s. v< K..''.71. p. -I.".-. Mini r. CoiiimciiiwiMllli, i; I'.i. St. 4i'.n. p. n71. j-isii.T, U. .-. s C. .«;. P. is:;, pp. •.';;:, |l!il. Kilrli, I'l'oplc r. I Wcn.l. Ili-i; !'.» .Vin. 1).t. .|77. pp. 29,;'.-, 4.;, 17, ■•• Fitfhhiir'^ |{. ('i>., (^iiiiinoiiwi'alth r. 10 AlItMi, \^'.i. p. ll:'.., c'oniMioiiuc.'ilih c. IL'O Ma-s. ;;7:'.. pp. 1117, 1 \M'. Fiti'li'iiiri: K. C't., Coiuinniuvealih i'. iL'i'. .Mas.«. 47'.'. 1)]). ITiU, li;'.l. Flanafxaii, K. r. 1!. .-i U. Ix;. p. :<^*K Flaii.l.TN Slati' r. :(t .\. II. .".IM. p. «1. Fli'tcli.r, Stat.' r. 1 Ciisli. 1.'7. p. y7t<. FU'tchcr, U. c. 4 (^ 77. Forili' r. SkiiiTUT, 4 C. v'c 1". 4'.U. p. M7. Koi-cii, I'l'opli' «'. L'." t'al. :!i:i. pp. l'>4(;, KU7, I'Us, II.-..;, FoslT, ronimoiiwraltli r. Ill Ma>'<.;511. ]!.:<:■. FostiT, State V. (il M.i. ,'.l'.t. p. ll.'.il. Fii..) 'J4('.. p. i;42. F.>-t.Tr. Stat.', 11 Tex. (Ai-p ) lO,'".. ).. 'X\^. FoiilUes r. roiinnonwealtli, ■-' Kol.. (Va.) s;',.;. p. (;7. Fi.y, State r. 8'.' \. C. (■.7:t. p. rMK Fowley, State r. 1 >< Mo. 44.'. p. 4t'.. Fox, Coiniiionwealih r. 7 Cray, 585. pp. !i,".:'., '.n;!. Framptoii, R. r. 2 C. & K. 4.'<. p. 543. Fraiit/., CoinmoinveaUh r. 8 Phila. CIJ. p. ,■.7,'.. Fivel, IVojiIe r. 4'< Cal. 4:!c.. pj.. I0S2, 1 1 I-', 1 MO Freels, State r. I! Hillill>!i. L"-'"*. pp. .'i' (■.\>i:.H. XXIII rrriM'li, 11. >'. II ro\, i:-.'. pp. vr, •"<. I rill lil.Vt, 1 1 II. II l.'i. (lillilick '•. I'.nplr, lo Micli. J'.'-.', pp. .Vll, fi.^l.'. I (ialliinlii'r, l'oiniii>iii\Ni:illli r. il .Mrtc , ,'iii.'.. p. (ll»'». ; CiillMway, I'copl.' r. 17 W.'ii.l. ">«(). pp. 71, !l'i2, ■;-«. (iali.iway v. Stiito, 41 Trx, L'»'.". pp. I'lOO, ."•<■.'. t;iiiiiiii'h, p. i;7,".. I (i.iiimc'ii, i;. r. •:>; v. v. q. n. :\V2. i>. ;!7.v (iiiitiiii:, IV'oiik' r. 1 1 Wcud. l«. p. ;(:•:(. ilciifui' c. State, 11 TfX. (.\|>p.) '.''•'>. PI'. "^77, 11 ■<."). j (icriiiaii, State r. :,{ Mo. .-.i;!;; U .\iii. Utp. mi (Icrri'cli, U. 1'. -' M. ."i U. 2l'.>. p f.i-. Ci'ichcll, IViiple r. C. Mii:li. ■\:'i'>. )ip. -'.''.', 371. liluTkiii, Slate r. 7 Ired. 20(i. p. 7.5. jiaiilis, li. r. Dears. U.'^. p. 578. Gllisiiii, K. r. p. L'pi. I riillurl, K. r. MiMi. l."),V p, .'>4'^. I tlill)ert, I'liiteil Stiili's 7'. :.' Suiiiii. U'7. p. '.U'.i. (iill, I'.ople V. (J Ciil. <;;f7. i)p. »20, 1 lli'.i. (iiviiis, Slate 1'. 5 .Ma. 717. p. 7.". j iilass, It. r. 1 Dcii. L'li;; :.' ('. x K. ::::,. ]<. .'i78. (Ilvile, 1!. V. 11 Cox, KK). i)p. .ll;i, 411. (iiiii-il's fa.se, 1 (.'. .<: 1". ;'.04. pp. H'.h), 710. . I (lixlfrey r. Tcople, i;;! N. Y. 207. j'p. S5(J, H71. I (ioilfrey, U. v. >< C. k>i, 1'. ,")(;;!. pp. ,>7*2, T-'n. (ioumii, rulled States r. ii His.s. 7(;;i. p. 120. I (ioius r. State, 41 Tex. 334. p. 1185. (ioo.l, R. r. C. & M. 582. p. 417. (iooilc, l{. r. ('. ><. M, :,--2. |i. 4'.i;'.. (ioiMl.n, K. ?'. U Cox. Cm:;, pji. !IC, 98. I (ioodcMoiiiiii, U. t). <; Cox, 20!>. p. 545. (ioodricli. State v. iC N. I[. IHi!. p. 574. (ioodwinVs Case, C City II. Hec. !>. p. sr.C. (ioodhall, U. r. R. & R. 4i:i. i.p. l-'O, 2S|, .'Ui'., .'ISC, ;!i:S, 376, :^85. (iodld, State V. '>:', Mc 27'.i. p. si'.'.». (iordon's Ca.se, Dears. S.m;. jjp. 112, 114. XXIV TAHLK OK CAiSKS. Ooss, R. '•. s Cox, •:!'.■>. p. ML (iniily, Coiiinioiiwualih v. i;i Hush, '.'s:.. pp. 300, 3S5. (iniliiiii f. Oanimaiin, 2 Cal. I(i8. p. L',5'.». CraliMiii, I'loplf V. (1 Park. Cr. V^r>. p. '<] . Craliani, State )•. 71 N. C. Cli!. p. UsH. r.rant r. St.itc, l' 'Pcx. (App.) H.:!. p. 5;'i'.i. (iravcs. State v. 72 N. C. 48-.'. pp. o'23, '>"<-'. (iravc!-, IVoplc r. 5 I'ark. \:)i. pp. xo,"), ,sOi;. Gi-ay, K. )•. Doar^. >.«t B. ;'>0;!. p. H.'iS, 877. (iray, Si.-ttc r. S .Jones, 170. ]>. SUS. Green, ("oiumoiiwealtli v. 1 Aslini. L'S',). pp. '.•;'.;',, 1047, (.reel), Q. r. .Jelili'sCr. C'a>. 2-3. pp. 4'.>4, ^"8. Green, U. r. :! F. vt !•'. 274. p. 770. Green, State v. (li! Mu. (m1. pp. 10-".i. W':;. Green r. State, 12 Tex. (App.) 51. pp. .'^'■'•. ."''7. (irceii. Stale v. 7 Wis. G'O. p. 158. (ire. ne, Gonnnonwealth r. Ill Mass. 3',c'. pp. 418, 554. Greeiilmlirli, K. r. Dears. 207. pp. ;'.;17, ;'.:!-^. Grilllii r. State, -t Tex. (App.) 411. pp. 072, 07:i. (JriHiih, U. V. 8 C. & P. 248. p. 1075. (irosse V. State, 11 Tex. (.Vpp.) :!ti4. p. 1185. (iiiernsey, U. c. 1 F. i<; F. 'Mi. p. 555. Giiffee r. State, 8 Tex. (App.) 187. p. IIIXJ. Guiterinan et al. r. Liverpool, etc., Stoain-liip Co., H'^ N. Y. 'KVi. p. 11.' Guv, U. i\ 1 Leach, 277. p. 508. Ila-k r. Lindorman, M Pa. St. 4'.»'J; 3 Am. Hep. or;, j). 4;tO. lladley's Case, 5 City U. Kec. 8. p. 553. Haines. Pe.iple r. 14 Wend. 54f;. p. 374. Hairston r. State, 54 Miss. OWJ. pp. 828., 873. Hale, II. V. 2 C. & K. 327. p. 877. Hale, State v. 7 West Coast Rep. 141. p. 532. Hale, lVoi)le r. 1 X. V. Crini. Hep. 5:!3. ))i>. ,S04, 801". Hall, R. r. 3 C. it P. 40;>. pp. O'.i'J, 718. Hall, People !•. Park. 044. pp. 710, 711. Hall, R. f. 1 Den. 3sl. p. 3!)4. Hall c. State, li'.Tex. (Ap)).) (i. pp. 846, 877, Hall, Stale r. 5 llarr. 4'.i2. p. 809. Hall's Ca.se, 1 Hume Cr. L. 173. p. 2i'.l. Halloway, R. r. 5C. & P. 524. p. 557 Halloway'.-- Case. p. 100;!. Ilami.t.ui, People v. 40 Cai. 540. pp. 8!i;\ 001. HaMiilt"n r. Si.ate, 00 Iiid. \'.K>. p. 50.>. Haniiliou v. State, 11 Giiio, 435. i)p. 504, "12. Hauim.l r. State, 14 Tex. (.Vpp.) 320. pp. 483, ({(M), 117'.). Haninioud, State i'. 35 Wis. .".15. pp. 1040, 1041. Vj42. Hauunond c. State, 3 Cold. 12',l. p. 722. llancoek, R. r. 14 Cox, 11',). p. 077. Hand, United States t'. 2 Wash. C. C. 435. pp. 788, 870. Hauuah r. state, 1 Tex. u\pp.) 57s. p. o.^S. KS. iO, 3NJ ;!, 1047 418, 5,-4. 'o., S:'. N. Y. KV.l. p. ll.M. t;r;. j). •4;to. i>4, 8ij;t. 1. )'j11'. . 788, 870. TAIU.K OK CASES. „,„son. StMe.-.2r.^ K. OllV I'. H«!). IPiPlv, Stat., r. Diival. 2:'i:. p. oU. H,r'i-avc,U.r. :->(•.. ^1M7S- P- H'^^- H^^vavv's ('as.-, 5 ('. i- IMIO. p.-.h;u llirkins ('uiniiioinvfallli f. l-« >l^'*'*- '' Har.no..,St:.t. -•.7^N.r.578. p.n;il Harinau, C."-> -.louwcalUi r. 4 Ban-, .'(..•. XXV p. 1-47. hWt.I^'-. UCox, 574. pp.23, '••«• p. 774. ll'iniii'^toM, Coinmoii\v..aith v. a l'i<;k. -'•'- __ llams.U. r.-C.il>.4 4.;. pp. .;%, HCO, ^. . . „,,nst. Slate,];; Tex. (App.) MO. p. a>.^ Uarris V.Stat., 15 T.x.(App.)41l. i;---^;:- 11 .rrisou. People r. 8 Barb. 500. pp. -^^'^'^ •'■'• " • Uarrisou v. State, r, Tex. (App.) 42. p. .)1 ■ . „,rnson r. State, K; Tex. (.VPP.):''-"'"- PP. -«- ""*■ Harrison v. State, 24 Ala. 21. p. S3U. Hart r. State, 14 Tex. (App.) 057. p. ^^-i- Hart r. State, :^8 Tex. ;iS2. p. 5:18. __ Hart V. State, 57 lucl. 102. PP. 501, oo., <..U. iIart,R.r.OC.&lM'V. pp. 4(;.h, 5.;(;. Hartmau ^. Cominouwealth, 5 Barr, .10. p. oou. llartshoru, R. r. C.x, »''5- P- f *' .. , -, ;.,,,i. p, n:W. Hart well, Cu,.-..n..nweallh v. 128 Mass. 41. ; .... Am u. p. Harvey, R. v. 2 Leaeh, 521!. p. «4«. H.rvevs Case, 2 Ka>t'., i-. C. 85.!. p. 8 ,. llarvev s Case, 1 Alison, 304 p. 2(.2. Hassail, R.i'. L.&C.68. p. 577. llatcUett, Coininoinvealth v. 2 Allen, V^u Ilai-'hey, Commouwealtli v. :$ Mete. 22:i. Harvey, R.r.R.^R. 227. p. IKS. Hawes, State r. 4S Iowa, 181. P- 781. lIaw'K.s, R. I'. 2 Mooily, M. p. •.>8. Hawkins, Commonwealth r. 128 Mass. 7!>. 11 .wkins, State r. 8 Port. 4a ; :« Am. Dec. ...4. li:,vaen,R.t,.7C.&P.445. p. 57'J. ll.vn.'S, People r. 1 1 Wend. 557. pp. Jol, -. ■. .'H . H.-vnes, People r. 28 .Vm. Dec. 5;10. ,4 Wend. ot.. llaVnes, R. v. 4 M. & S. 214. p. 3.>?. HaVsr. People, mill, :^..l. P- «0.;. IMNward, Common wealth v. 10 Mass. ;U. p. .".i. llealev'sCase, 4 City II. Rec. !1G. p. 5.;8. Ilear.sey, Commonwealih r. 1 xMass. i:'... Heath, R. )•. p. 101. Hector, State r. 2 Mo. 100. p. 954. Iledlev, Uiiiied States r. p. 12'.». Ileilbonn's Case, 1 Park. Cr. 429. p. .>4. Helm, State v.O Mo. 243. p.UlO. lleucli's Case, 2 Russ. 120. p. 548. Ileudersou v. Slate, 14 Tex. 503. p. 68. p. '.m. pp. 301, 385. p. 374. pp. 5:1, 720. PP l.-,7, 258. P 357. XXVI TABI.K OF CASES. ;i5; H41. p. 5«. Ihnnins:. U.r.lF. >v F. :.0. I-. IH. UcTmiii:, rnit,LHl StuH's r. 4 Crauch.r.OK. V- V29- n,.„ry, CmnionwHlth v. L'2 Pa. St. 253. i-p. -"''.'. :■«+ lli'iiry V. Stau-, :V.) Fla. f,;;!. p. ot<'.t. lleiishalK 'J Lew. i;'.5. P- «*""• lKn.-=liaw, R. r. L. .«i C. 445. pp. 27», lUl, ;?7.-.. lUrrU;k, I't^plo v. K5 Woiul. 87. pp. 150, 311. llaw.'s, Coininonwf.ilth r. 1 Browst. 348. p. 811. Ik-Witt V. State, 1.1 T«. (App.^ 501. p. U85. Hay, U. '•. 2 ('. &.\\. '.i82. p. 575. Il.ywood, 11. '•. 2 r. v<: K. 3.V.'. p. 85. Ilickcy, CoinmoiiWi-'Ulili "• - Fars. 317. llickL-y, Pfople ('. U Hiiii. i'.31 . p. .s78. Iliu'iloii, Slate V. 32 Iowa, 2f,2. p. 734. Hill, Stale '•. 1 Ho\ist. 420. p. '■'..■'■ Hill r. Stale, .")7 Wis. :17". p. 4.V). Hill <•. State, 1 Yer.'. 7C.; 24 Am. Dei Hill, K. /•.lDen.453. pp. ''i:., (U'.. Hill, H. f. U. v'i: R. I'.'O. l..:'.ll. HiirsCase,R. &U.31'0. pp.2.;i,3ll. Hiirs Case, 2 (iratt. :.'.i5. PP. H^''''. lO*"'^- Hilton, K. ('. 2 Lew. 214. p. 1185). Hln.liiiarsli'8 Case. pp. USO, 051, '.>53. Hin.'.s r. State, !1 Tox. (App.) 483. p. 1 lO.V Hii>eh V. State, 1 Tex. (App.) 37;'.. p. :',.;(!. Hol.b.s V. Ilranseoinli, ;! Camp. 420. p. 820. H...l-es, R.r. M..'^ M.341. p. .180. Ho.l-iiis, R. ,: 1). '.^ n. 3. p. (i7. ll(ulH,M)n r. Loy, 7T R. 445. p. 208. Ho.liison, R. r. Dears. .<• B. :'.. pp. 4, 20, 04. Holcoinbe v. Sta.e, (W Ala. 218. p. 574. Holdeii, K. r. 2 Taunt. 3:'.3. p. 4. HoKlen, State r. M N. C. 527. p. 572. Holder, Cniiiinunwealtli r. '.' Gray, 7 p. •"'"' . Holland, R. .■.2M..>LR.;151. p. '•«!• Hollan.l,R. r.5T.R. 023. p. 12-.>. Hullin-lierry, R. r. 4 Barn. & Cress. 32;t. ^ p. 2M. HoUi'-ter r. Nowleii, '.1 Wend. 537. p. 815. Hol!..way, R. v. 5 C. & V. 524. p. l-'O. Holluwav, R. .•. 1 Den. 370; 2 C. .^ K. '.•43. pp. 3'..3, 3i.4, 39«. 420 Holly, State v. 10 Htimpii. HI. !>!>• '•"''•• 11^<*' Holmes, State r. .54 Miss. 153. p. 10'.t8. Holmes, State f. 82 N. C. 007. p. S«-t. Holds, f^i^'te c. 8 Mo. (App.) 2'.t«. p. 078. Hoouhk.Tk, People V. W, N. Y. 150; 2 N. Y. Crim. Rep. 204 Hopkins, R. r. 8 (•..>< P. 501. p. 045. Horhaeh r. State, 43 Tex. 254. pp. 1104, 1 105. Hore, R. '•.;'. F. & F. 315. p. 550. Home, K. r. (\)wp. 0S2. p. 178. Horner r. Perkins, 124 Mass, 431. p. 320. Horner's C"ase, 2 Fast's P. C. 703. p. GtJO. p. 750, TAHLK OF ( ASES. xwii i-p. 3;t;}, 3;4, 3".».>, 4::o. IHO. . Crim. Ui'l).-'04. i>. 7J<; 1105. n;'.T. ji. u88. TOI>. L„,.„,,kr. State, 10 Tex. CAP,>.)«H. p,,.UK ,,„„,. State, 515 .Ua. 487. p. '..•.. ,„...,..State,9Tex. (App.)5:5. P-«0'- ,,,^, St:U.r.50N.lI.-10. p. :.-• .,,„,V.('a>o, -;• IInn,;-lJ. p. 1055. „, uinUriiUea States ..:!Suinn. I--'. P- ;„.,,;,, C^ommonweallhr.ir,'-- .Mass. 25(,. „. v>!ir. State, ;i7 Tex. 5:a. p. ««• „„wcn'sCase,2(;r.ratt.;i95. p. 1 „,,vi,., U. «. U Cox, 32. Pl'-'-'';;'«- 1 1, „!,. r.. State, 57 lu.l. 341. p. '■ ■ __ II,„,.M. .'. State, 10 Tex. (App.; 21a. ...... .Won r. Slate, Tex. (App.) S.'.S. PP. "OO ;. '■. m;i, State t'. 34 Conn. i;'.2. p. 81'. _ „„„„,Urevr.Stale,C.3lml.223. P- ^'^O- ;;;„;,U,-e;s, State.. 10 lUnnph. 412. p. ;.8. „„„.,Uri..., Coniu.onwealth v. . Mas. -U. 1 ,„„„,■. State, 7 Tex. (.\pp.)'-il-^- P-"" ,l,„„r. State, 55 .Via. 138. p.-'-Tl. „„„,, K. t^ 2 Camp. 584. p. 2.,1. _ ,l,„„,..Cou.monweallh, 13r.ratt.',.o.. _p. .-..'■ „,„„,r,..State,13Tex.(App.;H^ P•-^*• llarst,Statel..llW.Va.54. p. 3S3. ll„~M.y .•. Thornton, 4 Mass. 40a. p. -''.'• llauhinson, H. v- 1 U-win, 1'.'5. p. 6,V.). no,t.-.Wilkes,3B.&A.304. pp. 83.S, 830. I.^^iKUU, U.r. Belie. C. 181. p. 111. _ ^ Uvlo r. State. 1 Tex. (App.) i:'."T. P- •'-'• I„rubitantsK.^'. -^"H^vk.P.C. p. 1.8. luUaWtnnts, U. r.3.Maii.&S.537. p. n'_. ,n.;an>lr.Hi^Sms.Cro.Elu.l25. p. 4oo^ Irvine «. State, 13 Tex. (.Vpp.) 400. V-^M. U-vmu' .-. State, Tex. (App.) 00. P *.'■ . Irviu«...Pe«ple,05N.Y..541,2N. Y. Cnni. Ives, Stater. 13 Ired. 338. p. -HU. U. 171. p. Jack.son V. Caif ns, 20 Johns. 301 . p. 323.^ Jackson «. Stevens, U: Johns. HO p. 3— .lacUson .. State, 7 Tex. (.Vpp.) 303. pp. . ', .la.k.on, Co.nmonwealth v. 15 Gray, 18< . p. H 13. .Jackson, U. ^•. 3 Camp. 370. pp 308,38-.. .I:ukson,R. <'.'.> Cox, 505. p. ».>7. .lack.son, U. 1-. I M"0. 119. P- 5^^ .la. cbs, H. .-. 12 Cos, 151. P- r.4o ,,„„„son'sCase,2CltylIallUee.l3K P .. .. .I:H-„bs, People .. 35 Mich. 30. ppj lo, •!...'. Junes, State.;. 58 N. 11.07. P- '"'«• .1 unison V. Slate, 37 Ark. 445. p. .J«rf. ^ ,,arni;;an «. State, 3 Tex. (App.) 4t;2. p. 8-.. XXV III TAULK OF CASES. pp. 2'.iS, IUm, p. •-Til. p. 1022. .Tarrott, State «. 1 Ired. 7^,. P;'*''!- loffiii's Conimonweiiltli r. < Allen, o48. '.,..ffs(Msc..;',^Miss.:fJl. p. 830. Jriiks f. l'..U'iiw". -'Suiim. -J'.'. P- fl*- .T..miison, U. r. 1» Cox, loS. p. "Au. J..r...v, IVoplc V. 18 Cul. :'.37. p. 557. -rs;::;:^;i!r7;r.n™.'nr.^^ Jo.UunU.lStates..lWashC C 03. p. .4,. Johnson V. CommouweaUh, 24 (iratt. 5.,o. .lol.nsc.n r.Co.nin..uw.alU., ■2\ I'a. Si. 3S. • Johnson r.lMtt.'rs..n,M Conn. 1. J>. •^■i-». Johnson, U. '^ ;» t^=i'"P> ='''^- l"..^'"- Johnson, U.^•.lI'"^^••l•-+• P- "•»».•, johnM.n, U. '•.--' Moo<.. 3,5. Johnson iJ. State, 3«-. Ark. '-•V.'. P- -"tt. j.,hnson..Stat...2Tox.(App.)38, pfiOO. Johnson r. State, 1.1 Tox.(App.)-lO_2 p. ««8. Johnson, State r.l'hlU.L.l to. p..^l.. Johnson ..Stat., 43 Tex. 57.i. p. *M^.. Johnson ..State, 35 AU. 303. PP- «.^^.^':- Johnson r. State, 30 Tex. 375. pp. «1«, -l• John.sonr.State,ll<>hU,St 324 p.o'o. Jol.nsot. .. State, 12 Tex. (App. 3oO. ■ om. Johnson V. State, 13 Tex. (App.) 3..». p. o8- . .... . I T..V r \ni) 1 lUl. pp. 5i)'J, ''33. Johnson r. State, 1 lex. (,App.; II-- ii Joice V. state, 53 Ga. 50. p. 8'.'.1 Jones r.lVople. 12 111.251.. p. 527. Jones r. State. 8 Tex. (.Vpp.V.-^. P- ^W. Jones r. State, 13 Tex. (App.) 1. P' ■:^'/';' *• Jones «. State, 11 S. .^ M. 31o. pp-^;;:«*- Jones r. State, 50 iml. 473. pp. L-, 300. Jones r. State, 5'.. In.l. 220. p. oOl Joue8,K.«.24KnU.C.L.150. P.ll!> Jones. K. r. 1 Leach, 101. P- 30.>. Jones, U.r. 3 Cox, 441. p. *»". Jones, K. .-. 2 C. & 1'. 02V>. p. OuC. Joues, K.r. 1 l>en. IH^. P- 352. Jones,K.r.2Kas.'sP.C.883._p.8o. ':;;:";■■' si:ik. 37.; Mo,,. 105. pp.io3.35«. Jon-s, Slater. 05 N.C.31'5, pp. 400, 542. •iES. 2'.iH, Uc.7. I, io;u, io:^.J, lo.'.f, p. 074, 115.-.. ..777. pp. GS7,7lO. p. '.U7. p. 1022. iU8. il. 583. 583. S'VJ, lis;?. )p. lO'.U, 1003 3, ■-•7;?. p. 332. 8'.)4. 542. TAULF. or CASF>. LKS,Stau.r.3Dcv.&n. 122. p. .V-'7. r, „v> .V IMlnuT's Case, 1 Loach, lO.",. p. . !• l,',„'„.Ma^o,l Leach, 20S. p. 177. t „„..' case. I Leillh, :.'.W. pp. KUU'., in.,N. ' ,v,ln. -'. Commonwoaltli, 2.". (iratl. ',.13. p. . 1 , . iL.nl.n". Slate. lOTcx. 47',). p. n.V.1. |justi..v, States. 2 Dev. 200. p. 380. Iic^ofor. People r. LS Cal. (137. PP. S31, 873. I" ,1.1. 11 T'l St ').■) DP. 10,4, II.'.'. iK.rnan r. Coimuonweallh, 44 1 a, M. ..... 1 1 Ik .,,„.,■ ,.{ Pris.,n, Commonwealth r. 2 Ashm. 22,. P 1113. kian.. People t..U Cox, 5.U. p. 371- 1-., .„,,,•. State, 3.S Tex. 110. p. ll.So. k!I'.- .-.State; 51 IncL 111. PP. 1«2, 350, 3.., 3.,,. Ik.'Vv,-. State, Uln.L 3(1. p. •'iOl. l,,..-r State, 20 Ohio St. 1.'.. p. 411,^1., . „ 'lyT Commomvealth, 1 Grant's Cases, 4s, . K,nvr. People, Ollun, 509. P- .^l- K..lly,R.«.Moo.C.C.U3. p. 001. K,.ml:,lU'.State,8Tex.(App.)...^ P- ; •' • K.uarick, U. u. 5 Q. B. 40. pp. Ill, 14., ->.).-.. lK.nne0v,ll.i'.2Leach,0l4. p.o.sl. e,uH.,h-r. State, 34 Ohio St. 310, p. m Lnvonr. People, 20 N.Y. 2.33. p. ,20 iKcnyon, People v. 5 Park. 254. p. ■ -• .\.\i\ p. lo:v.'. JK.inyon, Ex parte 5 Dill. 38,1. 1>. 7«-2. p. 103, 3.VS. 42. von, I'-x pa,ii.v; " •' „ , .,, iK.n.lo;. State. 12 Tex. (.VPP._) 420. p..01,.14. Kin. r. State, .54 C.a. 184. p. «20. Kin.v. State, 13 Tex. (.\pp.)-'-- P- •»"'^- l. Commonwealth, 03 Pa. St. 418, 3.> Am. Ktp. |Kri.ler,Statet;.78N.C.481. p. i/2. I UcolleUl t'. State, 34 .\rk. 275. p. 872, L:.M, State V. 32 N.H. 110. p. 574. l,uMh, States. 05 N.C. 4)9. p.OG. i i.u..aster, Con.mouwealth v. T.mich. ^^^O P. 3-3. Lu„lin«. State. 10 Tex. (..Vpp.)C3. pp.5H3.(..l. I,„„,o.R.«.33Eng.L.&Kq.G30. p.ll... 'lu>,.«.Coramonwealth.59Pa.St.371. p. 1017 ' u,,.. V. People, 10 111. 305. p. 650. L,..,„ley'sCasc,4Cityn.Rec.l50. p. Co.,. Landing v. McKlUup, 3 Calues, 287. P- 71. ,488. .•.XX TAULK OF CASES. p. 700. p. 73. p. 57!» l.apier's Case, 2 Kast's P. C. 70:V y. M'J. I,ar:i, 1!. V. pp. ;i05, ;i07, oJJ, ;}.i«. Lanitr, K. r. U Ci.x, 4'JS. p. 37tt. LiUliiii, I{. 1'. p. 4.lo. L!iruii«lfr'.s Case, '2 Ka.st's 1'. C, ch. HI, .hoc. 15. |«. 4ii8. l,;i\v>(iii r. St;itt', ;10 AUi. 14. pp. 843, tKKi. KiMch, r()iiinu)invi.'iilth r. 1 Miixs. o'J. p. 480. I,. :il r. Stall', K' T.-x. (.App.) •_'7y. pp. «71, t;7',t. I.fiir's Casi', 1 HaleuOii. p. o'.'J. hcltlamli, Slate t). 2 Vrooin, s:.'. i). M5. l,i;(lclin;.'to!i, K. f. 1' C. A: P. 79. p. ir.i7. L,c r. U.-s(lo\v, 7 Taiiiit. r,)l. pp. 4511, 400, 4(i2. Lcf, U. r. L. & C. 30',t. i)p. 15S, ;175. Lie, li. i\ 8 Cox, 233. pp. 3(10, 3ti2. Ia;c, IJ. /•. 1 lA'iicli, CI. p. S71. I..'i<;li, K. r. 2 ICa.sl'.s P. C. i;',>4. p. 431). Liiuliton, Puoplf V. pp. 1051, 1055. Li'iiuox & Pyboss' Case, 2 Lew. Cr. C. 268. Leiitoii, Coiiinioinvt'allli c. 2 Va. Cas. 47i;. Leolialil V. Sl.'iti', :!3 Ind. 484. p. 385. Li'P|>ar(l, K. v. 4 !•'. >.<: F. 51. p. 55b. LiKoy r. Deakin.s, I Sid. 142. p. 73. LfssiT V. Pcoplu, 73 N. Y. 78. p. 340. Lf.-ter, ('oniiiioiiwealtli r. 129 Mu.is. 101. l.evine, K. !'. 10 Cox, .".74. p. 3U1. Levy, I{. V. 4 C. & 1' 241. p. 54<;. Lower r. Coiiiinoiiwoallh, 15 S. & R. 'J3. Lewi.s' Ca^o, Fost. Cr. L. 110. p. 79. LonUs r. Slate, 30 Ala. 54. pp. 880, 881. Lewis, State v. 48 Iowa, 578. p. 780. Lewis, Ho, i; U. C. Pr. Rep. 237. p. 808. LUs r. \h- l)ial)ler, 12 Cal. 3;i0. p. 70. Lijihtii.r r. Steiiia^ee, 33 111. 510. p. 4s7. nil c. gueeu, Dears. 132; 1 Kl. i Bl. pi>. 329, .331. Lilley, People v. 43 Mich. 621. pp. 805, sTi;, 788. Littlojohii r. State, 59 Miss. 273. p. 5:'.0. Liviii^sioue's Ca.so, 14 (iratt. 592. pp. >,t,!3, 1140. Llo.Ml, n. V. 7 C. & P. 318. pp. t<\K), b99, 910. Locke, State v. 35 Iiul. 419. p. 107. Loeko r. State, 32 N. H. 100. p. 574. Loomi.s V. Eilfiartoii, 19 Woiul.420. p. 4sO. Loomi*, People v. 4 Deiiio, 380. p. 572. I.oii^ V. Worcemaii, 38 Me. 49. p. 117. Loiiu: V. State, 12 Ga. 293. p. (194. Loiii; V. State, 27 Ala. 32. p. 482. l.oiia. People V. 39 Cal. 094. p. 104(J. Lonsdale r. Rigt;, 20 L. J. 190. p. 400. Loose, R. r. Bell, 259. p. 577. Lovehuly v. State, 4 Tex. (App.) 545. pp. 1142, 11 80. Lowick's Case, 13 How. St. Tr. 277. p. 201. Luusford r. State, I Tox. (App.) 449. p. 572. 1>. 645. TAULK OK CASKS. XXXl Liiiisford, Stati; v. tl N. ('. 'y2S. p. S«l. Liipiu V. Marie, 7 Weiul. 77. I). -'0'.". Lurch, Stilt.' r. ti Wi'St C. K. HO. 1>. l.'>». Lutt.m v. suit.', U Tox. (App.) 518. p. :W1>. I.yimi.s, StMle r. 26 Ohio St. 400. pp. 450, 572 Lynch, n.r. 5C.it P. 325. p. US'.I. Lynch's C'ii>c. p. -'t;:!. Lyon V. State, tU Ala. •-'24. p. 557. Lvon, n. .-. 1 !"■ --"i I'- •"'*• !'• 5*-' LJ on, IL '•.•_' L.'ach,iWl. p. '•'•<. Lyons r. Merrick, 105 Mass. 71. p. H;'.:. Lyou.s V. Slat.', 52 liul. 42(1. I'P. 7'2», 775. Lyons, R. v. V. A: M. 217. pp. i;55, i-o!<, il5;», I'.i'.o. Lyons, Cal. 250. p. 574. Maiklox V. Stale, 41 Tex. 200. pp. 553, 561). Ma.lKe, R. v. '.) C. & P. 2!». pp. 504, 513. Ma.li.son I'. State, ID Tex. (App.) 435. pp. 5s:;, «1G. Madox, R. V. Russ. & Ry. 92. pp. 57G, 578. Maiiee, State r. U In.l. 154. pp. 158, 375. Ma«o\van, Commonwealth v. 1 Melc. 3t;8. p. H'm. Maher v. People, 10 Mich. 220. p. 7Sl). Maher v. State, 10 Mich. 212. p. ltW8. JLihly, Slate v. M Mo. 315. p. 10*25. Malwney v. People, 3 Ilun, 202. p. 712. Majoue's Case, !>1 N. Y. 211. pp. 1055, 1003. Major, R. r. 2 Leach, 804. p. 5ti8. Mann, Peoi.le v. 75 X. Y. 484; 31 Am. Rep. 4SJ. pp. .,0, Mapes r. State, 14 Tex. (App.) 12-J. pp. 583, (;2! . Maran.la v. State, 44 Tex. 442. p. 360. Marcus, 11. v. 2 C. & K. 356. p. 75. Mareutelle v. Oliver, 2 N. J. (L.) 37-,>. p. 7'.>5. Marion, People y. 29 Mich. 31. p. 61. Marner. K. v. C. & M. 628. p. U3. Marsh, R. v. 3 F. & F. 523. p. 53ii. Marshall c. State, 31 TeX. 471. p. 553. Marsliall v. State, 33 Tex. 664. p. 1 105. MarslmU, People v. 5'J Cal. 386. p. 771. Martin, R. v. F. & F. 501. p. 873. Martin, R. v. 14 Cox, 375. p. 92. Martin, R. v. L. R. 1 C. C. R. 5.;; 10 Cox, 383. p. 380. Martin, R.f. 8 All. &E. 481. p. 331. Martin, Commonwealth v. 17 Mass. ;!63. pp. •»G, . 00. Martin's Case, 3 Ciill. C. L. 707. p. 1 77. Martin's Case. p. 620. Martinez r. State, 41 Tex. 126. p. 517, 580. Marliiien v. Stale, 10 Tex. (App.) 122. p. «21. oo, si. X \ \ 1 1 taum: ok casks. M:ir\ ill's (MX', Sir Jiiiiii. ji. "i7. Milton, K. i\ I Leach, l>7. !>. .'Ml. Muson's (':!«■. :.' U. >\, -'7(1. p. 't7't. Mnttlu'ws r. State, 1(»T.\. ( Apii.) :.'7.». p. •„'%. MMltiievvi c. St.itc, :..") .Via. IsT, p. \W2. Mat!lie\v.>» r. Siale, ;'.:! Tex. 10^'. p. :iS-<, Muttheus, U. '■. IJ (Ox, 4s;). p. :,{•,(). Mutlhia>< ;■. .Maitliias, ;i Joiie.<<, I.'IL'. p. 80il. Maxwill, IViiple r. L'4 Cal. i:.. p ,>1. Mead r. Yoiiiii;, 4 T. I!. L's. pp. ;;•.', ^.•^. MeiulowB, K. r. 1 C. ^v K. ;i:iS. |). 771. Mercer, H. '■. ti.Iiir. L't;!. p. '<17. Meredith, K. i\ L' Caiiipl). •'■:'>'.>. |>. L'r..^. Meredilli i\ Slate, in inaiiiiscripl . pp. .'';'.4, 8;!8. Merrell, ConiiiKniwraltli i\ \i (iniy, 51."). p. '.io4. Merriinau r. Tlie lliiiidred of Cliiiip^ iiliaiii, 2 K ist, V. C. 700. Merrill, ('oinniunwealth -■. 1 Kiray, II,".. pp. 8S7, s'.'il. Merrittr. Slate, •_• T. x. (App.) 177. p. 5s:!. Merry r. (ireeii, 7 .M. ..<: \V. t;i'3. pp. 4oO, 438, 5Co. Mi'rshoii I?. State, 51 Iiid. U. p. r.i.'. Metealfe, 1{. r. ]{. .t M.4:!;). p. 41);!. Meyerileld'.s Case, I'liil. N. C. lOH. p. 8;!0. Mlddieiim r. Stat.', Diidl. L'75. p. :\>*i<. Middloton V. Stale, 5:: Ga. 21H. pp. 519, 580. Milhiinie, It. r. Lewiii, l'5I. p. 55'.i. Millard, ri>iiiiiii>n\ve:ilth r. 1 Mas.s. (!. p. 527. Miller '•, Haee, 1 I'.iirr. 457. p. i'.75. Miller f. State, CI Iiid. 405. pp. (W, '.•'.». Miller, Coinnionweulth i'. Lewis Cr. L. li'JS. p. 1023. Miller V. Commonwealth, 78 Ky. 15. p. 545. Mill.T, I'eople c. 2 I'arli. Cr. H. Ilt7. pp. 150, 167. .Miller, J'eople !'. 14 Johns. 371 . pp. 358, 375. Miller, ]{. I'. 13 Cox. 179. p. 7G». Mills, Stater. 17 .Me. 211. p. 341, Mills, rnited State.s r. 7 Pet. 140. pp. 125, 127. Ml!sa;-s, State )•. 82 N. C. "'.I'.t. p. sec. Minister of St. Botolph's Case, 1 W. Bl. 443. p. 179. Minter Hart, 11. t>. (1 C. & 1". lOf!. pp. 833, 334, 335. Mitchell's Ca.se, 2 Ea-t's 1'. C. 83',i. p. 4!t7. Mitrhell, United States r. I Bald. .HOC. p. C. Maekrid;:e, State t). 11 Vt. 054. p. 504. MoHatt, U. V. 2 Leach, 48(i. pp. t>8, 77, 323. .Moffa't, K. r. 1 Leach, 431. p. 71. Moffatt's Case, 2 Kast, 954. p. 73. Mole, U. V. 1 Car. & K. 417. pp. 433, 559. Mouta{;;ue, State v. 2 McCord, 287. p. 185. p. 705. J TAIILK OK CASKS. xxx.u |i. 7115. Moiipiiio, IVople V. 1 N. Y. Crlm. Rt-p. 411. pp. 1048, UOU Moiiiuir, Statu r.>< Minn. 'JV>. p. W. Moiil^'omcry v. (State, lii IVx. (App.) 3'.'3. p. 64. Montiionu'i-y r. St;ito, 1:5 Ti'x. (App.) 7,'). p. '.'it. Moutt;()incTy, CoinmonwiiilUi v. 11 Mete. 5114. p. Cf2:. M()ntu'(>nicry, Uniti'il States v. 3 Sawy. ;U4. p. 078. Mo.iney r. .Miller, 102 Mas.x. L'17. p. 117. Mooney, State v. VMM. 4;!4. p. H«.». MoDre V. State, 18 Ala. 633. p. >*;'-5. Moore v. State, 8 Tex. (Aj.p.) 4!»6. p. 531i. Moore v. State, 7 Tex. (App.) 14. p. lisi. Moore, Coniinonwealih v. 'J',1 Ta. St. 570. pp. 283, IMr,, 375. Moore, U. v. 8 Cox. 4U'.. p. 443. Moore, State v. fiUN. C. 207. pp. 1107, 1189. M(,(ire, State r>. 25 Iowa, 128. p. 1113. .Moore, Stale v. 15 Iowa, 413. p. 388. Moore, State v. 31 Coiiii. 47'J. pp. 83'.), 843. Moore's Case, 1 Leach, 335. p. M'.h Mopsey, It. t-. 11 Cox, 143. p. 'JC. Morllt, R. V. 1 R. & R. .307. p. 721. Morjian v. Statu, 42 Ark. 131 ; 48 Am. Rep. .">5. pi>. 291, 378. M.or;:a« v. State, l(i Tex. (Apii.) 6'.t3. pi). »20, 1 1 1 1. Morjjan v. Statu, 13 S. & M. 242. p. 842. Mory;an v. State, 33 Ala. 413. pp. 835, 830, 837, 873 . Morgan, State v. 3 Ircd. 187. p. 839. Morgan, United Status v. I Crancli, 278. p. 608. Morgan's Case, 3 Ired. 18G. p. 830. Morphy, State v. 33 Iowa. 270. Vp. 933. Morris, R. v. 2 East, 748. pp. 675, 07''. Morris, R. v. 2 Leach, 527. p. 668. Morris, R. r. 2 Leach, 915 p. 681. MorrU, State v. I Ilayvv. 429. p. 1189. Morrison & Gray o. Buclianan, C. P. &18. p. 332. Morse v. Shaw, 124 Mass. 69. p. 326. Morton, R. v. 12 Cox, 456; L. R. 1 C. C. R. 22. p. 96. Mott, R. r. 2C. &P. 521. p. 98. Moye V. State, 9 Tex. (App.) 88. p. 358. Mucklow, R. V. I Moo. 160. pp. 439, 557. .MulhoUand, Commonwealth v. 5 W. N. C. 208. p. 76. Mulllns V. State, 37 Tux. 337. pp. 021, 033. Murpliy, People v. 47 Cal. 103. p. 541. Murray, R. v. 5 C. &P. 145 note a. p. 498. Murphy's Case, 23 Gratt. j72. p. 1069. Murphy's Case, 6 C. & P. 103. p. 961. Murrow, R.v. 2 Lew. 136. p. 877. Musgravc, R. v. 1 Lewin, 138. p. 67. Mycall, Commonwealth v. 2 Mass. 136. pp. 47, 200. Mycock, R. o. 12 Cox, 28. p. 770. iMcAfee v. State, 14 Tex. (App.) 668. p. 408, 546. McAllister, People v. 49 Mich. 12. 869. McAtee, Commonwealth v. 8 Dana, 29. p. 129. 3 Dk.fkxcks. c XXXIV TAISI.K Ol' CASKS. McCiill r. Tiiylor, nt L. J. C.c:,, C. V. p. i.'4. McCall V. StiitL', (i7 Ala. L'J7. pii. 570, i>H. McCann i-. Pfopk", t! TarU. (;.".». pp. 10S», 1 18'.>. MfCarty, CoiiiiiiDinvonlih •. i' I'a. L. Jour. i;tii. p. 7:1:!. McCloskoy V. IV.ipIc, 5 Park. U'7'.i. pp. flS4, 710, 711. McCord r. People, 4.'. N. Y. 470. p. 3,H'2. McCoy V. Stutc, 44 Tex. (IK!, p. fioH. McDadc r. People, 2;» Mifli. 50. p. 78H. .^icOaniol w. Coiniiionweallh, 77 Va. 'JSl. pp. 10()."i, 1 \'>''>. McDaiiiel V. State, 8 S. .<: M. 401. p. S.".',). MuDaiiiel r. State, ;'.3 Tex. 4L'0. p. 5:!0. McDoii'.'al, State r. L'OWN. 4:i'J. i). 557. M. Mctiiirreii, People*. 17 Weiul. 4i;0. p. 5ill. McGiiity, I'eoplc u. 2t Ilitii, 1)2. p. 710. MeOref-or v. Stale, 4 Tex. (.\pp.) 5;t'j. jip. MU, -<77. McUeiiry v. Stale, 10 Tex. 4(;. p. 521 . Mcliilo.sh'.s Case, 2 Kast, Oil", p. ;t24. McKeii/.io v. Slate, C Kiiii. 5',i4. pp. L'l)2, 2',).'^, ;rr.. McLaren, State ». 1 Ark. ;UI . p. 'X\. McLauirliUu, People r. 44 Cal. 435. p. 1071. McLoujiUliii, ]{. r. 8 ('. .<: P. 5:1.-.. pp. C:)i;, (11)7, 877. McMahon r. State, 1 Tex. (.\pp.) 102. p. 042. MeNal), Stat.; r. 20 X. U. li;o. pp. KGO, 1010. McNairr. State, 14 Tex. (.\pp.) 18. pp. 4tt», 572, 58;'. McXair v. State, 85 Ala. 4.50. pp. 880, 8!»7. McNeil V. Collinsoii, 128 Mass. Uh. p. 1 137. MrPhallr. Stale, 10 Tex. (App.) 128. p. 5S3. McPlke, Commonwealth r. 3 Gush. 181. p. 1141. N. & C. R. Co. t\ Peacock, 25 Ala. 220. p. s;;;). Neeley, State ('.74 N. C. 425; 21 Am. Rep. 4;m;. pp. S'JC, !»0H. Neff, Stale v. 58 Intl. 510. pp. 81 «, 870. Xeliuti, R. V. 1 Salk. 151. pp. 101, 35;t. Xelson r. People, 5 Park. 3'.i. pp. 805, Sim;. Xewmau, Slate p. ;• Xev. 48. p. 548. Newton, R. v. 2 Moody, SO. p. JM». Xeylaiid v. Stale, 13 Tex. (App.) 53(1. ]>. IKU. Xicholls, U. r. 2 Cox. 181. p.'.tlO. Xichol, People v. 34 Cal. 214. pp. 1040, l'"'^. Xichol, R. r. Rus.s. & R. 130. p. 880. Xiehol.son, R. v. 2 Leach, \'>'JS. pp. 104, 545, 3o(J. Xiven'sCase, 5 City It. Rec. 70. p. 355. Noakesf. People, 25 X. Y. 3Sn, 384. p. 51 . Noble V. State, 22 Ohio St. 541 . p. 808. Noble, State r. 15 Me. 470. p. 1137. Nol. 11 u. State, 8 Tex. (App.) 5^5. p. 1185. Nohnr. St;ite, 14 Tex. (App.) 474. pp. IMO, HSl. Noregia, Peoiiler. 4S Ca!. 123. pp. 52J), 562. Norman v. State, 24 Mi-s. 54. p. 842. Norris' Case, City II. Hee. 80. p. 710. TAUM: C)l' CASKS. xxxv Nortll, R. I'. t< Cox. \M. p. 54o. Norton D. Lu.ld, .-.N. H. '-'OH. p.,"!. Norton, State i.-. 7i'. Mo. I.ho. p. :'.:i. Nufsliln, Si:it.' r. U5 Mo. 111. PI' 10:i:'., lo.'.'l. Nnu'ent v. Slate, 1» Alu. 5-'l. p. 'Hn. Nvc «. I'fopK', ;i5 MicU. I'J. pp. th;, ii.-.i;. , rt;l7, -(71. p. 732. I. ><7"<. pp. ■.!.-., 7;i7 8',). Oatc'.x, K. r. r, Cox, 510. p. :iS7. O'Connor r, .Stati', lU) Alii. 1. p. .'171. O-lctr.T 1-. Siiilc, L'H Alu. li'.t;?. pp. «:55. Snu ()•(;. )nn!lli. Still.; r. 08 Mo. 17'.t. p. ^''•■ Olllli;!-, It. r. 10 Cox, 4oJ. pp. 7tin, 77o. Oliver ». Conunonwi'iilth, 101 l':i. Si.'Jl."). Oncl.y, n. r. 2 L.l. KMvm. HSH. p. '.•',' I). Onlwiiy, t:oninion\vcultl\ r. 1 Cush. :.'70. On-ull, State I'. I l)ev. (L.) 1:'.'.'. p. H:'''- Ortepi, Unitcl Slates r. I Wa-iU. C. C. .Vtl <).«il)orn V. State, 52 Ind. S-'ii. pp. ''2ii< "" Owen r. State, U Tex. '.'48. !>. •>■•'*■ Owen, U. I'. '-' Leach, O.")-'. p. S'^o. Painter, State v. . p. 4is. I'aliner, United States v. I! Wheat. lUo. p. 7r.l. I'almore v. State, J'.i Ark. 'Jt"*. p. 1 1 ""'■■ I'archraau v. Slate, •.' TiX. (App.) 'J'-'S. p. in'\. I'.irfait, U. y. 1 Leaeli, L';'.. p. "U. Parfait, U. t'. 1 Kast'.s P. C. 41i!. p. 704. Parker & Brown's Case, 2 Kast'.s P C. '."i:!- p. Parker, U. c. 2 Cox, 274. i>p. "••'!. ''^^ P.irker, R. r. :'. (4. 15- Uep. ;!'.t2. V-XM. Parker, Commonwealth »•. Mete. 2i;;!. pp. 9S2, '.»«:!, ;t'i4. i'uKer, Commonwealth r. 2 P.ck..-.4.s. p. li:V,>. Parkes & Brow, R. r. 2 Leaeh, C. C. 7H.-.. l)p. -'0, SO. Parkes, K. i-. 2 Leach, 7ii;!. p. 545. Parkes, R. v. 2 Kast's P. C. >.)•;;!. p. 51 . Parmenter, Commonwealth r. 121 Ma>s. ;'.54. p. :l'2i. Parr, Commonwealth v. 5 W. & S. 345. p. 7(;7. Parshall, People v. Park. 1:52. p. 771. Parsons v. State, 21 Ala. IIOO. pp. »22, '.'3;i, 1141 . P.irtridjre, R. r. Cox, 183. p. 3Ml. Partridire, R. r. 7 C. & P. 551. p. 527. Pasley V. Freeman, :! T. R. 51. p. ;U0. Patemau, R. v. K. & H. 4.->4. pp. ':«, ;i-'^ Panli V. Commonwealth, 80 Pa. St. 4;'>2. pp. 7i Payne v. People,*; Johns. 10.!. p. 572. Peacock, People r. (! Cow. 72. p. 51. Pear's Cas.., Kasi's P. C. pp. 54';, 71'.». Pearce r. Lea, 1I8 N. C. 1)0. p. 52ii. Pefferling v. State, 40 Tes. 48G. pp. 8'J3, '.•04. 4'.)1. XXX VI TABl-i: OK (.ASKS. ILiH. Toiili'V, Slut.' I'. L'7 roiin. .■)*'7. p. Hi'.. I'riinMlViiiaii r. L, wis, Ail.l. •.•:'.'. I'. l'>»'- IVr.liie r. Aldri.lj:.', VJ 1ml. i!'."'. p. 7»'. p. 4 •-"-'. IVrr.vr. Slat.', 41 'IVx. 4t<;i. p. (108. Vi-ny, ("c.iimi.Miw.uiiii r. h piiiiii. i'm;. p. :.::.. I'llTV, li. '•. 1 I)>ii. I'-'- P-.-i'*. IVrrolt, R. r. '.' Mini. >'v Sfl. ilT'.i. Pl«. 1^1, -">'■ r.lili, R. r. 1 1 Cox, 1 1"!. PP- 4»>• l'l>- >*«^ '■':'"• IVlcTson r. Stilt.', 11 'IVx. (\pp.) li'--'. p. ■■"'I. Petti-rinv r. Stat.', U' T.'X, (App.) l.".':). pp. OW, «'2.'». Phi'lp'si Cusi', '-' Moo. p. NTtl. I'hifiT, stHt.' r. cs N. C. ;ii;:>. p. a^'.'- I'hiUips, ){. r. 2 Kii-fs P. C;., vM. I'i, soc. D'^ FhillipM, R. r. at'ump. 74. !>. llM. riiiiica,s A.l!llll^<'(':l>l•. i>. 4:"-'. IMiip.ic, R. '•■ - l''':i<'l>. •''"'■<• P- ■*''"• I'lilp.K'.'^, Mr.-*., Ca.-f.'. pp. ;i:'l. -l"*- IMckflt'M. Statf, r.' Tox. (AiM') «''• IMerce t?. Pfoplf, 81 HI. '••»*■ P- S''*** Plcrson !^ Pi'.>i>le, 7'.t N. Y. 4:l<;. p.'.tCu. Pi.Tsoii I'. P.'opl.', lf< Hum, '.'S:!. p. 007. PilUii;:, R. V. I F. .t F HJ.'.. p. i>'J. Piiikncy, K. c PP- 1'". •'l'>''»« Pitts?). State, ."iTcx. (Ap)) ) ."'41. p. 888. Pluto's Ca*e, li City H. Uf.-. 7. p. 710. Pleasant r. State, i:J ArU. I'.iIO. pp. HH2. 904. Pli'Stow, R. •'. 1 Camp. 4',i4. p. nH7. Plioinliii« I'. Statf, 4(1 Wis. o\i>. pp. 1037, 1156. Plmiiiner, R. r. Kel. 117. p. '."82. Plunkel's Case. pp. iWt, '■■'■' 1. Poguc V. State, 12 T.'X (.Ai'P.) -''^;'- P- ^^l- Pollliill r. Walter, 1 Win. i . . p. (*5. Pollock r. Pollock, 71 N. Y. i;i7. p. 'M'- Pool, People I'. 27 Cal. 57:!. p. Ml- Poole, R. V. Ih'urs.A. ». !U5. p. iJ»8. Poole V. People, (?0 N. Y. (US. p. W'^. Pooley, R. v- Russ. v<: R. 12. p. ;!i«. P,.piiiiuis V. State, 12 Tex. (Api. ) 1 !'\ ."■ 38ft. Porter r. State, 1 Mart. >t Yerj;. -'■■i' i>- ""'•'• oner. United State r. 2 Crane!;, C J. CO. p. 228 Porter, United States v. :( Day, 2S3. p. 1137. Potter V. People, 5 Mich. 7. p. 78(i. Ponlton, R. v. 5 C. .«i P. ;V.".). p. lUW. Powell c. State, 13 T.'X. (App.) 244. p Powell r. State, 15 Tex. (App.) 411. p Powell, Cominonwealtli v. 7 Mete. 001. Powell, R. r. 2 Wni. Bi. :s7. p. 4. Powe'l's Ca^e, 1 Dallas, 47. p. 17C. Pratley, R. v. 5 C. & P. 633. p. '422, 678 :i".(7, 3118. 683. p. 814. T.MU.K OK (ASKS. XXXV il ll'.U. rraior r. Hmr, 15 T.'S. (Wr) ;>'•■'• !•• '"'*'• I'ralt, U. r. M.>o. i;50. p. t,\f*. I'liiii, U. 1". H ('<)x,:i:il. p. 3«4. I'niti, u. V. iK'iirs. :it;ii. pp. 4h2, r.:.'. PimU, stater. 7 Housl.'-'f.i. p. 1 '>'■'- I'nvv, C.miuonwi-aHh v. VA Tick. U.V.*. p. HIm . I'lVHCOIt, rnitr.l States v. 1! lUs.s. :»i;5. p. IIH. Pn.ton, K. r. 1 lKn..il>.a5l. pp. 43«. '.S'.". Preston, U. v. 2 D.-n. ;t:.;i. PI'- -t:!:!. i;", i;!5. Preston U. '•. l-'l U. {■• Q- »■ «'!■ !'• •'■''• Pri>ti)ii'.>< f';is''- !>• "'''•• Prrston r. Slatr, 8 T.x. 'App.) J'O. p. UH-V Price r. SUU; IS T.x. (App.) ITl; 51 A.n. ll.>p. 3'.".'. PP- 10».., Price t'. State, p. '.•-'". Priestly, State v. U Mo. 2t. p. 904. Privetl, K. r. 1 Den. 1!«;». p. 3'.M5. Prowes, 11. .'. 1 Mo... :;i'.i. pp. 504,5U. Pr.vorNCase, til (Iralt. KHO. p. loiiH. Pir'lir. Ui.l)ln.'i U. I'lO. p. 97. s:^;:7ur:i7:rr^^ri..-;:u. ...-^. r;;;:";;i:"ufw.X5;;r^ Ue.lstrake, State «. 3'.) N. J. (K.) :!'■.•.• PP- l.,C4. Recti t.. State, 8 Tex. (App.) 40. pp. 5.V.I, (.lo. R..e.l, U. t'. 7 C. & P. 848. pp. 350, :150. KcUl li. V. I Dears. 257. p. 4S5. Rui.rs Case, lUirn. 1715. p. 2(;2. Reushaw, 11. r. 2Cox,285. p. 8.V,l. Reopellc, R. r. 20 U. C. Q. n. 2.i0. p. 97 Respublica r. De Lo.mscha.ups, 1 Dall. HI. PP. '.'o. '•'- • ReyuoUls r. Stat.., 14 Tex. (App.) 427. p. 11«1. Ri-vuoUls R. '•. '-i t'"x. • ' *^- I'- •'^^''• Rhodes .. Commonwealth, 12 Wright, 3'.h.. p. 1020 Rhodes .. State, U Tex. (App.) 5.13. pp. UHo, 118i„ 118,). Rhodes V. SUitL, 1 Cold. 351. p. 904. Rice V. Comrnonw.,'alth, 100 Pa. St. 28. pp. 7««, . ■ '- Rice V. Com.nonwealih, 103 Pa. St. 408. p. ,U, > .O. Rke, State r.MN'.C.Ml. p. 683. Rice, United States v. 1 Hughes, SCO. pp. 1189, 1 1.». . Richards, R. v. I Mich 21ii. p. 377. XXXVIII TAULK OF CASES. !i;4. niclmnls, R. v. R. & R. 102. pp. 07, :V.'+. Uicliiinlson i'. SUite, 34 Tex. U2. p. 10:i7. RiclKinlsoii, R. V. G C. & 1'. :«C. pp. <;t7, 05.). RicliimNoii, R. v. 1 V.ScV. 488. p. 3s7. IJiiiliels r. State, Siieed, CO*!, p. 8(»U. Ridille, United States t). 4 Wash. 044. ' p. 872. RilLrewuy, R. v. 3 V. & F. 858. p. 302. Riehe, Slate v. 27 Minn. 315. pp. 75, 95. Hielly, R. r. .Tebb, 51. p. '»'.'». Riley, R. r. 1 Cox, 98. p. .'•4«. Rltsou, Queen v. L. R. 1 C. C. 200. p. 51. Rt.herson, R. ". Bell, 34, p. 572. Ri.hcrts 1'. State, 2 Head, 501. p. 3f9, 290. Roebuclx, R. t'. 7 Cox, 12i;. p. 300. Ro-a.i, K. V. Jebb's Cr. Cas. 02. pp. 099, 718. Ro;.'crs r. People, 15 How. Pr. 558. ).. lO'.tl. lio.'.'ersf. State, 8 Tex. (App.) 401. p. 68. Ro-er.s, R. v. 8 C. & P. 029. p, 43. RoiI.Ts, R. V. 2 Moo. C. C. 85. p. C48. Uoodle r. State, 5 Neb. 475. p. 0!). Roper, Stat, v. 2 Dev. (L.) 47;!; 24 Am. Dei, Ross, State -'. 1 Gall. 024. p. 983. Ross, Stite V. 25 Mo. 420. p. 11 10. Ross r. People, 5 Hill, 2!t4. pp. 3.H9, 545. Rotinals, Stale c. 14 La. Ann. 278. i). 515 Rouse, R. r. 4 Cox, 7. p. 97. Roy r. Ferrers, 1 Sid. 278. pp. 72, 73. Royal, People v. 53 Cal. 03. pi). SS2, 897. RueUer i . State, 7 Tex. (App.; 549 p. 1178. Rudi( k, R. V. 8 C. & P. 237. p. 717. Rnld, State v, 8 Iowa, 447. pp 728, 772, 775. Ruhuke, State v. 27 Minn. 310. p. 358. Rulofl V. People, 18 N. Y. 17'.). pp. 939, 1141. 208. |).5(«1. TAl'.I.r, tiK CASKS. XXXIX 13'J, 141, Ul.', UN !.'> I. L".in. nushworth, R. i'. 1 Stiuk. r.!C, ]>. }>7. Kiissoll, 1{. '■. 1 l-oavli, 10. p. ;'>. Kiillurfoni r. C.nninoiiwiMltli, -' V:i. Ca-. 1 tl. p. (m8. RutluTford ". State, K'.Tox. CM'I'-) '■'-• !'■ **''''• Ryan r. State, 43 0;v. l'-'?*. p. ;''75. Rye V. State, 8 Tes. (App.) U;i). V 5:18. Sa.ldler r. State, 12 Tex. (App.) r.i+. p. ftOS. KaflDid c. IVople, 1 I'ark. Cr. 47+. pi>. M''.. 7T"> Saiiwluu-y, K. r. 7T. R.4r.l. p. ^<)1>. Saltillo V. Slate, Hi Te :. (App.) 21!". p. «'-'.'>. Samuel c. I'aiiie, 1 Voun. ;i.VJ. p. 8l'0. Sanchez, People ». 24 Cal. 17. pp. 1042, lO^., 1018, 115i; Sandv.s, K. ''. 1 Cox, 8. p. 876. Sanfurd v. Stale, ll' Tes. (App.) ll'il. pp. «'■•'.». !>0U. Sankey, Commonwealth r. 'JL' I'.i. St. 3'JO. p. »0. Santello «. State, 10 Tes. (App.) '-M'.*. p. r.8:i. Sargent v. Courier, M 111. l'4j. p. 4sl'. Sartient, R. w. 10 Cox, Cdl. p. fl3. Satehell <^. State, 1 Tex. (Apr > 4;18. pp. 110, ,558. Saunders, Qsieeii r. I'lowd. *7;i. p. 10ur<. Sauniler.s, U. u. 2 Strant;e, 805. p. 227. Saviiije, U. V. 5 C. &. P. 143. p. .>4;;. Schle.sin^'er v. State, 11 Ohio St. (KiO. p. V.yx. Schmidt, 11. V. 10 Cox, 172. pp. «5.1, ':o4, 077. Sehoenwaid, Slate r. 31 Mo 152. p. IOL'7. SchiiUz V. Iloagland, 85 N. Y. 404. p. 007. Scircle r. Neeves, 47 Ind. 28!). p. 664. Sciiz V. State, 23 Ala. 42. p. 837. Scott r. People, 02 Uarl). 03. pp. 241, 3C5. Scott, People V. Mich. 200. p. 780. Scott, State y. 30 Mo. 42!t. !>. 054. Scott, State I'. 34 Mo. 424, p. 057. Scott, State r. 12 La. Ann. 274. p. 033. SCO'" < Case, 1 Ali-on Cr. h. 305. p. 2id. Scril)ble, U. l\ I Leach, 275. p. 581. Scully, K. V. 1 Cox, 18'.t. p. 550. Sea-ler, State v. 1 Ricti. 30. pp. 309, 542. Searle, Coinmouwealih r. 2 Binn, 332. p. 0. Seariufj, R. v. H. ci R. ^50. p. 571. Self, State v. 1 Bay, 242. p. 550. S'dli-', R. V. 7 C. i P. 850. p. lir.O. Semple's C:isc, 2 Ivist's P. C. liOl. pp. 452, 540. Seward. State '■. 42 Mo. 2(!0. p. 1110. Seymore v. State, 12 Tex App.) 30l. pp. 583, «J.>7. xl TABLK or CASES. Shailbolt, n V. 5 ('. ><: P. 504. p. i:ir. Shiulli-r. Stiilc, ;!4 Ti'X. 572. p. ,s77. Slj.ilfiT r. Slalo, 8-' Iiiil. L'l';?. p. ;i,s7. Slmll, lV()|ilu V. \) Cow. 778. pp. 2(), 28, 38, ;Ut, 'i. Sharmaii, U. v. Dciirs. C. C. -'.S5. pp. !i, l.', L'l . Sliurp r. Slate, *; Tux. (App.) (150. p. 'X^'.t. Sliar)), Sl:ite r. 71 Mo. 2Ks. p. 1 15<:. Siiarpt', Uiiilfd Slates r. 1 IV-t. 1,!1. p. 1»5, Shaw, n.r. 1\V. HI. 7'.iO. p. ->i;i. Slii-a, H. V. 7 Cox, 148. p. 551t. Shuati, State r. ;i2 Iowa, 88. j). 7-.".). Shclloii V. Stall', l-J Tux. (App.) 5i;!. jip. 5S3, t'.L'l, «2S. Slii'parii.soii, IVopk- ?•. 48 Cal. 18'.i. p. 71S. Sheriff, Comiiioiiwealth v. A Brew.st. 34l'. \<. «77. Sheriner, Slate v. 55 Mo. CI;5. p. 557. Sherwood, K. v. 1 C. & K. 55(!. p. 118!t. Sherwood, U. V. 7 Cox, L'70. p. 340. Sherwood, H. r. Dears, .t B. 251. pp. 135, IM, Vo7, 14ti. Shliiii r. State, r,4 Iiid. 13. pp. fl5»2, 710, 717. Slioaf, Slat' i\ 08 N. (;. 378. p. 077. Shoek, Slate v. C,A Mo. 5.j5. pp. 1028, 1155. Shovliii ?). CoiiHiioinvealth, lOG Va. St. 30'J. pp. 809, 870. Shurtleff, State V. 18 Me. 371. p.m. Siiiiinon.s r.Coiiimonwealth, 5 Hiuu. (il7. iip. 504, 515. Siiuiiioii.s, fiiited State.sr. 1m; II, S. ItCti. pp. Il'2, 123. SiiiioiuN, Coimuoiiwealth v. 2 .Ma.s.s. 103. p. 185. Slmon'.s Ca.se, 2 Ka.st's P. C. 731. p. 704. Simpson V. Stale, 5:i Ala. 1 ; 31 Am. Rep. 1. pp. 833, 870 Simpson v. Stale, 4 lliinipli. 45i!. pp. 504, 515. Simp-on, Slate v. 3 llawlis. tL'O. p. 358. Siiidraui'.s Case, 88 X. Y. I'M), p. 1055. Six Carpenters' Case, 8 Coke, 2.i0. p. 422. Skeehan, People )•. 4'.> Harl). 217. p. 1033. Skiff r. People, 2 P.iik. Cr. 13;». p. 250. Sloan, State v. 4 7 Mo. ooi. p. 1033. Sloanaker, Slate r. I Iloiist. 02. p. 872. Siniili c. limit, 13 Oiiio, 200. p. 70. Smith V. MeClure, 5 East, 475, p. 332. Smith r. State, 2 Tex. (App.) 477. p. 583. Sinilh r. State, 35 Tex. 73i5. p. 55'.». Sniitli r. Slate, 52 (ia. 88. p. 873. Smith r. Slate, 33 .Me. 43; 54 Am. Dec. pp. tt81, Woo. Smith V. Slate, 18 Ohio St. 420. <.t8. Smith V. State, .■'.',) Miss. 54. pp. 830, 807. Smith, Commonwealth r. 1 Brew^t. 347. (). 358. Si.iilli, People t'. 5 Cow. 25X. p. 480. Smilli, P( ople V. 10 Cal. 280. p. 557. Smith, State r. 3,2 Me. 309. p. HOo. Smiih, Slato r. 43 Me. 30H. p. I(i3'.». Smith, St ito r. s \vr-^. 150. p. 7^'"-'-'^ •'•••^- ''•■"-• ., Smith,K.r.8<'..«ir. 173. pp. «;%, ^"0. Sinitli, R. r. 1 M<)'>. 4711. p. 515. Siuiih, K. r. 1 Lewi", :''»l- l'-"''- , „ smith, K.^-.lH'^'rs.&lJ. 5(;c.. pp. 17, t-T Smith, Unito.l Statu.s V. 1 Crunch, 47.., a...1. Smith's Case, 2 Ka.fs P. (".7s;5. pp..^M.. ,1S Smipi-f. Slate, :nVx.(A!.p.)i;'^^- P- •'•*'■ Snvaer v. Commonwealth, f<:. Pa. St. 61'.>. I<. Snv.ler, Re 17 Kas. .^I'J. pp. 14«,305. Speurs r. Slate, L> Tex. (App.) -'44. p. 8(.0. Sp..neer, R. r. ;; C. i r. 4-.'0. p. 380. _ Si.ie.rr. People, 11 Rra.lw.2'.).^. p. 8/0. Spinks V. Statu, 8 Tex. (App.) l-'5. p. 53'J. Spirey v. State, 2G Ala. DO. pp. 482, ru,U. Son.ers V. Pumphrey, 24 I.ul 2;U . p. .'.'8. Somerville, Com.nouweallh r. 1 Va. Las. U.i Soper, States'. Id Me. 2;i;i. p. 72(.. Sot.th, Stater. 28 N..T.CL.) 28. p. ooO. Stantlckl V. State, 4:^ Tex. 1C.7. p. S'-l-- Stanley r. Slate, 24 Ohio St. m. P- «0H. Starck r. State, l!3 Iiul. 285. PP. 501, 6»8. Starr, Slater. 38 Mo. 2.W. p. 1027. SUarus, People r. 21 Weucl. tOO. pp. 28, .^, 4., .>!. St.phrns, K. r. 5 East, 257. p. !'«• surlinu', K. r. 1 I.eaeh, 117. p. 32:1. Sletso ., People r. 4 Barb. 151. PP. 3H.$ 3S«. Stevensr.State,lTex. (App.)5'.)l. p. H'H. Siuvens, R.r.5Ka'-. »''0. Stevenson, Conimonweallh v. 127 Mass. 44^.. p. ... • • Stewart, Staler. 2',. Mo. 41'.». P- «38. StinsouB. People, 43111.397. p. 54... Stoeker, K. v. 5 Mod. 137. p. 72. ^ _ SU.essigerr.R.Co.,;iKl.iH.5... Pl>- ^•>. •■■- Stokes, People r. 2 N. Y. Crim. Rep. 382. PP. ««2, 1 1 ..• Stone, People r. It Weml. 182. p. 2.0. Stone, People r. 10 Cal.iW.l. p. 557. Stone.R.r. 1F.&F.311. p. ST.i. Stone, R. r. 1 Leach, 370. p. 580. ^ Stono, State v. 08 Mo. 1"1. Pi'- ■'■>^'>. '>•»'*• _ , ... Stov.n, State r. 54 Me. 24. PP. 723, 728, -.•-,- -o. Storv, R. r. R. & R- «!• PP- 308,381. smart .'. People, 73 111. 20. p. 530. Stuvvcsant's Case, 4 City Hall Recloi.. SmU r. State, 50 Ga. 220. p. 557. Sullivan r. People, 1 Park. C.C. 34,. p. IKX- Sullivan.-. State, 44 Wi..5!»5. p. 828. SuUivau, State r. 85 N. C. 500. p. , ».'•). 5 Am. I>'<- 571. p.^71. j.p. 3ti8, :'.7(, 375. xlii TAHI.i; <»F (ASKS. Sully, Pooplo r. 5 Park. Cr. U. \V>. p. K.'!. Suniiiur, U. '•. ^ Salk. I!i4; i' K. 1'. C. (Hi.S; 15 StT-. i U. •.':•.. p. 41^. Smmiiir, Stale r. 10 Vt. 5H7 ; :!,T Am. Dec. L'l'.i. pp. .'MM>, ;'.xh. Siijit. I'liila. I'rUoii, C'liiiiiionwi'iiltli v. 9 I'liila. 551. p. 577. Sutton V. Madrc, il.ToiR's, a.'O. p. »:••;. Swain r. Clicnfy, -11 S. H. 235. p. 571 Swans, Tliii Ca>i! ot, 7 Uv\t. 15. pp. 455, 45i;. Swaiinctrv. Swauncr, 50 Ala. (!•!. p. i^'J. Syil.scrff .-. Ciiufii, 11 (i. 15. -JIS. p. :!i;-'. Tanmr c. Coinnmnwcaltli, 14 (^iratt. '''i^'). p. 55'J. Taplin'-i Ca-c, J KasiVs P. C. 71-'. p. 7ii4. » Tarpl' y r. Pcoplr, 4-' III. :U0. p. S77. Tarranl's Case, 4 Hiirr. LMOC p. 177. Tawell's Case, Will's Cr. Kv. IM. p. '.MD. Taylor, State c. 25 Iowa, 273. p. 5l'7. Taylor r. State, 12 1\\. (.Vi>i) ) 48',). pp. 5Ki, (;21, filVi. Taylor?,". State, 14 T.x. (App.) :'.40. p. I17s. Taylor '•. State, 15 Tex, (Ap!>.) :157. ).. 58!!. Taylor '•. State, 5 Te\. (App ) oti'.t. p. "U.t. Taylor, People v. :'. Denio, I'l. p. 121). Taylor's Case. p. lO'.'l. Tefft c. Winilsor, 17 .Mich. 4si!; ;> Cr. L. Mag. 8;!8. p.2St;. Terry v. Hutchinson, IS L. T. kep. (S. C.) 521. p. 77(i. Thenisson )'. I'i'ople, .S2 N. Y. 2;i8. pp. 311, ;iilti. Titus, ConuuDnwealtli > . llii Mass. 42. p. 55'J. Thomas -•. IVople, I'.l Wend, 480. p. ;»5'.t. Tlnnnas r. People, o4 N. V.;'51. p. 15<;. Thomas r. State, 40 Tex. 00. p. 625. Thomas c. Slate, 1>'. Tex. (App,) 5:!.5. pp. S90, Vi04. Thomas, Peopio ,-. :) Hill, n;:'. pp. 257, 2;i;i, a.si, .'184. Thompson 1'. State, 43 Tex. 200. pp. 008, »04, HOS. Thompson, Commonwealth I!. 2 Cl.irk, 33. pi).:!8.'i. Thompson, Comnionweaiili r. lOS Ma-^s. 4(>I. p. 1114. Thompson, People r. 2 Johns. Cas. ."42. p. '.<7 . Thoinp.sun, K. c. 1 Moody, 7><. p. ."iSO. Thom|)soi', H. r. L. .<: C. 2:1:'.. pp. 41>7, 578. Thorn, People r. i) I.. I{. 54. p. !'4'J. Thorn, 11. r. C. .'i M.20i;. p. W. Thornhni-i:, State r. i\ Ired. (L.) 07. p. SO. ThornU)ii, H. '•. p. 650. Threslle, K, r. 2 C. a K. 842. p. 557. Thurliorn, U, r. 1 l)enison, :'.h7; Temp. & M. 07. pp. 4'24, 433, 434, 4:15, 438, 440, 4tl, 44:'., 55:1, 500. Thnrtell, K, r. p. 'J48. Tol>in, Commonwealth r. 2 Rrewst. 570. \t. 574. Tomlinsoii, I'l'ople v. ;'>5Cal, ,">03. p. 75, Tompkins, Peoi>le r. 1 Park. 2:lS. pp. :'.I0,300. Toohey, State v. MSS. p. '.i.hs. Topohuiek r. State, 40 T.x. ICO. p 8!»;i. Toshaek. K. <• 1 Den. C.C. 4',»2. pp. 8, !", 15, 1'.', 21. T r TAIU.K Ol" ■>. Xllll T^wiili'V, K. f. 1-' Cox, 5it. i<. 4.'iS, '>'\- Towuiev, R. V. L. R. 1 C. C. R. :ii,-.. pp. 4(U. i<::<, AM. Townsoiul, Stiitc V. 5 liar. (lX-1 ) 187. p. f*\\. Tnifiou !'. State, 5 Tex. (App.) 4.'<0 p. (U-'. Tiea.hvell y. State, U'. Tex. (.\pp.) SGO. p. 1 1S'1. Tr.xler, State r. 2 Car. L. Repos. 7 Am. D.'C. '.'0. p. <::n. Triloe, R. v. 1 C. & M. G50. p. 'M\. Tucker r. Slate, 16 Tex. (App.) 471. pp. 5H2, 5H;i. Turner r. Stale, !G Tex. (App.) 4,;;i. p. 11^1. Turner, R. r. >' C -■^. P- 407. p. r.sO. Turner, State r. 1 Wri-hl, 20. p. '.t4',). Tunii'r's Case, 1 Hayin, 144. p. '.m;i. Turpiu, R. I'. 2 C. & K. 820. p. Im. Tyler ('. People, Hreese, '>'X\. V. .»«0. Tyler i'. Slate, 2 Humph. 2',i8. p. ;u;5. I'mphrey v. Stale, dl? Iiul. 22;l. pp. 501, 557. Uuderwood, Stale v. 4;i Me. 181. \>\i. 512, 51i>. Underwood v. State, 25 Ala. 70. p. H7H. Upriciiard, Comraonweallh v. .i (5ray, 4e4. pi». 601, 500, 511, 51.".. Vale's Case, 2 East C. L. 05;i p. 77. Vance, People v. 21 Cal. 400. p. 1074. Vanee, Slate v. 17 Iowa. 1:58 p. 83!). Vaiidiinark, Slat.; v. :'.5 Ark. 3!ir., p. 204. Vanness v. Parckard, 2 Pet. 144. p. 8:t8. Van Muaeu, U. v. 1 R. & U. US- V- »»■*'>. "-'^• Van Vechten, People v. 2 N. V. Cr. Rep. 291. p. 870. Varner v. S|)encer, 72 N. C. 381. p. 4S2. Vermont .<: Mass. R. Co., Commonwealth r. XOS Mass. 7, p. 11:10. Vickery, State v. I'J Tex. 3(12. p. 375. Viddetto, Case of, 3 Park. tW). p. y45. Villareal «. Slate, 2('/rex. 107. p. 1088. Vincent v. State, 10 Tex. (App.) 330. p. G73. Voiiiht r. State, 13 Tex. (App.) 21. p. 583. Vyse, R. v. 1 Moo. 218. pp. 338, GZC. Wade, R. V. 1 C. .t K. 030. p. (;4i;. Wade's Case, 2 (^ity H. Rec. 40. p. 03. Wadsworth, R. r. 10 Cox, 557. p. 543. Warmer, United States v. 1 Cranch, 314. p. 500. W.iite r. State 13 Tex. (App.) 170. p. 1151. Waile, Commonwealth r. 11 All"n, 204. p. 809. Wakeling, R. v. R. & R. 504. p. 378. Wakely r. Hart, C Binn. p. 316 821. Walford, R. v. K-p. 502. p. 572. Walker V. People, 38,Mich. p. 532. Walker & Morrod, R. i'. Dears. 280. pp. 40ft, 541. Walker I'. State, 13 Tex. (App.) 609. p. 1180. Walker r. State, 23 Ind. 61. p. 167. Walker v. State, 7 Tex. (App.) 245. p. 1185, 1180. xliv TAHI.K or CASKS. Wiilkcr, Stale r. 41 Idwii, L'lr. \<\> r»2«, T)-*-'. Wall.u'c r. SliiU', 7 'IVx. (Apii.) :,:>>. pji. '.»U, U3'J. Wallace c. State, U Lra, j1:!. i>. 3.')9. Walls, ]{. r. L' C. .<: K. L'U. ji. 710. Wall's Cn->; -J Kast V. C. '.id:'.. pp. 73, 3:.'4. Waliio, ]{. r. 11 Cox, (147. p. 876. Wal-h, 1{. r. 4 Taunt. *J81. p. 41':.'. Wallers, U. r. L' IJiiriiVs Just. 180. p. 5f!2. Walton V. State, C Yerg. 37 7. p. 'X). WallDii, CoiniiiMuwealth r. 7 Rrew^t. 48:1. p. 7iil. Walton, U. r. I,. & C. L>89. i>. 703. Wahvortli, I'eopltM-. 8 Alb. L. J. l'.>. p. 11.">'1. Wanihoiiiili V. Shiiuk, Pen. -'i".), p. 707. Waininack, State r. i.. 108'J, Wanl V. State, 48 Ala. lill. p. 572. Ward, People r. U> Wenii. 2.11. p. ;'51. Wanl.H. r. 2 T-d.llaym. 14(!1. pp.'.', 10,71,72,78. Wi.vil. h 747. p. 3. Wii;.l. . ; '" xt. 7t!. p. 7.'>. Warner . .; ...■.iwe.ilth, 1 I'a. St. ITd; 44 Am. Dee. lit. pp. ^i;.". Warieu r. Slate, 1 G. Greene, Hm;. p. 527. Warn.', "o'limonwcallh i». 6Ma>s. 72. p. {{57. Waternvm r. ; >nle, " '01. p. 78. Walkins v. State, 00 X\>-.^. 'V-':). p. 550. Walkins, Tniteil S'-.ites v. 3 Crauch, 441. pp. 121, 168. Waikin's Ca.se, 2 Moo. i>.87i:. Watson r. State, 30 Mis.s. 5'.i3. p. 512. Watson, R.r. Dears. & W. :i48. pp. 302. 387 Wat.-ioii, 1{. r. 20L. .1. 18. p. :'.r.3. Watts, U. r. It. .<: R. 4;;0. p. 03. Watts, U. V. Dears. ;!-.'7. p. 5.;5. Wavell, R. V. 1 Moo. 224. pp. ;'.5l, 353, 373. Weill) r. State, 5 Tex. (App.) 5'.>0. p. 025. Webb, R. V. Moo. 4.U. pp. ;!'.i4, 390, 3;)8, 545. Webb, R. r. R. .<: R. 405. pp. 85, 88. Webster, Comiuonwealthw. 5 Cusli. 310; 52 Am. Dec. 711. pp. '.U;t, '.'01, 1138, 1189. Wiekes, R. r. 10 Cox, 225. p. 541. Weirerbackr. Trone, 2 W. .<: S. 408. p. 358. Welch V. People, 17 111. 3'.';i. p. 413. Wellar r. People, :'.0 Mieh. 27i;. pii. 058, 1155. WcUinuloii, Couimonwealth r. 7 .VMen, 2',t:i. p. 1137. W.'lls r. State, 4 Tex. (App.) 20, p. 538. Wells, State r. 48 Iowa, <;71. p. 734. Welsh V. People, 17 111. l'.-'.'. p. 545. Welsh r. Slate, 3 Tex. (App.) 422. p. 012. Weiitworth r. Portsmouth R. Co., 55 N. 11. '.40. p. 4-i2. West r. State, 1 Wis. 20!!. pp. 733. 734. West, State V. O;' Mo. 401. p. 1070. We>t, K. V. 2 C. & K. 4'.Mi. pp. 95, 90, 98. West's C.ise, 1 1). >.<. H. 575. p. 340. P I i i TAHLK OK CASES. xlv pp. ou... pp. 'H:\ Wl, 1138, pp. iiii'it;, u."5. lOSl. .8U. p. it:'.;'.. p. CJa. p. 119(5. p. 714. Wr.^ton ,•. United Status, .-. Cranch, i;'--'. P- *2l. Wlu-iitly, 1{. '••-' Burr. 1125; 1 W. lU- -'::^- PI'- 100, IW.,, Mh, ....... .!..7. Who l.r, 1!. '•• 1 Cox, 100. p. 877. WIuH er, Stale v. Ill Minn. H8. pp. '25, CS !'''• Wliitaker v. State, 12 Tex. (App.) *M. 1>. 1 1 '»7- White V. Commonwealth, C> Binn. ls;i. p. I'M;'. White r. St.ilc, llTex. 7ii9. pp. 375, 38i», 5.V,., r.jo. Wliite r. State, 20 WU. 2:, 544. Willier.son, State v. 72 N. C. 378. pp.584, (!20. Willets V. Buffalo, etc., R. Co., 14 Barb. 585. p. Williams v. Dawson, p. 820. Williams v. State, 2 Tex. (App.) 171. Williams i'. State, 7 Tex. (App.) H!3. Williams v. State, 15 Tex. (App.) i;22. Williams v. State, 12 Tex. (App.) 240. Williams t'. State, 51 Ga. 535. p. 08. Williams, Teoplo v. 4 Hill, it. pp. 383, 886. Williams, R. r. 32 Eng. C. L. R. 524. p. 881. Williiims, R. v. 1 Leach, 134. p. It7. Williams, R. v. 7 Cox, 355. p. 545. Williams, R. v. 7 C. & P. 354. pp. 257, 2iHS 883. Williamson, R. v. 11 Cox, 328. p. 368. Willis !•. People, 19IIun. 84. p. 375. Willis V. People, 1 Scam. 401. p. \>U>. Willis r. State. 15 Tex. (App.) 118. p. 583. Willson, State v. 28 Minn. 52. pp. 52, 81. Wilner, State v. . 100. WistTiiiaii /'. Vaiiili'|)L'rU, 1' Voni. L'i);t. j). 2(ls. WitcliL'ir.s Case, 2 K ist's V. C. «!iO. p. L'ii2. Wilt r. State, Mo. 7(11. p. .'il'<. WittkoitiU-iV r. Watson, 71 N. C 4.')l. \t.H'M;. Wolf V. Siatf, 11) Oliii) St. lM,s. y. Ml. Wolf )•. Stfttu, 41 Ala. 412. pp. .'i'.i'.i, 542. Wolf r. State, 1 I Tex. (App.) 210. pp. ,-,-*S, «3^tMitial. Statu v. Hcihtrdkc, ■.'.:< N. J. il.l :i.;.-, _• ' l',,r_.i.i\ — Iiitonl to Defraud soma (»ii.' Ksscntial — Collfp.' Diiilomii. A'. V. Ifwhl.s.u, 1). & It. ;! ' Porgcry— Must Ik> of sonic Dooiini.nl orWrilhii: — Arii^t'- Nam.' on I'linl- inii. n. V. CloKs, D. ■!< II. Ai,0 '';J l.„,;:,i\ — roinitfrfoitiuf; I'lintcfl WrappiTs. R. v. Smitli, U. &. 1!. r.iii) . IV lui-erv — lUU of Kxchaniro — Inchoate Instninunt. U. v. Ilm-pfr, \\ Cox, ^ 57-1 ... ■ -■' !-oi-Kcn — Instrnmont Must l)c Valid — What l.o an ".Vecountalilc It.c.ipt." Slate \. W'hrrlir, I'.i Minn. !•« -^ Kor^erv Paper whose Purpose lia.** Ixcn SatiNlifd. I',i>j,!<' v. I'iicli, 1 Wend. \'M . -.» l-oruirv — Ficiiiious Decree of Court. lirown \. Pcnpli, M \U. 'SM . . M l.\j,.j,,.,.\ — Seal of Court— Instrument For;:ed Mu.'^t l)e AppanMitly Valid. Fadnirx. I'i'nplr,-2 N.\'.Cr.lii:\>. ooo •'' Forgery — Must Purport to be Act of Another — Fictitious Name. C'lm- moiiwfdlth y. Jl N. V. )-•+ . •"'<) !..„.M(.ry — False A^sviniption of Authority. Si'itfv. HV/.-i")/, li-^ Minn. .11' . .'>-' I.„,.,r,.iv — Induciuii Person to Siirn Paper 1)V Fraud. //((/ v. .static, 1 Yfrix. " rn . . ' . . . ' -f Inrsiery — Piililic Writings. i?0!/''''t>' V. .S'M<^, s Tex. (A|ip'-l"l • ■ ■ ^^ Kor^'crv — No Prouuiption of Guilt fri)i\i L'tterlirj;. Millrr v. Stnlr, :,\ Ind. 40,-, •'- NOTES. Skctiox 40,-,. F'orKcry— Intent to Defraud Essential . ._ . • ■ •'■* 40('.. Must he of some " Document" '■" 407. iucoiuplete In,strunient ''7 (xlvii) xiviii TAUI,K OF CONTKNTS. Skctiun ids. (IKI. _ •» 1 0. 411. 412. 41:;. 41(. 41j. 4ii;. 417. 4 IS. 4i;). 4l'0. 4l'1. 4 2 J. 4i'3. 424. 42,-). 42(;. 4-'7. 428. 42;t. 4;io. 4;ii. 4;)2. 4;i3. 4;u. 4;!.-). 4;!(;. 438. 4;'.;). 4t0. — Insti'iinicht Must In.- Valid mi Us Fiico — Iii^iiuiiR'iit Void onils l-'uce — Dci-dof Married W wllllciilt .\(kiu>\vli'(li;iiiellt — IiistriiiiH'iit Void on its Face — rromisi' to I'ay sii L:iln)r ........ Sonio out' .Must !)(• Injured .... l-rt;i'r of Introdiii'lioii ..... ■ FaiNn CiTtllloutc of Cliiiraelir .... FiNo " .Mikinu'" Nccus-ary .... Instrument Mnst Purport I > lie act of Anoilu ■ Fal-c AMsnnii)tlon of Authority " Utterinu" Fietiil(iu.s Nanu' Iinlneln^oiie to Sia;n Note f(>r Larsjir Sum IndiK'iiis; one 10 .Assent to Alleriition Drawiuj^ Cieek on Hank — No Money There . ■ Passing Counterfeit Money .... - Falsely attesting Voting P.ipers ("iitting Pieces out of Haiik-.Nolos . - — VVliat is not Forgery — Other lilusiratioiis Partnerslilp Injury Must not be too Remote "Accountable Keceipt " "Acciuaiiitance " "Bank Bills" -"Bill of Exchange" " Deed" " Oriler for die Delivery of Goods . " Order fortlie Payment of Money " " Promissory Note " " Heceipt for Money " ~ " Ueceii)t " "Record" " Shares " " Undertaking" — "Warrant " No Presumption ot Guilt from Utterinii .■ Evidence held InsulUcient .... (18 71 75 78 78 HO 81 Kl Ho 85 !•() \n '.•2 !t2 '.'2 !)3 93 03 03 05 Of) 01 i oi; on 97 08 08 08 08 00 00 00 PART II. Fu.MI) AND FVLSK PuETENSES. Fraud — Private Injury — Injury to be Indictable at Common Law Must be Public. li.v. H7im;/y, 2 Burr. 1125 100 FraudulL-nt Disposition of Mortgaged Property. Hardeman v. State, li) Tex. C-M'p.) 1 104 Fraudulent Disposiiiiou of Mortgaged Property. Robertson v. State, 3 Tex. (App.) 502 100 TAULK or COXTKNTS. xlix Miinlc to 1 (1 W oiiiaii lY Sll Dill. ILTl' raou Law Must . 100 \an V. State, liJ . 104 V. State, 3 Tix. . 109 IL'4 lL".t lUt IJU 162 I'AliK rniiid — Biinkrupt Art — IiiUMit to Dcfnutl rri-flltors liy Miikinu' KaNc Kiitrifs -Intriitto DcfiHinl Ksscutial. A*, v. ImjUam, Ufll, ('.('. 1^1. HI raise I'n-tciist"* — Matters of Oiiiiiioii. i'cxp/c v. ,A'"-"''.s ;i") Mich. ;!•; . 115 I'raiul - -()l)taliiln!{ tJou.N with Iiitfut to Uffraiul — Uaiikriipt Act. riiitid statrs V. /v.■^.•or^ •_' Bi -•>.;'. -'5 ii>* rraii'i - Mi'aiis of liftccliui,' Framl must he Shnwii. CnitM Statv.^ v 0'>'./ijiii, U Bi.ss. rc'.i '-'^ rniuil — ("har.'o thnl Act was .loni! "My l-'raudiiloiit Mi-ans" Insulllfli-iit. United Sfatm v. llitiliiii, 1 Woods, M ..•.■■ ■ Falsi; rivteiisfS — Attempt to Defniuil I'l* Indictable. United States v. Ilenniui! False I'retcuses - Matter of Opinion — Untrue rulllniiof liuality of (iood-. n. V. Iti-'jan, I>. Ji B. l.'i:."' False I'lvteiises - Delu-iive I'roinlse — K Use Pfetensu Turning out True — I'l-onllse as to Future F.v.'Ut. U,Snijder,\' Kas. riH' False Pretenses -Truth of Pretense. Statew Lurch, •! \V. (". Hep^ HO . False Pri'tenses — Keipiisiies of Indictment — No Injury Done — Future Kvent. Keller \. Statr,o\. hh\. W I False Pretenses - Ki'Muisiie- of iMdictinent — Public and Private Frauds -- Deceits — Injury — Indictment — Limitations — Demurrer— Leave to Withdraw. United Stat ■ v. U'ltk'ns. ;i Craiich, C. C, 411 . 1C8 False Pretenses — A«ent and Principal Colluding as to Price o( Lands — Motive. iSV.-n V. /'.r,;)/.', t;2 Uarl). ti;5 • -*1 False Pivteu.ses — Prisoner must know that Pretense Is False, li. v. Bur- rovjs, 11 Cox, 258 -^^ False Pretense.s — Intent to Defraud FN.sential — Prosecutor mu.st Uely on Kepreseutations. Faij \. Commomrealth, '2>i CmTMI. 'M-J. . .248 False Pretenaes — Crime not Committed where no Proi)erty Obtained. .Sf(jte V. /ln*i-.'«.», 47 Iowa, 142 -54 Fal.-e Pretenses — Money must be Obtained — Obtaining Consent to Judg- ment. Commimweanh v. Ifarkins, 128 Mass. 7'.» 25C False Pretenses — F.ilse R presentation Must be made before Delivery of Goods. People v. Iliijnex, 14 Wend. 54(! 258 Falsi; Pretenses — Obtaining Charitable Donation. People \ . Cloiigh, 17 Wend. 351 ""'' False Pretenses— Must be of Kslsting Fact. R. v. Ifemhaio, L. & C. 444. 27'.t False Pretenses — Procuring Note by Fraud — Future Fact. CotnmonioeaUk \. Moore, W Vol. St. 570 -«^ Swindling— Representation Must not be as to Future Events. Allmv. ,S7a Mass. 4»es — Act Must Work I'rt'jmllce to Some One. I'lUjiUx. (i'll- l(nm>j,\t\W\\i\.:,U) liL'L' Kiilse rnteiises— Iiullcliinnt — Kxistlny; and Future Fact. Commonwealth V. Stiri'iisiiH, ll.'7 .M;iss. III;. ,'!lM False Pretenses— Valuable Security — ProjuTty in Cliaiiel. li. v. Dnmjcr, I). & H. lift; aas False Pretenses — False Statement as to luteiitlon — Fnturi' Fact. ]'toi>lf \. l!liincht be Heueilti-d l>y.V<'t. A', wditrntt. Dears. M-' ' -M- ■ NOTES. Skction 441. Fraud to be Indictable at Common L.iw Must Injure Public . 855 442. Fraud — Selliii« Mortsjajred Property 85b 44H. Kemoviiin (Joods With Intent to I)efro'.:ii . . 358 ;U3a. Fraudulent Intent ... .... 358 443ft. Persons with l>i'bts not due not " Creditors " . .358 443c. — — Removing Property with Intent to Prevent a Levy . 358 444. Ueniovin;? Nuisance 369 445. False Pretenses — Breacli of Contract not Indictable . . 869 44t!. — Pnlllnfi Goods — Opinion .359 447. Value of Huslness 3(J3 448. Fal.se Warranty Not 304 449. Pretense Must be False 86S 450. False Pretense turninfj out True 866 451. Prisoner Must Know Pretense is False . . SfUJ 452. Representations Must l)e Rclietl on 3t;(J 453. Intent Mu.st be to Dciirivc Owner of Property . . 371 454. Money or Pmp'rty Must be C)btai:ied .... 873 455. Obtainlui; Satisfaction of Deln 373 45G. Representations Made Siil)se(jiicntly .... 374 467. Obtaining Charitalile Donation 374 458. Property Must be Obtained i)y Means of Pretense . . 374 ■459. Pretense Must l)e Made with De.»i:;n of Obtaining I'loperty 374 4t;o. Owner Must Intend to Part with Property .375 4G1. Pri-oner .Must have Kceeiveii Projierty .... 375 402. Object of Pretense .Must ije as Charged . . . .376 TAiti.K or t i).\ti;nt«. li'inni'j V. /'< dijilliiiij or Di- ciit.itltnis — No '.../-;., K.' N. V. li. V. Lfiim, 'J ■i — ('oulliK'lici' /'( iiyl/c V. (tliij{ liiti'iilioii IimiillU-ii'iif, . 4;;5, Ri'iiiotL'Ht'ss (i( rreU'litt) 4(!0. Dir.'ct rnirnlsi! Miitl 1)0 I'rovi'il .... 4(!7. Infi'rcncij ol I'n truso from I'oinlin't 4i)7„. protoctlon Affonlcil only to lIoiu'.Nty 4,;8. Mi'rely Obtiiliiliiu Ono's Own Not .... 4(ji). Person Deceived Must have Using Hunk-Note (if Hiinkrupt Hank 47'.'.- What not False I'reten.-ses — must ri'tlouf* 473. I'artucrHliiit Affairs 474. — " False Token or Wrlthif^" 475. — "False Wrlllnu" 4711. - " Frauduleut,Swlndlln«or Deceitful Practices" . 477. •• Money" 478. " .Money, tJoods or Other Property " 471t. " Valuable Securlly " 480. -- " Written Instrument " 4H1. SwIndlluR and Theft under Texas Code . 482. Swindllu^ under Texas Code rAoe . 87S , 377 • o< o . 880 . 381 . :!82 . 3s:; . 38,-, . 3Mi . 38(i . 380 . 387 . 387 . 387 . 387 . 388 . 388 . 388 . 388 . 388 . 389 tors " ut a Levy lictable Injure Public . 855 . 858 i . .358 . 358 . 358 . 358 . 3o'.l . 351) . 35'.» . 8ti3 . 3ti4 . 305 . 305 . 300 . 300 . 371 . 373 . 373 . 374 . 374 . 374 )perty Pretense . of Obtaining tv . 374 . 375 . 375 . 375 r.VHT III. Larck.vy. Larceny — Taking of Property Es.-ienMaI. R. v PooU, Dears, .v H. 345 :'!>3 Larceny — Takln'j — Deprivation of Property Must be Pcruianent, u«t Temporary. R. v. llollowan, 2 C. & K. 043 305 Larceny — Caption and Asportation Necessary. Edmonds v. Slatc^ 70 Ala. 8 '^''S Larceny — Insutllclent Taking. B. v. «ardn«r, L. & C. 243 . . . .101 Larceny — Taklni,' Essential. iVc.l/e« v. 6'«a«<', 14 Tex. (App.) CG8 . .103 Larceny — Evidence of Taking Essential. J? v. li'i/^'cc, Dears. 280 . .400 Larceny— Owner Intending to Part, \vltl> Property by Fraud. Kdlugg v. State, 2i;0'.do St. 15 HI Lfirceny — Intent to Steal Must be Found by Jury. R. v. Deeriwj, 11 Cox, 289 -11^ Larceny- Intent to Steal Esseutial — Taking Goods From Ofllcer. CVm- monwcrt<ession. I'uii^s v. jS'taie, 37 Tex. 202 Larceny - Eflfect of Recent Pos-ession. People v. X,aegea, 48 Cal. 123 Larceny — Pos.session of Stolen Properly. Galloway v. State, 41 Tex" 289 Larceny — Possessiou of Stolen Property. Gablick v. People, 40 Mich 2'.I2 . . 494 v. Stale, 4L Middletonw State, 508 517 !"5 620 523 42(; 527 52'J 5;'.0 131 TAlll.K OF CO.NTKNTS. liii PAOE V. Preston, 1 Don. . 4;!i; •ox, ICi' . . .441 ■■iim, U Johns. 2'.tt, 44j . 44(? Ilill V. tSditr, 57 . 450 I." li. V. liobiusan, . 454 , 2G Ohio St. 400 . 456 . 458 3ox, IKi . . . 403 roperty in (ioocN. . 4G(i l/c-Vaicv. ,suue, 14 . 4G9 i'. Doepke, (!S Mo. . 474 II Hun, 57 . . 478 Tox. (.\|)p.) 25 . 480 ?raU, Dears. liiiO . 432 lik'c. Zschocke V. . 48G 1» . . . 488 > . . . . 41.U i. /i. V. Oreen, . 41)4 Propurty. /^ v. . 4;t7 1. 204 . . . 4;i'J ju^lit into State. . 501 Country. Sta)iU>j . 508 'tincz V. Utale, 4L . .-17 ^liddleton Y . State, . !"5 ', 54 (iii. 184 . 520 Wong All You, . 522 I 72N. C. 182 . 523 41 la. 217 . . 42t; Tex. 202 . . 527 ,48 C:ll. 123 . 52'J . tState, 41 Tex. . 5;'.0 'eople, 40 Mich. . 531 I'AQK ,^,,r,,,„y _ Presumption from PoM.sssiou of Recently Stolen Property. State _^ ^ //.((<', 7 West Const Kep. 141 ' ' Larceny -Voluntary Return of Stolen Property. Alhn v. Siah. V. 1.x. (.\pp.) 11»0 Larceny- Vol uuta-y Reuirn of IToperty. Bh-.l v. State, 10 Tex. (..Vppj ^^^^ 528 . 532 . 534 . 53G Section 483. 484. 485. 481). 487. 488. 489. 490. 491. 492. 493. 494. 495 490 497. 498. 499. 600. 601. 602. 503. 504. 505. 600. 607. 608, 609, 610 611 612 613 NOTKS. Larceny - Talving Necessary - Property Must be Removed . Goods Must be Taken - Chaufrlusj; Piles oi Ore or Man- factiired Property Purchasing Property from Tliief Property Must be Converted by Prisoner Must l)e Agaiiwt Will of Owner Property Parted with through Fraud .... Intent to Steal Essential Goods Must be Taken with Intent to Appropriate Ihem to Prisoner's Own Use O" 'aliing [ Intent, to Use and Return Property Taking Horse with Intent to Return It . . Intent to Steal Essential -Other Motives- Alarm Aiding to Escape Taking in a Joke _ To Induce Criminal Connection " Taking Part of Goods Seized on Execution ' Servant Giving away Goods in Chaiity . ; Intent to Deprive Owner of Property Permanently Necessary Intent Must Exist at Time of Taking . . • ■ ■ LostGoods-Fiudernot Guilty of Larceny . Finder Keeping Gooils till Reward Offered . What not Subjects of Larceny - Chosts in Action Bank-Notes Riiilroad Ticket Bills of Exchange / ,, ' Bills of Exchange -Order for Payment of Money - Property not in Prosecutor " Goods and Chattels " «i Lawful Money of the United States " . • ■ "Money" „ ,', " .. Monev, Goods, Wares or Merchamlise . • .. Order for the Payment of Money "-" CertiUcate fn the Payment of Money "- " Public Security " . . 514. " Personal Goods " 515, «' Promissory Notes " 51o'. 'I Direction In Writing" 517" Things attached to or Savoring of Realty 541 544 544 543 545 547 548 549 550 550 550 553 553 553 554 554 554 555 550 559 , 5i'.5 . 505 . 5ii5 . 505 . 505 . 506 . 5(i8 . 5t;8 . 508 . 568 r . 508 . 508 . 508 . 508 . 660 liv TABI.K OF CONTEXTS. Section 518. 5i:t. 620. 521. 522. 52:5. 624. 525. 620. 527. 52S. 52',». 5:!0. 6;!i. 6;i2. 53;!. 5;U. 535. 6;? 7. 638. 631>. 640. 541. 542. 543. 644. 645. 54fi. 547. 548. 649. 550. 651. 652. 553. 554. 555. 65G. 657. ■ 558. - 55!i. - 600. - 5t;i. - 6()2. - 6<1,^. - 5t;4. - ■ Nuggets of Gohl •< Sea AVetHl " . "Personal Property," Thiims Savorin-jof Keally — Sevoraiicoaml Asportation must be Different Acts Animals not Subjects of Lairenv — I\ neis " Cow, Sheep or Other Animal " «« Doves" "Dogs " "Personal (Joods " " Horse"— " Filly " .... • Oysters Other Fish Sheep Prosecutor Must Have Property in Goods Thing Must have some Value Opening Letter Adilressod to Anotlier Writing Containing Evidence of any Existing Debt — Value of Newspaper List of SubscrilxTs . Lucri Causa Essential No Larceny of One's Own Property Tenant in Common or Joint Owner Person Having Lawful Possessiou of Property Bailee Bailee Falling to Account Meaning of Bailment .... Common Carrier Carrier of Goods for Hire Servant Stealing "In a Building" Stealing from " Dvvelling-House " . " In a Dwelliug-House " ... — " Dwelllug-IIouse " .... " Ground Adjoining a Dwelliug-House " — - Larceny from a House .... " Shop" " Warehouse " — "(Jrauary" Stealing from the Person — Property Must be Copipletely Removed Stealing " Privately from the Persou " - - Receiving Stolen Goods . Possession of lleceutly Stolen Pi Erroneous Charge . " Voluntary Return of Stolen Pi - Evidence Helil lusutllclent Casas r. State . - Cook r. State . Crockett v. State - Deering V. State - Dresch r. State 'roperty 'roperty ' TAIU.E OF COXTENTS. Iv d Asportation istiu erty g Debt — )e Cop) pi PAGE . 50.9 . 570 .570 570 571 571 571 672 572 572 572 572 572 572 572 572 ctely . 573 . 574 . 574 . 574 . 575 , 675 , 577 , 577 578 , 578 678 67!) 680 680 580 580 580 580 580 680 681 681 681 582 683 683 683 58fi 689 5!>0 694 l'.\(.K 505. Greon r. Slate . 5it7 6t;(i. IlaiiinuU V. State . . tiOO 5C7. — IIiini:'in:in v. State . . 602 SOS. Harri.soii v. State . cot 5»!'.). Jolinson r. State . COfi 570. Johnson v. Slate . COS 571. Knntsou v. State . 612 572. MailNou r. S:ate . ci<; 673. . Martini'/, r. state . 621 574. Pettiirrew r. State . 625 575. Saltillo r. State . (!25 67i>. Seymore v. State . f.27 677. Shelton v. State . (;28 578. Taylor f. State . (;32 570. Wolf V. State. . C33 530. Woraack v. Stale . 633 V\K r IV Rkceiviko Stoi-kn I'hoperty. Heceivlng Stolen Property — Elemeut.s of the Crime. Wihon v. State, 12 T. s. (.Vpp.) 48 Ket.eiving Stolen Prop<'rty — Prisoner must Have Pos.se8siou of the Prop- erry. R. v. 117/';/, 1 I). & P. 43 K.celviiig Stolen Property — Stoppage in Transitu from Thief to Owner. 7?. V. Schmidt, 10 Cox, 172 lUccivins Stolen Property — Restoration to Owner Between Stealing and Reeeiving. .R. v. Z)'../au, Co.\, 449 Receiving Stolen Property — Property Received must be Stolen. United States V. Dfliare, ''. Hiss. 358 Uiceiving Stolen Goo.l::— Concealment — Intent — Proof Nece.ssary. Al- drich V. People, 101 111. 10 IJicelving Embezzled Property. Leal v. State, 12 Tex. App. 270 . Receiving Stolen Property — Banij-Notes not Goods and Chattels. State v. Calvin, 22 N. J. (L.) 207 NOTES. Sr.iTiox 581. Receiving Stolen Property— Goods Must be Stolen 682. Receiving Embezzled Property 583. Goods must be Actually In Prisoner's Possession 6,s4. Stoppage in Tmnnitii Before Ri 585. ■ Knowledse Essential 68(5. Stealer not Receiver , 587. Principal and Accessory . 688. " Goods " Banli-Notes 588(1. Property Stolen from Mails ■celpt (•,39 (143 (!53 (!58 f.(;2 or,5 (■,71 (174 . fi77 . (',77 . t;77 . (177 . (,77 . (178 . 078 . (;78 . 678 hi TAULK OF CONTENTS. PART V. RoltlJKKY. I'AGK Rol)bcry — Force and Violence K.ssuntial. yicCloskcy v. rcuplr, 5 Park. 200 084 Kobbery — U.se of Force Necessary — Or Terror. State v. John, 3 Jones (r-),l2 Robbery — With Intent to Maim or Kill wltli Dauirerous Weapon. Com- monwealth V. (iallagher, (> Me'c. 5(15 005 Robbery — Property must l)e Property of Other than KodIxt— Imllctraent. Commonxeealth v. Clifford, 8 Cnsli. u'lo (JOS Robbery — Constituents of, Under Texas Cuile. Kimbii v. Stale, 12 Tex (APP.) 420 701 Rol)bery — Demanding Property with Menaces. Ji. v. n'aUon, L. & C. 280. TO;i Robbery — Larceny fro.n tlie Person. Fanniny v . State, OH Gn. Hi7 .708 NOTES. Skction .5S0. Robliery — Force Mu.st be Used ... iiOO. Or Putting in Fear 501. Force Must be Used to Overcome Ue^istauce 502. Fear Must l)e of Pi'r.sonal Violence — Threats 5o:i. — Threats of Legal Imprisomneiit 504 . Demand Necessary 505. Putting in Fear — Bodily Injury 50('i. Intent to Steal at Time Necessary 507. Subsequent Use of Violence .... 508. Taking Must be lu| Pro.secutor's Presence 500. Property Must be in Possession of P.uty Robbed 590a. Receiver Not Guilty of Robbery . . (iOO. Articles Taken Must l)e Property of Prosecutor •iOl. Lticn Cansd Essential C02. Getting C)ne's Own liy Violence (',03. " Menaces '• (■,04. "Public Highway" .....' (105. Time of War TABLE or CONTENTS. Ivii CHAPTER VIII. Crimes Against the Pkhsoss ck Individi-als. I'AGK , 5P!irk.2!iO 084 ohn, 5 Joues . C87 cqufiit Vio- . C92 ai>oii . C'om- . «;>5 Imllctiiieut. . <;98 Ude, 12 Tex. . 701 L. & C. 28!). TO:i 107 . . 708 710 710 710 712 713 714 714 717 717 717 bbed . 717 718 718 7i;) 722 722 722 722 let Its PAur I. Abduction and Seduction. AlMluctlon for " Purpose of Prostitution." State v. Stoydl, 5+ Mc 24 . Abduction for Prostltutiot- Illicit latcrcourse. Osboni v. State, o. In.l. ALdueUonforlTostitution-Cliaste Clwra.-fr. L'jon^ v. .State, 52 In.l. . \t„liictlon- Proof -Seduction. People v. Rodn-igas, v;i Cal. . Lluction-GooaReruteof Female Must be Proved. Oliver y. Common- icenlth, 110 Pa. at. 215 • • ; ; AlKluctiou-»Previo„s Cha,»te Character "-" Purpose of Prostitution. C„rp>.nter V. P"oplP., S li:irh. im . • ' -, • \.,. So.iuction- Meaning of "Previously Chaste Character." Andre v. State, 5 Iowa, 381) « , Seduction -Under Promise of Marria.'e - Proof Necessary. People ^. Eckcrt, 2 "S.Y.Crim. Rep. 470 . . ' " „ : , „_ ,' Seduction - Corroborative Evidence of Woman's Story - Insuincent Proot . like v. Commonwealth lOO Pa. St. 28 . . ' ' „. Seduction -Under Promise of Marriage - Insumcient Proof. Jtiee v. Com»ioHioea«ft, 102Pa. St. 408 ; / ' Seduction -Where Woman Does Not Consent not Seduction. Croghan v. State, 22 Wis. 444 NOTES. Abduction not a Crime at Common Law . . Man not Bound to ItLlurn Girl Girl Must be In Charge of Parents . Takinj? out of Possession of Father „ Intent to Marry . ■ • ■ ,;iO. " Taking or Causing to be taken " — Fraudulent ing .••••••'■' Taking for " Purpose of Prostitution or C^oncubln " Purpose of Prostitution " . . ■ • " Previous Chaste Cliaracter " (iu! Seduction- "Previous ClKLSte Character" . ,;i5. "Purpose of Prostitution . . . • ,11 ti. Woman Mu.st be Cliasle at Time on'. pi-oniise of Marriage Necessary (il8. Married Man TAOE ;2(; 7 2! I 72'J 732 735 743 748 75'.» 704 7G7 Section <'.Ort 007 (;o8 ('.O'J (!0'.>rt. (!11. HV2. G13. Decoy :ige 7(;9 7<1!) 7t;'.> 770 771 771 771 772 775 775 , 77"'' . 770 . 771) . 777 Iviii TAIU.K, OF CONTKNTS. Section (ilit. No SlhIucHoii when Force is Used . . . ■ ,;. Kvidonce held In.sufUclent to Couvlct PAUT II. ASSAri.T AND Uatteuy, Asaault — Elements of the Crime. People v. Lilhy, 43 Mich. 521 . Assault - Klenieuts of Crime - Shootin« at Window of Person's House - Law of Nations— House of Forelaia Minister. United Stnh!< v. H'hkI, As.sault — A.ssaultMust l)e on Person of Prosecutor. Kirland \ . State, Ai Ind. 140 Assault -Action Explained by Words — Keslstlng Trespass. Commun- xncnlthw E'ire, 1 S. & II. 347 Assault -Taking' hold of Person Without Intent to Injure. PeopU v. //((/r, 1 N. Y. Cr. Rep. 533 Assault - Negligent Driving in Violation of City Ordinance. Commun. we<(?«/tv. .4d«J(is, 114 Mass. 3L'3 Assault -Arrest by OlHeer Without Warrant-When Notice not Necessary. Shorlin v. Commonwealth, lOfi Pa. St. 3(i!) ...••■ As.sault -Common Carrier— Ejecting Passenger. People v. C - ' ^ I'ark. 32ii • ■ Assault — Superintendent of Poor House. State v. Neff, 58 mt.. oU. . A.ssauU — Dangerous Weapon — Arrest. Doering v. State, 4'.> Ind. r,0 Assault — Lawful Use of Violence — Schoolmaster. Dowlen v. State, 14 Tc.K. (App.) fil Mayhem - Intent Must be found by Jury. State v. Bloedoic, 45 Wis. 270 . Assault With Intent to Murder. Hairston v. State, 54 Miss. f.8tt . Assault Willi lutcnt to Murder — Intent Essential. People v. Keefer, 18 Cal. 037 • Assault witli Intent to Murder— Setting Spring Guns. Simpson v. State, 50 Ala. 1 Aggravated Assault — Meaning of "Child." McGregor \. State, 4 Tex. (App.) 500 Aggravated Assault -Made Ijy Decrepit Person -Or in IMvate House. Hall V. State, l(i Tex. (App ) U . Aggravated Assault — Intent and Act Necessary. Fondren v. StaU, lOTex. (App.) 48 / • Mayhem — Premeditation Necessary. Godfre>i v. People, O'J N. Y. 20* . Assault with Intent— Bodily Injury Dangerous to Life. ii. v. Oran, D. & B.303 False Imprisonment- Person Going Voluntarily — Fraud. State v. Lu7is- /ord. 81 N. C.528 False Imprisonment- Delay in Taking Bail. BevUlc\. State, 16 Tex. (App.) 70 783 788 702 800 804 808 800 813 81(1 818 822 82i; 828 831 833 844 84 f. 852 , 850 858 801 8('>3 TABLK OK CONTENTS. lix PAOK lu) Hot a " Guar- NOTKS. ;h, 521 . . . 783 [Vrsoii's House — 'd Stntin V. H'ni>l, :S8 irland v. iStntc, 43 . 702 sspass. Commuii- ■ 800 [njurc. People v. . f'04 nance. Commim- ■ S08 ice not Necessary. • 809 ;e V. C-— ' " I'ark. . 813 58 im'.. oHi . . 81fi .', 4'.> Iiul. fiO . 818 inolen v. State, 14 . 822 ioxo, 45 Wis. 270 . 82(1 Is.s. G80 . . .828 'eople V. Keefer, 18 . 831 Himpaon v, 6'«ate, . 833 r V. .S'(a(c, 4 Tex. . 844 in Private House. . 84G en V. State, lOTcx. . 852 C2 N. Y. 207 . . 850 . ]t. V. Gray, D. & . 85S \A. State V. Lun»- ■ 801 V. State, 10 Tex. . 803 O'.'t. - 025. - 02t'>. — 027. - 028. - 029. - 030. - 031. - 032. - 0;'.3. - 034. • 035. 030. ■ 630(X. C30ft. 637. 038. 638a. 030. 040. 041. 012. 042(1. 043. 044. 645. 646. 647. 647a. 648. 641). 650. 651. 652. 653. 654. 655. 650. 657. 658 659 Alii''. 805 806 806 806 867 807 . 86ft . 808 . H08 . 809 . 809 . 809 . 869 . 870 . 870 . 871 . 871 . 871 isaull— Must be I're.xeiil Intention to t^trlke - In-ent to Iniure Essential -Coupleil w.ili .V _ -nueateninfj Gesture not - I'oinlins,' Cane - latent to Injure the Gist- I'ointlnsjPi.^tol Words not an Assault . • ■ • — Not, When Words explain Act . — Assault Must be on I'.rsou Opening Hallway Switeli . . • • Slopping C.irriage . ■ • • • Force Must be External . • • • — And Must do Injury . • • • • Accident or I'lay . • • • Use of Lawful Force . • • • I'reveutiug IJreaeh of Peace . . . siiooting at House Window Negligent Driving Kecaption ...•••' Force to Recover Property Mayhem .••••■ Mayhem— Other Essentials . Maiming by Lying in Wait . Assault with Intent to Kill Assault with Intent to Murder. . Assault with Intent, to Kill Not __- Must be Intent to Kill Party Assaulted . Spring Guns . • • ",,'.„ — Assault with latent to Conunit Mans aughter ■ ■ — Assault with Intent to Rob-Subse.,uout Commoa Assault • • ■ ..,.',,Ha"-"l)e(i"ei.it Person". Agt'ravated Assault — tuiui Intent and Act Essential . " Beating ".•■••■■ ' Bodily Injury Dangerous to Life . • • • • [ II Grievous Bodily Harm" .••••' "Wounding" • ■ • '^ ' ' ' ' - _ " Deadly and Dangerous Weapon . • • • « Offensive Weapon " . • • ' " ' .(Sharp Dangerous Weapon" — Assault with Violence - Snatching from Hand Deterring Person from Giving Evidence Bailing Person to Force Confession • • • ___ False imprisonment - Restraint Must be Against N% ill. Delay In Taking Bail s71 KTl K71 87V 873 •sTl H75 H70 »7(i 870 877 , ^77 . 878 . S77 . 877 . 877 . s77 . 87H . 578 . 878 . 878 . S78 87'.« 879 Ix TAULK OK CONTENTS. I'AKT III. Rai-k. PAGE . 880 . 883 885 Rape — Force iiiul Violence Ksseiitial. McXnir v. State, ii" Ahx. A6!i. Kaiie — Acts iiiul Devices nut Kii()Ut!h. People v, lioijal, 53 Ciil. (13. Uaiie—Wliut is "Abuse" of Cliild. Dmckins \ . Slate, h% Xhx. &1G. Assault Willi Intent — Intent to Acconipllsli Kape Essential. Common- xcealth v. Merrill, U Ciray, 415 887 Assault not Intent — Intent to Hape Necessary. Thomns v. State, 10 Tex. (.Vpp.) 5;;5 800 .Vssault witii Intent — No Presumption of Intent. Statu v. Masses, 8*i N. C. ilS'.i. 8it5 NOTKS. Skcticin mo. Rape — Force and Violence Ksseutial cdl. Penetration must l)e Proved .... ";(!2. Proof of Kmissioii (!(;3. Not Rape if Woman Consent .... (iil+. Intent must be to Effect Purpose at all Hazards Olio. Evidence Held Insulllcient .... ili'pi). — People p. Andcga (',t;7. Christian v. Commonwealth .... 0',S. — People V. Hamilton M'.K — Boxloy r. Commonwealth .... i:70. " Abuse of Child" 071. — — Assaultwith Intent toCommit Rape — 1 Rape must be Proved 072. Eviilcncu Held InsulHcient — .Saddler i'. V. State . 073. House V. State .... 074. State v. Neely 075. ' — Penetration Proved .... 1170. Intoxication of Pri.->oaer . 807 8!) 7 808 80'.> 800 800 800 000 001 002 004 itent to .State — Commit Sauford 004 005 007 008 010 010 PART IV. IIOMICIDK. Homicide — New Born Infant — Independent Life. State v. Wintkrop, AS Iowa, 510 Oil Murder — Infanticide — Ctiild Must be Born — Deliberation. Wallace v. 5ffj<. , 7 Tex. (;App.) ."0 014 Mnrder _ De.-ith Mu-.t he Result of Act — Time. Proph^ v. .Iro, C:il. 208. 017 Munler — Time of Committal— When Fatal Blow Is Struck — People v. Gill, 6 Cal. 0;!7 020 TAbLli or CONTliNTS. I'AGK 1, 45:?. . K«0 (13. . . 882 37(J. . 885 , Commnn- . 887 ite, IC Tex. . 8'.iO et), 80 N. C. . 8it5 t ti> Com 111 it . yo4 e — Sanf orcl Winthrnp, 43 . nil Wallace v. . !tl4 1, f, 0:11.208. 'J17 enptp V. Gilt, . ',)'J0 Ixi „„„,.„,o-E.e« ... r.rr„,».» T,... t ,.. VV, C.„s„„ I,o..„ ^^^_^ Parsons v. StaU; :.'l Ala. :.'iO . • • _s7,,(. \ . .s<-'tr<.s Ilomici.le - Iud.,H.n.U.ut Act of Thinl IVrson Intcn . mu.„. ,^.,^ ll„u,lci.lo--C'.r,.,.. »H,« Musi l» I"""' ,53 ,S. .l^-' ■..•.,,,,. ^,<.„ti;u. .I'ln V. >'««<■, H lIomicule-roNomu5;-I"ti3UttotakL. UK Ls..c.itM ^^^^ Humph. 15i) • • '. ". ,„" A„. V .S(,(((, (i l'l.i. "j.'l; "'^ nomlcUle by I'oisoniiv^ - I'ro.f - Symptom.. J.- ^ • -V < , ^,^ Am. Bee. 570 . ■ • • • ' M.,iisi'ui<'htc'r and ""t Uomicide-Iiuentto commit Mlsaome.^K..d> -Ml u^^ ^.^^ MunWr. ^''f -f^^;^ '^^V.'^, T Rich. (S. C. ) 185 ..87 Murder - Presumption of >l ilic^ • '^'"« j^jj^. __ wautount-.s. Ilomicide- Felonious Homicide -No Intent to take ^ ,^^ Z)an-i/ v.renp/e, 10 N.\.l-^0;-^_.i,j^ ,„,,„t ,„ Kill Decrees of Murder -Murder In lirst "*>='^^'- ' ,oi2 Murder -Manslaughter -Mutual com mi ^j^|,_, Murder. P.o,/« V. '^-« -' ;* ^^^ ^'^^J _ ^^^,^, ,, second Degree. Degrees of Murder - Murder in First ue^rtt ^^^^^^ M.*H,; fh?F;;" negr» - Burden o< Proot ../cft.,.,W v. C»....o.-.«'..^^^^^^ Murd ".?«»' F.-t D;.8r.c:.-Pr.n..;.t..Uo«-.U.U..or.Ho«. «• -.^^^^, 7?„/i(iiso(i, 73 Mo. 301) . • ", , ' vf«/^v riirtts. 70 .Mo. DegreoofMurder-Murderiu the second Decree, ,s^.e.^ . C.liiu>:lit.r — Inu-iit to Kill. Puplun v. Frvel, 4h Cal. \M'> m-*-' MunUr in Sucoml Di'jjri'o — liiU'Ut to Kill Mu>t l)c Sliowu. Dal;/ v. Plall^'!^er in First l).':j;ro.' — .ittumpt to Commit Abortion. Statnv. 7i„i//i.;vt7i, 1 West IJrp. 7t:0 1113 Manslaunhter — Use of Deadly Weapon. Peoph' v. Cruw>j, .5t! Cal GO 1110 Mauslaiii^Uter— Railroad Company — .Vegligence. Cummunwialth v. Fitch- Inirrj n. Co., l-M yiil>is.:iTi 1117 Manslaughter — Railroad Company — Killing Passenger. Commonirinlth v. Fitci.hunj P. Co., \-2<; ^Ul^s.^:•J ii-'i Manslan^liter— Negligenee of Servants of Railroad — Negliffcnce of Rail- road. Comuwntcealth v. Boston (ind Maine /.'. Co., l;!:! .Ma.ss. HS;} 112'J Manslaughter — Conductor of Railroail Train. Commonwealth v, Hartwell, li!8 Mass. 4I.'< 1133 NOTES. Skction (;77. Murder — Violence Essential 1178. False Swearing . . . . tJ7'.>. New Born Infant — Infanticide y;sO. Death Must Take Pl.iee Within Year and Day f.Sl. Homicide — Death Must be in Conseiiueiice of Prison- er's Act 1 OSl'. Death Occasioned Partly by Predlspo-sing Cause . 1 (18-j,,. Diath from One of Two Uncertain Causes 1 (',»•.]. Death from Subseqiiint Medical Operation . . 1 084. Imi'roper Medical Tnatnient — Texas Statute 1 Og-,. C(n7"(s Z>e/i''/t Must be I'roved . . . . 1 08(1. Corpus Z>./?c-(i not Proved —Nor that Death was Result of Cri-„ 1 t)S7. — Intent to Kill Essential 1 688. — — Murder by Poisoning— Knowledge must be Proved 1 (!8!». Symptoms 1 imo. Intent to Commit Felony — Misdemeanor . 1 C91. Malice, wlien iiot Pn'siimed 1 C02. Intent to take Life — Murder 1 «03. Degrees of Murder 1 (!;i4. Intent Requisite 1 ■rAlll.l'. ol" CONTKNTX. Ixiii PAliK. orni-i. Stiili I1177 8 Ciil. 4:;il MSI' •alij V. riiijili , 1083 Trc'uiuu 111. 11185 McCitnii V. 1 OSl) 'rice V. Statf, low l(i,so»v. SlaU:, lino :. L'ti7 . 1107 on. StatP V. . 1113 1; Ciii r.(; 1110 aUh V. /•7<(,7i- 1117 ommonwcallh [cnce of Kail- lass. 883 112'J I V. Hartwell, 1133 Si.TKiN r,;t5. - lielllK'niiiDii ;iuil I'lviiHHlitiiiUiu INscntial ,;,,r,. Killing not I'riiaa Foci,; Miinl.r in Fii>i l)fj;rcc di,;'. _. _ Miirilcr ill Sccoml Vv^rc — I'rt'inccllliitlou ^gg] Impll.'tl Malifo— KiTDiifoiH liixinic'tiou ,]y9 Krroneoiis niur-^(-—Whit;ik. r r. State . 710" Iinplic.l Malice -F.lTulioo.HCl.aru<'-K''.vm>l.l.si-.St;Ur llOO 70,' Kvl.lonco IiiHUtllcleiit to r-nvl.-t of M.inlrr in Kiisl PAdE ll.'.r. 1160 IISO 115(i 1 1 ,-.7 Decree — Cox w. State . ... 7(Tj. Ili'iu'vid.'* V. Stall' 71IH Robinson i'. State 704'. Munler in Sccon.l De.T.,. - Kvl.lcnce lii.snitlelent 705. "05rt, 7011 707 708 70"J lliKI 11 (iO 1174 ll'^iO 1180 1181 1180 1189 118!) ir,)L' 1 1 ll'j Evidence Insullicient to Coiivirt _ Noleii V. State -. - li.'.ntto Kill K.sscntial In Man.slau«lit.'r rrovocatloa Redncen Ciime to Man-launhter Provocation— Heat of I'assioii Husband and Wife ... 710 Parent anil Cliild 7,1, Killiii!,' Without Design to Kff.-et Death - ITovocation lllH' 710 " Adequate Canse " 1^''''' -jg" "Ade 714. Resisting Arrest — Provocation "■';_ 715" Inciting to Commit Suicide "'■'' 71,;] Sparring Match — Deatli Uesulliug From . • n!"7 717'. toilroads— Killing of Passenger .... H'-*'' , , 1138 1138 , , 1131) Ray 113!» ce of Prison- 113",» Cause . 1131) IHO 1 lUO ute 1141 1141 th was K( >ult 1142 1155 e Proved 1155 1155 1155 1166 llSfi 1166 1166 DEFENCES TO CRIME. ciiA p ti:k VTl. CHIMES AGAINST Tin: I'KOl'KKTY OK INDIVIDUALS- (CoNTiWKD). I'AKT 1. KOKdKin'. FORGERY — INTKNT TO DEFRAl'D ESSENTIAL. Statk V. Kkdstuake. [39 N. J. (L.) !JC5.] Jn the Supreme Court of New Jersey, 1877. H Forsed hlB Father's Indoraement lo a proinlKHory note and noRotlated It to R. Be- " tnre tho iiotu camo duo \.\m (atlur Icariic.I of llu; forifcry. U., wlicii tlio note came due, kiii.wiiiK of till! forgrry, an.l kiiowiuK Unit II. Vs fallier knew of \.\w. forBcry, left the note at tho bank wliero It was payable with Inxtrurlions to make demand, and |irolof.t it if not paid. //eW, that It. was not guilty of uttoiiug forged jiapur with lutcut to defraud. On rule to show cause. The defendant was indicted for for of U,c. ,„„r. co,.„ro.,e.s,vc cr„n« ot "'r';°:;u..!.Tl"ln.u''.'*l» wl,oo »ucoo».„l.- When cl.hc, .,0- makmg or »ll..ni,s a ...alU-i of r , o <1, or ,,„t(,„c„t ''r;''^::,r::s;::i: ;:i.» aa::.ror;:;ff,„ontof .1. sa,n, ; Tt i of a pr .r .lato, iu onlor l„ lU'trau.! h« o«» footfeo ; or T ; ,?;iir' U. o >l,a>v a will ami insert, kgadc, .l.onin of Ips where one is diiectcd lo uiaw ^.ritp, over tlie name a scope of the crime of forgery to writing of an inferior degree the certificate in question. Elizabeth was -U.is decision evidently assumea f f ^^^ / ;\"\;;;,i, . ^o any new orLiior^eii, „,,, heir indorsement and assignment. It makes !„ pr'Muissory notes and their inaorstiucut 1 lRleh.Cr.L.,8CC.4a;M./..BCC.49S. s 1 Hawk. r. C- 3;». 4 2 sir. 747. s rh. 14. • ch. •». 4 FOKOKKV. llic ffilsc iiiakiug of siieh. with intent to defraud any person whatsoever, or the iittcriiij,' or publishing us true any such false paper, with intent to defraud, a felony. liy the statute 7 George II.,' this was extended so ^3 to include rc- oeii)ts, iicoeptances and orders for tlie payuiv.:', c' money or delivery of goods. Tiie substance of these three statutes is re-cnaetcd in this State, and now embodied in section 17o of the revised act for the punishment of crimes. We observed that forgery and uttering were each either an accom- plished or an attempted cheat. A material element, essential to consti- tute either crime, is a desijju to affect the riglits of another. As it would be essential, under an indictment for obtaining the prop- erty of another by the use of a false or forged paper as true, to show that a fraud was actually accomplished, so under an indictment for forging or uttering, either the same should be shown, or else an intent to do the same.''^ Wiiether the statute of Elizabeth, 3 was or was not intended to ex- tend tiie class of writings which might be tiie subject of forgery, beyond the class indictable at eommon law, it is clear that it did not change, or intend to change, the character of the elements essential to constitute the common-law crime of forgery or uttering. Tiie act provides tliat the forgery, as well as the pronoinicing or pub- lishing, must be done to the intent tli.at the estate of a freeholder, etc., ♦ • • or the right, title in the same siiall be molested or troubled, etc. Says ICast : ' " The deceitful and fraudulent intent appears to be the essence of this offense, and this is indeed particularly expressed in the statute .^) Kli/abeth,'^ and in most, if not all, the other acts." " 'J'he nature of forgery,' says Hawkins, '• " does notseeni so much to consist in the counterfeiting a man's iiand and seal, which may often be done innocently, but in tlie endeavoring to give an appear.ance of truth to a mere deceit and falsity, and either to impose that upon the world as tlic solenm act of another, which he is in no way privy to, or at least to make a man's act appear to have been done at a time when it was not done, and by force of such falsity to give it an operation which in truth and justice it ought not to have." The language of our act. like the English acts, makes the " intent to prejudice, injure, damage or defraud any person or persons, body pol- 1 ch. 22. 8 Hex V. PoweU, 2 Wi». Ul. 787 Holdon.'iTaunt. 3:». » Ob. 14. Hex r. 4 5 P. C.854, !> ch. U. « 1 r. f. :J35. fhatsoever, ,h intent to include re- delivery of State, and lisbmcnt of an accom- i\ to cousti- g the prop- ue, to show iotnient for je an intent idcd to ex- er3', beyond change, or 3 constitute ■ing or pub- free liolder, molested or Ts to be the ^ssed in the so much to laj' often be nee of truth )n the world , or at least n it was not tich in truth ! " intent to i, body pol- STATK V. UEDSTllAKK. '* itic or corporate." the material element of the crime of forgery, as well •IS of uttering the false paper as true.' . » , ♦„ The vorv act of forgery its-lf will be sufflcient to imply an intent to defraud, Jr, at all events; it will be sutll-ient if, from the circumstances f the ase, the jury cau fairly infer that it was the inteut.ou of t u, ,,.rtv to utter the forged instru.ueut. If, however, it appears th t o P.u,d whatever could have been effo-ted by the forgery, then no f and could be intended, an.l the defendant will be entitled to an acquittal.- Where a man erased the word '> Libris," and inserted the word u Alareis." in a bond made to himself, it was held not forgcn-y, because tu; erasure could not be prejudicial to any one but himself, and there was no am)earance of a design to cheat. •J . . , ., . Tested by this rule, was there that in this case from which the jury could infer a design to defraud? That the presentation of a note at bank, with a direction to present for pavment and protest, followed by such presentatinn and protest .viu-n the partv causing the presentation has a clear knowledge nf the falsity of the indorsement, may be an uttering within the statute, I have "in most instances it would be so. If the maker of the note had no knowkHhu. of the falsity of the payee's signature, the presentation for navment^bV order of a person whose only right to payment was derived rom the title which such false indorsement was supposed to confer, .ould be an uttering with intent to defrauion of the Court of Criminal Appeal by Mr. Baron Buamwkl,., at tt... v;t'iffiirdshire Sprinn Assizes, 1S.)6. ' ,0 :r? ot^ was Tndicted at common law for forging and uttering a liiploma of^he College of Surgeons. The indictment was in the "'I'he'coZ; of Surgeons has no power of conferring any degree or on lificauon, but before a.lmitting persons t.. its ntembership it exam- ■ .ras to their surgical knowledge, and if satisfied therewith, .:, X.ni an.l issues a document called a diploma, winch states Uie n bcrship The prisoner had forged o..e of these d.olomas. He ., "ured c ne aclually issued by the College of Surgeons, erased the ,^ the person mentioned in it, and substituted his own ; changed , PUe and made other alterations to make it appear t.> be a docu- „ t;. d bv the College to him. He hung it up in his sitt.ng room, on b in. sked by two medical practitioners whether he was quah- 1 ai.lhe was, and produced this document to prove ns assertion^ W, 1 a candidate f..r an appointment as vaccinating oilcer he stated he 1. ul his oualification, and would show it if the person mniur.ng (the ,e k . 1 S-raians. who were to appoint to the office would go to ; •/(the priso^ner-s) gig. He did not, however, then produce, or show ''"The prisoner was found guilty ; the facts to be taken to be : that he forJ7t le document in question with the general intent to 1 ml nee a liref that the doctunent was genuine, and that he was a men be o i^e^ (.,.,ege of surgeons, and that he showed it to two P-'";; ^^^ ^^« .nrtir.dar intent to in.luce sudi belief in those persons ; but that he had t t in forcing, or in the uttering, and publishing (assum.ng Ihen^ :;: onO to co.=.„a ..v particular fraud or specific wrong to any indi- viilual. 8 FOUGKKV, T reserved, for tlie oi)inion of (he Court of Criminal Appeal, the ques- tion whellior, on these facts, he ought to have been found guilty on any of the counts. G. BUAMWELL. Ai'un. •->;», isr)r,. This case was argued on May 3, 18.j(), before .Teuvis, C. J., Wight- man, J., CuKsswKi.L, J., EiM.F., J., and Hiiamwkm.. B. SrntliUHl {E. V. liichanh with him), appeared for the Crown, and Br;/ne, for the prisonci' Brjpie, for tlic prisoner. No offense at common law was committed. The definition of forgery in 2 Hu>sell on Crimes and Misdemeanors,' is said to l)e " the fraudulent making or alteration of a writing to the prejudice of another man's rigiit ; " and at page ."02 it is said that the "frauent. It was absolutely n.^cessary in li.jina v. roshack,iv.i the pris„.»er should produce the preliminary certihcate m order to effect '" jKut'f C J. One test is this, and it is in your favor. Suppose this iKul beeu'an indictment before Lord Campbell's act' had passe.l an .n- tent to defraud some partic.dar person nu.st have been ^tat^"^ "^ ;^^ could have been named? My brother Wkm.tman suggests that the m- tent was to defraud the guardians of the poor ; but when the document was forged, it was not forged with that uitent. Br, J No one could have been named as the person whom M was intended to defraud. There was no intent, at the time when tlie cert.ti- ,,tewvs altered, to use it for the purpose of defnuuhng a..y person. I„ li.jin,t V. Shahnnn;^ the prisoner uttered the i,.strument wUh a distinci and speciac object in view, namely, to obtain tl. -;^-e.'^^ the situation of a schoolmaster f ^r wluch he had apphed. In th»8 case no uttering with an intent to defraud is shown. Scotlanl for the Crown. The certihcate in this case is adocuraent of . it lie - turo, the forgery of which is in itself criminal, whether any third person be injured by it or not,^> and, therefore, the conviction would l,e supported by evidence of an intention to issue it mala «'"»^«- Cu' ' ,.v.i.L, J. What do you mean by a document of a public . atuie ? Scotland. A document which affects all the public. This diploma .s ssue.l by a chartered body, the College of Surgeons, and confers a ..ualihcation. The qualilication may not be such as to secure in all re- spects exclusive privileges, but it is an important quabhcat.on recog- nized by law, an.l the diploma is the only evidence of the iil)lic ari' siilliclenl to make this a forgery, if done mu/o animo. In feast's rieas of f lie Crown, forgcrj' is detincd to be the making or alter- ing of a writt'.a instrument " for the j)urpo8eof fraud or deceit." In 2 Kussell on Crimes,' it is said ; " It is clearly agreed that at common law the counterfeiting a matter of record is forgery ; for since tiie law gives the highest credit to all records it can not but bo of the utmost ill con- si(|uence to the pultlic to have tlicni either forged or falsified. Also it is agreed to be forgery, to counterfeit any matter of a public nature." WiGHTMAN, J. The charge is that of forgery with intent to deceive. The question is, whom did ho intend to deceive when the forgery was committed? It may have l)een done years ago. Jkkvis, C. J. IIow would you have framed an indictment on these facts before Lord Campbell's act? , Eiii.K, J. Would it not have been enough to allege an intent to de- ceive divers persons, to the jurors unknown, to wit, all the patients of his late partner; and would not that have been i)roved? Scotland. I Nulunit that it would. Jkuvis, C. ,I. I should consider that a dangerous doctrine. The intent must not be a roving intent, but a specific intent. Scotland. There nnist be a specilic intent to defraud, but not to de- fraud any ]iarticular individual. It would. I submit, have been sulli- xv. Wttrd, are ncquiter machhuinx et iittoidcux profotum ditcem de jmrdicto almniiii' dcciiwre ft dffntndare. The intent to defraud a particular in- dividual is allegeil, the mime having been already mentioned. ScotUnid. In 2 Uussell on Crimes.'' a case is cited from 1 Levinz,'' wliere it was held that a eerlitieatc of holy orders was of a public nature. jKiivis, C. .). Upon reference to Levinz it appears that the case there was an application for a iirohibition to staj' proceedings in the ecclesi- astieal court, wilii a view to deprive the offender of orders, which it was suggested he had obtained by forgery ; and the court refused the pro- iiihition. 1 1>. 357. » -i IaI. Kiiym. l*''l - ,,. ,r,:. ' p. i:w. K. r. iiomssoN. 11 tisoquencca to o animo. In king or altcr- leceit." In 2 t common law the law gives tmost ill con- •(]. Also it is : nature." nt to deceive, e forgery was tnent on these intent to de- he patients of octrine. The )«t not to de- ve been sulli- puhlic nature in to defraud he fal.se niak- V V. Ward.' it injure any one ont in li'X v. '?H de pnrdicto particular in- leil. )m 1 Levinz,'' I of a public the case there in the ecclesi- i, which it was fused the pro- Scollaud. ' Section 8 of 1 4 and 1.'. Victoria,' unt only dini^enses with the necessity of alleging an intention to defraud anv particular person, l,„t also with the necessity of proving it. liKvis V J 1-oiinerly the indictment must cither have alleged an i.U.ut to defraud a person named or as you .say. have .shown that that was unnecessary <.n account of the public nature of the >-«•;•;";;■" fnr.a>d. Now, the particular person need n..t be nauied, but w.th tha ..^;cption the law is not altcrcl. Before the new law whom nhouUl vou have stated in the indictnu-nt the prisoner intcnde. to dc rami . * i^cothwd. Anv one of the persons who n.ight be .Icfraudcd by the use of the pretended qua'ifkation at the time ..f the forgery ; one of the ...operly qualitid practitioners in the imn.cdiate neighborhood or one of the persons on whom the defendant attcnde.l professionally. If nec- ,ssarvto allege and ,.rove a particular intent to defraud, it^v-i.ubll.e enouoh to allege any one who might be defrauded. The aw n.fers that H man intends the ordinary conse.p.ences of his act. A man may be guilty of forging a bill of exchange, though not actually put in cir- dilation. Jinitie was not called ui)on to reply. Iiuvis C J I inn of opinion that this conviction h wrong. 1 he recent statute for furtlu-r improving the administration of criminal •mstice^ alters and affec-ts the forms of pleading only, and does not alter ■ U,e character of the offense charged. The law as to that is the same as if the statute had not been passed. This is an in.lictu.cnt for forgery at common law. I will not stop to consi.ler whether this is a d.>cument of a public nature or not, though I an, disposed to think that it is not a public document; but whether it is or not, in order to make out the Lffense, there must have been, at the time of the instruuu.nt bemg forged, an intention to defraud some person. Here, there was no such intent at that time, and there was no uttering at the time when it ,s saui there was an intention to defraud. ., , , WioHTMXN, J. 1 am entirely of the same opinion. Before the late statute it was necessary to allege an intent to defraud so.ne one, anc there must be an intention to do so now. In tins case .t does not appear that at the time when the forgery was committed there was an intention to defraud any one. CuKsswKi.L, .1., an.l Kki.k, J., concurred. Bu VMWK. L, B. I thought that it was of considerable importance that tbis point should be determined, and I therefore reserved it, but 1 .ubjeets of our lady thegueen, had Ued a certain lar.e and valuable picture whercn he had pa.nted r ame to denote that the said picture had been paused by the sa d 0, Linnell. And the jurors aforesaid upon tluw oath aforesa.d do thc^ present that the sahl Tho.nas Closs L.in, a .lealer >n ptctures and „. a persoti of fraudulent mind an.l disposition, an,l dev.s.n.s cm- i ;;;.u.d intending to cheat at.d defraud on the 2 1th day of M. >n „H. year of our Lord IH.m, and within the jurisd.ct.on aforesa.d nnla«- fulh willfully and wickedly did procure and have in Ins possession, fo p vposes of sale a certain painted copy of the sntd picture on ic lid painted copy of the said picture was then and — -e nn a.- y .11 ted, and forged the name of the said John Linnell. And he t " oics^id npo,r their oath aforesaid, .lo further present that U. d Thomas Closs, well knowing the name of the sa.d .ohn L.nne ^ painted upon the sahl copy to be forged, did tin.! and there w.tlun e': S c n .foresaid, unlawfully. dceitfuUy, wickedly and fraudu- nt V offer sell, dispose of utter and put off to the sa.d Henry t.tz- ^^'l' he si d pai'.ted copy of the said origi.ial painted pic-ture with r^^ i^^ne of the said John Li.mell so painted a.ui forged tereon as ,re id, and the said forged name of the said John L.n.iell for a cer- inla ge sum of money, to wit, the s.im of £i:^0 to the g-t d-nag ad deception of the said Hen.y Fit.patriek, to the evil e.a.nplo of aU otLs in the like case offending and against the peace of o.ir lady, the "^r:^".:^!';;' tiriS^oner-s counsel, in arrest of judgment, Uil Z:^ disL.ed lio indictal^e offense, ^f^^^^^^^ respited until the next session, that the opinion of tins court might u KOIMJKUY. taken wlu'tlitT or iiol tin- sccoikI aini lliinl founts, or eitlicr of tliom, sullliitiiily sliowfd nil olforisi; iiidiclul)li' at common law. 'i'lu' prisoner remains in ciistoily. This I ise was iiij;iu'il, on tiie'21st Noverabor, lHj7, hefon* CorKBUUN, C. .1., Kiti.i:..!., Wii.i 1 VMS, J.. CuoMi'ToN, J., and Cii wnki.i , H. Mctfitll'c appeared for tiu' Crown, and M
  • t'iri', for tiie |»risoiier. Miliili/rc, for tile prisoner. Tlie second and tliird counts arc bad in arrest of judjiiiunt. 'Ilie second count eliar<;es in siiiistance ti ciieat at coninion law, and that cheat is not properly laid. Aw indictment for a cheat ut common law should so set out the facts as to make it appear on the record tliat the ciieat ch.'irged would nlTect , not a i»iivale indi- vidual, but the public generally.' 'riie olitaining money liy means of a mere assertion, or by the use of a false, private token, is not an indict- able offense at eomniou law.-' In this eouut the allegation is, that a false token of a private character was used. The third count is for forgery of the name of .John IJnnell on a picture. Forgery is dclined to be the frainlulent making or alteration of a writing, to tlie prejuUiee of anotiier's right.-' In the case of a writti'ii iii-trumciit, the forgery of the signature is really the forgery of the whole indict nn-nt, and is always laid in the indictment. Unless, tiiere- fore, an iiidiitmeut would lie for the forgery of a picture, this count can not be supported. The averments in this einint amount to no more than tiiis, in substance, -that tiie i)risoiu'r falsely pretended that the picture was l.iiincll's. To falsely pretend that a gun was made by Manton would be no offense at common law ; and no case has gone the length of holding that to stamp the name of Manton on a gun would be forgery. — Ckomi'ton, .1. That would lie forgery of a trade-mark, and not of a name. C'ocKni'iiN, ('. J. Stamping a name on a gun would not bo a «^riting; it would lie the imilatiou of a mark, not of a signature. Mrlnt'jrr. The name jiut ly a painter in the corner of a picture is not a signature. It is only a mark to show that tlic picture was painted by him. Any arbitrary sign or figure miglit be used for the same pnr- jiose insteiul of the name ; it is a part of the painting, and every faithful copy would contain it. The averments mean that the whole picture was made to represent the whole of the original ; and the averment of the imitation of the signature is no more than an averment of the imita- tion of a tree or a house in the firiginal. There is no allegation that the pie a »^riting ; a picture is was painted 10 same pur- lery faithful hole picture averment of of the imita- egation that tts the genu- ine sipnatiire, neither is there any averment that the name was painted for tlu) purpose of inducing tlie belief that llie picture was the uriiriiial. , i i * Metr,tlfe, for the Crown. It ia not necessary to show that the cheat alleu-ed in a count f.-r cheating at common law is one which affects tlie pubUc generally. If to a bare lie you add a false t«)ken it is indictable, ;uid it is a mistake to suppose that tlie public must be aff.'ctcd. Kiu.K, J. The prisoner did not get tiie money for the name but for the picture. _ Metcalfe. He obtained it by the whole transaction. In ^on^pil a C'((.ve' deceitfullv c(.iiuterfcitiiig a general seal or mark of the traile. on iloth of a certain description and quality, was held to be an iiulictablo cheat. This case and Funncr'a Case' show tiiat the fraud need not be of a strictly pubiio nature, and that any device calculated to defraud an ordinarily cautious person is imlictable. In this case the picture was in fact a device calculated to deceive the public. The third count for forgery is good. In Regina v. Slntrmm,,^ it was decided that it is an offense at common law to utter a forgeff as a genuine one when in fact it was only a spurious one, and the article was sold and money obtained by means of that faLe mark or token, that would be a cheat at common law. As, for instance, in the case put by way of ex- ample during the argument, if a man sold a gan with the mark of a particular manufacturer upon it, so as to make it appear like the gen- uine production of the manufacturer, that would be a false mark or token, and the party would be guilty of a cheat, and therefore liable to punishment if the indictment were fairly framed so as to meet the case ; and therefore upon the second count of this indictment, the prisoner would have been liable to have been convicted if that count had been properly fr.uned ; but we think, that count is faulty in tiiis rospect, that although it sets out the false token, it does not sufliciently show that it was by means of such false token the defendant was enabled to pass off the picture and obtain the money. The conviction, therefore, cannot be sustained. Crompton, J. The modern authorities have somewhat qualified the older ones, but I cio not wish to pledge myself to the view taken as to the nature of the false token, which would amount to si cheat at com- mon law. I would be inclined to adopt ihe view taken by the rest of the court, but do not pledge myself to it. I concur in the judgment that this conviction can not be be sustained, upon the grounds stated by the cuifif justice. Conviction quashed. i -VV U. V. SMITH. 17 ■ Mr. Linnoll, when in which Mr. Linnell had iving the name of "J. litation of the original linter. Upon the first the defenlant wag ac- iw ; and the third was gery. As to the third }ry. A forgery must relj' in the nature of a itifying it, and was no mark as a recognition unt, we have carefully e think if a person, in rricd on, were to put a it >ff as a genuine one le article was sold and ioken, that would be a sase put by way of ex- an with the mark of a it appear like the gen- Id be a false mark or and therefore liable to lo as to meet the case ; idictnicnt, the prisoner if that count had been ty in tiiis rospect, that ufliciently show that it \a.s enabled to pass off jion, therefore, cannot somewhat qualified the to the view taken as to •unt to si cheat at com- iw taken by the rest of joncur in the judgment I the grounds stated by Conviction quashed. FORGERY -MUST BE OF SOME DOCrMENT- COUNTERFEITING PRINTED WIUWERS. R. V. Smith. [Dears, & B. 5GC.] In the English Court for Crown Cases Reserved, 1S5S. 1 Forgery is the Making of a False Document to resemble a genuine one. "■ _ Wrappers of Baking Powders not Documents.- Therefore lu l.nitato tl.e wrap- ■• l^r ofTE rpo>^aer of celebruy for the purpose of palmiug o« a spurious article .s not forgery. The following case was reserved and stated by :he Recorder of Lon- don : — , /., i John Smith was tried before me, at the Central Criminal Court, upon an indictment charging him with forging certain documents, and with uttering them, knowing tlicm to be forged. It appeared that tl.e prosecutor George Borwick, was in the habit of soiling certain powders. no called Borwick' s Baking Powders, and others, Berwick's P:,2g Powders. These powders were invariably sold in packets, and were wrapped up in printed papers. _ The baking powders were wrapped in papers which contained the name of George Borwick; but thoy were so wrapped, that the name was not visible till the jjackets were opened. It was proved that tiie prisoner had endeavored to sell baking pow- ders, but had them returned to him, because they were not Borwick' 8 powders. Subsequently, he went to a printer, and representing his name to be Borwick, desired him to print 1(),y somebody else that it may mislead ; but that is not material to the question we have to decide. The i»risone. may have committed a gross fraud in using the ' I K. V. HAin'KH. 23 1 who printed Lh the fraud- Idleaton show i which .night or myself, 1 ciple. They whether they ibject of for- 193 of instru- ike which are le tradesman man had his e accused of le in the defi- a false docu- ply here, and ten thousand ?r ; and if he lore he would iig inside the f the prisoner not genuine, md spurious guilty of for- ts which may !Ct of forgery In cases like if he pleases, le wrapper, or odict him for straining the Foriiery su,;- e faiido docu. he one is not at C'ase one of erts what the ts improperly a false docu- omebody elso on we have to I in using the tove ro„.lcre.l Immc t l.al.l. to an w ^^ ,"r'T,.e o,a.„so lie, i.. tbo use 0. the «»m'- ^„,,.,„ ,„„„.,,. .„BGP.nV_B.U. ,«■ K.C,U.OK_.NC,.o.rK ..»™t-M.«. li. V. Uaupek. [14 Cox, 57-1 •] In the English Iliyh Court. Cro'cn Cases Reserved. 4. *«,-Pnralliou, sI;;.rland'T;:.r:rrr; frL;-,o„„ Wat,o„ . so. ^eeepted p:;i;e"f the union Bank of London. John Harper. 24 FOIHJKRY. The indictment contained six counts, which charged Harper: 1. With feloniously forging a certain inilorsomont to and on a bill of ex- change. 2. With feloniously forging an indorsement to and on a cer- tain paper writing, which said paper writing is in tlie form of and purports to be a bill of exchange unsigned by any drawer thereof. 3. Feloniously forging a certain indorsement to and on a certain paper writing. In the fourth, llfth and sixth counts, he was charged with feloniously uttering the documents described in the first, second and third counts. I was of opinion that all the counts were bad except the first and fourth; but I left the whole matter to the jury. The jury returned a general verdict of guilty, and I sentenced Harper to be im- prisoned with hard labor for nine months, but suspended the execution of the sentence till the decision of this case by the Court for Crown Cases Reserved. The question for the court is whether, under the cir- cumstances stated. Harper was properly convicted of either of the offenses charged in the first or fourth counts of the indictment, and whether any of the other counts charge a felony. J. F. Stephen. No counsel appeared to argue on either side. Lord CoLEiuDCE, C. J. The court is of opinion that the conviction on this indictment can not be supported. The prisoner was convicted generally of forging an indorsement on a bill of exchange. All the counts of the indictment were for forging an indorsement on a bill of exchange, or on a paper writing in the form of and purporting to be a bill of ex- change, or on a certain paper writing. The document, however, was but an inchoate bill of exchange. A bill of exchange was formally drawn up and sent to the prisoner for his acceptance, and he was to accc[)t it and to procure the indorsement of a solvent person to it, but there was no drawer's name attached to the bill. The prisoner returned the bill ac- cepted by himself, and with the nam^ of Hunt as the indorsee upon it, but he had forged Hunt's indorsomcnt. Under these circumstances the prisoner can not be convicted upon this indictment, for this docu- ment was clearly not a bill of exchange. In McCall v. Taylor,^ it was held that an instrument in the form of a bill of exchange, ad- dressed to and accepted by the defendant, but without the names of either a payee, or drawer, is neither a bill of exchange nor a promissory note, but only an inchoate instrument. In that case Erie, C, J., said : "The instrument has no date and no drawer's name, but the defendant wrote his acceptance across it, and the question is, has the holder of such an instrument a right to declare on it, either as a bill of exchange or promissoiy note? It certainly is not a bill of exchange, nor is it a 1 34L. J.3(i5, C.P. ctl Harper: 1. m a bill of ex- 3 and on a cei- B form of and er tboreof. 3. 1 certain paper 9 charged with st, second and bad except the iry. The jury taper to be im- i the execution onrt for Crown , under the cir- eitlier of the ndictment, and F. Stephen. STATK V. WUKKLEU. "-^ promissory note. It is in fact only an inciioato instrument, th()U|4h ciipable of boins completi-d." Erie, C. .)., further cited the case of Stoessiger v. Southeastern Railway Conijxnvj,^ as in i)oint. In that case tlie question arose whether a document in the form of a bill of exchange for £11, 109, but which had no drawer's name upon it, was a bill, note or security for the payment of money exceeding £10, within the Car- riers' Aet",2 and it was held that it was not. In this case we arc clearly of opinion that this was a mere inchoate instrument, of no value in the shape in which it was when the prisoner wrote the indorsement upon it. Tiiis is quite clear, as well upon principle as tipon the authorities. GitovK, Hawkins and Lopks, JJ., concurred. Stki'iien, J. Although I agree with the rest of the court that this conviction should be quashed, yet it seems to me that this case has all the effects of forgery, and I think that the prisoner would not have been relieved from them, if he had been indicted for forgery at com- mon law. ^ . _ , , Conviction quashed. the conviction [• was convicted All the counts ill of exchange, be a bill of ex- jwever, was but formally drawn vas to accc[)t it )ut there was no ned the bill ac- idorsee upon it, circumstances , for this docu- ! V. Taylor,^ it ' exchange, ad- b the names of or a promissory ■le, C, J., said: t the defendant is the holder of ill of exchange Qge, nor is it a FORGERY — INSTRUMENT MUST BE VALID- WHAT IS AN ACCOUNTA- ble receipt. State v. Wiieelek. [19 Minn. 98.] In the Supreme Court of Minnesota, 1S72. 1. Forgery- Instrument Must be Valid. - An instrument to be the subject of forgery, muet be a Talirt instrument on its face or bo proved so. a. "Accountable Beceipt " - Case in Judgrment. -An indictment for the forgery of an "accountable receipt for personal properly," viz; an elevator ticket for wheat, alleged that the defendant "did falsely make, forge, alter, and counterfeit a certain false forged, altered, and counterfeited accountable receipt for personal property, viz. : an elevator ticket for wheat, which false, forged, altered, and counterfeited accountable receipt for personal property, viz. : an elevator ticket for wheat, is of the tenor follow- ing, that is to say: • St. Paul and Sioux City Elevator Co., St. Peter, * • • ^'""'Tl of J S , load No. 20, ticket No. 2402, account of W. B. N. or bearer, No. 1 Wheat, 84 5-60 bushels. M. Good, Inspector,' with intent thereby then and there to injure and defraud contrary to the form of the statute," etc., etc. ITeld. tliat inasmuch as no connection between the subscriber of the instrument and said elevator company appeared on the face thereof; as it caT not be intended in support of the indictment, that " M. Good, Inspector," was an agent of the company, the indictment presents the case of an accountable receipt, not purporting to be signed by any authorized agent of the com- pany and not on its face of any apparent legal elfect; and there being .:o averment in the indictment of any connection between said subscriber and said compiny, which would give it such effect, the indictment was insufficient. 1 3 El. & B. 54 a U J. 549, Q. H. •i 11 Geo. IV. & 1 Wm. IV. ch. r,8, sec 1. 26 KOKdKUY. The (Icfonduut wns nrraigned in tlu- District Court for Nicollet County upon an iiuliclincnt clmrging that, at a time and place tluToin nicn- tioni'd, ho " did falsely make, forj^e, alter, and couiitorfeit a certain false, forged, altered, and counterfeited accountable receipt foi- per- sonal property, to wit, an elevator ticket for wheat ; which false, forged, altered, anil counterfeited accountable receipt for personal property, to wit, an elevator ticket for wheat, is of the tenor following, that is to say : — CS ifj ei O B rt >-.3 ^•o S r e o>- St. Paul & Sioux City Elevator Coinpaay, SI. PettT, !» uio. , 20 day, 1871. Rt'Cfivfd of J. Simmons, Mornoka, Load No. L'O, ticket No. 2402, account of VV. B. N. or beiirur. No. 1 Wheat, Bin No. 7, No. 84 05-60 Buslicl.>*. M. Good, Inspector. " To Ue iiiiiorteil by the imrty to whom pjiid ; with intent thereby then and there to injure and defraud, contrary to the form of the statute," etc. To this indictment the defendant demurred ; but his demurrer was overruled and he was tried and convicted. A motion in arrest of judg- ment was likewise overruled, and the defendant was sentenced to im- prisonment at hard labor for two years. The case comes to this court upon writ of error. E. St. Julian Cox, tor plaintiff in error. F. R. E. Corndl, Attorney -(leneral. Bij the Court, Riflky, C. J. As an instrument, to be the subject of an indictment for forgery, must either appear on its face to be, or he in fact, one which, if true, would possess some legal validity ; ^ so, if it do not so appear on the face of the instrument set out in the indictment, facts must be averred which will enable the court to see that, if it were genuine, it would possess such validity.'- Tried by this rule, this indictment is insufficient. It is found under General statutes : 3 " Whoever falsely * * * forges any * * * accountable receipt for money, goods, or other property, with intent to injure or defraud any person, shall be punished," etc. The instrument set out purports to be a statement by " M. Good, in- 1 2 Bieh. Cr. L., sec. 60;J. " 2 Hish. Cr. L., sees. 512, 51;!; People r. Shall, 9 Cow, 7T8; People v. Harrison, 8 Harb. 5G0; Com. f. Ray, 3 Gray, 441 ; 2 Ruts, on Cr. ;174 ; Rex v. Wilcox, UuBS. & Ry. 50. 3 eh. 90, sec. 1. STATK V. WIIKKI.KU. 27 'oUct County Llu'ioia nu'ti- I'it a certain L'ipt foi- per- fiilsc, forged, property, to ig, that is to y. lector. , contrary to lemurrer was rrest of jui'.g- tcnced to im- to this court he subject of be, or be in ; 1 so, if it do le indictment, lat, if it were 1 found under my * * * with intent to M. Good, in- Griiy, 441 ; 2 Rms. UuB8. & Ky. 50. spcctor," that the Si. Paul and Siu.ix City Kh'vator Company had r.- ci.Jved at St. I'eti-r eighty-four l.ushels and live pounds of number on-' wheat, for account of W. 15. N. or bearer. «,.,., It is said by the (U>fendant in error that the h'gal effect of this kind of instrument "is to entitle the innocent lu.hUr f..r value to that number „f bushels of number one wheat on presentation to the St. I'aul and Sioux City KIcvator Company. Suppose that it is, how does that appear on the face of this instrument. In point of fact it does not purport to bo signed on behalf of the company. . , ., i The addition of " inspector" after the ,mme of the subscriber does not indicate, in itself, the existence of any relation whatever between l,i,nself and the company, much less of any sueli rehition as would in it- self import anv authority on his part to act for it. It is said by the 7," without any extrinsic aver- ment in the indictment that G. C. Gwathmay had authority to make such order, or that the cashier of the Union Bank had any control over the plates. " It seems difficult," says Cowen, J., in delivering the opin- ion of the court, " to mistake the apparent import of the instrument in question. It purported to be an order from an ofllccr representing the Bank of Kentucky, duly empowered to make it, which order was directed to another, purporting to be the depositary, and desiring him to deliver the plates of the bank." It appeared, therefore, that, from the language of the instrument it- self, it might have the effect to defraud. The ca.se at bar is of an accountable receipt, not purporting to be signed by an oflicer of the elevator company duly empowered to sign it- It is not on the face of the instrument of any apparent legal effect.* The demurrer should have been sustained. The judgment of the Dis- trict Court is reversed. 1 21 Wend. 409. s F«ople V. Skall, tupra. %. snJ <' \> IMAGE EVALUATION TEST TARGET (MT-3) t ^ /. A .* 1.0 !r^- IM I.I lis IF M 120 1.8 L25 liiu mil 1.6 V ^ c*: 'V Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, ^■.Y. 14S80 (716) 873-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques I. 1 ■ 1 iiitt PEOPLE V. FITCH. 21» FORGERY — PAPER WHOSE PURPOSE HAS BEEN SA.'ISFIED. People v. Fitch . [1 Wend. 198; 19 Am. Dec. 477.] In the Supreme Court of New York, August, 1S2S. Fraudulent Alteration of Satisfied Order by Diawer not Forsrery. - An alteration of Itio (late of an order tor the delivery of goods, made liy llic dra-.ver with fraudulent intent, after the order had been satisfled and rciurnod to him, ia not forgery. Indictment for forgery, tried at the Geuesee Oyer and Terminer. Tlie iiulictmeut contained two counts, the first ehar<,Mng tlie defendant with the forgery of a certain order previously drawn hy himself ; and second, charging him with uttering and i)uhlisliing the order as true, with intent to defraud one Bangs. It appeared tiiat the oider in ([ues- tionwa-s drawn by the defendant November 1, \X2o, on a settlement of accounts between himself and one Bangs, and that it directed Kellogg, the drawee, to deliver a certain cow to Bangs, and that the il.fendant at the same time gave a note to Bangs for the balance lietween them ; that the order was presented, and the cow delivered to Hangs, and that the plaintiff afterwards sued the defendant on the note mentioned above; that the defendant set off the order referjed to when it api)eared that the date had been altered from' November 4th to November Mtii; and an opinion being expressed to that effect, the defendant withdrew the order, and the suit was discontinued ; that the defendant afterwards sued Bangs for the jjrice of the cow delivered by Kellogg when Bangs set off the note ; and on the trial, the delivery of the cow being proved, the order, however, not being pri)duced, the present defendant obtained judgment for the balance of the price of the cow after deducting the amount of the note. The judge charged the jury that the order Iteing fuiatun officio, the subsequent alteration (.f it was not forgery under the statute, but that they might find the defendant guilty at the common law if they thought the alteration [.roveil. The jury found the defendant guilty under the first count, l)ut not guilty under the second ; whereupon judgment was suspended luitil the advice of this court could be taken. /.. 7^^»l.s('^, district attorney, cited: 2 East's Pleas of the Crown,' ') Chitty's Criminal Law,'-' 5 Johnson, ^ ArchboM.^ East's Criminal Law,'^ McNaliv's Evidence, '■ 1 Chitty's Criminal Law." 1 pp. MZ, .S55, iC'J. 2 pp. I'.ia, 780, "99. < pp. 189, 193. ' Jip. S54. 855. p. 4;!9. ; p. 218. ;}() FOKOKin //. ./. Redjlchl, for Ilu' (Iffi'iiiiant, citi'd : I lihicUstoiu's Commen- taries,' Kasi's Criminal Law,- 2 Lord Haynioml,-' Ri-.i: v. Kiti'jht.^ liil the Court, S \vA(iK, C. J. Is this for;jfery ? Foifjery has often been (lelined by learned jurists. Ry Mr. Justice Hlackslone. " forj^jery is tlie fraudulent makiiijj,' or alteration of a writing' to the |)reJudieeof another's rijilit ; " by HuUer, jusliee, "tin; making of a false instrument with inti'nt to deeeivi'; " l)y Haron Kyre, " a false sifinature with intent to deceive." .Vi^ain, "the false making an instrument which i)uri)orts on the face of itl<. tie gond and valid for the [)ur|)oses for wlii<.!i it was cre- ated with a desiLjn to defraud;"' i)y en for- gery ami fraud; that the latter must actually take effect, while the former is complete, though no one is actually injured if tiie tendency and intent to defraud 1)C manifest. As to what false making is neces- sary to constitute the offense, it has i)een held that a party may make a false deed in his own name by antedating, for instance, so as to prejudice a prior grantee. So by indorsing a bill of exchange in his own name when he is not the real |>ayee.' On this principle we held Peacock guiltv of forgery for indorsing the permit for the delivery of a (piantity of coal in his own name, knowing that he was not the real consignee of the coal, though of the same name.'* So making a fraudulent alteration or erasure in any material part of a true instru- ment or any alteration which gives it a new operation, as by altering the date of a bill of exchange after acceptance whereby the payment was accelerated.'-' As to what shall lie considered a warrant or order under the statute, the document forged must be such as api)ears to give the bearer a dis- posing power over the projjcrty which he demands; it must assume to transfer the right, at least of the custody of the goods to the offender."* Such are ihe principles applicable to cases of forgery of the descrip- tion of llie present. This is not like the case of a bill of exchange with the date altered after acceptance, and before payment. Here the order was jKiid. Supi)ose a bill of exchange or promissory note, paid and taken up by the maker, who then, for purposes of fraud, alters Ihedute, I p. '.MS. v; lip. S40, st">i. :i p. UCil. * Si\lk. ;i7.'i. >■ 2 Kiisl'g r. (' 3cait. Cf, I.. ■ 2 KaRt'» r. C. SV); 4 I.. K. 2S. * (i Cow. 'i. « 4 r,. U. :!'iO; :i CUit. Cr. L. U«8; 2 East's r. C. ;l,V). !*> 3Clut. Cr. I.. 10;!!. 's Conimcn- s often been )ri^H'rv i-i tlie of ivnuUK'r"s runu'iit with rith intt'iit to l)iiri)()rts on li it was cre- 'iilso making y Mr. Eust, of fraud and )f such writ- s witli intent l)et\v> cMi for- ■t, wiiile the lie tendency ing is neccs- y may make ee, so as to iiango in liis •iple we held k'iivery of a not the real I) making a , true instru- ■ altering the aj'uient was • the statute, bearer a dis- iit assume to le offender.'" tiie descrip- Lcliange with ere the order )te, paid and ers the dt.te, L. 1(«8 ; 2 East's lutowN ;•. non.r.. 31 would .neh alteration constitute forgery V Suppose the defendant ,n tins : n^'ad .>f prelixing the figure one to the four in tluMlatc of the nnler ;„,, ,„,l be..n paid and taken up, had drawn an ent.re new order o ;: Uae of the fourteenth of Novend>er, would that have -en for,er> U,.,, was no intermeddling with an instrument the property of anoth ,. .. ,vas no use of the name of another. Here was u.deed a frandu- ,„t intent -, but in the aet of altering the date, or drawing a new o.de, i own there was no necessary tendency to fraud. The order was La all necessary to aid in the perpetration of the -ud w .eh aefendant contemplated, and which he effected wUhout the orde I ,,,per in his own hands couldhare no effect, and was no ev.denc^ u. s . ence to the action on the note ; and had he produced te w. n s^ „..,ve the delivery of the cow under it, that w.tness --^ 'uu- f Im ho order and defeated the fraud. It is not necessary, bowe er, th.vt ,u should be perpetrated to conslitutc this offense. An m tent .s .1 with a tendency to effectuate ^raud. My ob ect.ons to tins : ^^io^are: 1. That this paper ^^^er it was delivered .,> to i.d- f.ndvnt, was no instrument at all, iu the legal acceptance of the term. T re was no false making. The order purported to be drawn by the l^n, and it was so drawn. It purported to ^^ f^^^^;;^';;;;^^ teenth of November, and it was so dated. '. Ihe order 1. no t nd ...u.y to aid in the fraud. I am, therefore, of opuwon that the CoUit of Oyer and Terminer be advised to arrest the judgment. FORGERY - FICTITIOUS DKCUKE OF COUKT. BitowN f. Fi:oPi.E. [8>'. 111. •-•:'.!•.] In the Supreme Court of Illinois, 187S. A Fictltlou- Decree or a court of another .ta.e. Kot up with latent to d.c.ve, is not tne subject of forgury. EuBOu to Knox County. Bheesk, J. , ^ at the June term, IHTfi, against John Brown, for forgery 1 1- cbar^ was that in the county of Knox, on the 1st day of t-^'^rua.,, 1^^ , :i:^mlant unlawfully feloniously and ^:^;^^"»>y' ^f ^^f ^ ^^ !' dama.re and defraud one Eliza Venn, did then and the.e unlawfully, 32 FOK(}ERY. feloniously, knowingly and falsely forgo and counterfeit a certain in- strument in writing purporting to be a public record, viz. : a decree of divorce pretendei to be granted in Clarion County Circuit Court of the State of Indiana; which said false, forged, and counterfeited in- strument of writing, is as follows: — State of Indiana Makion )F Indiana. ) iN COINTV, ) In Marion Count}/ Circuit Court, to January Term, A. D. 2876. John \V. Brown ^ vs. > Di orce. Mahy J. BuowN, ) And now this cause coming on for a final hearing in said court, and the evidence being hoard, and it was proven thjit John W. Brown was married to Mary J. Sluini, now Mary J. Brown, was guilty of repeated abuse and desertion for the space of two years previous to the filing of the bill for divorce in this cause ; and it appearing by the evidence that the said parties have one child, named Clara Brown, by said mar- riage, aged about three years. It also a tearing by the evidence that the said Mary J. Brown was guilty of re, atod abuse, and further that she, Mary J. Brown, doseited and left hor husband on or about the 15th dav of January, A. 1). 1871, without cause or provocation ; now, theicfore, it is ordered and docreed by the court, that the said John W. Brown and Mary J. Brown, arc henceforth and forever divorced, and that the bonds of matrimony heretofore existing l)etween thera are for- I'ver dissolved, and that the said Mary J. Brown retain the care and oustody of said child, CMara Brown, till she becomes of the age of four- teen years, jiud that said John W. Brown pay the costs of this case to the olHcers and witnesses. C. IT. Maffit, Judge Circuit Court. Marion County, Ind. The indictment properly eoiioludes. A motion was made to quash the indictment, wliieh was doniod, and tlie defendant, i>leading not guilty, was put upon his trial before a jury, who found him guilty as charged, and (i.xeil his punishment at two (2) years confinement in the penitentiary. A motion for a new trial was made and denied, and a like disposition was made of defendant's motion in arrest of judgment, and judgment rendered on the verdict. To reverse this judgment, defendant has obtained a writ of error, and brought the record to this court. nnowN V. I'KorLK. 33 certain in- a decree o{ rciKt Court terfeited in- D. 2876. 1 court, and Brown was of repeated the filing of he evidence l)y said mar- vidence that further tliat r about tiie at ion ; now, iiid John W. ivoroed, and liera are for- he care ani, 1^84, 1. ForKlnK any Instrument or writing which, as appears on its face, would have bLvn void, it genuine, is not an indictable otfeniie. 2. The Plaintiff in Error on a Trial for Bitramy, put in evidence an alleged copy i.f h decree granting him u divorce from his flrst wife, and he was thereby acquitted. < >ii ilio back of the paper was an iniprcssiou pu. porting to bo the seal of New York County, and also the following writing: "Filed August 14, IHTJt. A Copy. Hubert O. Thoniii-.n, clerk." He was indicted for forgery in having uttered a false and forged impression o( the seal of the Supreme Court with intent to defraud, and it appeared on the tri.il tli at no such Judgment had ever been grant.d, and that the alleged copy -.vas a forgery, //i /■'. that assuming the act of the prisoner In uttering the false Impression of the seal t.ul- within the condemnation of 2 Revised Statutes,! and constitutes forgery, if the sanu- i~ published in connection with, and as any part of a ccrtiflcato which the county clerk , as keeper oJ the seal, is authorized to make, in his oQicial capacity, yet, as the pretencK.! cortiflcate was not in the form proBcribed l.y the Code of Civil Procedure," it was voi.i on its face, and the alleged decree was inadmissible in evidence, and the acts specified did not furnish the basis for an indictment for forgery. Writ of eiTor to the Court of Sessions of Oneida County, to review the triiil and conviction of the plaintiff in error Frederick C. Fadiier of forgery. The phiintift in error was tried and convicted in the Oneida County Court of Sessions, lion. N. B. Sutton, County Judge, presiding, wltii associates, and sentenced to State prison for the period of seven yaars and six niontlis. Tlie indictment was found in January, t881, and contained four counts. In the first Fadner is charged with forging the impression of the seal of New York County, wliicli is tlie seal of the Sui)reine Court in and for the county of New York. In tlie second count he is charged with having uttered a false and forged impression of the same seal, with an intent to defraud, knowing the same to be forged. In the third count he is chai-ged with having forged the seal of the county of New York, that is, the metallic instrument with which the impression is made. In the fourth count it is averred that he uttered the forged seal, that is, put in circulation the metallic instrument, purported to be the genuine seal of said county. The trial court ruled, that upon the evidence, there could be no con- viction upon the first, third and fourth counts of the indictment, and 80 instructed the jury. 1 p. 674, sec. 39. t sees. 63:!, !!.'>:, 058. FADNKK '•. rKOI'I.K. .>;> IPRKSSIOX FLY VALID. OF nt, Mail, 1>'S4. c, would hiive boin an alleged copy nt a y acquitted, oiillie iw York County, and ibert O. Tlioniii>oii, Forged impression o( ired on tlie trial lliat vas a forgery. //( /•/, ;t:ion of the peal i.iil- rgery, if llio same i- 1 the county clerli. a- et, as the preteiukil r.oduro,* it was vni.l Qdthe acts speciflud 3unty, to review erick C. Fadiier 5 Oneida County , prcsiilhig, with 1 of seven yaars contained four le impression of 1 Sai)reine Court int be is charged f the same seal, ed. In the third B county of New pression is ma<1e. •ged seal, that is, ,0 be the genuine could be no con- ! indictment, and (1» the second count the jury rendered a verdi'.t uf guilty as charf;cd tbcieiii. In tlio second count of tlie imlictment. it is cliarired, that tlie defend- :,iit feloniously !ind ftilsely did utter and pui)li.',li iis true, with intent to injure and defraud (eertain specilied persons), a eerlain false, forged, falsified and conuteifeit impression of a eeilain seal, purporting to be tlio inipi-ession of the etninty seal, an seal, is authorized to make in liis olllcial capacity. To constifvite the complete crime of forgery in falsely making and foiling an imijression purporting to be the inipressiou of the olllcial seal oMhe clerk of the court, as mentioned in the twenty-fourth section, the same must be impressed upon a i)aper of some kind purporting to be a legal and valid document, and also purporting to be duly ailtlieu- ticated." The mere forging the impression of an official seal, discon- nected from a certilicate nuule by tl; clerk, could not deceive any person. So, to constitute forgery, in uttering and publishing as true, a false ami counterfeit impression of the seal, it is aly the county clerk, but that in fact it was false, forged and counterfeited. We now come to what I regard as the important question we have before us, ami it is whether the making the false impression of the seal and forging of the clerk's certiticate, constituted the crime of forgery under the law of this State. The rule, as now established, is this, if the instrument be invalid on its face, it can not be the subject of a forgery. Forging any instru- ment or writii'g which, as aj)|)i'ars on its face, would have been void, if genuine , is not an indictable offense.' The English cases are to tlu- same effect, and the rule applies as well to the statutory offense of forger}' as to connnon-law cases. If the impression of the seal had been taken from the true one and the clerk's certiticate had been ungenuine, the certificate would have been incom- plete and iin|)erfect, and did not antliori/e the court to receive in evidence tiie documents to wliicli tliey were attached. That paper pur- ported to be a judgment of this court, and was offered and received in evidence in another triliunal, and could not have been legally used as evidence, without u certilication in form and to the effect as provided by law. IJy section !•.">■$ of the Code, jirovision is made that copies of papers duly filed, kept and recorded in the ofllce of one of the clerks of this county, may be read in evidence in place of the originals w'nen properly certified by the cli'rk. The form and contents of such certifi- cate, and the mode and manner of attestation, are contained in sections 957 and 9r)8. The olTlcer making the certificate must state therein that the paper or document has been compared by him with the original, and that it is a correct transcri[)t therefrom and of the whole of the 1 People V. Slinll, 9 Cow. TTf*; People v. Fitcli. 1 Wend. I'.W; People r. Steams', 'Jl lit. 409; People r. Harrison, 8 IJurb. .'iCO; Cun- iiinghain r. People, 4 Kun, 4!)5; 2 Bisfi. Cr. L., sec. 5iS; Warburtou's Am. Cr. L., par. mm FADNKK r. I'KOI'I.E. 35) iinty Court of T and compo- nent fliargini,' been gonuini' t and material tlu! vi'rdict of gave evidcnot' ■ee was wlioHy ho Hamo in the ounty of New on of the seal similitiido like that in fact it :!Stiou we have ion of tlie seal me of forgery ; be invalid on iig any instru- e been void, if applies as well cases. If the iiid the clerk's 'e been incom- to receive in hat paper pur- nd received in legfilly used as 'ct as provided that copies of e of the clerks originals when )f such cortili- ned in sections lie therein that h the original, e whole of the in, 455; 2 BIsn. Cr. s Am. Cr. L., par. .,,i.inal. and the oertincuto ,nu t then bo attostod by th.. ofll.ial seal of "'Vlt'cortilioato, if genuine, is .loarly dofeotivo in form and sul.- .,,,K0 Tho dofoot is fatal to tho validity of tho same, and it is appai- ,,;, .,„"tho face of it. It ought notto have deceived anyone. Because .^ ,,i,, .,.,,..i,„, „,. ,nurt below, undoubto.Uy through inadvortonoo can , hnv n„.:Uo it a forgery. U was do..idod in / Vo,/. v. Jlnrn^on^ ;,„ i,..,iot.nont wotdd not iio for forging a oerti.ioate of an aeknowl ;.!;•,,,,;;;., of a deed, when the cortiflcate di.l not state that the grantor „ kuowledgod tho oxeoution of tho conveyance, the statute roqu.nng iIm' ccrtilieate to state tlial fact. 1„ r,n,>h- V. C,un,in>ihomr it >vas said criminal forgery can not be ,.,:,do out by i.nputing a p..ssible or oven aotual ignorance of the law .„ „... porson intended to bodofraudod. If. therefor., ^tatute author- i/os an instrument not known to the oonunon law, and . r-scr. n s ts fonn as to render any other form null, forgery can not bo -'■'•-"-^^y „,,,dn.r a false statutory .n.o, in a form not provuV d by statute, even „,„,gh it is so like the form prescribed as to be i.ible to deceive most '" hi' /Vo./. V. Sht to be good and vali.l for the purpose for which it was created. For the reason that criminal forgery was not averred in the s ond ..ount in the imlictment, nor proved on the trial, tl- -"v.ctujn s o 1 ,„ reversed ansiuil,'is not, we tliink, a forgery. Siijipose tiie defendant ha.i said in terms, >• I have authority to sign Schouler's name," and then had signed it in the presence of the prom- isee. He would have olitaiued the discharge of the former note by a false pretense, a pretense that lie had autiiority to bind Schoulcr. " It is not," says Sergeant Hawkins, " tlie bare writing of an instrument in another's name witiioiit iiis privity, but the giving it a false appear- ance of having been executed by him, wliich makes a man guilty of forgery." '^ If the defendant had written upon tlie note, " William Schouler, by his agent, Henry W. Haldvun," the act plainly would not have been for- gery. The party taking the note knows it is not tiie personal act of Schouler. He d«u's not rely upon his signature. Ho is not deceived by the semblance of liis signature. He relies solely upon the averred agency and authority of the defendant to bind Schouler. So, in the case before us, the note was executed in tlic presence of the promisee. He knew it was not Schouler's signature. He relied upon the defend- ant's statement of his autiiority to bind him as partner in the firm of Scliouler, HaUhvin & Co. Or if the partneisltip had in fact before ex- isted, but was then dissolved, the effect of the defendant's act was a false ie|iresentation of its continued existence. In llie case of Regina v. H'/n'(','' tlie prisoner indorsed a bill of exchange " per procuration, Thomas Tomlinson, Kmauuel White." He had no authority to make 1 4 T. II. 2!*. 2 1 llawk., I'U. Til, sec. > 1 Dea. 208. ^im STATF. V. YOINO. 4;} V of tlic twii: 11 the deed — 'ption to tiu' iiids of a JH r- lis i)crson iu- acct'ptor, tlie t to sliow that was held com- , and that no 1 this case of l)Owcr of the .'(1 to l)e taken \a.s the hand- o be received lie implication lini by his act. the indorsement, but the twelve judges held unanimously that the act ''''iV,!mu'.s'-T>'-^'« case of R<'(,hH, v. Rogers,^ has some resemblance to the ...,se before us. The indietn.ent was for utterin- a forged acceptance ,i, bill of exchange. It was sold and .lelivend by the ^l^^^-ff^' ,lu. acceptance of Nicholson & Co. Some evi.lence was offered that it w.s accepted bv one T. Nicholson in V^o name of a fh.tU.ous hvm. -n,.. instructions to the jury were perhaps broad enough to include the c...se at bar, but the jury having found that the acceptance M-as not written by T. Nicholson, the case, went no further. The instructions a „,-,s.- priu^ have no force as precedent, and in principle are plainly beyond the line of the settled cases. , „„„ *ri«l The result is that the exceptions must be sustained, an.l a new tr ml ordered in the Common Pleas. It will be observeec. 432. e 8U(l counter- 10 existiMice of luaile by one knap, Esciuire, ,11(1 counterfeit r. , to one vest f liiiu, the suiil C. Rogers, to il provided and 'urther present, said, at Gilford id fraudulently if the existence and made by knap, Esquire, so falsely and in book of ac- , that is to say, ,j,' by inserting ing Slid writing »r. , to one vest ers, to (Ufraud, and against the ly and the State phorically taken what fashion or ender falsurioiis this is properly )n." • (which includes Ling?(ii(/o uiiimo, and deceit.""^ tent to defraud, of legal eJlicacy, m STATE V. YOl'NO. 45 Our statute against forgery is as follows : " If any person shall falsely iniikc or counterfeit or fraudulently alter any public record, any writ, process, or j)roceedingof any court of this State, any certilicate or attes- lationof a justice of the i)eace, notary jtublic, clerk of any court, town (lirk or other public ofllcer, in any matter wlicrein such certilicate or at- testation may be received as legal proof, any charter, will, deed, bond „r writing ob'ligatory, • • • bill of exchange, promissory note, order, Mciuittance, discharge for money or property • • » any certificate „r accountable receipt for money or proi)erty , any warrant, or re(piest for the payment of money, or the delivery of any property, or writing of viiliie, or any writing whatever purporting to contain i'vidcnco of the existence or discharge of any del)t, contract or promise, with intent that any person may be defrauded, he shall lie punished," etc. The indictment in this case was inten.hv'^ to be founded upon the Inst clause of the statute, and it is claimed that the entry upon his ac- count book by the respondent of a charge against the complainant for a vest chain, was a writing purporting to contain evidence of the exist- ence of a debt, contract or promise, within the true meaning and intent of the statute. In examining our statute it will be seen that almost every form of writing or instrument known to the law is specifically enumerated as the suhjecl, of forgery, but no mention is made of accounts or books (.f ac- count. Is it not probable, then, if the law was intended to apply to so common a thing as accounts, they would have been mentioned with the other writings specified? The terms " writing," " instrument," and " written instrument," are used indiscriminately in defining forgery at common law. Thus, Black- .«tone says forgery is the fraudulent making or alteration of a writing, (tc. Baron ?fvre says it is the false making of an instrument, etc. Close, J., says it is the false making of a note or other instrument, etc. East says it is the false making of any written instrument, etc.» We see no reason why the term " writing " in our statute is not to be un- derstood in the same technical sense as when used by these early writers, when defining forgery at common law. It has been held in New York that, at common law, an indictment for forging an order, by fraudulently altering its date by the signer of an order after it had been answered and returned to him, with intent to defraud the man to whom it was given, could not t»e sustained, on the ground that when the order had performed its office, and was returned to the man who gave it, it was his own paper, and that to alter its date, or even to write a new order like the first one with only a change of date, il3; 2 Bish. Cr. L., 1 2 East r. C. 8o2, H-U. 46 OKCiKltY. would only 1»(' making a new order, which any man may do without its l)eiiiL: forj^eiy, even thougii done with a framlule it intent, and liecause thvic was no intenneddliiiLt with an instrument or writing which was the proiu'ity of anotiier. It is also suggested that, if a iiill of exchange Oi* i)ron)i>- sorv note bo piud and taUen up liy tiie maker, who then for the purpose of fraud alters tiie date of the note, such alteration would not constitute forgery at common law.' The statute of New York, which was in force in IH.ii,^ provided that "the counterfeiting with intent to injure or defraud, of any instrument or writing, lieing or purporting to he the act of another, by which any rights or property whatever, shall i)e or purport to l)e affected," etc., shall Ite forgery in the thinl degree.-' So the statute of Missouri, against forgery, eraplo3'3 this phrase: "Any instrument or writing i>eing or purporting to be the act of another, by which any pecuniary demand or oltligation shall be or pur- port to be transferred, created, increased, dischargetl, or diminished," cte.^ It may well be doul)ted whether the statutes enlarge or limit the com- mon law in relation to forgery of instruments or writings, or whetiier they only simply exi)ress, in describing the offense, what had been un- derstood as the legal construction of the word iiistruuK it \4, discard tiie doctrine, not di'eming it well fountlcd on a; .-.j,, ' uud Mr. Bishop in his Criminal Law." says we may at least d)' 1 People v. Fitoh, 1 Wend. 198; l-eople r. ' y. 083. Cady, ti Hill, 490. • p. 283. a Rev. StiilH., p. JiliO.efil »t>0. .'U. ■ p. 855. S Pcopla V. SteHrns, '.M Wciiil. 109. » vol 2, rec. 481. 4 Slate V. Fowlcy, 18 Mo. 445. STATK V. YOINC 47 tlioiit its iK'iii:: lu'csuise llnif istliopro|u'rty ge oi* i)ronii>- )r tlic purpose uolcoiistitiite provided tliiit iiy iiistniinent liy wliich any ffet'ted," etc., > this phrase: he the ait of lail be or pur- diminished," limit the com- rs, or whetlur iiad been uii- t or writing at re have before le in the name 1 Hale's Pleas Lnd in 2 East's that a person jougli he sign material part, IS genuine and ;us, tliey say, pose of fraud, ce of the same itain credit by arlier than the )Oi !ether the giving a second deed in the case put. couM he deemed forgery in a country where we have registry laws; but, he adds, that perlu.ps if a man should surreptitiously get hold of his own instrument after it had been deli\ere.l, and alter it, the alteration would bo forgery, and he cites Peoplo V. FiU'I,,^ where it is said that if the maker of a bill of ex- .luin-'c, after acceptance, should alter the date whereby the payment was accelerate.1, that would be forgery. This would, of course, be so, lucjiuse after the acceptance it becomes the contract of the acceptor ; il is then his promise or writing, and ay alteration by the nuiker would tl,..n be the altcMing of the writing of another. He also cites Common- ,real/h V. M'lcaU,^ where a justice of the peace had issued a writ which lnd been served and returned, and he then altered it in a material part und it was held forgery. We might also add that where a man had made a promissory note and delivered to the payee, and whde it was ills proi)erty and in his possession, the maker should surreptitiously get possession of it, and so alter it as to make it read for a less amount, or to be paid at a more distant time, that might be forgery. The rule, then, seems to be that the writing or instrument which may be the subject of forgerv, must generally be, or purport to be, the act ..f another, or it must at the time be the proi)erty of another, or it must be some writini: or instrument under which others have acquired some ri.rhts or have become liable in a certain way, and when thcBC rights or lirbilitios are sought to be affected or changed by the alteration without their consent, as in the case of the alteration of the note above men- tioned. In that case, if the magistrate had made some mistake in his writ, he was at perfect liberty to correct the error, and to make any alteration he saw lit, before it went from his hands for service ; but after service and return, when the rights ami liabilities of others had become involved, and others had become interested by being made parties to the proceding, such an alternation might be forgery if material and made without their consent. A man mav make a statement in writing of a certain transaction, and may represent and assert ever so strongly that his statement is true ; hut if it should prove that by mistake he is in error, and that his state- ment is entirely wrong, that could not be forgery ; and suppose we go further, and admit that the statement was designedly false, when made, and so made for the purpose of defrauding some one, it does not altt-r the case, it is no forgery. The paper is just what it purports to be, it is the statement of the man that made it, it is a true writing or paper, though the statement it contains may be false. The truth may be forged as well as falsehood. So, in case of a charge on book account, 1 1 Weiid. li»8. t 2 Maes. 136. 48 rOUOERY. the c'lmrgc may in first instance be erroneous, and no one would claim that the person maldng it iniglit not correct it, so ns to ninke it right, and tiiat would be no forgery. Hut if A. gives B. his promissor}' note, and by mistake the amount of the note is made ten or fifty dollars loo small, B. can not alter tlie note after he has received it from A., so as to correct this error without the consent of A. That would be forgery. A. may make a charge on his book against B. for an article which he never had, or he may charge for an article actually delivered a larger sum than was agreed on. It is a false account, and may have been so made for the purpose of defrauding B., but it is no forgery. Tiie writing is just what it i)urports to be, a charge made by A. on his book against B. ; it may be wnmg in amount, or the whole charge may be a fabrication througliout, still it is A.'s charge against B., and though wrongfully made is no forgery. To forge a writing, necessarily implies that a writing be made which shall appear and purport to be something which it is not in fact, or that a writing be so changed or altered that it shall not be or purport to be what it was designed to be. But in making a false account the writing is what it was designed to be. . To forge or to counterfeit is to falsely make, and an alteration of a writing must be falsely made to make it forgery at common law, or by our statute. The term falstly, as applied to making or altering a writ- ing in order to make it forgery has reference not to the contracts or tenor of the writing, because a writing containing a true statement may be forged or counterfeited as well as an}' other, but it imi)lie9 that the paper or writing is false, not genuine, fictitious, not a true writing with- out regard to the truth or falsehood of the statement it contains — a writing which is the counterfeit of something which is or has been a genuine writing, or one which purports to be a genuine writing or instrument when it is not. The writing or instrument must itself be false, not genuine, a counterfeit, and not the true instrument it pur- ports to be. We think it plain that a man can not falsely make or falsely alter his own account against another while in his own book, and in his own possession, and before any settlement or adjustment of the same, whereby any person but himself has acquired any interest in or right to the same, as evidence or othei-wise, so as to make it forgery. He may make false charges in his book, or he may alter the charges on his book so as to make them more true or more false, so far as the contents of the charge is concerned, but still it is his own account; just what it purports to be ; it is his own property in which no one has acquired any right or interest ; it is his own true writing, as much if the charge is false as though it were true. The character of the writing as being STATK V. YOUNO. 49 10 would claim iiinUo it riglit, omissor}' note, rty dollars loo from A., so as iild be forgerj'. ititle which he vered a larger V have been so 'ry. made by A. on D whole charge igaiiist r.., nnd ng, necessarily I purport to l)e so changed or k'signed to be. ; was designed alteration of a Hon law, or by altering a writ- he contracts or statement may mplies that the c writing with- it contains — a B or has been a line writing or ; must itself be ;rument it pur- falsely alter his and in his own of the same, 3t in or right to gery. He may gc9 on his book the contents of it; just what it as acquired any if the charge is vriting as being false or fictitious, instead of genuine, is not altered l>y tlie truth or falsity of the stutoment tiiat tiie writing may contain. Our attention luxs been called to two cases by llie State's counsel as fiivoring the doctrine that this indictment may be sustained. Tlie first is liileti V. Comiiionireiinh,^ where it was lield tliat the maUing of a false entry in the journal of a mercantile firm by a conlldential clerk and hooli-keeper, witli intent to tlefrand his employers, is a forgery at conmion law. Eilwin U. Biles, tlie defendant, was charged with having made a false and forged entry in the journal of Ilaskins, llieskell & Co. with intent to defraud said firm. It was charged that said Biles was, at the time, tlie conlidential clerk and book-keeper of said firm, and was eiitrustetl and emj)loyt'd by them to keep the books of said firm, to nia'o entries therein, and to have tlie sole charge and keeping of said books of account, and of the posting, settlement and balancing thereof. The clerk had under head of " Cash Dr. to sundries," entered twelve bills receivalile amounting in all to $•;, tr).-).);:} when correctly footed, hut had altered or forged the footing and carried it out $'^,'i^)5.Ct'^, the result of which forgeiy was to represent the cash received five luindred dolhirs less than the actual amount, and thereby enable the clerk to abstract that sura from the funds of the firm. Upon this evidence and proof that Biles was clerk and book-keeper as charged, a verdict of guilty was sustained. Tlie decision seems to be based upon the ground that the entry in question was, as between the clerk luid the firm for whom he acted, in substance an acipiittance, or in the nature of a receipt from the firm to the defendant; that, as confidential book-keeper, ho received the amount of bills receivable ; to discharge himself fromliabiUty,he enters tlie several items in the journal, as the agent of the firm, and then, not as the agent of the firm, but as an individual, for his own wicked game, so emses, or alters, or makes a figure or figures in the sura total, repre- senting the addition of the entire entry, as to deceive and thereby (lefraird his employers. The court say: " We can see no distinction lielwcen this case and the very numerous decided cases, wherein to forge a receipt has been held to l)e a forgery." Upon the grcuind assumed by the court in that case, it is in accord- uuL-e with the other adjudged cases ; but whether the court were correct or not in all their conclusions in that case, the decision is clearly no authority for the validity of this indictment. The other case referred to is Barnum v. State.^ Barnum had been indicted and convicted of a forgery under the following eireumstances : Barnum had an account against one Ayer, wliich wsis settled in full on 132 Pa. St. (8Ca8ey)529. 8 Defences. IJ OliiP.TH. 50 yoUdKUY. Barn.nn-. book, March 1, IHlK u.ul tins sottlc.nent was s.gn.d by bo ,. ,ZL, or pur .one. to b., in full oi' ull ..nnuncU to .lute ; and, on . 30th d V o April. 1H..>, Harnun. frauaulenlly all.ro. the U,nne 1 n - afi-'ure 1. So that it then purpo-teU to be a »ettle.acn .n ul t. Murd. 1, 184..,tbeHuia Ayer th.n boUling a clain, for bats ami cot ZZsi Harnu.;,, whi.h had aec.ru.a between ISU and IH.l and .. ..h therefore designed falsely to be brought within the tenuH o he settle- ^ nt, and to be cut off or discharged by it with intent to defraud sau Ave It -as held that the charge was well made an,l the .nd.ctn.ent sumcient, but the verdict was net aside because certain evuience was excluded on trial, which was bcUl to be competent and .natenal. „ this case, although the receipt was signed by both P- -« - ^ defen.lant's book, y. . it was the receipt of both part.es u. ^^^^^^^ an interest, and to the benefit of which both ha.l a right, and for e.the falsely or randnlently to alfr it was just a. n.uch forgery as though U had been signed by L other party alone, v inch wonhl be the ordinary .ase of fo, ;;ing a receipt of another person, wind., at --- - J^ by the express provisions of our statute, would be forge, >. \\ e laNc been unable to find any case or any precedent which .n any way author- izes the present indictment, and from the exanunatton we have made, we are satisfied that the demurrer must be sustu.nid. Indictment quaahed. FORGEUY-rNAUTHOHIZKl) COUNTY BONDS. Pkoii.k f. Mann. [75 N. Y. 484; 111 Am. Hf|). 4S2.] In the Court of Appeals of N'W York, IS78. of moncT, vurpomng '"'«''",, ^^n'^Sf '." H"". "ot to b. forgery, tbo .ame Conviction of forgery. The defendant was county treasurer of Sara- toga County, and without authority made the .nstrumeu of w uch the JoUowing is L copy, which the payee discounted, he recefvmg the pro- ceeds:— ^^^^^ _ Sauatooa CoiNTY TREAsruEu's Offick, > Ballstov Si'a, June 10, 18"5. S '. In pursuance of a resolution passed November, 1874, by the Board of Supervisors of Saratoga County, the county of Saratoga promises I'KOri.E V. MANN. .n ^igiR'd by l>oUi L' ; aiul, on llu- e U^ure 1, inli' uMil ill full t(. hiUa luid cloth ■III, uiul wliicli 8 of the settlt'- Lo defraud suid the iiidietnient II evideuce wus natcrial. parfn'S on the wbiLh both hud , and for either •ry as tli()iij,'U it be tiie ordinary oinmon law and ;ery. We have my way niithor- I we have made, nent quashed. IDS. 7S. lenlR for the payment y, but signed only by be forgery, the »ame Lite. rcasurer of Sara- ent of which the iceiving the pro- r's Offick, ) IG, 1875. S ^74, by the Board aratoga promises to pay at the Saratoga County Trcasnrer'H omcc, on or before the IMt ot Ki'l.rnary, l'^"'"', to tlie First National Haniv of llallston Spa, or hearer, 8l'>,0()U. at seven per cent interest, value reeeived. "810,000. llKNUY A. Mann, " Treasurer." Esek Cowen, for plaintiff in error. The defendant was properly convicted of forixeiy in the third degree.' Kdtlianivl C. Mi»il,\, f )r defenihint in t Tor. Rai'.u.i.o, J. The statute under Mliieh i';e defendant in error was convicti'd dellnes tlio offense of forj^ery in tie third tlefXive to be, so far as applicable to this case, falsely niakiiii.' or alterint is d.ur.M.l with hav.nj; furgnl, purportH ,.n its fa.e to have heen UKule hy himself and not by any other person. Tlic judgment of the general term should be alDrme.!. All concur, except ll.v..., .).. not voting. ^^^^^^^^^^^^ ^^^^^^ FORGERY - falsi: ASSUMITION OF AUTIIOIUTV. State c. Willson. [28 Minn. 62.] In the Supr«mp Court nf Minnesota, 18S1. oxlX rulcB .,f h.w UH to wl.at oonHtllule. a f.ilBC or forgoU ...nrument. he u not guilty of uttering a false deed will.lu the mean.ug ol the statute. The defendant was convicted in the District Court for the county of Hennepin, of the crime of uttering a false deed, after a trial by jury. YouNO, J., presiding, and was sentenced to imprisonment for two years and six months. This appeal is taken from the judgment. Bentoii, Burton & lioherts, for appellant. William J. llahn, Attorney-General, for the State. MitruFi I J The defendant was indicted, under General Statutes, 1878 2 for uttering and publishing as true a false deed, kuowmg the same to be false, wiM. intent to injure and defraud. The indictment set out in Juvc verba the alleged false deed, which purports, on its face to be a deed of conveyance of land by one James D. Ho.tt to Joseph F. Miller, and to be signed II. II. Willson, per procuration of said Hoitt, the form of the signature being " James D. Hoitt, by H. V. I ch. 9C Boc. 2. 2 ch, 90, sec, 2. mm 8TATK >'. WILLSOX. 58 ic prospnt CMC havinjjj furi^t'd, 111 not by any lent affirmed. lilTV. ral Statulo, 1878,t are o( tlml cliaplor, and iHtriimont, ttio utter •2, nniHt b6 one, the lute enUMieruteg tin- (■suine to change the ment. se ABBumptlon of i« tiice to bo executed act no authority from 10 instrument is not a is no (ulxe making o( in,', when such Instru- lumption of authority, statute. for the county of (r a trial by jury, icnt for two years Qcnt. General Statutes, Iceil, knowing the . The indictment •porta, on its face, ). Iloitt to Joseph rocuration of said ►. Hoitt, by H. D. Willson his attomov in fact." I'pon thr trial of tli.- cause it up :ircd tliut the defendant "Hi^rncd the deed in M'i''«li'>", chumiiiK tlie authority so to do under a power of attorney from Hoitt. Th.! falsity of the .l.ed, elaiiiied by tlic Stale, consist.'d, not in any siiuulatioii or imi- tation of tlie si^jnature of Hoitt, or in putting? fortli llie instruinnit with llie false pretense tliat the si^rnuture was the pernonal act of Hoitt, but ia tlie false assertion, contaimd in Iho instrument, that he, the signer thereof, was antliorized so to make and sign it in behalf of Hoitt, when in fact he had no such authority. Upon this state of facts nppeariii<» from the evidence, when the pros- ecution rested, the defemlant moved for a dismissal of the action, upon the ground that the instrument was not a " falne " deed. Tlic court ileiiied the motion, and the case having been submitted to the jury, lesultcdin a verdict of guilty, whereupon defendant moved for a new trial, which was denied, and defendant n|>pealed. The same question was raised by the defendant in other forms, and numerous exceptions were taken by him to the rulings of the court on other questions i but, under the view we take of the law applicable to the case, the foregoing is a sufficient statement of the facts for the purposes of a decision of this appeal. The real question, therefore, is whether an instrument, which appears on its face to have been executed by an agent authorized, while in truth lie was not so, is a false instrument ; or to state the proposition in an- other form, when an instrument is really, in all its parts, written or signed by the individual by whom it purports to be written or signed, and the falsity consists, not in the simulation or counterfeiting of the act of another^ but in the false assertion which the instrument contains that he, the writer antl signer thereof, is authorized so to make and sign it in behalf of another, as it purports to be, is it a false instrument within the meaning of the statute, and upon negotiation of such instru- ment by the person who has so prepared it, is that person guilty of uttering a false instrument? The terms "false " and " forged " a.> used in section 2, under which the indictment was framed are used in the same sense in which tliese words are used in section 1. Section 2, was never designed to apply to a different class of instruments from those referred to in section 1. Section 1 refers to the making of the instruments and section 2, to uttering or publishing them, and is to be interpreted ex- actly as if read, " Whoever utters and i)ubiishes as true any instrument mentioned in section 1." The instrument, the uttering of which is made an offense under section 2, must be one, the making of which would be an offence under section 1. It will be observed that neither section attempts to define what is a false or forged instrument. It was the trM r)4 FORGERY object of tlio statute to cmhraoi' in ffoiioral langiiapo all instruments wliieli iiiiiilit lit' prope 'ly tlic sulijrct of foij^ciy, and not to establish any new kind of orinu', or to change the ])reviuus rule of law as to what foiistitntcd a false or forged inatrumeiit. In that respect our statute iias iiuL atleinpti.'d to change the CDUinion law. Therefore, in order to l and injure linn, \» not forgery. The facts are stated in the opinion. By tM Court, I'KCK, .1. It is charged in the indictment, ^' that Jona- than lliU, a cert ain bond, writing obligatory, bill of exchange and prom^is- orv notJ, for the payment of money, falsely purporting to be genuin from a e t,i„ Dan el Ireland, then ami there did feloniously cause and pro" .r u ™,ae, altered, forged and counterfeited '• -here the iio e Uset out and the indictment proceeds- " did feloniously and f ahe y make alter, for.o and counterfeit; and feloniously and falsely th r ar^ th did cause and procure the said bon.l, writing obligatory bill orexehange, and promissory note, for the payment of money, etc., airainst the form of the statute." There is no plea or issue on the record, though it appears that he defend: nt was present in court, and a jury sworn, who found this «; "a verdict. - Hiat on the third day of April. 1KS2, n the county o Vi 1 alon, the accused snld land to Daniel I.eland for our hun- dre ^n sixtj'-tive dollars, to be paid in installments at stated period. tL L note^n which the indictment is founded, was ™ jd^ ^^ time and place aforesaid, in part payment for the land. Tha Ireland rsaT Illiterate man; that the accused wrote the note with the other lotes fo the conBidcratiou money in presence of the said Ireland an.l hsur^^ng witness, and made it together with the other notes, over HILL V. STATE. r.7 IT. lie mip:ht be use-!, liut not of Wc aro, then- 'r a (iistnissal of t(! rested. Tlie lUsmissal of the f tlic court. , and defendant FKAUD NOT. real Hinount iliio. «nil mount, with a view to lent, " that Jona- liangcandpromis- ling to bo gcnuini' niously cause and " — here the note liously and falsely and falsely there ng obligatory, bill it of money, etc., ; appears that the 1, who found this xH-2, in the county land for four hun- < at stated pcriotls. vas executed At the lud. That Ireland inte with the other le said Ireland and le other notes, over to the prosecutor in the hcarinj: of the subscribing witness. That he, the accused had written the note in question for one hundred dollars, when it should have been written for sixty-five dollars, and it was by the accused, falsely antl fraudulently read over as a note for sixty-tive ,lnll:ir3, when, in fact it was written for one hundred dollars, and that it WIS done with a view to defraud and injure the said Daniel," etc. On this special finding the Circuit Court gave judoraont against the prisoner from which judgment this writ of error is prosecuted. Waiv- i„^r for the present the form of the indictment and want of plea and isrue let us intpiire if the facts found constitute the offense of forgery. For<'ery at the common l;>w is the falsely making a note or other in- .Uumlnt with intt-nt to defraud. The definition implies that there nmst he an act done or procured to be done, to constitute this offense. The al.ove definition is taivcn from 2 Leach's Criminal Law,' where the au- thor says: " A note or other instrument may be falsely made, either by putting on it the name of a i)erson who does not exist, or by putting on it the name of one in existence, witliout his consent, or by altering it," tic. Here the accused has put no name to the instrument, but it is found by the special verdict that he wrote the note for the wrong sum, and then induced the signing by a false reading ; still it was the real si.rnatuic of the person, and all that can be said is that he waj cheated by a false representation of the accused. This though a cheat was not a forgery. In Woocbvitrd's Case' [where] a soldier was induced to sign his own name to a fabricated country bank-note, though done knowingly, and for the purpose of fraud, it was held no forgery ; and the court immediately on hearing that it was tlie real signature of the prisoner, said that ho must of necessity be acquitted, for that being signed l.y his own name, it could not be a false instrument and therefore not a forgery. The case relied upon is that in 3 Institutes: ■' " If any person writeth the will of a sick man inserting the clause concerning the devise of any lands and tenements which he liad in fee simple, falsely without any warrant or direction of tlie devisor, albeit he did not forge or falsely make the whole will ; yet he is punishable by the statute 5 Elizabeth, etc., as has often been held in the Star Chamber." There is evidently an ambiguity in the language used by Lord Coke in this place, for it is not expressed where the insertion of tiie clause was made. But this is ex- plained in 3 Dyer," in i=sir John Marvin's Case: " It was moved for a doubt if one who writes the will of a man lying mortally sick, insert a clause or article in the will, afttM- the testator is speechless and without memory and he did not command the writer beforehand to put m the 1 p. TSS. ■■i I^achCr. 1.. TSt. p. 170, margin. * p, 288 a. iiX FOUGICUY article or clause, whether this he forgery under the statute, etc., and it was ajjreed and resolved l>y tho best opinion there that it was not, nor was it tlie intention of tiie nialu-rs of said law." I quote this at large to show tiiat it must be a making or an alteration of the instrument without the consent of him who would purport to have made it. liut it can not be pretended tliJit any false bond uttered to induce a real signing of an instnuncnt, can make a forgery under our statute; ' because tlie party himself signed this deed, primnable to crmunal prosecution in this State, unless the offense of which he was charged was expressly defl.ie.l and the penalty affixed by the written law of this Sfite > So careful was the law-making power in its endeavor to carry out this essential idea, and to provide proper safeguards for the protec- tion of the citizen against prosecutions for acts not criminal under our Inv that it was further enacted, in !«.-)«, as amendatory of a provision substantially similar in the original Code, that " no person shall be pun- istied for an offense which is not made penal by the plain import of the words of a law." '-^ These provisions are necessary to be bon.c in mind in ascertaining whether a certificate of acknowledgment to an instru- ment for registration comes within the meaning of -an ir itrumcnt of writin-'," as emi)loved in our statutes relative to forgery. And this must be determined affirmatively before it becomes necessary to con- sider any of the other errors assigned by appellant as cause for reversal of the judgment of conviction. At common law, one of the chief excellences of which system was its comprehensive adaptability to the ever varying phases of human con- duet, an affirmative solution of the question, though not entirely free from difficulty, coul^ nevertheless in our opinion, bo reached and sus- tained upon satisfactory principles. Its definition of the offense of foreery, to wit, "the fraudulent making or alteration of a writing to the prejudice of another man's right," ' is sufficiently comprehensive to embrace every character of writing, official or unofficial, and to render amenable to punishment any person who might concoct, manu- facture, or alter any instrument whatsoever, that could in any manner 1 Pasr. Dig., art. IfiOB. 'i Paso. Dig., art. ItSll. 1 4 Bla. Com. 24T. CO FOKOEUV tend to tho prfjudice of another's right. |)iovide(l the same was done with a fraiidiilint intt-iit. And numerous cases cduUI be readily citnj, showin^t convictions for forging ahuost every chiss of writing known tc notary) to d.s- ' ;,e of or change the character of the land certificate, nor could .t l,ave had such effect i' genuine. But our decision need not rest on ""rUinlHo us, the legislative mind, in the enactment of the statute, was notconlempluting an olHcial but a private act, and the former .s altoticther excluded by the plain import of the language employed. It seems not improbable that if the legislative purpose had been to in- ,U,de an official writing or certificate !ik« this before us exact terms would have been used to manifest this intention, especially in view of the particular exactness with which it was sought to (Refine every offense and to prescribe the essentials of each. And if the law had nlr..idv fully provided for the punishment of this class of forgeries it wouurnot have been necessary that they should be included expressly in the act of July 28, 187C., which provides for the detection and con- vic-tion of all forgers of land-titles.^ The fact that acknowledgments and proofs for record were then for the first time expressly enumerated us subjects of forgery, while not conclusive, is most significant as tend- ing to manifest the legislative opinion that past legislation hac failed to provide for that class of offenses. Be that as it may, the laws ui force at the time it is alleged this forgery was committed are unmis- takable in their terms, and even a casual examination of them is most convincing that the act for which the appellant has been convicted was not provided for by the laws in force at the date of its alleged commis- " The authorities cited for the prosecution in support of the conviction, as well as others examined in the course of our investigation, l.eing based altogether upon statutory provisions of a nature essentially differ- ent from ours, fail to support the proposition that in our State a con- viction may be bad for forgery of a certificate of acknowledgment „rior to the act of 1876. In People v. ^farion,= a conviction of this character was sustained, but under a statute expressly providing for the punishment of any person who should falsely make, alter, forge, or counterfeit any certificate or attestation of any clerk, notary pubic, etc * So also in New York, Pennsylvania, Massachusetts, and other States, similar statutes have long prevailed, upon which these clecsions are based.^ Similar statutes have also prevailed in Lngland for more 1 Pasc. Dig., art. 2103. s Laws 1876, ch. 61. 3 29 Mieb. 81. « 2 Comp. L., Mich., \Mr>. » a Whart. Cr. L., sees. 131S, 1417. 63 FOIMJKUY. than a century past, all of which were finally omhodiod in 21 and lT. Victoria,' and upon tliese statutes most, if not all, of the decisions of that country, since the period indicated, have been founded. VVc have been able to find no statutes similar to ours in force in any other State, nor any adjudication by courts of last resort iu other States, upon whicli this conviction can be rested. Because tlie act for wliich appellant has been convicted was not made penal by the plain import of tlic words of any law in force at the date of its alleged commission, the judgment is reversed and the cause dis- missed. Reversed uikI dismuised. NO PRESUMPTION OF GUILT FROM UTTERING. MlLLEll V. StATK. [51 Ind. 405.] In the Supreme Court of ImlUtna. 1. The Uttering and Publishltiff of a forguil in.strumcnt by the prisoner raises no prcsiimiiuoii ol l.iw Unit lie (iiinmlucil tli.i furriery. ■-. On a Charffe of Forpery tlio iitteriiiR iind |iiiljli»liing of tlie forRccI instrument arc cir- cuintitances to be wcigliej by llie jury in couuection Willi oilier evidence in the eui-c. WoKDKN, J. Tiie appellant was indicted for forgery ; the indictment containing two counts. The first charged liiin with having forged the name of Calvin Mullen upon the back of ii draft drawn by the First National Bank of Xenia, Ohio, upon the P'irst National Bank of Cincin- nati, Ohio, for the sum of eight hundred dollars, payable to the order of said Calvin Mullen. The second count charged him with having uttered and published as true a forged and counterfeited indorsement of said draft, purjiorting to be the indorsement upon the same of the nanxe of said Calvin Mullen. The defendant moved to quash each count, but the motion was over- ruled. Each count, it seems to us, was good. The defendant moved to retpiire the prosecutor to elect on which count he would put the defendant on trial, but the motion was overruled. Doubtless the court might, in its discretion, have required the election to have been m.ade, but there was no error in refusing to do so.^ On the trial, there was a general verdict of guilty, and the defendant was sent to the State's prison for the term of eight years. > ch. 98. i Mershon t>. Slate, ni Ind. U. MILLKK r. SIATK G3 in L' I and lT. le clucisious of led. \Vc have )y other State, es, upon wbieli was not made rco ill the date tbo cause dis- ci dismissed. SG. irisonci' raises no n^trunicnt arc cir- icc in Uie uui-c. the indictment ng forged (he u l)y the First lank of Cinein- le to the order d published as ift, imrjiorting L'alvin Mullen, tion was over- leot on which ivas overruled. 3d the election do so.^ the defendant Several reasons were stated for a n.-w trial, hut we deem it neecssa.y to n..tieo only .me. The court iuHtiu.te.l the jury, amongst other lliin"s, as follows: — -If it, is shown tiiMt tlie in(lois?!mMit is forged, and that the defend- .i„t had iu his possesMou and pussod said dieck. with the f..rged i.i- iiors.inent thereon, the presumption arises that the (KtVn.lunt n.a.le the inloisemcnt, and unless that presumption is explained anil rebutted, it ,vill be sullleieut evidence to warrant you in coming to the eoiulusion lli'il the defendant made such indorsement." The charge thus given was radically wmng. The draft or bill of ex- .iKin.re, being indorsed by the payee in blank, would pass front ha..d to ian.r by delivery, without any further indorsement, so as to vest Mic title in each succ-essive holder. The count charging the defendant with l,i,vin<' uttered and i)ublished the forge.l iu.lorsement as true, necessa- rily contained the allegali..n that the ,lefeudant knew the in.lorsernet.t to luue been forged at the time be ut.eivd and ,.ublished it as true. 1 he ..knter is a necessary ingredient of the offense charged in the second .cunt, and the allegation must be supported by competent evulenrc Now, it might happen that a bill, thus apparently indorsed by the payee iu blank, might i.ass tluough innocent bands, an.l it can not be '•iw that each person through whose bauds such a bill m.ght pass the iiKlorsement turning out to be forgery, is to be presumed i-»v.. a yiu^c ,0 have made the forged indorsement. If the instruction be coiTcct, then it foUuws that, while on a charge of uttering and publishing as true any such forged indorsement, a party could not be convicted with- o.it averment and proof of the snenter, yet be might be convicted on I charge of the forgerv of the indorsement without any other proof than the mere uttering an.l publishing as true of the forged indorse ""u-e do not think it can be laid down as a rule of law that the utter- in.' and publishing as true of a co.nmercial instrument, with the name of the payee forged thereon, raises a presumption that the person litter- in- and publishing is guilty of forging the indorsement. On a charge .f^the forgery of the name, the uttering and publishing are circum- stances to be considered by the jury, with any other ev-i.lence bearing on the question of the forgery, and what weight shal be g'ven to the uttering and publishing is to be .letermined by the jury, "> ^be «a^^ manner as they determine the weight of other evidence ,n crimina casc^ The judgment below is reversed, and the cause remanded for a new ^"'Fhe clerk will give the proper notice for a return of the prisoner. nd. U. 1 2 G. A II. 146, tec. SO. 64 I'DUllKUV. NOTES. § 4()'i. Forgrery— Intent to Defraud Bssenttal. — An Intent to defraud is es- scntliil to tin? crlinc of forgery,' itiid the inteut must In, to defniud some par- ticiiliir |)erHon.''' In Montgomenj v. State,^ it was held In the Court of Appeals of Texas that the jnteiit was not proved. The forpery for which the Indietineiit in this case wa,, presented, and of which the dcfendiint was convicted, c< islsted In writln;?, wltli- out lawful authority, the nanio of "A. II. Mont;;oniery," across the buck of a bank check for ^m, which he cashed at the banking house of I'utman, Chambers & Co., Gainesville, Cooke County, Texas. His punl.shment was assessed by thp jury at Imprisonment In the penitentiary for two years. The instrument upon which the name of A II. Montgomery was alleged to have been written by the appellant without nutliorlty, was as follows:— "No. 21,526. N.\TioSAi. B.ink of Lancartkr. 1 " La.ncastkh, Ky., Nov. 22, 1880. i "Pay to the order of A. H. .Montgomery, sixty dollars. " To the Mercantile National Bank, New York (^ity. „„ " \Vm. II. KiN.N.Aiui), Cashier. "Wm. H. Kinnaird, Cash'r. " Gkurue Denny, Pres't." The names of A. II. .Montgomery and A. M. Montgomery were indorsed across the back. A. II. Montgomery testified for the State, that ho lived In Denton County, one and a half miles south of Pilot Point. He received his mail matter at Pilot Point. The witness was orijiiiu'lly from Kentucky. His wife's name was Mat- tie Montgomery. The witness w is familar with the signature of the cashier of the Lancaster, Kentucky, National Bank. The check In question being exhib- ited to the witness, he te.stitled that it was sent to him by his wife's brother James, as rent for a small piece of land. The first the witness ever saw of the check was when it was sent to him by Putman, Chambers & Co., with a letter asking if the indorsements on the bi-k were genuine. The two signatures "A. II. Montgomery " and " A. M. Montgomery " are not the signatures of the witness. He did not sign this check nor authorize the defendant nor other per- son to sign it for him. L. B. Edwards testified, for the State, that the first time he saw the defend- ant was about the last of December, 1880, when the latter cayne into the banking-house of Putman, Chambers & Co., and cashed a check for 8G0. The witness recognized tlie check shown him as the one he, as cashier, cashed for the defendant. The defendant wrote the two signatures, "A. H. Montgomery " and "A. M. Montgomery," on the back of the check. When the defendant came to the bank and exhibited the check, the witness told him to indorse it by writ- ing his name across the back. He wrote the Indorsement, "A. M. Montgon.^iy," and the witness told him that the check was payable to ' B. V, UodgsoD, Dears. & U. 3 (1856). ' 12 Tex. (Anp.) 323 (1882). KOKOKKV — INTKNT TO DKt'UAl'D. (;:> ' defraud Is en- iiud some par- Texas that the \ this case wa,. wrltlnjj, wltli- s the l)iick of a nan, ChambcrR ixscssed by thp was alleged to ows: — Lancastrr. ) •. 22, 1880. i Ri>, Cashier. Jdorscd across cnton County, natter at Pilot mine was Mat- thu cashier of n being exhlb- wife's brot her /er saw of the , with a letter wo signatures natures of the nor other per- aw the def eud- nvtme Into the for 8G0. The ier, cashed for Montgomery " efenduntcame )rse it by wrlt- Vlontgoru^iy," Montgomery," It to be A. M. Mciittroniery. The witnes-i tolil him there nnmf be somi- ml.Ktake if his nume u IS A. M. Montiroiner.v. The tlefemliiiit thiii ^ald, " Yes, It should be 'A. M. Mmitaomery; ' " he had a letter, which he looked at and then wrote the name • A II. Montgomery." The witness understood the defendant to be A. M. Mout- -oimry and that the elieek w.is his. The witness paid the defendant the money ,11 the cheek and sent it to New York. It was soon returned with information ihil the bank lit Lancaster, Kentucky, refu,sed t(» pay It It was marked • (orixed indorsement." On eros.s-examlnation, the wllne-s stated that he eoidd iiiit ninember that he told the defendant that clerks in banks .sonietlm.s make ^il^t.lke8. As a fact, they sometimes do make mistakes. When clucks are ,lr,iwn on I'utman, Chambers & i 'o.'s bank in favot of the wife lt|ls common for the liiishaiul to sign his wife's name, I lit such priietlcc Is not permitted with bills of .\ihunge. The defendant did not say that his uaiue was A. M. Montgomery. Till' witness inferred It from the transaction. .1. A. Bolton testitled, for the Stale, that he was the sheriff of Cooke County, Texas, and arrested the defendant on this charge In December, 1S81. He told ilie ilefendant that he wanted him to go to Gainesville about a cheek. Defendant -.aid that he knew nothing about a check. After studying awhile he said that he had cashed a check tiiere for his daughter. The defendant was ai)pareiitly a VI rv poor man. lie had not been able to give his bond of 8.")00. Miss Mollie Montgomery testitled, lor the defence, that the defendant was her father. They live live miles west of Pilot Point, and Pilot Point is their liust-olllce. Tiere Is a private neighborhood box at Baker's st(»re, about a .(iiarter of a mile from defendant's hou.se, where the defendant's family usually L'nt their mail matter. Some time in October, 1880, word was sent her by her little brother tlnit there was ii letter for her at Baker's store. She went to the siore and Mr. Baker gave her a letter containing a cheek. That letter the wlt- iirss had at the trial. The direction on the envelope of this letl.r was " Miss .Mnllie Montgomery, " the Inside address was " Dear sister," and it was signed " Your brother Jimmie." The letter was read In evidence, and contained men- tion of but two matters, which the witness did not understand. In the letter the writer stated that " Mr. Dunn's folks were well," and that, in sending the . iiiek for the rent money of the witness' land, he had "reserved two dollars to |iay for the Advocate next year." The witness did not know " Mr. Dunn's folks," iKir could she understand why two dollars had been retained to pay for tlie Ail- vnmte. She had a brother Jim living in Kentucky, who attended to her father's liii-iness there. In writing to the witness for the family he usually signed his letters, " Your brother Jim," and generally commenced them, " Dear sister." Oilier allusions in the letter were to persons and matters In Kentucky, with wliich the witness and others of the family were perfectly familiar, and from Hum the witness entertained no doubt that the letter was Intended for her. Her father gets money from Kentucky, and was expecting some when the letter arrived. Her mother's name was Cassey Ann Montgomery. Her maiden name w IS Howard, which she still retained. All the family thought the check was in- tended for their mother, and entertained no doubts concerning the name "A. 11. Montgomery." There were some words in the letter which could not be made out. It was badly written, in dim ink, but in the handwriting of the wit- ness' brother, — so much so that it was not questioned on that ground. The Utter was shown to several neighbors, many of whom advised that the check be cashed. Either the witness or her mother gave the check to the defendant, one day when he was coming to Gainesville to get It cashed. The witness presumed 3 DKFKNCK8. 5 ct; I'OIKIKKY. timt lie dill cu.Mh It, UM ho iMiiii' buck with the iiioni'V. None i)f the family h< ii I that iiiiylhlnti wus wroiiu with tin- chfok until llio (Icfi'iulanl wun urrcHiid, .•>.'mi( two months licforr this tiiiil. Thin k'ttcrwan lost lit the tlinu of the pri'lliiilii in triiil, hill h:i(l hfoii Mince foniiil. The dill niiine of the wltiiesn wus Mary .In . MoiitKoriu'ry, hut hIic was gcncnilly luUlresHud as MolUe Moiityoiiu'ry. Cii>«^- cxuiiilned who staled thut mIic rcinenilured her father receiving money fi Kentucky but iiuee, untl that was In 1H7i;, in Sun Saba Coiinty, Hhortly after th. y came out to Texas. The iimoiint was abonl «Unt, bnt the witness could not -.t) whether it came by draft or post-ollhe money order. Her father, the deft nl- ant, had four farms In Kentucky. One is called tl'e Illoominnton, one the Wlnu Oak, one the Hed brush, and the other (he Hlue Grass farm. Her father hdil said tliat he would not take »l,iiOO for his Hloominntoii farm. A recent letter from the witness' uncle announced the sale of the Hlue (Jrass farm for $1,ii(mi The defendant now owns but one teai- of horses, and three cows and culvo, and raised some three or four Itales of cotton this year. Re-dlrect, the wltn. s- stated that she wrote her brother iicknowledRlnn the receipt of the letter uml contents. She had written to her brother Jim since the defendaut's arrest, uml is ilally expecting a reply. The defence then read In evidence the written testimony of Mrs. Kate Cas- slty, daughter of llie defendant, taken before an examining court. The siili- stance of it was that, about a year before tills trial, her sister MolUe Montgoniery received a letter from their brother Jim In Kentucky, Inclosing a check. In general detail, so far as her memory served her, this witness corroborated tlie testimony of Miss MolUe Montgomery, concerning the letter, Its contents and Its Inclosure of the check. Her sister, the witness .stated, was sometimes ad- dressed as Miss Mary, sometimes as Miss M. J., but generally as Miss MollU' Montgomery. Her mother's full name was Cassle Ann Howard Montgomery. Her father was expecting a remittance of money from Kentucky at the time tliut this letter and check were received. John M. Montgomery, a son of the defendant, testified that he arrived home from Arkansas two or three days after his sister MolUe received the check, lie saw the letter and the envelope. The latter was directed to Miss MoUle Mont- gomery. There wei some things In the letter which were understood, and the letter and check were shown by the family to several neighbors, with whom they advised about the matter, relating to them all of the circumstances. Mr Devaull, among the number, pronounced the check all right. The wltncs."; thought so too, and oflfered 8^.' for It. The defendant has land In Kentucky In charge of two sons, Jim and Tois. He has many other relatives In that State. His father's (the defendaul) imiiie is J. J. Montgomery, that of his sister M. J. Montgomery, and that of his -nother C. A. H. Montgomery. He knew of no cue in his family named A. M. Montgomery. The defendant brought a great deal of money with him to Texas, hut had spent it traveling around. The witness only knew of his own knowledge of his father receiving money from Kentucky but once since they left there, but had heard him say that he received money from there a number of times. A. J. Devault testltted, for the defence, that he was at the defendant's house when they had the letter and check, and saw them at that time. He came with the defendant to Gainesville, when the latter cashed the check. The letter was badly written, In pale Ink. The defendant and his family made no secret about tbe receipt of the letter. It was generally known in the neighborhood. ikB KOIMIKIIV MIST UK OK " ixxlMKNTS. 07 llir fiunily h( :u'l I?* iirrL'Hii'd, fi'iui if tlio {)rrlllIlllMr\ IS WHS Mary .Imx [(J!oiiu'ry. Cru"- liig inuiu-y fi'i'iii HliortlyuftiT Ihi y UHN CUUllI not ••:>) thrr, the tloft nl- Jll, one the Willie lli'i' (atlier ha.' of Mississippi, where the warrants were to be pa.ssed, a warrant, without a 8e;il was invalid, and the forged warrants lacked vitality also, because they did not pur|)ort to be registered. It was held thai the instru- ments were not the subject of forgery. •' Legal forgery," .said the court, " can not be made out l)y imputing a possible, or even actual ignorance of the law, to a person intended to be defrauded. However dark may be the moral hue of a transaction, courts of justice can only act upon the legal crime, upon criminal l)reaches of perfect legal obligations. How clear soever the fraudulent purpose unles" the writing is sulllclent to accomplish that purpose, it is not forgery .since, with a single exception, actions only, and not evil Intentions, are pun- ) Com. f. BoyiUoii, -• Milti8. 78 (ISlW). 2 U. V. ratemaii, U. * l{. 4M (1«1) ; «. f Harper, U Cox, .i74. a Williams v. state,. "51 Ga. .^,15. ♦John V. Stale, 23 Wis. B04 (ISiW) ; Henderson r. State, 14 Tex. .10:! (IHSM : Stale V. Wheeler, ".) Minn. 9.S (IS7'.>). » Faiiner r. IVople, :« Hun. 240 fl!«4^. • State r. I.ytle,fi4 N. C. ir^r> (is70). ' K. V. Moffutl.a Loach, 4.S6 (1787). ' State t>. Humphreys, 10 Humph. 442 (18.)0). • People r. Harrison, 8 Barb. 860 (I8!50), 1" People r. Fitch, 1 Wend. 1!W (1828). 11 llri>»Tn r. People, an; 4 Uun; 2 Cow. Cr. ish:il)le by tlie Entilishlaw. The invalidity of the warrant upon its face • » • nndervS It improper to convict tlie prisoner." Jn HmoiH v. Silrument or niemorauduni In writing, viz.: 'two hides §J 00; Sitnian.' This writing upon its face, is .vidence of no pc(-uui:iry obligation, and lis alteration, by simply changing llio figures, could neither, increase or dimiii- i^li any pecuniary obligation; and, therefore, tliat act can not be considered forgery nmler the statute. Forgery is defined by one of the best authori- ties on criminal law, to bo 'the false making, or materially alt.-ring with intent to defraud, of any writing which, if genuine, might apparently be of k-,Ml elllcacy, or tlio foundation of a leg;il liability." Tiiis definition of the CI line of forgery is very similar, and in no respect in conflict with that given liy our statute, and yet the same author siiys:* ' When the writing is invalid on its face, It can not be tho subject of forgery.' The Instrument under consld- eriUiuii has no date, is addressed to no one, and on Its face h;is no money or vane for its object, and indeed, iias none of the reipiisites of an obligation, iiiid the alteration of it could affect the legal liability of no one. The indict- ment charges that under, and by virtue of this writing, the defendant was authorized to demand and receive of W. G. Kandall & IJrother, certain moneys. Hut under the law ho had no right to demand of W . (i. liandall & Brother, or any one else, any money o.- other property, upon the face of that instrument. Tlu're may have been an uuderstauiling between liandall & Hrother and Sltmaii, fiiat they would pay on siieli a memorandum of Sitmaii, and if the defendant, iKtving obtained a knowledge of that understanding, has made use of it to >\vindle Randall & ISrother, he Is punishable by indictment for swindling, but not for forgery. The ct)urt therefore erred In overruling the motion In arrest of judgment, and for which error the judgment Is reversed and the case re- manded, that a proper indictment may, if thought advisable, be preferred against the defendant. " Reversed and remanded.'^ § 408(1. Instrument Void on Ita Face — Deed of Married Woman without AcinowledHrment. — In lioode v. Slatf,^ It was held that a married woman's ileed being by statute void without an acknowledgment, an indictment for for- gery of such an Instrument would not lie. Gantt, J., delivering tlie opinion of ihe court, said: "The indictment charges the plaintiff In error with forging and counterfeiting a certain deed purporting to convey the title of certain lots of .'round In the village of Nashville, In the State of Michigan. The deed is set forth in fxtemo in the body of the Indictment, and by It Jolin K. Roode doth grant, bargain, sell, and convey to one J. E. Davis, the lots described therein, with full covenants of warranty, and then foUows this language : ' The said John >•' iloode and Maggie Rootle relin(|uish all claims in and to the above described premises.' The names of both John K. and Maggie Roode are signed to the deed; It Is regularly executed and acknowledged by John K., but Is tot ac- knowledged by Maggie Roode, and the gist of the offense Is that the name of Maggie Roode was forged and counterfeited to tlie Instrument with intent to damage and defraud said Maggie Roode, who is the wife of the plaintiff in 1 37 Tex. Bill. 2 Piisc. Diff. 3 Uiiih. Cr. L. W»- ' vol. 11., p. 500. ■■> 6 Neb. 475 (187B). 70 l'OI!(iKUY eiTcpi'. Till' accused ilt!imirrt"l to tlit- iudictinunt on the ground tliiit tlie f:ict-i staled tlicniii are not suincieni In law to constitute auoffen.se i)unishablc by tlic laws of this Stale. Tiie demurrer was overnded by tlie court and exceptions duly taken. After the trial the accused filed a motion In arrest of judgment for the same reasou.s stated In lii.s demurrer, which motion was overruled and ex- ception was taken. The only (luestlons raised In the case are whether the deeii set forth in the indictment is, upon its face, void as to Maggie Roode and whetlier an Indictment fo'- the forgery of such an Instriimeut can, in law, bo sustained. " It is well understood that under the strict rules of the common law tlie trans- fer of real estate was by livery of seisin and therefore the validity of the trans- fer of sucli estate l)y deed of conveyance, depends wliolly upon statutory authority. It seems that the re^xistration of such deeds of conveyance was intended to stand in the place of livery of seisin ; and the validity of registration depends upon the instrument having been first properly acknowledged as re- quired by tlie statute. Hence, the life and legal effect which such deeil accpiireil is wholly derived from and given to it by the statute, and the execu- tion, ackuowieiigment, and registration of the deed must be strictly within the province of tlie law, for in these respects the statute can not be taken as merely directory, but must be considered as matter of substance and must be strictly pursued.* And in Clnrk v. Graham,' it is said that it is perfectly char that no title to lands can lie acquired or passed unless according to the laws of the State in whicli they are situated.^ " The registry laws of Michigan require deeds of conveyance of lands to Ix' acknowledged or proved and recorded, and provide that ' if any such deed sbaii be executed in any other State, territory or district of the United States, such deed may be executed according to the laws of such State, territory or district, and the execution thereof be acknowledged before any ju0, 208; Carney .'16; Liesr. !>• e. U<.|iiiloV Heirs, 17 Ohio, 80; Perdue r. Aldridge, It) liul. 290. INSTRUMENT VOIP ON ITS FACE. 71 liilt tlie f;lft.-i shable by tlic I exceptions udgincnt for uled and e.x- ;her the dted ! Roo'lc and D, ia law, bt; aw tlic trans- of the traus- oa statutory veyanco was [ registration ledged as n - li such dceil id the execti- ly witliin the veiius iiiert'Iy Bt be strictly char that no laws of tilt' lands to !)(> cb deed shall States, such y or district, )f a court of irized by law Jgment there oper certlfy- I which sucli >er80ii whose )fflcer as he is person sul)- eknowledged lowledged i)y [Ichigun; nor of Nebraska nstrument as le transfer of ice, it Is clear its face. lu i the deed of ;r deed.' [IM, 2C8;Carnry 3U; Perdue v. " The next question is can such an instrument legally 1h< the sul)iect of forgery, if not genuine? I tliinlv the doctrine can not be maintained upcm principle or Uw that an instrument absolutely void on its face, and which could work no in- i„rv to the person for whom it was olHained, can legally be made the subject of (or-.'ry if not genuine. In the case of People v. Galloway,' it is said of tlie stamte in relation t.. forgiry that ' it was made to protect men in the enjoy- ment of their property, and if the instrument can by no possil)iiity prejudice anv one in relation to his estate, it will not be on offense witldn the stat- ute • • • In prosecuting for forgery it is material that the Instrument should not upon its face appear to be illegal and void.' » And Baron Eyre said in Jones t every aulliorily ujion coinmoii-la'v forgeries, then ex- tant, apiiears to have been considered. Tlie cases referred to were these: J{(.x V. Stnck;');i for.,'ery of a bill of lading; Hoy v. Fprrers," Uiraiug the acquittance of a prosecution by Lady (irautliain, there beinn s.'veral suits between them; Farr's Cas<',' forging a warrant of attorney; Ihidlofa Case,* forging a marriage register; Lr/,;,;/ v. Dmlin.i;' forjiinga protection in the name of Sir Anthony A. Cooper, wlio was of the privy council, but not a nobleman. It was objected that because he was not a nobleman nor member of I'arllaiiiont, the jirotection was void, none but nobles or members having power to grant such an instru- ment ; and so no one could l)o imposed U|)on. The obj.'ctbm was overruled, doubtless on the ground that the defect was latent. It did not appear upon the face of the paper, which imrported to l)e a valid one. Domini llegina v. Var- rtn;/<»H,nwas the forgery of a letter; and the judges in WanVs Case refer to manuscript cases of coiuinon-law indictments for for«ing a general release and a bill of exehaii-e; and Fortescue, justice, mentioned a similar indictment for forging tlie indorsement on an army debenture.' In Savaui-'s Case,'* the defend- ant ' was indicted for forging and publishing of letters of credenco to gather money, and was convicted, and judiiuient given against him upon his own con- fession, and £100 line set upon him.' Of Hoy v. Ferrers, it is proper to obserre that I li.iv(! looked into 1 Treinaine's Kutries,' where the indictment is set forth in full ; and I liiid that, in order to show the application and effect of the forged ac()uittancc, a real demand is recited, which the acquittiince purported to discliargc. This was evidently necessary, or the instrument would have been no more than blank paper. la all these cases the Instruments forged were, as far as wo can see, apparently available for the purpose inten |inl)lic;i- 1(1 in tlitt liifor- forircry; pijlj. t tliattlio (liiki- laki'M, that the (• time so us ta iilHcicntly ccr- . One remark void in itsiif; I <;oni[)lete tin' ! ui)on; anil iiu tlie (raud. It al effect, and had boen in d in the course ;enes, then ex- ■n; tlicsc : Ecx lie aciiuittancc etwecri tliein; Mii a niarriaue f Sir Antliony '. was objected tlic j)roteclion ich an instru- •as overrided. ipear upon tlie Uegina v. Yar- Case refer to •al release and indictment (or e," the defend- jnco to gather 1 his own con- )cr to ohserre indictment is I and effect of nee purported uld liave been rged were, as to acquire or in two of the 9 supplied by iously by rea- " I now come to a class of cases whicli hold that a writing void of itself, and not made good l)y averment, is not the subject of a iirosecution for forgery. In W.iU'.i Caxr,HU(i conviction was on an indictment for forging a will of all the preinises beionging to J. S., whidi he bought of T. W. and S. li Tlie will was attested by only two witnesses, and was, tlierefore, void as a devise of a inv- hold; but would have been good us a beipiest if tlie [ireteiideil testator's iiiter- ot had been bnta term for years. It was suggestetl to be llie latter, but no Mil li fact apiiears to have been averred in tlie indictment, and it was not in proof at the trial. Tlie judges on conference held the coiivietlon wrou;.', for, as It was not shown to l)e a chattel interest, it sliould be presumed to be freehold. In .Vr//<(('s Case,'' the conviction was for uttering as true a forged acce|)tauee on a bill of e.xcliauge void by the statute 17 (jieoige III.,-' and all the judges held thecou- victiou wrong; for if it had been a giiiuiiie instnimeiit it would have been al)so- liitely void, and nothing could have made it good. In the late case of Jlix v. Iliirke,* the defendant was convicted of putting away the following instrument: ' 1 promi.se to take this as thirty sliiliings, on demand. In i)art for a two pound note luluc received. ForCundiffe, Brooks .*c, Co., K. Cuiidlffe,' with Intent to defraud tlio linn of Cundiffi', Brooks & Co. The indictment was ilr.iwn as at common law, and called the iustruiuent a proniis.sory note. The defendant was convieied at the Lancashire Summer Assizes, in isi'-j, after which it was mentioned to tlie iuilu'e of assize that this was not a promissory note, as It was called In the in- dictuient; and he reserveii that point. ' It also struck the learned judge that there was great doubt whether the genuine instrument or writing su|iposud to be forged or uttered had any legal validity, and whether it was not a mere nul- lity, for tlie forgery of which no indictment could be sustained; and the lord fliief justice concurred in that doubt.' On the case being sul)mitied to the judges they decided tiiat tlie judgment should be arrested. The rei)ort does not mention on which of the two grounds suggested at the assizes the decision of the judges proceeded. It is, however, manifest from the case, that it could not have b"en tlie grouud mentioned by counsel. Thouuh the indictment might have miscalled the instrument, yet it was set out verhaiim. Clearly the words promissory note might have been rejected as surplusage, and could not have l)een the foumlatiou either of a motion In arrest, or an objection for variance. I can not but regard this ca.se as having directly decided the point raised by the judge of assize. The writing was obviously in nature of a receipt or acquit- tance of thirty shillings on a two imund note ; and If the indictment had averred the existence of a note to which it would apply, as In Roy v. Ferrers, it would have made out the case. People v. Fitch, ^a.\so holds that forgery of a. paper which, if genuine, would be a legal nonentity, does not form the subject of an indictment. In Commonwealth v. LuUou," the defendant was convicted on an indictment for forging a bail bond. A motion was made In arrest of judg- ineut ou the grouud that the bail bond was not binding on its face. The court did not question that the objection would have been available if It had been founded on fact, but they applied themselves to show that the bond was good; and on thla ground denied the motion. The case of Ames and othrs,^ is founded on Savage's Case, wrhlch I before cited from Styles. In Ames^ Case the I 2 East's V. C. 953, and note (a) and (b). a a East's P. C. 954 ; 2 Leach, 483, S. C. 3 ch. 30, sec. 1. * 1 Buss. & Ry. Cr. Cas. 496. ■ 1 Wend. 198. • 2 Va. Cbs. 476. ' 2 Ureeul. 369. 74 FOIUIKRY, di'fonilant was convicted of forging a written recommendation purportiii;; to bo sijriied l).v the scleciinen of Hanuerville, stating tliiit J L. was a respoiisibli; man, al)lc to satisfy adeinaiid of JJOm); tliatlie iiad bouglit Ames' land, etc.; ami that th('> (tlie siluctiiuMi) sboulil not be afraid to be L.'s bondmen for 0iJOO to 4800. Un luotion in arn^st the court held that siicii an instrument. If genuine, would have bounil the selectmen as a letter of credit to the amount of $500, or woiiUi have subjected them to an action for deceit as a false and fraudulent representation. The court say it would, in either mode, 'operate as the foun- dation of liability,' and they make this the test of the forgery. In the princi- pal case I have sliowii tluit the paper forced, if genuine, would be u mere nullity for any purpose; nor, to my mind, could it be made good by any possi- ble averment. It could not be made the foundation of liability, like the letter of credit. It does not come within any of the cases sustaining indictments, but to me it appears to be directly within the cases cited holding tliat an Instru- ment purporting to be void on its face, and not shown to be o|)erative by aver- ment. If genuine. Is not the subject of fory;ery. How is It possible in the nature of things, that it should be otherwise? ' Void things are as no things.' Was it over heard that the forgery of a nudum pactum, a thing which could not be .I- . I on or enforced in any way, is yet indictable? It is the forgery of a »•'■(;). , jr-.mt that on conplinga genuine note, like the one in question, with a (• " )M, a cause of action would be made But you must aver the con- sideiation in your declaration and show It in proof on the trial. It is the sub- }tct of a direct issue. In that sense, liere may be the forgery of a piece of e\i (ince '-hich ' '• •' ' be eked out by other evidence, the whole forming a mis- ciilcvous il;. pi. Hill T!;a' answer woidd hold e Ohio, 717; 4S Am. Dec. (101 (1846) ; Com. f. Mulliollaiid,5 W. N. C. (I'a.) 203 (W); t^lalo ''• HrlBK". S* ^'' .Wl (ISO!) ; .state v. Uivoiis, 5 Ala. 747 (lS43j ; People f. Toiulinsoii, iT) Cal. 503 (1S68). ^ Paul! r. Com., 89 Pa. St. 432 (1879). < State r. nicl)0,27 Minn. Hl.l (ISSO). ' State 1'. Glierkin, 7 Ircd. 20« (1B47). « S Ohio St. (M (I'^.Wj. ■ U Ircd. 301 (1S.")S). 8 2C. & K.-.m (1*47). 76 FOKOKRY. which shows nil intent to (iofnuKl in point of law. At present, my view of tlir case is this : It is not required certainly to constitute \u point of law an intent to titfraud, that in these cases, the party sl)onld have present In his mind an iutenf to defraud u particular |)erson, if tiiii consequences of his act would necessarily or possibly be to defraud some person; but there must, at all events, bo a p()>- slbiiityof some person b-ing defrauded by the forgery; and there docs not seem t()l)e any such possibility In the present case, either as rcijards Mr. LupNm, Mr. Booth, or tlio company. With respect to Mr. Luplon, the transfers wr,- made to him in consequence of money actually paid, and the jierson who so jiio- eured the transfer got Jlr. Lujiton's name into the list of proprietors in the company, so as to entitle him to a dividend in their profits, there beiiiir, so far as appears, no call of which the company could enforce payment. So that Mr. Lupton might possibly receive money, but could not, uudor any circumstances be required to pay any. N«'ither was there any possibility of the company Ix-iu- defrauded, as it does not appear that they had any power to demand any f urtlicr calls from the shareholders; so that the substitution of Mr. Lupton's credit for that of any otlier person, or the substitution of any other person's credit for his, could do no injury to the comii.iny. Hall. I submit that there might be a fraud uiion Mr. Lupton by the transfer of shares fronj hini, which, in point of fact, stood in his name in the boolts of the company. CuKS.swKi.i., J. It is merely taking from Mr. Lupton something in which he never claimed any interest; and tlie person to whom the shares arc transferred is not prejudiced, Inasmuch as he has actually got the shares for which he has paid his money. JIdll. Might not Mr. Lupton be liable on his covenants in the transfer? Every person executing a deed conveying |)roperty covenants that he has a right to transfer it. CKi;ssrtKi.i., .1. But the shares artually are transferred. The purchaser 1ms got them. How could the transferor be damnitled by such a covenant, if there Is no one in a position to gainsay it? By the company's act the register is tlio title. Ildll. By tliat act, the company are er powered to make certain calls. Cuks.swkii., J. So far as appears, these calls may have been made, and the whole money paid on them. In all probability the fact is so. We know that the company have completed the line, and have been working It for a very con- siderable time. IMl. That l)eing your lordship's opinion, I shall not press the case farther. Ckeswki.1,, J., directed an ac "Statu ok Noktii Cahouxa. / " The bearer, Martin Rivers, was raised by William E. Williams, of said county and State: This is to certify that Martin Rivers was free born, and bound to me until he was twenty-one years of age; his time was out in 1819, 1 9 Yerg. 150 (1835). 80MK ONK MUST 1»K INMIUKD. 77 my view of t In- law an intciUlo mind an iutcnr iiltl nccPSMarily •I'uls, be a !)()>- 3 (lot's not si'i'iii lis Mr. Liipidii, transfers wit" on wlio so ino- iprlctors in tiu> re bfliisr, so far t. So tliat Mr. clrcunistanci'-i, company Ix-iui: md any furtlur ton's credit for 1 credit for his, by the transfir in the books of ng in which ho arc transferred r which he has I the transfer? t he has a ri^ht purchaser has •cnant, if there register is tho u calls, made, and the We know that for a very con- ; case further. ct, not guilty. sllowing paper liams, of said ree born, and as out in I8I9, ;iiiertv ..f said Caruthers. There are several counts In tho indictment, all grounded upon the same pai)er. One of them charges the Intent to defraud William E. Williams. The defendant was convicted generally on all the counts. Catkon, C. J., delivered the opinion of the court. " Forgery is the fraudulent making or alteration of a -.vltingto the prejudice of another's rights. This is tlie delluition given by the fortieth section of the Iienltenliary act, extracted from Hlackstone's Commentaries,' and must be pur- sued. The ' prejudice ' to another man's right must be an Intent to (-heat and defraud that other of a right to property, to liberty, etc. This indictment charges the instrument set forth was forged to defraud James Caruthers; and second, to defraud William K. Williams. Couhl the right to either be preju- f power to punish the dcffiulaiil on lliis Imllttnicnt, hIIII we think he Is elearly uol subject to the penultles of felony ami that the jutl^ment must l)e arrested." § 411. L.etter of Introduction— No LesralRlKbtB Affected. — In fVatn. man V. Pitii.h,^ It wa.x held that a Utter of lntro(lu<-tl()n addressed to "any Mil- road superintendent," and askinif eonrteshs to lie shown the hearer was nut the subject of forgery. "The writing," said Bukk/k, J., "alleged to liavt- been forged was us follows; — •• • I'lii: Dki.awauk \ IIidsun Canai. Co.mi'any, j "' Al.UANY AMI SiSglKIIA.N.NA DKI'AKT.MKNT, > " ' Ai,UANY, N. v., August 23, 1873, ) "' //. ,1. Foiidn, Supei'iiUcHdent. " 'To ANY KAii-noAii Si ii.iti\TKXi>KNT: The bearer, T. II. Wiley, has been employed on the A. v«i S. H. I{. as brakeinan and freight hantl. Any courtesh > sbowu him will be duly appreciated, and reciprocated, should opportunity off.r " ' Very respectfully and truly yours, "' 11. A. Fonda, Superintendent.^ •'The indictment framed upon this writing contains not a single averment of any extrinsic matter whicli could give the Instrument forged any force or effect beyond what appears on its face. No connection is averred between the part; to whom the writing is addressed and the Chicago, Rock Island & Paclllc Rail road Company. Nor is it averred that the prisoner attempted to pass the writ- ing upon that company. The writing, if genuine, has no legal validity, as it affects no legal rights. It is a mere attempt to receive courtesies on a promi.se, of no legal obligation, to reciprocate them. We are satisfied that the writing: in question is not a subject of forgery, and no Indictment can be sustained on it, and no averments can aid it. It Is a mere letter of introduction which, by no possibility, could subject, the supposed writer to any pecuniary loss or legal liability. As well remarked by the prisoner's counsel, courtesies are not thr subject of legal fraud. The motion in arrest of judgment should have been allowed. To refuse it was error. As no prosecution can be founded on the writing, the judgment must be reversed, and the prisoner discharged from cus- toily. "Judgment reversed.''* § 41-'. False Certificate of Character. — In Commonwealth v. Chandler,* it was held tliat making a false certificate of character to induce the person to employ the prisoner was not forgery. In the first count the offense was cliarged as follows, namely: That the defendant, on the ITtli of March, 1828, did utter and publish as ti ue to one Samuel G. Perkins, a certain false, forged and coun- terfeit certificate, purporting to be a certificate of one Mary Eaton, of the char- acter of him, said Vinson, with Intent to induce the said Samuel to retain and employ the said Vinson as a domestic In said Samuel's family, at a stipulated rate of wages, and thereby to cheat and defraud the said Samuel, which certifi- cate Is as follows, to wit: "March 17, 1828. This is to certify that Vinson Chandler Is a good young man, attentive to his duties, and a good disposition young man, as I wish to have in my family. Mrs. Mary Eaton, Pearl Street, bos- 1 «: 111. m. •i Thatch. Cr. Cas. 187 (1828). ^■i FAISK ( KKTIFICATK OK CllAKACTER. 79 fciulunt on ili|4 18 of felony mul Bd. — In fVatn. (I to "any r:iii- l)C'in'r WHS nm llfged to liiivc OMI'ANY, I I'.MKNT, > Ti, 1873. ) l^iloy, has born Any coiiitesio mrtunliy off. i oerintendent.' le averment of force or effect, veen the parly & ruclllc Kail pass the writ- validity, as it M)na promise, at the writing' e sustained on tion which, l)y y loss or lej;al !9 are not thr uld have been lundcd on the rs^ed from cus- nt reversed.^' hv. Chandler,^ the pi-rson to wascliarKed 18L>8, did utter ged and couu- n, of the char- to retain and It a stipulated which certlfl- y that Vinson od disposition rl Street, bos- ton " Vnd that he, sai.i Vinson Chandler, then and there well knew the said cr- tliu'ate to be false, f..rf?ed an.l counterfeit, against the dl«nity of the Comnion- '"TI.'e"8econ.l count set forth that the .sM.l Vinson Chandler, on said 17th of M ireh, contrlvlntsan.l intending to deceive Samuel (i. IVrkins, Ks<,., one of ih- „oodeitl/.ensof this Commonwealth, and to Induce him to employ and retain tlie said Vinson In his service, and to pay him a large sum of money as wages from ,„onth to n,onth, .e,i and for more than a century It has been established law, both In Kngland, and in this Commonwealth, that to counterfeit any writing of a private nature, with a fraudulent Intent, and whereby another may be prejudiced, is forgery at com- mon law.* In the case of Henry Reed, who was tried at tills present term, for altering two forged promissory notes of hand for Hie payment of money, in the name of James Smith, It appeared at the trial, that no such person as James Smith was in existence; and upon thatground It was denied by I). A. Simmons, Ksq., the defendant's counsel, that the offense was a forgery within the statute of 1804 • The Indictment concluding, «' against the peace and the form of the statute," etc., a general verdict was, under my Instructions, found against the defendant. Upon looking at the authorities, It appeared to be well settled, that to forge a note or other Instrument In the name of a llctltlous person, and for the purpose of fraud. Is a forgery under the statute in Kngland, and undoubtedly Is so bv the statute of this Commonwealth .♦ Fraud an.l deceit are the chief n- grclients of forgery, whether by statute or at common law. It is not essential to the offense, that any per.son should be actually injured, but there must be the intent to deceive; It can not, therefore, be material, whether the fraud should be effected, by using the name of a real or of a fictitious person. Sim^ mons did not afterwards prosecute his motion, and Reed was sentenced under the statute. 1 12 Geo. 1. 2 naion Abr. tit. Forgery, B. ; Kuss. on Cr. U«7; 2U1. Kayin. «(H. ^ ch. 120. * Ru98. on Cr. 1420; Anne Lewis' Case, Fost. Cr. L. 116. «0 FOIJOKKV. •>. If It Im.l hern nUf'ffvi] in tliN Indictment, llwit Mn- ilcf.'iuliint, faliriratcd or ultiTrd the f.iN(> ccrtlllcati- In the casf, with tin- evil Intent to lie rcliiliicd li. tlic service of Siiniu.l (i. PerkhiH, tliiit uftcrl>eliiK ho retained, lie inlijlit friunliilenlly convert to his own use tlie money or kooiN of siild IVrkhm witliont hl.sknowl- ed'.'c, and ii«alnst his will, I shonhl have conshlered It a misdemeanor, and upoij eonvlcilim, eltlicr liy verdict or confession, lio wonid be pnnlshalilo for tliV offense; because this would hIiow an actual Intention to defraud, coupled w(*' an act done liiiMirsuance of wncli unlawful Intent.' Such evil desliin Is not char«ed in cither of the rountH of this Indictment. For it does not f dlow, that because the defendant meant, as Is allcu'ed In t!ie first count, by utlerinj; this letter to tiuluce Perkins to retain and eini loy him as adomcHtlc servant, tluit he had the further unlawful design to defraud IN rkin.s of his money or Roods. He nilnlit have adopted this course to ^et Into the service of a fiDod master, and it is not lmpossll)le, althougli the act, was ex- tremely indiscreet, that ho nU'jht have Intended to be u faithful servant. The Intent, as alleged In the second count, was to "deceive Mr. IVrkins and to In- •luce lilm to employ and retain the defendant in hishicrvicc and to pay him larae wa;.'es fr(Mn month to mouth." Hut It Is not alleged tliat the defendant was not capable of niakiu;,' a good .servant, or of deserving and oaridng lar-je waRes; nor that he did not possess such y taking the defendant Into his service. The paper Is a fal.se token; and if l)y tlie unlawful use of It, the defendant had defrauded any one of his money, or goods It would have been a. cheat, and he would have bein Kuliject.d to a heavy ))unishment. Uoing, for these reasons, of opinio- that this Instrument does not com.' within the description of any of the instri ments which are enumerated in the statute, nor within aiy case <.f forgery »i common law, and that no suHlclcnt offense is dcscriijcd hi either count of the Indictment, the judgment must be arrested and the prisoner be discharged. The prigoner teas discharged. § *1S- False " Maklner " Necesaary.— Thus, it Is not forgery to, with Intent to defraud, rub out and era.se an acquittance indorsed on a bond. In State \. Thornhm-g," \\\e v.o\nt my : " Forgery is a fal.se making— making malo animo — ol a written Instrument for the pur|>o.se of fraud and deceit, the word 'making' being considered as Including every alteration of or addition to a written instrument.'' The charge against the defendant In the second count Is for falsely, wittingly and corrujuly rubbing out, erasing and obliterating an ac- quittance for eleven dollars, which ac(iulttancc had been Indorsed on the bond mentioned In tlie Indiciment, with an Intent to defraud one Caleb Llneberger, the obligor, against the form of the statute, etc. We have no statute making the act of erasing, rubl)ing out, and obliterating an acquittance, forgery; and the Intentional destruction of an acquittance, In whatever way, can not be 1 Salk. 37.5. ITiilesB the falsity tend to tlio prejudice of anotlier's right, it u not forpciy M'hero tlio obligee of a bond Icsticned llio sura in the obligutlon It was considered to liis own prejudice, and not forgery. IMay, '.19. It was hold liy tlio twelve judges in the ciiso of I'arkcs ami Itrown (East, I>. C. '.»«), that where one uttered bis own note, but in the name of another, and as the note of that other, it was forgery, and it being in the saiiio name as his own, could not make auy dilfcrcnce. s (Ured. (L.)67(1845). ' 2 Hnss. on Cr. 317 ; 2 East's P. C. 852, 965; Hex V. I'arkes, 2 Leach, 786. ibrlrati'd or iiiiK'd i I. till' 'riiuiliili'iitlv i hl.sknowl- r, uiul U|)(iii ble for tli^ Dupled \v'4' indictment. I'lli'd In t!ic 1 1 loy III in us iiid IVrklns ;i't Into the let. Wii.s I'x- rvant. The > and to lii- y III in larjio I'lidaiit was irjxe wages; n-riting and anid nt'ces. The paper I defrauded would have of opinio- tlio instri t forgfry ut >unt of the tiargcd. achargi'd. Tj to, with I bond. In aking tnalo ;, the word ditlon to a id count Is ting an ac* n the bond '.ilneberger, ute making rgery; and an not be note of that icing in tliu ut luako auy P. C. 852,905; FALSK M.\KIN(» NKCKS.SAUV . 81 either a making a written inHtrnment or the alteration of or addition to, a truly written InNtrdiiiciit *o ;i8 to bring the act within tlie deiiiiition of forgery." (j III. Instrument Must Purport to be tho Act o( Another. —The In- .• not forgery. - ji 115, False Mftltlngr Necessary — B'alao AsBunaptlon of Authority. — In U. V. ir/ii>,' the jx'isoner wa.s Indleted for foiiiing a eerlain Indorsement on a eertain bill of exihange for ils li's with intent to defraiul Tlionias Toin- ilnsoii; and In another court the Intent was laid to l)e, to defraud Francis Sharp and another. It was proved by Mr. Thomas Toinllnson tlial the prisoner had been in his employ ami had left him about two yen'N ngo; that while the pris. oner was in his employ, he had sent him with "K .s to Messrs. Hart's l)ank to get the money for them, but he was not si. e wlietle r he had ever sent him with a bill of exchange; tliat lie never authorized the pri.-y him. He asked me to go to Mr. Malpas in order to ascertain whether he iiad siiown him the bill before he brought it to me. I went and 1 Com. V. Baldwin, U Gray, 1!>7 (li«0) ; State r. Young, 46 N. II. 281 (1805) ; People v. Mann, 75 N. Y.481 (1878). 3 Dkfences. 6 a state V. Willson, 28 Minn. .VJ ^881) 3 a C. ft K. 4(M. 82 FOnOKHV. totiiKl that lie had. Five or six days c'ln|)so(l hofdrc wc proceeded against the prisoner. We liad applied to other parties when we found the aceeplance wu;; forfied. We dlreeted our attorney to proceed again.st the prisoner. I thoutjlit the prisoner iniKht have done it ignorantly." P.vTTKSox, J. (in summing up), told the jury, that if they were of opinion thaltlie prisoner, at the time when ho sijnied thisindorsemenl, had willfully mis- represented that he came from Mr. Tomlinson with intent to defraud him or the banlters, and had no authority from Mr. Tomlinson they ought to find him fjuilty. Verdict, guilty. Pattkson,.!., reserved the ca.se for the con.sideration of the fifteen judges, ou the question wliellK-r the facts proved amounted to the crime of forgery. Before Loni. Dicnman, O. J.; Wii.di:, C. J., I'oi.i.ock, C. H,; Pahkk, IV; COLTMAN, J.; Hoi.lK, J.; WKiHTMAN, J. ; CrKSSWKLL, J. ; EltLE, J. ; Pl.ATT, J. and W1L1.IAM.S, J. WiUmon; for the prisoner. What I must lake to have been proved is, that the prisoner witli intent to defraud, and without any authority from Mr. Tom- ]iu.son to indorse their hill, wrote by the hand of the banker the wonis, "Per procuration, Thomas Tomlinson," and wrote with his own hand tihs own name, •' iCmanuel White." The statute 1 Wiiliam IV. 1 doe.s not alter the meaning of the term forgery, and, from the first appearance of that term in our law, It appears to consist of the counterfeiting of the writing of anotlier; and tliere is no instance of a person being held to be guilty of forgery by merely assuming to hiuc antliority which he really had not. In Pleta, who is cited by Lord Coke, 2 forgeries are described as the falsifying of seals, instruments then being usually sealed; and Lin! Coke.s in treating of obligations forged, takes a distinction between the acknowledgment of a siatute staple, which is under the .seal of the party, and of a sfitute merchant wliich Is not; and from tliis it is to be inferred, that no false representation would constitute the crime of forgery. Mr. Serjeant Hawkins, in his Pleas of the Crown, in treating of forgeries by alteration, says tliat there " a man's hand and seal arc falsely made use of to testify his assent to an instrument which, after such alteration, is no more Ids deed than u stranger's." In the present case the prisoner does not counterfeit or imitate anything; he merely says, -'I have an authority," and that is false. If he had so really, it would only have been a false pretense; and I do not see why It is auythiuf;: more because the false pretense is in writ- ing. He merely makes an assertion wliich is not true. Mr. Serjeant Hawkins says: " The notion of forgery doth not seem so much to consist in the counter- feiting a man's hand and seal, and wliich may often bo done Innocently, but In the endeavoring t() give the appearance of truth to a mere deceit and falsity, and either to impo-^e that upon the world as the solemn act of another, which he is in no way prhy to, or at least to make a man's own act appear to have been done at a lime when it was not done, and by fori^e of such a falsity to give it an operation which in truth and justice it ought not to have." In the present case there are neither the counterfeiting the writing of another, nor attempt to offer what the prisoner wrote as being the act of another. So Mr. Serjeant Hawkins says, that " it hath been resolved that a man sliall not be adjudged guilty of forgery for writing a will for another without any directions from him who becomes uon compos before it is brought to him ; for it is not the I ch. 66. 8 3 Inst. 169 3 ;l Inst. 171. )ccp(lcd ngalnst the tlio acceptance \va;; risoucr. I tlioiifilit •y WLTo of opinidii I, had willfully iiiis- to (U'fraiui him or y ought to find hlin Verdict, guilty. e nftei'U judges, ^K ASSU.MPTION <)l' AITIIOHITV. ^3 bare writing in another's name without Ids privity, but tlic giving il a faloner writes it as Ids own act. WiLDK, C. J, If a niau write in his own name, " I have authority to obtain such and sucli goods from you; " that would not be a forgery even if he had no such authority. Here tlie prisoner said he had authority to imlorse a bill. Iu the action for deceit for accepting a bill, void iu whosoever hands it came, it never occurred to any of the judges that the deceit was merged in the felony. Willmore. It woidd be no countcrfeitiug of tlie coin, if the person put a legend on his counterfeit-:, staling that he had authority to coin, and yet that would be asserting tliat he had an authority which in fact he had not. Pollock, C. B. You say that tliis indorsement is everything that it purports to be. I can t quite acceed to that, b'.^cause it purports to be an authorized signature, ami U. is not an authorized signature. PL.VTT, n. You put it that the indorsement itself is true, but accompanied liy a false representation. Willmore. In IL(rre>/n Case,^ the indorpement alleged to be forged was written by the person wliose handwriting it puritorted to be, and the prisoner personated him, and so obtalued credit ou the bill, and this was held to be not a case of forgery. Lord Den'm.vn, C. J. No one can pretend that there was a forgery if there is nothing done to the writing or the seal. Patteson, J. A man, whose name was Henry Davis, wrote his own name on a bill, and put it off as the bill of another Henry Davis, and this was held to be forgery. Willmore. There was an attempt to pass his own signature as that of another. Pauke, B. The case put by my brother Patteson, was put by Mr. Justice BuLLEii iu the Term Reports. Willmore. The precise point in the present case has arisen once before, but no decision was ever pronounced: but in the case of Ilex v. Arscott,'' it was held, that If a person write ou the back of a bill of exchange, " Received for R. Aickraan," and sign his own name to it, this is not a forgery of a receipt; and Mr. Justice Llttkdale then said: "I take it, to forge a receipt for money, is writing the name of the person for whom it is received. But, In this case the acts done by the prisoner were receiving for another person, and signing his own name." Patteson, J. The case I referred to is Mead v. Young,' and there the person put his own name as that of another. 1 2 Bast's F. C. 856. 2 6 0'.* p. 408. » 4 T. K, 28. 84 lOlMiKUV I'oi.i.iMh, ( . I!. Tliu ucciik'iil of tho person Imviiig the same name makes no (llffir.iicc. Suppose that the person whose indorsement was put on the bill liad really nominated an attorney to Indorse bills for him, and the forger had si>{ued the name of the attorney, wonld that be forgery? ir)7/(/i../v'. 1 think it wonld; because the indors"nient is put off as the writ- Ins; of another. Indeed, it would be so, even if it were a name of a fictitious perM II. I'oi.i.tKK, C. n. If a man said lie had authority when he had not, and signed a false name " per |)rocuratioii " would that be foffrery? M'illmore. 1 apprehend that it wonld, as it would purport to be what It is not. .S'. V. Deninon, for the prosecution. I submit that this indorsement la forgery. The detlnltion of forgery in Kleta Is, "Crimen falsi dicitur cum quis accn.sa- tus fuerit vel appcllatus <|nad sigillum Regis, vel domlni sul de cujus fandlia fuerat, falsaverit, et brevia inde consignaverit ; vel cartam ali(iuam vel literani ad exhacredatlonem domlni, etc., sigillaverit, in quil)us causlssl quis convietu.H fuorjt, detractarl merul et suspendi. Et quod de hujusmodl falsarlls dicltnr, de sigilla adultcrlna cartls et literas apponentibus dicatur Id Idem; " but Lord Coke says that "one may make a false writing within this act,' though it be not forged In the name of another, nor his seal nor hand counterfeited. " So Mr Serjeant Hawkins says, that "the notion of forgery doth not seem so much to consist in the counterfeiting a man's hand and seal, but in endeavoring to give an appearance of truth to mere deceit and falsity; " and Sir K. H. Kast, in his rif as of the Crown, likewise deHnes forgery to be "a false making (which Includes every alteration of, or addition to, a true instrument), a making ma/o animo, of any written instrument for the purpose of fraud and deceit; " and he adds, that "tliis delinition results from all the authorities, ancient and modern taken together." The criminal law commi.ssioners define forgery to be "the fal.sc an(i framlnlent making of an instrument, with Intent to prejudice any public or private right; " and in the present case, there certainly was a making of an Indorsement malo animo, for the purpose of fraud and deceit, and a coun- terfeiting of a person w ho had authority to Inilorse bills for Mr. Tomllnson. With respect to the case of PollhUl v. Wnlter,^ which Is an action against the defendant for falsely representing that he was authorized to accept bills by procuration, It has been remarked by Lord Chief Justice Wilde, that the judges did not advert to the acceptance of the bill being a forgery, but in thatca.so the jury negatived all fraud, and the judges, therefore, would not suggest an ImllU- ment for forgery. Tlie statutes' makes it a felony to forge " any " " Indorse- ment on " " any bill of exchange or promissory note for the payment of money," " with Intent to defraud any person whatsoever." In forging an indorsement. It may be that forgery is committed by foiglng the name, or it may be that It Is committed by forging the words " per procuration." This case, in its conse- (piences, Is very Important, as more bills are Indorsed " per procuration " than otherwise. Willmore, In reply. The passage cited on the other side from Lord Coke,* i.^ founded on the word "make" which is in the statutes,* but which does not occur In the sUitutes;" and Lord Coke, in treating of the words "forge or 1 5Eliz.,di. U. ISK.A A h i4. • IWin. lV.,ch. Oa. FOKOK!{V " rTTKKIMi " nCTITIOfS NAMK. 85 lame makes no lit on the bill the forger Imd S as the writ- of a tlctitious ot, and signed be what it is lent is forgery, n quis accusa- ; cnjiis faniilia am vel literaiii qiiis convictUH Isariis dicitnr, n; " but Lord lOu^h it be not ted." So Mr ;m so mueh to ring to give an :. Kast, in bis laivlng (which a making malo !ceit; " and he It and modern ■ry to be " the preiudlce any was a maliini; It, and a coun- [r. Tomlinson. on against the iccept bills by mt the judges 11 that case the tgest an Indict- y " " indorse- ntof money," 1 indorsement, iiy be that it is I, in its conse- u ration " tlian Lord Colic,* is thieii does not ds "forge or make " says of tlu' words " or make," " these lie longer words than to forge; " :iii(i with respect to the dellnitlon of forgery, given l)y the criminal law com. Tnissioncrs, it does not accord with the definitions given l)y tlie text writers; and in tlic cases il fref|Uently liappens, that a part of the detinltion of a crime is left out for convi'uieuco, wlicre lliere is no part of the case that is not affi'cteil l)y that pa^t of tlie detinltion. 'I'lius, to dutlni! that a fraudulent writ- ing to the predjudicc of another, is ii forirery, is too large, as a person might write a false account of the price of corn to leave the market, and make th(! holders of it sell for less tlian they ought, and yet this would not be forgery. In the case of Ilex v. ll'i»'//(,' where the name of the acceptor was genuine, but a false descripUou of Bai/.emaker, Rumford, Essex, was given of him in the adilress of the bill, this was held to l)e no forgery. So in the case of Hex v. /(*He.«,' where the prisoner was chargeil with forging a writing purporting to be a bank-note, but wldcli liad no si'iiiatnre to il except the words " For sell and Company of my Bank ii! Kngland," and where the prisoner, when he paid the forgery away, avowed that it was a good bank-note, Lord Manstleld, C. J., said "tliat tlie re|iresentation of the prisoner afterwards could not vary the pui'port of the instrumeiit; on the face of it, It did not purport to be a bank- note." P.\RKK, B. If the prisoner li.id saul, " I am authorized I)y Mr. Tomlinsmit no forgery; and I submit that. In the present case, although tiie prisoner might be guilty of a false pretense, still that is no ^orgery. The case was afterwards considered by the fifteen judges, vho held the con- viction wrong; and that indorsing a bill of exchange under a false assumption of authority to indorse it per procuration is not forgery, there being no false making. § 410. Forgrery — " Uttering."— In I{. v. Ifeyteood,^ A. gave B. a forged certificate of a pretended marriage between himself and B. In order that B. might give it to C. This was held not an " uttering." " If you can show no uttering," said Aldkr.sox, B., " except to B., wlio was herself a party to the transaction, I think you w ill fail to show an uttering within the statute. It is like tlie case of one accomplice delivering a forged bill of exchange to another with a view to uttering it to the world." . Iiuviiii; ill lii-s ciiJtoily ami possession ii corlairi l)ill of exchange, which said liiii of .•xc!mii{;i' is as iollows, lliat is to say: — *' ^"l''- •♦■ f ToTTKMIAM, Nov. l-'lh, 1810. " S \ wi'cksaftprdatp pay to my onlcr, tho sum <>f iiiiu-tuoii i.oiiutls, fourteen >!liiliiii','>, value reeeivid. •' U. Lawkenck. '•Jo ".lAc. Thomas Scntt '• at .Vfx.srs. Trrri'n & Whitfi, " No. 4 S/ both the "' ? ; 'r,,.' ^ ;.,„, .,f the bills for two ,,n,oncr said, if she could accommodate hun b> " ' "^ - ^„^ ,d 1 .->., it would suit >.im;u3Uer than J^^ ^^ : '-^^ll-^L.tt, and .aid •" ^'- .'^'"' ''T a T::;':^1 W rwi f wc^o his age.Us, ... wouW. tiud it ail ,,,,,, a waspres.ntcdatMessr..Tcrn.>^W^nU^V.^^^^ „„ ,„, „„t was dishonored, fcrres *. ^^ • ; ^^ '^, J, ^it they had not ,,,,,,.irhandsl>..lon,u,.o=.n-^..o o^^^^^ K„„wn anything of h.m (or .some tin c p.i t J •■ ,,,^,, ,„, j^. "- not paid, w,.nt cK.wn - ' -^^ -^^^ ^^ c^ :id ..ot take up the bi... ,. ,view witl, bin., and he sa.d he sas n ..y s • i ^^ ^^.^^^ ^,^^ ^^^„. ,„„ that if sac would wa.t, he would take "P '" J^^,;^ ^^ ^^ •^^;,,, ^„, ti.ne to bo s..ntcd; t.v thr.e days being '■'^P''-''-^ ^''%''V^°";,; ;;.,,,,,,,., „,, more of „:cnd.d ir another week wltich was «';"'^«f..^'^;;:, .,,;',,, ^soj pre- „„„.,.. until the second bill ^^'^'^^^ '^';^'' ^"^^^ .olused; She oui.d at the place where it was n.ade "^ _ ;/ ' , f,^., m^. Scott. After ,,„.. .vcntto Tottenhan. again but d.d ';;*;-^, ; V .! ' o U .ion Hall, for the a 1-iod of twelve months had elapsed . wunc . ut^ ^^^ ^^^^^ ^^^^^^ ^^_ purpose of ->cing the pnsom-., sho ;'''f ;/ " ^ ^^.,,i^ , i,p. ^.^.s i,,,Ucted. Lviscd by different names, as well as by ^''^ '^^^ ' ^^^^^ ;';;,;;^, „,„, that the U appeared front the evidence of «"« »' '>^, j\ ^, .,' \, .'^'rjued wlntt his prisoner was brougia there in ^^'"•-'J;, ^ i:'.;"^,,^! " J' "r.^n.-ted). The :z-:;:^:^^^^^^^^^^ -^ --'• - -^ - ^'^^ uiilv name lie gave liunself. .,,,„„.■,..,..«< who had known the ';::,r;t:. ... .« .:: ~.. «««., .,.».-.., ..... ...„. ... ....... ... ..«. »., •"'r.':rr:;;,.e.... .o™ ... ........... »< »-;'-;:':":,■' ":r;;,"t „.u 1,0 „p,„.....,.ie.i «.. >;;'»""' "',;,™'t,, ..V^^^^^^ t„. ,,.,..0 o. an> of them contained the nan.e of Scott ' ^^ ^^^ ^^^^^ ^,.. „H.o.u.r in his^ em-e c H^ l^]^ ,,,, ^f .Vugust, 1810, and pn.vcd that he 1.r>t kDeN% the I'"''" "^"^^ ' prisoner had a nickname U,u.w l>im continually by the -"^ "^^;;\ ;,; '^ '.rj.d that h. had tran..- uf Bout, and Honiien at times. Th s ^•""'*'* " ,„ ^,, ...,r 1810, „s;:arrr'\v:,;irrr.t':,.,.:,o.. o, .,.. ,..,..» ..,.o.. .... above case. , «,.^ .,11 the iud-es met at Lord Ellcuborough's .S8 F()l!(iF.i:V iippparinu of a contrary oi>lnioii :, ilKniu'lit tbat it ilid not siinick'Utly appenruixin thf evidence, tliat tlic prison, r has ni)'„ jjone liy tin- name of Scott bofdrt' ilw time of aoci'iitlngllic bill in lliat name, or that lie had nssuined the name for that pnrpose, and they therefore tliouuht the conviction wron}:. In U. V. »V/-'.,i tlie indictment clur;:ed the prisoner with feloniously forfjin;; and couuterfeltlnfj; a certain hlU of exchange, as follows: — " Wilton, Wklts, December 21, HH. " £1M, l'.»s. Od. "Two months after date, pay to my order, one hundred and rit;y-f:J;that there was no baize manufactory in Koinford. On the part of the prisoner, It was proved by a person who stated himself to have been a partner In business with Thomas Bowden (the acceptor), that the acceptance was the handwriting of the said Thomas Bowden. On the cross- examination of this wltnes.s It appeared that Bowden never carried on the business of a baize manufacturer at Romford; and that the prisoner had known Bowden many years. It further appeared from the evidence of a per- son who kept the house No. 40 Castle Street, Ilolborn, the place where the bill was made payable, that lie was well acquainted with the handwriting of the said Thomas Bowden; and that the acceptance was In Bowdcn's handwriting; he also stated that he was surprised at Bowden's accepting the bill payable at No. 40 Castle Street, Ilolborn, as he did not reside there, and had no authority from this witness to make any bills payattle at that house. The learned judge desired tlie jury llrst to consider whether there was any such person as Thomas Bowden, and If there was, whether the acceptance was his. The learned judge also told them, if there was no such person, or the ac- ceptance was not his, and that the prisoner at the time he offered the bill to the prosecutor, knew either that there was no such person oi if there was, that he had not accepted it, they should llnd him guilty. The '.earned judge further It. A H. 411.') (1819). FOHOKUY — riCTITIOl S NAMK. 89 appear uixiii tt l)i'f(in' t!M' tlie name for )usly forjiiiiu ;r 21, HH. Liid rif;y-fr), lived at (ed, orcarrlt'il hat there wua ted himself to (tor), that the On the cross- arrled on the prisoner hud inee of a per- where the bill writing of the 1 liaudwriling; bill payable at 1 no autliority there was any Lcceptance was sou, or the ac- I the bill to the •e was, that he judge further . inumstances to the judges. Thomas Bowdcn. But the T,>e jury found that there was -/J^J^f^ ^2",;"^ ,,, UK-re was such a ...r- ,,,rue.l judge being of opnuon, ' «";'•- ^'^^^ ,., ^.s^rved the ease to take .„, and that the acceptance ^^.>s ''' ' '^"^^.^.^'i'; ''';,,,..,,,,,g that the acceptance U,e opinion of the judges on he P" " '^ ;;;\;;„ ,,, ^ ^,„ the face ..f the bill ,va. the hand writing of Bowden,tesH,^ H was accepU.l by s:^.. Of -^-^-;x:^^:zz:::;:z:r.. .. ca.. Amajon ;;r^^X^i::;:;=^r:;-or=n;t a forgery, and the, .rected a pardon to be applied for. ^ j iggi ^here the j--h:fs:r^-=~^ :::r;;:;b:rir:rt;:^:r';^ -. be contemplated t^,^;ung Of ^..^^^^^ _^,^_ ,, ^ , , The prisoner was ' 'f •^^'^^^'V*^,';,; "..i „„« Samuel Morris. It appeared n oKchange for £'J0, w.th intent to '^f""''' „„.,, j.i October, IK.-O, the ..vidence, that the Prosecutor vvas a Yrelo,™ , .resented that he prisoner opened an account ^^^^^;^ wu ffl who was ids brother-in-law. las in partnership with J-^P^^Yl ut^ - " -l.y nccount, and tl,e tirst ,„d resided at Brentwoo.i. J'^\;^,',"" ' ' j^onergot intonrrears, and wanted „.d second were paid ; but afU"-wards ^ ^ '»;" ^^^^ ^„ ,.„„,,„te„ ,o d.. The .he prosecutor to dtaw upon 'f^/'™;"'' ;*,'",, u, in the nan.e of J. V. UUl in question was drawn, '-^^^^ ^^^^^,^ stated that he had ..ever r : ::rLrS^:;u;r :;-- r U .« .tter any authority to u.e Uis name in connection with his busi.u3SB or otherw^ ^^^^ ^^^^^^_^^^^ Parn,, for the prisoner, contendc^l *' t^^^^^^^^^^^ ,, ,,,, „e,:e-ary to ..o..ld not be convicted of forgery. To ;"' PJ \'';;;^;7,„^^ of the forgery M.o^v that the name had been f-"';"^** ^rlleptl^ i.e priso..er had traded i,„nestlon; '>ut here, long be ore the bll was ac^^^^^^^ 1^ ^^ ,j. v. Jio.aVn.' uJler the ua.ne of Whiffen & Co ^'ll^l^^nli be proved to be a false There it was held not ^^^^^^^ ^^^^'..rjo... oi fraud in the ;:n^r rrtr;.r v^--«-' or .--^.o..... ..e name b> . Vide Parker * Brown's Cos.. 2 EasfB P. C. 96;t, >. f. 2I.carliC. C.T"8. :5Cox,'JlH)(18.'.l). ! HUBS. *Uy. 260. « 3 Mau. & 9. 537. yo FOIMIFUY. which a man was married was a false uarao, »)til he liad iissumed It some time before for purposes of coiieealinent, lje Imviii},' .leserted fn.in the army; It w:ih held that the iiuirria«e was valid, tiic name not having l)uen taiven for the {nn- poses »)f fraud respeeling the marriage itself. liolnnson, tor the prosecution, submitted tliat if tlie prisoner assumed liw name of Whiffen for tlio puri.oses of fraud, and he fraudulently aceepled ihr bill in his broUier-iu law's name, he would be jjnllty of for-ery. It was imnia- trrlal tliat ho liad used that name before, if he liad no authority to use it wlieii lie aceepled the bill. Tai.k()1ui>, .1. I tliiulc it will scarcely be sulflcicnt to show that the name of Wliiften was assumed for the purposes of fraud {{eneraily, it must liave l)een talien for tlie specillc oljject of piissin- off this bill. The carryiui,' on business in the false mime mifjht be for tiie purpose of creatiu- a false impression, witli a view to obtainint; credit; that mi^'ht support a charge ol obtaining money or goods l)y false pretenses, but not a charge of forgery. Aldkuson, B., concurred. Robinson contended that at ail events, it was a question for tlie jury whctlier, when tlie prisoner tlrst assumed tiie name, It was not with tlic view, anu)ngst other things, of drawing bills, aud to supi)ortin« a false credit. In SltrphenV^ Case,' it was held lliat, although a man had l)een previously known by the tictl. tious name In which he had accepte.l a Wll of exchang.;, it would not avail him In a defence to charge a forgiTy. TvLi.(>rui>, J. 1 propose to leave the case to the jury in this way. First, whether, when the prisoner accepted this bill in his brother-in-law's name, he had reasonable grounds for believing he had authority to do so, and secondly, whether he assumed the name of .1. F. Whiffen& Co., with a vi.-w of defrauding tiie parties with whom lie dealt, by issuing false bills of e.xcliange, of whicli this was one. I do not thinii it would be sullicieut that he assumed the name for the purposes of fraud generally. The jury must find that ho contemplated issuing this particular bill aud, as far as my judgment goes, 1 .lo not see that there is sufflclent evidence to warrant them In coming to such a conclusion. Verdict, not (jnilty. lu U. V. Aickles,"' it was held that a person who has for many years been known bv a name which was not his own, aud afterwards assumes his real name, and in that name draws a bill of excluinge is not guilty of forgery, though the bill was drawn for the purposes of fraud. § 418. Inducing One to Sign Note lor Larger Sum than He Intends, Not - In Commonwenlth v. 6'u»Ae;/,' the court say : " Tlie defendant wrote a note payable to himself, for one hundred and forty-one dollars, and gi>t an illiterate man to sign it, by falsely and fraudulently pretending that it was for forty-one dollars only. On a special verdict finding these facts the court gave judgment in favor of the accused. The act was a forgery according to all the text writers on criminal law, from Coke to Wharton. But their doctrine is not sustained by the ancient English cases, and is opposed by the modern ones. Only three American decisions were cited on the argument; and we take It for granted that there are no others on the point. Two of xhese, Putnam v. Sullimn,* Hill v. 1 2 East's I*, r. 9(i7 2 2 Leiicii, 4'.'2 (1787). a 22 Pa. St. 390 (ISSSj. * 4 Mass. i!t ; 3 Am. Doc. 206. iMl FOKOKUY — KUAll) ON MAKrtt «'l- I'M'KU. 91 It some tlinft army; It w is II for tlio piir- nssunieil I lie uci'cpled Uif It was iiniiiH- ,o use it wlioii t tbu name of ist liHve bft'ii ig on Ijusliii'ss )r('ssioii, with ling money or jury wfictlier, /WW, amongst In Sltfpheril's vn l)y tlie (let!. not iiviiil liim s way. First, aw's name, lie and secouilly, of defrauding , of wliicli tlds I tlie name for contemplated lo not see that conclusion. •t, not guilty. iny years been iumes Ins real ty of forgery, in He Intends, nt wrote a note H>t an illiterate 8 for forty -one gave judgment lie text writers •i not sustained ■9. Only three it for granted tiUican,* Hill v. 20i;. ^^^,^. .^,.. ^,,.., .uu tiie -•--- -:i^^,::;-r :;;;;;:::;' tj: ;;;!;: ,,„„; „e argument of .he <^7';-'-;; ^ ,, ^ , d Is no torgery. We tlunU ^,,^, ,„.Uonti.s is in f.vorof l''^'''''.'' ""'",,.,,,,.,,, of .he tldng, prepon- -U.t the arg nts dn.vn ^-^ ;-";;;; ;;,;^;;r.;:: > r.is such a, .s- ,,,,,,te on the same side • " '"^ ' ^,;\„,,kiMg of a false paper. Hul *veu a „„, ,, this stands no ''f-- "^ ,;' J , .^.....se he has i.e.-u g-il.y of au- ,,,ve must not be pumsh...! •'"^^'^;] _^,,.,,..,„^, .,, „ .vritlng to the P-eju- , ,r Forgery is tlu' fniuduh^nl milsm.- <» ' ' ^ ^^^^^ ^^^^^ ,,j ^„^, ,J., another's right. '^^^ ;^f:;^::':Z P^^'^^'^ "> I^-^"" '' '"^ „,,Uin.. The paper was made lie " ' ,, .,„,„„„^ j,, ,,„..i,... a ,„,, ri.ht. To complete ^^'-'V'"^'"^";' "\' ,'.'t, i.u.oeent without the former, f,,,,,,.U.Mt intent and making botl^i l\^^ Un^ .1 __ ^ _^ ^.^^^.^^^ ,j „,, the f<.rmerif carried '-'^^ ;f'''''^'^'^^^^ M ^^ V^-r-^'- ^^ ^^^^^^'^^ ''' ■ -y '.-'^ "•• ^'^>- "r::h;; 1 hi- " ri 't: i^ise Le s,gned, ^ ... .. ,,„, iiiM name lo a paper whuh lu woui . .,,,,,,„. the rule? Isitforgerv „., , f„,,.„y. Where shall he stopV and . :U '^ ^ ;;,,,. ^ ,^ „^,., ,, valti- ,., ,aue a note for a debt not ''"o-" " " ' J , , ^..l., ,,,„er that it is worth- .Me land by fraudulently ^^^^'^^^l^'^^^^l^V''^^-^ -' ^ -'■'^*^ '""' '" "" los^y or to get a leua.-y u.se.ted ... *^v > J: ,„^ ,„, ,„.,.,,ose '-^.f :;..:;: si:::;-^: .:r;;^:ni.>ci> •. co ...d . .. ..... "•'!.r ';;.:ie:e:r :;: ;;"— « ^'ven m the court ..dow. which we fuUy adopt, the judgment is to be aHlrmed" , ,, __ ..ucln. Signer «« -P^ ^ -^l -.^rltn'^n-^- .o,, ,t is not forgery to pn.ej.e e -.s .U.d ^ m^^^ ^^^^^ ^,^^, ^^,^,,^^„„,. ,,:., alteration made w.lhont h.s ''>'*>'> 'J [J ^^,,^^„, „„ ,^,H,ition that the u,s of no in.portance to him, lhom:h he gave Ins iriirc-entatiou is t.ue. „,,_»anv«' i' forcerv co.isists in "v„.« V. .7.,.....^ a case .,f this >< " l^^ ^■•^:^,. '^ul eLnce of the falsely making or altering a wr.t ing, with n tent to ef ra _ ^^^^^^ ^^^^ ^^^^^^,^^^^^^,^^^ .Time is contained in the unio.. of 't.^ a udulent purpose. The false :. a .iction, and that it is a tict.o.i '''-X;!':: a ule,.t purpose for which it ,,,aracler of the lustrume.it, '■'^'-''-■" '' " ' H,^, «i,nature- u.at Is. one ,s prepared, may consist in ^''Y''' iCtur i pmports to be- toany Uistru- .Uich is not that of the party whos. ^^" ^^ j;;;"^^, ,,, ,,.„ ,, u.e applica- „„nl, whether genuine or false, «'' ^; 5,,^.,, ■„ i^.i.e- that is, whuh is ,,.„ of a genuine signature to - ;-\";^'; V\; ^ -.ed Ids signature. In both „.,t in fact the L.stru.nent ^";;^'f^,^;.f;;;',i, pp^^r., wl.e.i it is shown that cases the f.ilsity in the character of he paper d n ^^^^ ^^^^^ ^^^^^ j,, ,,, ,„e application of the genuine '''S"^t..re n tl^^. o" , ^^^^^^^ ^^^ ^^^^^^^^ ,.„.er was made by the coasent a..d ^^^^^^^^^ and it cui n.ake no dd- „, or was assente.1 to a.ul ^-^'^"^^J'^i^^^^^^U^.i the asset was , .0- ,..,-euce in the latter case, ...ore than .. «; ^"^ ' ^ „ ^ p.^ty is i..due. d ,.ured by means of ^''l--"'^ '■•7,^t " >«" "■"* ""'"' '" ^' "'"""" I Yerg. :•«; * A"'- l>oe. i^l- : 18 Me. 371. ijSN. 1I.:;2KISS9)- 93 romiKKV. paper, than If, indiircd by Midi roproscnUtinii^, he imil siirnoil It hlnistlf: ;ii„| it Is p<|""lly "K in tlic ca-c il;:inally applied. In cvny such cns<,« th.' as- sent of the party, voluntarily uivcn, though procuicl ihrouKh falscliood .itnl fraud, removes the false chanuier which witliout It iid«lit lu' imputed lo t tic instrument. The fraud may exonerate tlie party from llaMlity upon it as a eon. tr.ict, and under some eireunistances may, in Itself, constitute an offense siil). jecilnj; the party to indictment; hut because false means an- employed t„ procure the consent to the Instri'nient, the Instrument itself can not for tliat reason lie deemed fal-e. I have fouiid no authority upon tlie point except tlic caseH of 7i''.r \. C/i^uhriei ,* and h'cc v. Collins.-^ AlllioUfih they arc merely jii:*ipriii.s ruiiiifjs.tliey are cite<| l.y Uox-oe, In his treatise on Criminal Kvldencf, as oslaljllsiiinfi the law in aci'ordanee with tlie views here nuiiuested. Tlic rulings were that It is not for-ery to induce a party to ex( cute an Instrument hy a fraudulent misrepresentation of its eonfents, or to procure the? signature by fraud to a document which had l)een altered without the party's knowl- edge." § )•-'(). Dmwing Checlt on Bank In PrlBoner'a Own Name, Having no Money In Bunk, Not —In h\ v. Martin,^ the pri.soner, whose name was Hobert .Martin, in i.aynient of p'o.ls illh d up a banker's check and handed it to tli.' seller. He signed it " William Martin " but the seller took it as the jirlsonerN without uoticiuK the alt.raticni iu the Cliristian name. I'pon presentation at the bank where the prlsom r bad no assets the check was dishonored, on the pround that the signature was ii..t tiiat of any customer of the bank. It was held that he was not guiltv of foriierv. § ■*-!• Paaslng Counterfeit Money. Is not forgery.' - To pass a counterfeit note or check § 42'-' Falsely Attesting Voting: Papers Not. -- In R. v. Hartshorn,^ a statute enacted tliat at ei(ction " if any voiircan not write, he shall alllx his mark at the foot of a voting paper In the presence of a witness, who shall attest ami write the name of the voter against the same as well as the Initials of such voter against the name of every candidate from whom the voter Intends to vote." The defendant who took an active part on behalf of some of the candidates at an election went to the h.uises of voters wlio were marksmen, to assist In till- ing up the voting papers, and having ol)tained the express or Implied consent of voters or meinliers of thi ir families tilled up the paper with the propcT names and marks of the voters, and put their own names as attestln- witnesses w ithor*, obtaining the actual signa'ures or mark.-s of the parties th< m- selves. Oa a.i Indictment for forgery Compton, J., said: "This does not amount to forgery, although it is undoubtedly an Irregular proceeding. It ap- pears tliat the voting papers had been filled up by the defendants, either with the express or Implied ciniseiit of the voters, or with the consent of some per- son whom the defendants mi^ht reasonable believe to have authority. The 1 2 MooU. ,t Hob. ,'►».'!, ^ Id. tlA. » U Cox. 375 (1879). < VTailc's Case, 2 City 11. Uec. 4r. (1S18). ' flCox,3'.l,i (185;t). WHAT NOT iM.KCiKUY — IMX\STRATIONS. \K\ It lllniS(lf: :ii,,l y siii'li UK •■111- 1,, slstimtiirc til .1:, iicti case till' IIS- ii f:iloiiit except tlif they arc niercly miiijil Evidence, iiitruested. Tlic 1' «n liistrumiiu re tlic slgnatiirt party's knowl- me, Havlnir no nine WHS Holxri hiuiili'd it to tlif s the jirlsoncrN presi'iitaiion at lioiiored, on the '.' biiiik. It was lit note or cbecic lAorii,' a statute iflix liis mark ut shall attest and lis of such voter iteiids to vote." le candidates at to assist In till- !ss or Implied paper with the Ties as attestliif; le parties thi What '8 Not Forgery-Other lUustratlonB. - The alteration o( rt. posited With tn^citrK. » . .innceived 84(1, .Tannary 21, Aiiril, 18-'0, an acceptance by Messrs. yviiuams * ^ . change as follows, viz. : — "No. 117. £-'00. «« March 28th. " Sioannea Bank, 1820. .„ M, Tniin Tinner, or order two hundred "Two months after dale, pay to Mr. John upper, pounds. "For yalue received. " IlY. WlUUAMS & Co. "To Messrs. WilUams & Co., Bankers, Birchin Lane, .1'^ London." With intent to defraud Thomas Bayles, John Boutledge and Jonathan Uainsey. 1 Com f . llayward, 10 Mass. 34 (1813) ; Tlic iiiiMincr'8 method in tlii>< case wa« to Like seven bills of the Bumo bank ami valuo ami to out a strip perpenaieulaily from o.irh bill, uniting tlio pans thua scpuratcl, and with tlie i^even Rtrips mnV.u an eighth bill. s Stale V. DavU. 53 lo.va, 352 (1880). s State f.McLcran, 1 Aik. (VI.) 311 (1826). 4 U I'. Preston, 21 I', f. Q. V.. .-r.. i State V. Monnler, 8 Minn. iVl (1««3)- Walton f. State, tt "ierg. 377 (1»3*)- ! 10 Cox, fill (l-^'')- s K. 4U. 136(1S21). 04 |-t)lI(>KUY, Till' M'coiid iiiit, cli.iru't'l tlif prlsoiiiT wllli uttfiiii;: ami piilili-lilii;: lus iru, th.' Hiiid fornctl a.(i|iiiiiici' on Iho siiiii the necoiid count. It app.uiod (ri.in the fvidcuoc, timtin April, IWO, tlio pri.soncr puiThuHia .f thf iin.scciiiori wlnat to tlic ainimnt i>t two Imiidrcd and forty pounds*. Ai the tiuif hi' uiudo 111.' imiTlia,.', ho a-rci'.l to pay lln' amount hy tlu' ucccplaiic.. of a l.ondon banker. Uffori' tin- wlnut wa>i dclivi-rcd to lilni, he produfcil uiit ■r purclm8cili( ly i)(Hiii(l!<. Ai the uccopliiiicf he proiUifcil '.. \UiTvU 28tli, t.v,',( Uilllk, iHL'tl ■1 two hiindrt;il If rt'Cflvcil. 1I.I.1AM8 & Co I of lliL' money : e thoil drew the •il t;tll, 1820. ue received, a* iiAS W \nt*, P. Watts d Co. It accepted, and ted, WlMliiras &. jtorw asked him, (. The prisoner itor said it wn.» same strei't : t' in>l8 botv een tli< -t then 3, which .iited witU bill.s juiders <>t bills But til. fKTSon bill when he prc- K&s presented at „., . B.rch.ni.a.. took .;. .111...;. ---;• i!;!;;,::;;::;:;:;;!!:^ :;:; U A thUim.e there were Lon.h.n Linkers ut N... •-'0. Hireh.u Uuu; of TZ^: of V m . S 1^ d. ^ Co.. who usually aeeepU .1 hills in the .,. .u ol V^uZ7('o ruu ;>ll was n<.t accepted by that .Irn,. No other banke s \M1 hams ^. I o ,„ earry on business In IMr.hln of the nan,, s f N • ; • ^^_^ , ,^ „,^^, „,.,„ ,,„, „,,r.„ 1: wluilll^r W- w!.: on';; LLs p.a,e on the d f No. :,, ,Ure..i. Lane. I , . wi. n , evhhnee to sh„W by whom these hills were aeeepled. T,:;:;::i::;e: ;::!'" ult tUree b^s m tl. toUowlu, fonn mul been paid at So. ;t, lUrchin L'lne, viz. : — "No. ;il.''- i;;"'"- "SoiTH I.AWTuN, March r.lh, 18-20. ..TWO n.on.bs after date, pay to onr order, thirty pou,.K f^ .^.e received. " /', Watts & C'i>. •• Messrs. Williams ^ Co., " Hankers, "Accepted, M(vsrs. Willianis,& Co. " I'ayahie at No. ;l, Ibrcliin Line,- " lioudon." , • 1 wt It lo til., iurv to sav, wheMier the acceptance of ttie Th« If'iirned ludltc left It to lUe jui^ i" .-•".' i ." Uv,hn';Z pound bill was the acceptance of any London bankers, and .he> ""'n' Tn,!win".!uestlons were reserved for the opinion of the jud.es, viz,: ;::;::::;r 'r-pr^ve Zl. ««..« . m the comer, was on tUe bill When it was ""InllSa^i Te;rt8^1. eleven of the indues met (Bavu.v, J., bein« abseiU) In Hilary J cru , lo , conviction wrong, Ijeln;,' of ;;St:r t:;ov^r::;::t^;;.:^.rlsoner d. not amount to the crime of forgery, and they directed a pardon to be applied for. 5 V'5 — Partnership. - A partner is not indictable for forgery of an Instrn- nieiit of writing with intent to defraud the llrm.' ,4.,, xnlury muat not be Remote. -In People v. C'«dy,= a notice of uJ^itution "^r^rltof inquiry bel.^ s^^ved "^-"; l^""'?^ w^fS'th: ,.e of cecntin. '^ In -ier to ^oke^i^^^a^^^^^^^ ^^^ •the tendency and intent to uo ine wroiif, ai i^ conjectural to constitute the crime of forgery. §427. —"Accountable Receipt." -A railway scrip certificate is not within this phrase.^ Boe. as to the conBtructlon ol tlOBC words. StaU ..Riebe.« Minn. 315 (1880) ; State v. Wiioulor, 19 Minn. 98 (1872). I Com. f. Brown. 10 Phila. 184 (1873). aoili! 190 (1844). ^ , »R.r. NNcflt/i C. * K. 496 (1847). And. »1 n FOIUJEKY §428. "Acquittance." — A railway ticket Is not an ' acquittance;'" nor a niihvuy scrip certillcalc.''' (j l^.c), "Bank Bills." — CiTtlflcatcs ol deposit purporting to be Issued by an inaurance company, payable on ileniaud to bearer, are not " bank bills." ' ^430 "Bill of Exchange. " — As to the construction of these words, nee li. V. Mopsc!/.* §431. "Deed." — The forging! of letters of orders issued by a bishop i3 not the fcrgery of a deed under the Kn^lisii statute.^ § 4;5o "Order for the Delivery of Goods. ' — To be within the stetuto, it must i.iirport to be tlie order of the owner of the goods or of some person who has or claims an interest, in, or,vlio has or assumes a disposing power over such uoods, and talies upon himself to transfer the property or custody of them to tlu"i)ersou in whose favor hi;ch order is made." Tbo following have been held not within the phrase, viz. :' " 1 hereby authorize my servantraan, Abraham Egan, to procure a watch of you."' "Mr. McD., let A have the amount of live dollars in goods, and I will settle with you next week." « There must ap- pear to l)c a drawer, a drawee, who is under an obligation to obey, and a per- son to whom the goods are to bo delivered." In Carherry v. *7a«e," C. was indlctiMl for forgery in falsely making and pass- ing a forged " ortler for the delivery of a pistol with a load." The instrument •.vas as follows ; — " Messrs. Langdon A JSro. — " GK.NT8 : Let the bearer have oue of you- smallest, with load, and charge to rae- "K. Chambers." This was hold not such a writing as alleged -being defective oa its face. In li. V. AViefoH," the prisoner was Indicted for altering a forged order for the delivery of goods, which was set forth as follows, viz. : — "July 11, 1838. " Mil. L.\N. We»l,2C. &K. 4SM(1847). 3 Robinson v. Stale, 6 Wis. .'«« (1857). •llCoz, UJ(18«S). ' R. V. Morton, 12 Cox, 4,'Hi ; L. R. 1 0. C. H.i'i (187:?). 11 n, V. Clinch, 3 Le.'lcli.CU (1791). ' R. V. Kgttii, i Cox, 29 (1843). e Horlou r. State, S3 Ala. 487 (1875). » State V. Lamb, 05 N. C. 419 (1871). K' 11 ()hioSI.410(lSilOj. u 2 Moody, 89(1838). Mi KOUoKKV-"onnF.n fou thk vavmknt or mom-a.' 97 in ' acquittance; "' porting to be issued 3 not " banli bills.'" ion of tliese words, ssuoil by a bishop i3 ■ within the statute, It ' of some person who lisposing power over ty or custody of them following have been ervantraau, Abraham have the amount of >>8 There must ap- 1 to obey, and a per- iely making and pass* nl." The instrument oad, and charge to me' "K. Chambers. " ective on its face . ng a forged order for "July 11, 1838. >r, 12 long, 16 wide. :ORnE KlLBY, " Queensborough." ;ond count with au iu- next day, for the pur- arned judge that they 12 Cox, 4!«!; L. B. 1 O. C. Le!icl),6U (irai). lox.W (18*3). e,53 Ala. 4S; (1S75). ,05 N.C. 419(1871). (18tl0j. 838). 'Z ;;:;; ";,»,,''■•; :;:: .-,..,1, ..»„« ,..^. or ,.;.... ..„. o„„„„y ...u., » h. „.„„.„ce till the n.xl as.sizes, and *« '"^'"" ^'''; ''"^ " prisoner's eonfes- ,j''r;;:e;:::i;ir r:\rr;-. -:,;";;,»:. . .... ....«„... -o ^ piiferred for forginu', olc, a request. , ,.,., -order For the PaymentotMoney"-Tha Order Must Appear • Z7.^ nn? I., lieainn v linshxcc-rih,' it was held that a for;zed order The following have been held not within the phrase, mz. . - .. S.u: The bearer Mr. Richardson, '.elng our particular ^>-''="d. who has occa- 1 f. ..n Now York to Pliiladelphia, we have requested hini to call ::■;::;;::« ™u - :::;^m. .-. <■« -. »» — »"» ■"- '•'""" vour compliance will much ol)li-e, sir, . It v as 1. Ui au order for the payment of money. n. wait for you." U. r. KUor. 1 Leach, 363. (1-^4). ' c. AM. f,.w C1H4.:). ^ ,„. » Atul SCO K. V. Williams, 1 Leach. lU (1775);U.-.R"UB«.4C..x.7(W^');U-;';Kll^. 4 ()<)X,'.'.-.8(lH.'>li) ; U. f. lie-.pt-lle, W U. ( . Q- »• 2.!0; It.f. naker. 1 Moody, 231 (1S2'.') ; K. r. l!,,venMToll, U..tU. 100 (ls,^.);U.e. I!'«'l'- ar;l». U. & H. Wi d-^H ;) "• '' ""'^"'' " ^°*' ;!'2 (lHr,;i). V iMou'ly.-JSl (IMl). 1 'cl'i! «, sec. 10. Sec Kasfs V. C. OSfi ; Uav- i.ns.ion'8 Case, Kus^. & "V- I'.l ; ^^a'-n^y'" I'UM'.Moo. Ml. ' 1 Siark. 3117 (1HI6). * K. V. Denny, 1 Cox, lT.i iW.'))- ■ Tcople v. ThompHoii, 2 .lolins. Cag. ;142, (ison. U..V. Cullen. B C. A V. 116 (1831). "IMcas.. to , ay JLIO by bearer, at I urn so »11 I a- follows: — „ ., , ,- 1^., "'IlYTTON, February 1., 1841. " ' IMt^aso to pay on demand to the bearer the sum of twenty pounds for v.ilu- received, as witness our hand, Messrs. Thc.as «ially & Co.,' with inti ii' to defraud Matthew Ilulton, Chayte. •UKlot'.^rs, against the form of the statute," etc. The other count differed from timt stated, only in substitutlns; the wor(l> order for payment, or money for the words, " bill of exehanse." The learned ju Ige respited tliu judgment till the next assiies in order that the opinion of the jiid'.,'es miRht be obtained on this question, whether tin- counts or cither of them could be sustained. This case was considei'cd at a meeting of llie jud<{es In Raster Term, 1S41, and they were unanimously of opinion that the conviction was bad. This case was distinffuished from llpguia v. Ilawkex,^ in this, that there the act of putting the acceptance was a sort of estoppel to say it was not a bill of exchange. § 434. Promissory Note. — As to what Is not a " promissory note," see cases below. - §435. "Receipt For Money " — " Receipt." — .V scrip receipt not Ulled up with the name of the subscriber, Is not within these terms,' nor a rail- way scrip ccrtillcate,* nor a railroad ticket.' In li. V. Cooper* it was the practice of a county treasurer, when an order had been made on him for the payment of the expenses of a prosecution, to pay the whole amount to the attorney for the prosecution or his clerk, and to require the signature of every person named in the order, to l)e written on the back of it, and opposite to each name the sum ordered to be paid to each respectively. It was hold that such a signature was not a " receipt." § 4;!(i. statute.' Record, — A tax duplicate is not a " record " within the Ohio § 4;57. " Shares "— Scrip Receipts Not.— In E. v. Mott,'' several defendants were indicted for conspiring to fabricate shares ol a company. It appeared that the company had not been legally established, and that tlu papers ^fhich the defendants were charged with conspiring to fabricate were scrip receipts given by the bankers of the company to the holders of certain letK-rs, in return for the payment of deposits. " I should say," said Aiut.vr r, C. J.. " that these receipts had not become shares, but were only things wliich might be made shares." The defendants were acquitted. I 2 Moody. CO. •i It. f. Hurke, U. K. 4l"5 (ISW) . t'onner's Case, ,» City Hall Kec. 5',t ( ISIS) ; H. v. Howie, llCi>x,3'.'», (1SI!9). » U. f. l.yi>n, 2 Leach, iwi (17«:!). * |{. r. West, 2C. *K.4!I«(1S«7 . And as to the rcinstniction of these wonlH, nee R. v. Usrvey, U. *. U. 227 (1812) ; K. t. I'urker, 2 Cox, 274; It. f. French, 11 Cox, 472 (1870) ; 11 V. narloti, 1 Moody, 141 (1S26) ; U. v. Uussell. 1 Leiich, 10 (18117). i It. V. Uooilen, 11 Cox, tn2 (1871). « 2C. &K. .S8li(1847\ ' Smith r. State, 18 Ohio St. 420 (1888). > 2C. AP. 521 (1827), mm lOROERV— INSUFFICIENT EVIDENCE. 99 c, feloiiioii> A exchaiifrc i> i- ary 17, isn. uiuls for v.ilu' .,' with iiiti I!- jflhu statute," Ing the woi'iN s in ordor that I, whether tlu' rcrm, 1841, iind This caxe wa-; of puttiug the inge. ory uote," see ft receipt not ms,' nor a rail- n an order had ion, to pay tlie and to require on the bacli of :h respectively. Ithin the Ohio Mott," several II company. It and that tlu fabricate were ders of certaiu ' said ABitoTT, y things wliicli , ,,8 _- ..undertaking" — warrant." -in R. v. ^7''';>^^' a customer in --r;t:r^;;:mrr:i™:r^^^ "n-V^r ,; ; P V L' r B tb sun. of .•-', 7s, 8d and dei,iting me with the ol,l.ged b > m I^^> '^ ^„j ,j, ,,, „„ount to invoice of order ""Jld • ll va 1 e P a..tice of the house to pay country custom.-rs on sl.u.- iTrCcts U Vl^heid that ths letter was not au " undertai^iug," a w. r- ""!';=: S;:.rri:rr,u:r;aid ,. . ....U. . not a .. warra^ for the payment of money." • NO Pre8umnticn of Guilt from Uttering. -The uttering and person so doing forged It.' 5 4,0 _ Il«»c« H.ld I„al!.01.»..-I0 several »«>. In Ibc .ppell.te III Dovalina y. state = HVR-r, J., »>ii^i- *' ' j «„„.!.. .>t This order n„lo aou«.lc. !» ch.rg»d to h.»e been forged b, the ."='«»*»'• ™;;''"; I"" "TrLS::,." °p:,r.be' de'eSrL trder re>.rrod to. . ..o.,d °°T , Lt If »«• '. obulned Ihc order tr„m P.blo DovaUn. about ,.r„ „., „„. '™™''"'*«"y;-,' "::::; :t„,r::re order fn cvldonee, «"':;:■ r 'Intbt ,:^'::' T:;onv,'c.,on wa, .o„«b. .,„»e up.,n c,re^^^^^ untlal "vldenee. The law appUeable to »«ch a case wa, not cbarsed. Il.»r. ;ir.d:r;.:™d o'r ,r dVcder. . Xba. the de-e»,.„. e.U,, „« ^^^^^^^ I There was no proof as to who did write the order, the State rcijiu au u poTtheTovrircts to show tUat the d..fendant proa.red s^^^^^^^^^^^^^^ tl e order he having some sort of claim on Gonzalez.. Do these facts '^"^'^r " reasonably certain ^hat the defendant forged the order? This is very ques Uon- I I hence we^vould suggest that a count for uttering, in all such cases, be n ;ted in the indictment^'Because the order was not Introduced '« -« r^dict IS not supported by the evidence ; >vUerefo. U,e ,u gmc. m^^^^^^ reversed and the cause remanded. Heienea a 3ox, 472 (1870); 11 26); B. f. Kussell, !72(1871). St. 420 (18«8). I C. * M. 206 (1841) ; 2 Moody, 271. a R.f. Pilling, lK.&K..Ti.Hl858). 3 Miller V. State, 51 Intl. 40.'). » novalii.a 1'. State. 14 Tex. (Apl>.) 3n (1883) ; MontKOmery f. Slate, U Tc.\. (App.) T5 C1S82). - Id. 100 FUAl U AND I'ALf'E PRETENSES. Part TI. FRAUD AND FALSK PRETENSES. FRAUD — PRIVATE INJURY -AT COMMON LAW TO BE INDICTABLE MUST HK PUBLIC. H. r. WlIEATLY. [•-' Burr. \l2o; 1 VV. Bl. 27.S.] In thp EiKjIixfi Conrf of King's Bench, 1761. An Offense to be Indictable, must be one that tcn.ls to injure tlie luiblic. Defrauding oiu' |>erM)iiiiiily, vvUlioul the ii><- of fal,-o \nni:litis, incaMircH, or tokens, and without »ny cmfpiracy. Is, iit cinnmou law, only a civil Injury, anil not indictable. Mr. Xorton, ior Wu- inosocutor, showed ctuisi- why judgment should not 1)0 amsti'd ; u ink' for that inirposi' hnviiig Iwvn obtained, upon ii motion made by Mr. Mm-'ini on Monday, -'Cth .Tanuary last, in arrest of jnd-finent iiiuin this indietnit nt for knowintrly selling amber beer short of the due and just measure (wlieieof the defendant had been con- vieled). The ehariie in ilie iuiliclmenl was, " That Thoma.s Wheatly, late of the parish of St. Luke, in the county of Middlesex, brewer, being a person of evil name and fame, and of dishonest conversation, and devising and intending to deceive and defraud one Richard "Webb of his moneys, on, etc., at, etc., fals.dy, fraudulently, and deceitfully did sell and deliver, and cause to lie soUl and delivered, to the said Richard Webb, sixteen gallons, and no more, of a certain malt liquor commonly called amber, for and as eighteen gallons of the same li(iuor ; which said liipioi', so as aforesaid sold and delivered, did then and there want two gallcius .if the due ami just measure of eighteen gallons, for which the same wm^i sold and delivered as aforesaid (the said Thomas Wheatly then ;ind there, well knowing the same liquor so by him sold and deliv- ered to want two gallons of the due and just measure as aforesaid) ; and li. , the said Tliumas AVlieatly. did receive of the said Richard Webb the sum of liftcen .shillings, etc., for eighteen gallons, etc., pretended to have been sold and delivered, etc. although there was only sixteen gallons so as aforesaid deliviu'd ; and he, the said Thomas Wheatly, lim, the said Richard Webb, of two gallons of, etc., fraudulently and unlawfully did deceive and defiaud ; to the great damage and fraud of the said Richard Webb, to the evil example of others in the like case R. r. WIIEATLY. 101 INDICTABLE )lic. Defrauding ,und without any gment should aiiunl, upon ii it, in arrest of Iht hoor short had boon con- man Wheatly, k'bfx, brewer, , conversation, •hard Webb of k'Cfitfully did e said Richard nor coninionly or ; which suid here want two , for which tlie lOiuas Wheat I}' 3old and dcliv- as aforesaid) ; Richard Wel)b >tc. , pretended [18 only sixteen f)inas Wiieatly, audulently and ;c and fraud of in tlie like case ..ffendins, and against tl>e peace of our sovereign lord the kin,. hi« ^T t^ofn'r^/--. YaU., who were of counsel for t1. defendant (,;, arrest the jnd.nnent), ..bjected that the fact charged was notlnug r lu.n a mere breach of a civil contract; not an ind.ctable of.ense ,r e this, thev cited /.'-« v. Co,»7u-..,' which was exactly and : llv the sanu. case as the present, only .nuMi. .nUnn.Us. And 'Z^ DrifluMr an iudictu..nt for cheat, in selling coals as and fo : nshels, whereas it .as a peck short of ti.at measure 1 ere t udietment was quashed ou motion. Re. v. Jla.n.k ^^- /' ' " - i,.,ie.tment for selling and delivering ^'^^^^'^^ ^^^':; "^'^J^^ .„,J one-i.-df pint of geneva (and the lilrlit and just (luantity. , ., . i „„♦ ^Mr. Xorton, pro rer, offered the following reasons why the judgment should not be arrested. The defendant has been convK-ted of the ac Me may bring a writ of error, if tlie indictment is ernn.eous. Ih s .s ' idictable offense ; it is a cheat, a public fraud, in the course of lus L • he is state.1 to be a brewer. There is a .listinction be ween ; r V te frauds, and frauds in the course of tra rn.iKmg i j for ;aking a fool of anoth.. ; ^\^2^l^ -^;,^ .. 'l^^^^y, false tokens, or a conspiracy it ,s another cas ^ ^^^^^ was a conspiracy, as well as false tokens. « • v- U^^ ^r .-„ fi.nn this and was well considered. lU.vi was i stronger cu«e than tl"«' '^"^^ ^^,^ ,,^,,, „^,,ke,l the vessels as tiou in the course <> hi -^^ ' ^^ ' ^^,„,,„, ,,a had written a containing more gallons than tbey ^^'l • > ^^^, i^ letter to Mr. Hicks attesting that ^-^ f \ ^^;^/^ ^ i,!,,,.! the quan- „o more than a mere breach of ^^^^^^^^^^'^ a discretion in ,,y .hich he undertook to j^^'-^^ J^^ ^^j^ed to arrest judg. r^:x:r r t :s;tr - .^^ -er is not mdict. ...; therefore the i-^^™- -^^,;:,:;\rf:^^^^ settled and estab- Mr ^7- /:XLaT; f 1 feterminations in cases of the same ,i.hed ru^os alr^d ^--^^^ / ^^^^ ^^^ , ,,,,„, «,,« (too strong, per- :;:l: J;r^^^^-tokens, tl. vesse. were marked as contain- ing a greater quantity than they ^^^'y^f^ ^^ ^ecn fully settled I (5 Mod. 301 ; 2 U\. Uiiym. 1179. •i 1 Salk. 379 ; i Ld. Uaym. 1013. and 6 Mod. ,1 « Mod. 302. U>5. 104 FllAUO AND FALSK PUKTEXSES. prude ncc may guiiril persons ajraiiist the sufffring from tliciii, tW of- fense is not indictable, liiit the party is left to his civil remedy for llio redress of tlu^ injury that has been i rcvcra et in facloplarimam deficlabat," etc. the indictment was quashed ni)on motion. In the case now before us, the ])rosecutor might have measured thf li(luor before ho accepted it ; and it was his own indolence and negli- gence that he did not. Theielore common prudence might have guarded him against suffering any inconvenience by the defendant's offering him less than ho had contracted for. This was in the c:ise of lice v. Pinkney; and it was there said, that if a shop keeper who deals in cloth, pretends to sell ten yards of cloth, but instead of ten yards bought of him, delivers only six, yet the buyer can not indict him for delivering him only six ; iiecause he might have measured it, and seen whether it held out as it ought to do or not. In this case of Rex v. Pinhiey, and also in that case of Rex v. Combrune, a case of Rex v. Nicholson, at the sittings before Lord Raymond after Jlichaelmas term,*^ was men- tioned ; which was an indictment for selling six chaldron of coals, which ought to contain thirty-six bushels each, and delivering six bushels short ; Lord Raymond was so clear in it, that he ordered the defendant to be acquitted. Per Curiam unanimously, the judgment must be arrested. FRAUDULENT DISPOSITION OF MORTGAGED PROPERTY PROPERTY. MOVABLE Uaudeman r. State. [ICTex. (App.) 1.] In the. Court of Appeals of Texas, 1884. 1. Fraudulent Bispoaltion of MortKaged Property. — To constitute tte offense denonnccJ by articlo 797 of the renal Code, tlio property upon which the lien was given must have boon "personal or movable property" at the time the lien was executed. The sale or other disposition of real property on which the owner had executed a writ- ten lien is no offense against the laws of this State. 1 P. SGeo. II.,B. B. •i 4 Geo. II. IIAKDKMAN V. STATE. ior» tliciii, tW of. nu'dy for tlic fulac wc'iglits lich llK4llO(l8 linary care cr alilo. In tlic 11 sack of cum a Winehestir lie iiKlictment measured tlu' [ice and ncirli- havc f^uardod ant' 3 offerinfi :ise of licK \' deals ill clutli, rds l)(>uglit of for delivering L>en wlietlier it I'inkne;/, and Nicholson, at rm,*^ was nun- ron of coals, njj; six bushels the defendant :d. Y MOVABLE titute the offense the lien was given ien was executed, d executed a writ- ready for hiiive^t. ,..,^,,p„ Uiiit ImviiiK exorutc'l 'i viilxl moH- ,I,aiotment.-Tlu.indictmentc|w^^^^^^^^^^^^^ . „...al,U, ^..e 1..M. i.. wriUM« upon " '^'«"'^"'" " ,^, ", „ K.m,Mv.n. Intonl to .l.friu.l 1... mort- „.,...,,,,■„,„ ,„«.M»t,«C,.„rto,K,.U. ■,-,-i.,n...|..w ..*- tUe „„„. (1. N. AU."^"">-- i,„j i|,c amu-ll»nl >v«. .!.» ■rii» otfciiso .itt,.iin>w.l to I.. cli,ir„. ^ 1^.^^^ ._^ ""«- -"t'r:-""! '^n:::?:;! ' ';. 1 u;:u,i., ..,y ..t „„ i,„V,ctmc,,. b.,n,. ,,, -" ■• , , ' ^ ,„„,f ,,,..,„ „,.„ ,„ »ri.i„« l,s«2, ox,.onU..l U. ""••■■; „„.„ „,„|tl„T« \.oi.W .""'.hU, ,.r..,,- . „,„>n dghtecii aorrsuf '"""■"",'".,,.,„,,„, isKJ. ,nl,llll.-saH „, ,. 1,„ »ul„o„„c„U,v. „„ t ,0 ir.t day ^ *«■, ,,,„„„, .,„„ „„„„to ,Uvcr,pe,s,n„ ';;,,™ ;:'•;;> ;':';;,,.,t a„.i a,»»„a ;;-:;r ;:"::;?..:-- .u; ,.,..e„..,y ... «. - .-^ -Z S..C n.. ,n.^..u.e. -vi-- ;;-';^- ^:^ZX indictment, and, by the witness J. ;• V';^ ' {,,« mort-a^'O had never ^"^ -f ?!:^ r:: t:::^—;::! 1 1" Ue o^^t... by the ,,eeu satished. He ^^'' ^^ ^^ t,,, execution of the mortgage, appellant to '">>'«"«•. ^^f.,"^^^,,. The witness however encuun- „, ,„,,uant 'f --:^^;;:;,^ri,rsepte,nber, IHH., and asked him tered the appellant in ^y^'^^f ^""."' ".' . ^^,.„„,g, could not make it out a„„ut the debt. Appellant replied that - "^^^ « ,^^^^ „„t paid ,n.i,n. no then asked the ^^^^^ '/ j' \";lt. The appellant ,., aebt for hiin. Witness r^^^ '^^^^,^, „„ twenty-five then said that a man living on C^^'^™'^"" J^ j ^5^^398. Witness dollars which he would collect and pay over to the witn never JawtheappeUanti^erwa^ a witn^s The substance of the .st mony ^ ^ ^^.^^^ ^^^^^,^ „, for the State, was that in the fa oi , purchased of the appellant t*- -"- ^ ^ "^^^^^^^ Uiat he ever Felix Hardeman, introduced ^J / '« ^^^ ^^^^ ,„ Uad ever paid, promised to pay the defendant's f '^ ^^J^^^^ '^er person that he or that he had ever told ^^^^'^^^l^'f^Z^ owed the defendant had paid or had ever agreed to pay it. Witn ^^.fendant nothing; the balance of ^-/f^^^i^ti^by defendant after he quit 1U« FKAL'U AND VALSK 1M5KTENHKH. execution, and cautionecl witness in the event he shouUl enconnler Wilson to make his stutonaMiL of tlio niort-u-e tnmsaction harinon./, with the .U^fcn.lanfs Htaten.ent to Imn. the witness, regarclinK the moit- .r.v.'i- Th.^ defen.hinfs witnesses had altenipled to i.revuil upon tin wiUiess to testify that he, the witness, was in the defendant's debt, and h:ul promised to pay WiUou the amount of ehiiin he held aga.nat th« defrnchint. , . , ^ , , W 1) Sims, for the defendant, testified that the dofi'ndant worked two m..nlhs for Felix Hardeman in the sprinj,^ of 1mh->. Witness asked Felix if heha.l not promised to pay the oii tliciii. and tliat is that the ,.,,sonabU- signif.eat.ou cau be pla. ul " ' ^,. ;r.'Lrr;w:;nr;:i,:;;»' ,„.,„.,— :;';r;;;ic, > , .... --;t:t;r :::u:::;:i;::.t: ,„a it was that kind of property. 1 '"'«' ^''I'lJ , ^^.^^j , ^,^,,^,,., „,, ,„, property consisted in e.g»;t;'- - ^^ \^:^'^Zw contended ,.,.,ion .hat the ^^^'^^^^^Z^i;^^:^^ that therefore the ,l,ut the latter controlled the f( rnu r .ui , allegations „„,,„„„„t charged the offense known to ^^J^, and thelndi.t- .,„,,,, be repugnant to and ^^^^^^l;;^:^^ ease before us n..„t would ^^^^^^^^;^X •-' i^^-l '" - --^ »-""'^ :: , rl .' S"™ »c,o. „. co«o„ ■• m.y m«., .„tto« U, Hat ,Uto or ,.1,...',. which would render it movable property. '•''■■ ^''"' '" ,;' ;„,.„„, he PC-son ot the owner wh.Tovor he goes ; ,„,„„gos are saul '°.'°''°" '"^ ■'^ °" „„,„ ,,lace , »,.d he.,ce they are :;:: :.ch o. " "l. »< eLtr„etioo -« ..ro„„..t .ithin th,s de .„. .on ,m> stretcn oi ^^^ immovable. It may, ;" ■"■"■""';'«;!.'o tva le " ys the a,.,hor las. quoted : '• K,..it», l,„»evcr, Lecome mnymK 3 gathered, :iT;"r";r:rf:; I'm; .re ..,;, .....ovahte, or re. Itcv. stats., ttrl. 313S; Penal Code. art. 10. 1 2 nouv. L. Die, word "Movables." a 1 ScUoul. Per. Prop. iO. 108 M;.\l I) .\\I) Iai.m; ntKTKN.^^KS. OHiMto 1.,.,.:,,,.,. iUry ar*- MUa-nM m».1 n|.,u.mlant to il... fxrmui.l. li„, wl.n. II,.. fnnis ur m,iMar. gatl,,,v,l, ..r tli. t.v..s ,.,,, ,i.,wn, as tl.ov llun ooaM.t,.I.oatta(lu..ltotl,esoiI,tl„.y|„.,.o„n.,novahK.s.-i Wo think it to„ plan, to iM, conln.vvrt.,!, or to r...,ni,v afurtluT i-nvsti^rati,.,, of anti.on. tu-s that a on.p .,f nruwi,.- ,.„ttn>, is iintnuvahi.. pn.|uTtv. and i, i,A w.tim, the nn.anin,^r.,|• " n.,.val,l,. pn-p.-rty." as ns...l in \u. artld.-ol tlio I rnal ( ,.,1,, nn.lor wi.i.li this convii-tion was ..hiaine.l H..t It n>ay U. sah! that tho c-.ttuu ^va,s pusunal, if nut tnovahlo pm,,. ••■•ty, ami ,f so that tho offons. a„..„,p,..,l ,„ ,,. char,.,! ..onl.i l.e <,..„- nn t...l ,n n-lafon to it. This position is oorre.!. Jf ,he proporly l„. e.lhor pn-sonal or movahh., it is th. snl.jc.t of tlu, offense denoun. , 1 .y the Coprehen,iv. word. Thns cro,,. growing npon land are held to be personal property, so far as no! to he considered an ,„ter..st in land, nn.ler the statnte of frau.ls.i So annuMl crops, , tit for harvest, may ae.,niro the character and incidents of personal property, so far as to he subject to execution as personal chat- t.ls. I ut It has never been hehl that an nngathered crop, still ..ppend- un to the gronn.l, is. under any circutnstances, movable property. Whilst the question as to whether or not cotton growing is personal property within tl... meaning of the article of the Code referred to is not presented directly for <,ur determination, wo d.vm it not improper for us to say that, ,n our opinion, crops do not become personal properfv as a general ru e until they are ready to he harvested. Until that tim^. they are reganh.d as partaking of the realty. ' In this case it appears from the uid...,ment that the lien upon the cotton v given in the month of Jnne, at which tunc the crop could not have been ready for gather- ing, and It was not. tlierefore, personal property In our opinion the indictment charges no offense against the law of this State, and the court erred in overruling the defen.lanfs motion in arrest of ju.lgment. based npon its insuflleiency ; wherefore the judg- ment is reversed ami the prosecution is dismiss.-d. Reversed and dismissed. 1 1 Schoul. Per. Prop. 124. 4 i e». . n ^ I . ..ouv. U n..... .. |.e„o„H, Property... o„ kU, Tc m.'- '^'"'- ^''' " '^■•- *"*•"-• 3 Ilorno V. Gnmbrell, \V. A W. Con. Rep •ec. Wl. BOHKllTSON V. STATK. !()!• I lie <,'roiin(l, l;i|t l«>»vii, as lliey ll.cn '' Wi- think it ti.M iKiitioii of aiilliori. ■ii|nTly. and i-. nnt 1 in till- artiflt'uf nt'd. not niovahjp prnp. cil could he (;iiiii- If till! i)n)|)cily lir )ff»Miso (ienouncdl is ilKJiclnu'llt dnr, rty wuH i)CTS()ii:il iTty, and tho twn liillcation, and do pt'i'sonal pfoportv indndi's niovaiili; ird. Tlius, crops o far as not to bi- nds.'- So, anniijil and infitliMits oT as personal chat- Top, still appoiid- lovhblo properly, jwing is personal referred to, i.s not not improper for iTsonal property, Until that time in case it ai)poar.s ven in the month ready for gather- / Ti-.viis, JSTS, Iiiirrc lioni "f vhp\\ oltciiHo. , jKe.ovato..uchPr.pert...UU....n....r.,n. ;:;;;;^:vr:::':;r:,:::;:r:; ':: .:i.;:'::v' ....••• ..^- -" .•'-- - ---^ ,.".y„n.l m, re.-l. of the U.Mvv ,.f tl.o l.o... with such ........t. , Tried below before The inrv found the Am-.M. from the District Court of Matagordti. tilC lion. W. n. Itl UKIIAKT. The material facts will be found in the opinion. ,,,p,.llant cruilty. and assessed his pnnishment at two years m the pea- " wI'nki". K J. Tho appellant was indicted nnder article 77:5 of the P.,,al Co.le,' for fraudnkntly disposing of a eertai.i hale of cotton al- ,,.,d to have been n-ort^aged to one Cialen Ilod^^-s, as sccur.ty f..r the ,,;vmcnt <.f S.^O clue from Robberson to Hodges, with mtent to defraud "''ThrSment charges that the offense was committed in Matagorda Cumtv. This prosecution was eommence.l, the trial had, and he ap- ,„,l:t„t convicted in Ma,agor TALSK rilKTENSKS. ^anjcd i)ropcrty, or any part thereof, out of the State; second, liy selliug tlie raorlgagetl property ; and, tliird, by otherwise disposing; of the mortgaged property, with intent, in either case, to defraud tlie mortgagee, or person holding such lien, whether as the origins'l pruty or one to whom it may have been transferred. It ia also necessary tliat the lien upon the property be in /^rce, valid and subeisting, and that the debt to secure which the lien was created had not been paid.^ The offense of removing the properly would only be complete on its removal out of the State. A charge based on a sale of the property would be supported by proof of such salj, and would involve the ques- tion of venue, or where the selling occurred. What would constitute a disposition of the property otlicrwise than by removal or sale is not clearly defined in the Code ; but it is believed that any other placing of the properly beyond the reach of the mortgage creditor, and with the fraudt' nt intent mentioned in the article, would lay the party liable, undci Us provisions, to indictment. But the two modes — namely, removing or selling — would not be included in the expression other- wise. This prosecution is not p-etended to be based upon a removal of the property beyond the State, but can only be maintained on the clause making it penal to sell the property ; wbich necessitates the inquiry as to whether, under this clause, the prosecution could be maintained in a county other than the one in which the selling took place. The Code of Criminal Procedure,- prescribes the counties in which offenses may be prosecuted ; by reference to which it will be seen that by the provisions of the several articles of this chapter there are nu- merous offenses which may be prosecuted in more than one county, and by the concluding article it is provided that, " in all cases except those enumerated in previous articles of this chapter, the proper county for the prosecution of offenses io that in which the offense ia committed."'' The offense charged in the present case does not come within any of the exceptions mentioned in this chapter of the Code, and must be pros- ecuted in the county in wiiich the offense was committed. We ha.e already seen that if the appellant is guilty of auy offense charged in the indictment, it is for selling the mortgaged property. This being the offense made by the indictment and the evidence, we are of the opinion that proof of a sale of mortgaged property in Brazoria County V ould not support a conviction on a prosecution commenced and had in the county of Ma^^agorda. The < nirt erred In refusing to give the instruction to the juiy on this subject ; and, for this error, and 1 SatclieU r. Sliite, 1 Tex. ^App.) 438. 2 ell. 2, lit. 3, from nrt. 190 to iirt. iOS, both inclusive. (Pnsc. I.*g., arts. 2057-i07«. i Paec. Dig., art. M7«. R. V. INGHAM. Ill State; second, liy LTwisc disposing; of se, to defraud tlie the origiiii'l i).'irty 1 also necessary tliat 3ub?isting, and that t been paid.^ be complete on its lale of the propcrtj- Id involve the ques- t would constitute a noval or sale is not my other placing of editor, and with the lay the party liable, o modes — namely, ie expression other- on a removal of the tained on the clause tcs the inquiry as to be maintained in a place, le counties in which it will be seen that lapter there are nu- han one county, and U cases except those e proper county for ?nse is committed."'' ; come ^vithin any of le, and must be pros- mitted. Tuilty of auy offense noi-tgaged property, the evidence, we are property in Brazoria secution commenced erred In refusing to id, for this error, and rt. 267«. lu'cause there was no sufficient evidence to support the verdict, the court should have granted a new trial. Other questions are presented in the record which have not been con- si Icred, and as to which there is room for controversy ; but, as they may not arise on a subsequent trial, wo have not deemod it important to consume now the time necessary to a proper understanding of thorn. For the reasons above set out the judgnent must be reversed and the case remanded. t, , j j ,; Reversed and remanded. FRAUD - BANKRITPT ACT - INTENT TO DEFRAUD CREDITORS BY MAKING FALSE ENTRIES -INTENT TO DEFRAUD ESSENTIAL. It. I'. Ingham. [Bell, C. C. 181.] In the 1 "h'sh Court for Crown Cases Reserved, 1859. A Bankrupt was Indicted Under the Bankrupt act. for making a false e. ..7 i» » book on.ccouutwith intent to .letraua creditor.. The jury found that the entry was inade by him to deceive his creditors as to the slate of his accounts and to prevent '"ve^tiga-^ tinn Ijut not to defraud auy of them or to conceal any of his j.roperty. Beld, that he could not bo convicted, the intent to defraud being the gist of the offense. Tlie following case was reserved by Cuompton, J. The prisoner was convicted before me at the June Old Bailey Ses- -ons, 1859, for having made a fiUse and fraudulent entry in a book of account, with intent to defraud his creditors, on an indictment fran>ed upon the two iiundred and fifty-second section of tlie banlvrupt act.' It appeared that the prisoner had kept a book in which he entered 1 is receipts and payments, and at the time of his bankruptcy that book showed receipts of money to the amount of £41 ."lO IDs 7d, and payments to the amount of £3081 lOs, leaving a deficiency of £349 9s 7d to be accounted for. Being uneasy as «- accounting for this deficiency he made a false book in whi n he entered false amounts opposite many of the items of receipts and pny- i.ients, so as to show receipts by him to the amount of £2,(3(;8 .^s, and payments to the amount of $3172, la 7d. The jury found that this was done by him with intent to deceive his cre.+.tors as to the blate of his accounts, and to prevent the exjuninatioo and irvestigatoa 1 12 lU>d 13 Vict. KKi. 112 FRAUD ANI> FALSE PRETEN8RS. of tliera in the due course of bankruptcy, and to save liim from havinij to account for the deficiency appearing in the genuine account ; but tbey found that it was not done to dc^aud the creditors of any money or property, or to conceal any money or property, or in any way lo prevent them from recovering or receiving any part of his estate, or to conceal any jnisappropriation or preference by liim. On '.his finding tlie jury, by my advice, returned a verdict of guilty, suljject to a case to be reserved by me as to whetlier the false entries were, upon tlie state of facts found by the jury, made "with intent to defraud liis creditors," within the meaning of tliose worus in the above mentioned section. It may be observed that the two lumdrcd and fiftj^-second section rendered it necessary that, besides the act being done to defraud creditors, it should be done either " after an act of banliruplcy," or "in contemplation of bar'-mptcy," or "with intent to def( v the oltject of the law relating to bankrupts," wliich expression muy be argued lo show that something more than defeating tlie operation of tbe°bankrupt laws is intended by the phrase " with intent to defraud his creditors." ' The prisoner is at large on bail. ChARLKS CnOMPTON. Section 252 of 12 and 13 Victoria,- enacts: " Tiiat if any bankrupt shall, after an act of bankruptcy committed, or in contemplaliou of bankruptcy, or with intent to d feat the object of tlie law relating to bankrupts, destroy, alter, mutilate or falsify any of his books,''papers, writings or securities, or make or be privy to the mak- ing of any false or fraudulent entry in any book of account or other do° ument, with intent to defraud his creditors, every such bankrupt shall be deemed guilty of a misdemeanor, and, on conviction, be liable to imprisonment for any term not exceeding three years, with or with- out hard labor." This case was argued on the 12tli of November, 1859, before Pollock, C. U., "WiLLi-.s, .r., CiiANMir.. B., Byles, J., and IIii.l, J. Ballantinc, Serjeant, and Jacobs, appeared for the Crown, and Law- rence, for the defendiuit. Lmvrencc, for the d.-fer.dant. This conviction is under section 252, of the Bankrupt L»»r < usolidation Act, and I contend tlmt the de- fendant iiad conimiltiHl no offense within the meaning of tliat section, the essenc. -f wlmh is, the making false entries with intent to defraud creditors. The offense which the defendant really committed would 1 Se« GoPdun's Case. Pears C. C. p. 58fi, e ch. UHi. The Bankrupt Law Consollda- |. ;. cif ;,. 588, bottom of page ('.00, and top ot tkm A't, lSt9. page 661. R. V. INGHAM. 113 I from having account ; but )f any money n any way lo i estate, or to >ii Ihis finding ijcct to a case ^ore, upon the o defraud his )ve mentioned second section lie to defraud bankruptcy, " cut to defi I tjjression m:iy the operation ent to defraud 3 CUOMPTON. any banltrupt conteniplation ct of tlie law ify any of his vy to the mak- ijcount or other such bankrupt 3tion, be liable i, with or with- lefore Pollock, r. own, and Law- ler section 252, Mid timt the de- of that section, itent to defraud immittt'd would upt Law Consolida- be included in tlie class of cases referred to in section 25G, which enacts .. that if at the sitting appointed for the last examination of any bank- rupt or at any adjournment thereof, it shall appear to the court, hat the bankrupt has committed any of 1 he offenses hereinafter enumerated, the court shall refuse to grant the ba- : upt any furtlier protection from arrest; and if at any sitting or adjourned sitting for the allow- ,„ee of the certificate of any bankrupt it slmll appear that he has com- „n,ted any of such offenses, the court shall refuse to S'^^^l]'f^^'^'^: (,te or shall suspend the same for such time as it shall think fit, and shnli in like manner refuse to grant the bankrupt any further protcc lion " One of the offenses referred to, lor winch tlie bankrupt may h.ivr his protection refused and bis certificate refused or suspended, is if lie bankrupt shall, with intent to conceal the state of his affairs, or to defeat the objects of tne law of bankruptcy," have kept or caused ,0 be kept, false books, or have n.ade false entries, or withheld entries in. or willfully altered or falsified any book, paper, deed, writmg, or other doc'iment relating to his trade, dealings, or estrto. Ih.s is precisely wh./. the bankrupt in this case has done. He L.s falsified his bo. ks . ' the jury have fo.ui.l, to deceive his creditors as to the state of bis accounts, and to prevent the examination and investigation of them in the due course of bankruptcy, and that is one of the offenses a pun- ishment for which is provided by section 256, but certainly ,s not a , r,,inal offense contemplated by section 252, the jury having expressly fu: ad that there was no intent on the part of the bankrupt to defraud ^' ThTdTauding contemplated by section 252 is not simply deceiving the creditors, but defrauding them of money or property ; and here the intention of the bankrupt could not have been to defraua them of the money in question which had long before been spent. The decision of Lord Abingcr, in Beoina v. Marner,^ is very much in point That was ,n indictment under the ninety-nit>th section of 1 and 2 \ .ctoria,^ which enacts that in case any prisoner, with intent to defraud h.s creditors willfully and fraudulently omit in his schedule any property, or except out of his schedule as necessaries any property of greater value than twenty pounds he shall be adjudged guilty of a misdemeanor ; and it was held by Lord Abinger that an insolvent, willfully or fraudu ently omitting sums of money from his special balance sheet is not guilty of ..; misdemeanor under this section as it only applies to cases where the omission would affect 'he interest of creditors, and not where it is an omission of money rr.-ved and subsequently expended by the msol- veiit. 1 Cur. A M. 628. 3 Dkkkxces. 3 ch. 110. 114 FRAUD AM) FALSK PKKTKNSKS. The learned counsel wa. here stopped by the con.t who callecl upon iaX:, Serjeant, for the Crown. The Jnry f^^^^^^ rnnfs intent was to deceive his creditors as to tlie stale of ns account. -;:- ... u.e, ^- ""tr:r::";2irr::«'z of the bankrupt. , . „. , ., . ^ug jj,,,,. Pollock, C. B. The finding of the jury is, in effect, tliat the man n^eant to do himself some go..d, bu. to do his creditors "O 1-- HiLi J. Two intents are contemplate.! in the section : tlicie must tufilon the part of the bankrupt to defeat theol^t . the^ relating to bankrupts ; and, plus that, the intent o ^-f^a 'd -, cnd.t ors - to deprive them of something to which they .n< entitled. mUa^uZ. In statutes in which the intent is so to limit the sigm • caS the language is ^' with intent to defraud of money or goods ; but bore the expression is used iu its most general sense. Jo ^^^^^^^^ means to deceive, to deprive a person of any right by deeei . The Teditoilo the blinkrupt had aright to have a true statement of U. bankrupt's accounvs; and the jury have found that these false entries were made with the view of depriving them of their righ . Channell, B. The intent to deceive merely wul not do. PoiTocK. C. B. Is there any decision or dictmr. that '' deceive >n law m'eans to defraud? If a man wears an apron to conceal his worn- o Tt dotlies he deceives, but he doe^ not defraud. On some occasions bl wo;ds mean to cheat, but to .-fraud means to cheat a person out °'BvTEfj''The two hundred and fifty sixth section expressly pro- vicfes f o; the offense mentioned in the first part of the two hundred and ''irct rr-You can hardly contend that if a man falsified his books in Jrder to conceal from his creditors certain matters on which he had spent his money, not with the object of defrauding he credit- ors, but 'imply because he did not like such matters to be known, he would be guilty of an offense within this section. BallalL. It is true that when money is gone a knowledge of .he mode h which it has been expended may not affect the position of t.,e credUors" but it may have a great bearing upon the sort of cert.ficat thrthe bankrupt would get. In Beginav. (?orc7o«,Uhe mdictmeu Jjleged the intent to be to defraud the creditors by depriving t.em of their right to examine the bankrupt. Latorenee was not called upon to reply. I Deara. B86. PKOPI.K '•. .lACOBS. 11.') who called upon I that the bank- e of his acoouiils. to defraud tlicm mean to limit tin i oi the property jct, that the man •8 no harm. m : there must \w object u," the luw k'fraud ].[i credil- entitled. limit the signili- noney or goods;" ,'iise. To defraud it by deceit. The e statement of the these false entries fight, lot do. that " deceive " in ) conceal his woni- On some occasious cheat a person out ;ion expressly prc- le two hundred and a man falsified his in matters on -which sfrauding the credii- ers to be known, he a knowledge of ihe t the position of tue he sort of certificate (7on,^ the indictment )y depriving ti^em of I'oLi.ocK, C. B. We are all of opinion that this conviction can not be sustained. ' The jury have expressly found that this was done b., tlie defendant with intent to deceive his creditors, as to the state of his ac- counts and to prevent tiie examination and investigation of them in tlie due course of bankruptcy, and to save him from having to account for tlie doliciency appearing in the genuine account ; but they also found ttiat it was not done to dcfrau borrow five huiulred dollars, and proposed to secure him In mortfjaofe on land owned by his wife. Mrs. Jacobs. After some talk, the loan was made, but Barts retained ten dollars, by understanding, to pay his expenses in going subsequently to view the land. Mrs. Jacobs gave her mortgage, together witli her note, to Barta for the money. In tlii.s negotiation, as charged in the information, Jacobs made the false representations concerning the land mortgaged. It alleges that he falsely and feloniously pretended to Barts that Mrs. Jacobs was owner or lots thirty-six, thirty-eight, forty and forty-two, in l)lock three, in larriet.AI. Clement's subdivision of the south one- third of lifteen acres lying in a square form in the northwest corner of the northeast quarter of section twelve, in town six south, of range twelve west, according lo the recorded plat; that the lots were situated witliin the city limits of the city of Grand Rapids; were on the street running directly from the business part of the city to the fair grounds, near the city limits ; were between such fair grounds and the business portion of the city ; that the lots were nicely located ; were quarter- acre lots and constituting one square acre ; that they would sell at any time at from twelve hundred dollars to lifteen hundred dollars cash ; were worth much more than that, and were entirely free from all in- cumbrance. These pretenses are afterwards alleged to have been sev- erally false. On the opening of the trial it was objected that the information set up no offense. The groinid of the objection was not explained. But al a latter stage of the trial, the reason for the objection was stated to be, that ihe information did not state in words that Barts relied on the representations. The objection is not much i".- sisted on, and is not tenable. The allegations in this particular are formally sufficient. It was not essential to charge in express; terms that Barts gawe credit to the false pretenses. That he did so was a necesspjy implication from the allega- gation that he was induced by the representations to part with his money. ^ The court charged that if the jury believed, from the evidence, that any of the pretenses charged were proved to be false and fraudulent, and Avcre part of the moving cause which induced Barts to part with his money, and that he would not have parted witii it had not such false pretenses been made, they would be justified in finding him guilty. 'J'hc instruction must liave been understood as assuming that each i state r. Pealey, 27 Coua. sm. PEOPLE V. .TACOnS. 117 larger poi- 1(1 be desir- ts called on lire hiir. by • some talk, erstanding, and. Mrs. rta for the ion, Jacobs tgaged. It ) that Mrs. 1 forty-two, ! south one- iit corner of ,h, of range ere situated m the street iir grounds, the business ere quarter- > sell at any oUars cash ; from all in- ve been sev- ed that the ion was not ,son for the ate in words lot much i",- It was not to the false n the allega- irt with his •idence, that . fraudulent, to part with }t such false 1 guilty, ig that each .listinct pretense sot up was a vnlul ground of charge, and on ^vh>ch a :::!;.icUou might re.t if found false and fraudulent and operative m any dc-crree on Barts to cause him to maicc the loan. No instruction was given that any represcntat.on la.d as a false pre- tense could not legalfy be so laid, nor any instruction that any ropre- sontation laid as a pretense was unproved, or any instruct.on to "edl the jury from resorting to the whole evidence and hnchng from t a all tie Representations htid us pretenses were m fact made. lete if any representation laid as a false pretense could not be law- lldly iinpressed with that character, the jury were, in effect, permitted "Z^lhrCa pretense that the lots were ^'nicely located," was a distinc pretense^ in he information. But it was not such a representa- tn a could be made the subject of criminal prosecution as a false pre- tense It could not convey or be understood as conveymg any Steidea at all. There is no standard for drying «ie accuracy o such a statement. What is a nice location to one may be far o hei wise o another, and even to the mind of one using it the expression ,s vagiie Id indeterminate. No one can be supposed to accept such a repre- Itltion as an assertion of the existence of some fact or -rcumsUince sufficient to cause him to change his situation in reliance on it, and the law can not measure or weigh people's fancies. ,,,,,,„.„ The alleged representation concerning the value of the lots to be mortgaged can not be construed as anything l>eyond a matter of opuuon and it is not to be supposed the expression was understood in a sense Ire absouite. There is no reason for implying that Barts relied upon Tor was n any way or to any extent duped by it.» These allegations were accordingly not sufficient as grounds of charge, and it was error To allow the jury to regard them as though they were. There are sev- eral topic" which would require discussion and explanation before a iurv but are hardly proper for consideration here. ' Tie conviction must be set aside and in case another trial is deemed expedient, no doubt the prosecution will see to it that the proceedmg is quite differently shaped. The other justices concurred. , Blehop«.8man.63Me,12j Moonoy v. MUlcr. IC^i Mass. 217; Long .. Worcemau. 38 Mo. 49, and cases cited. 118 FKAUD AND FALHK I'llKTENISES. obtaining goods with intent to defraud -bankrupt act. United States v. Pkescott. ['2 BLss. 325.] //( (he United Slates District Covrt, District of Wisco7mn^ June Term, JS70. 1. In an Indictment under Bcctimi 44 of tlic Bankrupt Act, for obtaining goods on credit, with intent to defraud, tlic i)roceedinK!< in l)ie biinliruiit court niunt bo pleaded and proved Willi sueli parti''ularity as to show anirnialively that an adjualication of bank- ruptcy was made upon a case in which the court had jurisdiction. 2. The Indictment, therefore, should set out the filing of the )>etition, the name of the lictilioniiig creditor, tlie amount of his debt, the alleged act of bankruptcy, and th»» adjudication of the bankrupt court. 3. The Description of the Goods obtained, as " a large quantity of boots and shoes," is too uncertain. It should be as dcUuite as would be reiiuircd in a declaration in trover. 4. Offenses Under Section 44 arc misdemeanors, and the word " feloniously " should not bo used. 5. Dates should not be specified by llgures in an indictment. This was a inoliDii to (|tiash an indictment under section 44 of the Bankrupt Act, for fraudulently obtaining goods on credit. The first count of tiie indictment charged that ou a certain day men- tioned, in the District Court of the United States for the District of Wisconsin, under and pursuant to an act of Congress entitled " An Act to establisli a uniform system of bankruptcy throughout the United States," approved ]\Iarch 2, 1807, proceedings in bankruptcy were duly commenced against Alplionso Prescott, Leandor F. Snyder and R. II. Lovell, as insolvent debtors, and partners under the name of Prescott, Snyder & Lovell, who thereupon afterwards, to wit, on a certain day mentioned were adjudged bankrupts; that prior to the dates last afore- said, and within three montlis before tiie commencement of said pro- ceedings in bankruptcy, to wit, on the 16tli day of August, 18G9, within the jurisdiction of this court, and at and in the district of Wisconsin, the said Alphonso Prescott, Leander l'\ Snyder, and R. 11. Lovell, then and there representing themselves to be associated together as co-part- ners, under the linn of Prescott, Snyd(>r & Lovell, and holding them- .selves out as wholesale merchants and jobbers of boots and shoes, under the false color and pretense of carrying on business and dealing in the ordinary course of trade of Avholosale boot and shoe merchants and jobbers, did then and there wrongfully, unlawfully and feloniously obtain on credit, from one Lyman Dike, certain goods and chattels, to wit, a large quantity of boots and shoes, of the value of live thousand dollars, with the intent then and there by the obtaining of said goods and chattels, to defraud the said Lyman Dike, contrary to the statute TNITED STATES V. PUESCOTT. 119 [RUPT ACT. June Term, foods on credit, 10 pleaded and cation ot bank- thc name ot tlio uptcy, and th« s and shoes," is 'Mtiou in trover. jly " gtiould not )n 44 of the tin (lay men- ! District of h\ " An Act the United y were duly r and R. II. ot Prescott, certain day s last afore- of said pro- 18G9, witliin Wisconsin, Lovell, then r as co-part- )kling them- 3hoes, under ;aling in the rchants and feloniously chattels, to ve thousand said good.'* tlie statute ,f Ui. United Slates in such case made and provided, and against Iho nn.l dicrnit V of the United Stat.'S of America. •'' ;;; e l^ot h^lilce counts of the indictment, except as to the name of XTfioin whom goods had been obtained by defendants. James O. Jenkins, fur bankrupt. r r Jhizleton, United States District Attorney, contui. M :,r It is alle-red in the motion to .piash the indictment that u Icjwas presented to the District Court by a certain credUo, lu™ ly n mnst „l>P«ar uffinuativcly .hat .he crediu,.- ha. a ngbt r IL- to CO. J,!oe a„« prosecute .-.'-'"»^^;;';-™S Tl„. amoimt of hi» Oebt mii»t appear, otherwise t..« eourt ivouW °"/;';f 1;::.r„„. C„„soh<,ated Act o, .. ana .. Vi^^-^-^^t ot the aet umler .hieb the ia,lict™e„t in ''"^'!<'";'ZT^l^re^°Z , lii,.,»l c-onv Several .leiisions ot courls in I'.nglaml, as to lequiri 1 .rnroseeution ami trial ot imlietraents under their aet, were ;;;:;r L^p^E^rrtore U. passage l,y Congress ot our Bankrupt 't :^:^^::^^^'^^'^^'-'' r tt „,' rlrW, by »ea„s ot a -l-™-';- "li; t ."^tTd n^a^ :tr<:;'ra-^^^:;::="^^^^^^^^^^ 1 Keg. V. Lands, 3S Eng. L. & Eq. 636 ; Reg. V. Ewinglin, 41 Eng. 0. L. I'S; King v. Jones 2-1 Id. 156. S Reg. «. Boyd, 5 Cox, 50!.. 120 FUAi:i> AND lALHE I'KETKNHKM. cortiiiiu'd from llio l)illH of sale. Tlic dcsciiplion of tlio goods in an iiuliftiui'iil should he as delinito ns In a decliiration of trover. Tiiu word "feloniously " should bo omitted in indictments under tin act. The offenses made indictable are misdemeanors. And in draw- ing indictments, figures for dates should not be used. This being the first indictment in this court under the Bankpii|it Act, I have prepared this opinion as a guide to the district-attorney in future. The indictment ivill be quashed. FKAUD — MEANS OF EFFECTING FRAUD MUST BE SHOWN. United States v. Goggin, [9 Bias. 769.] Tn the United States District Court, Wisconsin, 1880. 1. An Indictment Oharsinir Fraud of any Sort ought to aver wherein the fraud con- sisted and by what means it was effected. a. The General Bale that an Indictment for an offense created by statute Is lufflcicnt if it foUowB the language of the statute is subject to the qualification that the accused must bo apprised by the indictment with reasonable certainty of the nature of the accu- sation against him, to the end that he may prepare his defence and plead the Judgment as a bar in a subsequent prosecution for the same offense. Dter, J. This is an indictment for presenting for payment to the pension agent in Milwaukee, a false and fraudulent claim for pension moneys. The defendant was tried and convicted at the last term of the court, and the case is again up for consideration upon a motion in arrest of judgment. It is not without reluctance that I have come to the conclusion which I am constrained to announce, since the evidence adduced on the trial tended strongly to show the perpetration of a gross fraud upon the government ; but it is the duty of the court to administer the law according to its best understanding, regardless of consequences. The defendant was indicted under section 5438,^ which provides that every person who presents for payment, to or by any person or officer in the civil service of the United States, any claim upon or against the government or any department thereof, knowing such claim to be false, fictitious or fraudulent, shall be punished as the statute directs. The indictment contains three counts, but as they are equivalent in 1 Rev. Stats. U. S. UN'ITKO STATKS V. OOOOIN. 121 tlip goods ill an trovor. omenta under thf . And in draw- or tlie Bankpujit strict-attorney iu ill be quashed. 3E SHOWN. I, 1880. rherein the Irsad con- by statute Is - 121 12 5 12.0 1^ 2.2 1.8 11-25 III 1.4 IIIIII.6 V <^ ^ VI /; c*. c^l Photographic Sciences Corporation v* 33 WEST MAIN STREET WEBSTER. N.Y. 14SS0 (716) •7J-4503 rtMi LSP CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproducticns historiques ^■tt VNITKI> STATKS ?'. (U)(i(5IN. „..„.ion c-orlitu'al,-. which was procuro.l Ly f.ls. tu.l fruvululent ptoofa, ; .ful :uul fr.uluU-nt devi... Tiu- f.uul shnuhl have ..eon. by ':, ,„,...Uion, ...ore paraoul.rly iao,.litu.l ; it sho..l.l hav. hoen alU-g.d ,■ ,1 ,1^0 ,.r,.ofs un.l ctcvi,... wm>, au.l whorein thry wore f.-a..,l..k-nl ; ' 1 it is in mv iu,l-nunl, i.n.ualofial who.i the proofs w.tc ma-lo «.r : ,n.,. .vsorti-/l 1o wlicthor at the time of presenting tlie claim, or at a ."„.'. .Ulterior, if they we.-e ma.le as the l.asis f -r obtaining the pens.on ■ i,i',.U, If the frau.luh-nt deviees had consisted of an act done ; ,„ ,„vment was da.nanded, it would. I .hi.>k. be clear that the .uUnn. ,;„,' .i,.vi,.esor pa.tie.dar fraud p.acticed a. the ti.ne should be al- i' 1 ,,„l if this is so, it see.ns also essential that they should be .,lU..vd', though thev we.v, in fact, praetieo.l at and before the Umo of :.t:iui,.g ,he pension eertitieate. The offense, it is true was one eom- ,, „,,,, nut in \sC,l, when the pension certilieate was obta.ned, but u, isTT n.ul in ISTS, when payment of an installment was de,na..derv^o alleu^e wherein the fraud .ousisted at its incept.on a..d „lu.n made the basis fo.^ obtaini..^ the pe.isiou eertilieate, a. .t would be i/ it ,.„nsisted of so...e .leviee i-ractieed at the very time the chum w.va 1 rcs.ntcd for payment. , • , „„ ,t was „e..essarv to show the alleged f.'aud a.,d the acts which con- Mtntod it. on thJ trial, and it was therefore necessary that the same f;,,s sho.dd be alU-ed, at least with sullicient parti-Milanty to enable ,;„..l.fe„dant to plead any judgment which might follow, as a bar to a ,u!.cq..cnl prosecution f..r the sa.ne offense. Ihe allegation .s .hat a ,.uu,nwas presented by the defemlant, as a Pensioner umleramlV^ urtueof u certain instrument known as a pension ccrt.hcate ; but tin ..rtilicate is not .leseribed so that it c.ui be identified as I tlnnk i ,,„„1.1 have been, as, by date, the na.nes of the ,.ersons -l>o l>"n-t^_^ ,„ M,.n it. an.l the like, so as to satisfy the requirements of the rule as i,„l"lown bv the Supreme Court iu U.Hod Stag's v. Snnmo.s. If ... ad.Tt us" authoritative upon the question uu.ler consideration the ,.:... .f United suae. v. IMtiUni:^ which is a case somewhat in opposition to nuted State, v. hnlJard:^ it i. v.-ry .'lear that we should have to h o d ,l„s indictment insullicient ; and 1 incline to the opimon that the correct rule is slated in the former case. , . ., ; „ii,.t Itwasu.-ed upon the argument that what is alleged in ^I-c nulict- „„.„t in regard to fraud in obtaining the pension cert.tieate relates to ,!„. evidence of the offense, and not the offense itself ; but . is not the presentation of the claim for payment which makes the offense, it 19 1 tupra ' IJ int. llev. Rec. 3-2. :i l:l Int. Ilcv. Ilee. V.>r> 124 IIJAtl) AM) FALSE PKKTKXSKS. the prcsoiitation f(ir jijiviiu'iit i>f in, false m- fiauiluloiU chiiiii ; and as no fraud can l)e cdinmittcd liiil. liy dofuitfiil practice's, the particular prac- tices by wliicli till' fraud was here coniuiitted, or which made the claim fraudulent, should have been so set foith as to make the fraud appear upon the face of the indictment. This may be in a certain sense allcu'- ing the evidence of the offense, l)ut it is rather the statement of essential facts which constitute the fraud, and therefore make the i)re- scntation for paynit'nt of the claim a criminal offense. The point isuii'j that can not be niatle clearer by elaboration. I rest my judgmeut upon the fact that tlu' allej^ations of the i)leadinpj are not sufficient, within the rule stated by the Supi'cine Court, to apprise the defendant with that certainty which the law reipiires of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. Judgment must be arrested. fraud — ciiakgk that ac t was donk " bv fraudulent means" insufficient. United State.s v. Bettilini. [1 Woods, <;j».] In the United Stittett Circuit Court, Florida, 1S71. An Indictment Under the Act of Karch '^, 18i'>:i,i cliarging tlic cominisBion of the offenie " by fraudulent moaiiH," mikI iidI "pecifyiiig the means, is bad for want of certainty. The in VI Stall. 731). ^^ VNITED STATKS V. nKTTlI.IM. i-.>r» I'laiiu ; aiul a^ no le particular jirac- •h mado the cliiiiii the fraud apiieur ■rtain sense allcL'- the statement of ore make the pre- Tlie point i< iJin' ly judgment upon sufficient, witliin le defendant with of the accusation use and plead the the same offense. DULENT MEANS" ', 1S71. nniission of the offenie want of rcrtainty. e of knowingly cf- if the third section rcvent and punish •ertain and speedy and for other pur- ly person shall, hy y false repres<*nta- ! I'eveiuie or othcr- of goods, wares <>r thereof, or upon or hy the payment such i)er8on shall, .nnvictic.n thereof, be iii>ed in any sum not exceeding 8:..ono, or :n:,:d;:>t exceeding two years, or hoth, at the disc-retion of the '•• The lirst ground of objection is tl,at every count n> he u- : ;..t L doubU and that tin- duplicity (-.usists in tins, t^.at the i^H charged ^vith both knowingly effecting a. entry, and U^ X ^hlin. in Effecting an entry, of the goods at, the cms ou.-house. T . l-se created by the act is a n.isdenu.anor where al an- pr,n- ,, L offense of effecting an entry, and of aiding u, effect.ug an : ,„av be conunitted by different persons, yet they are different ^^^;"f-the san>e offense, and m:,v be charged conjunct.vcly ,n one n" :^'ainst the san.e person, and the proof of either wdl sus a,n t^e l^^This has been the unifonn ruling of this court, and tins .se ;:;;,rexcepUon to those already determuu-d. In this respect the uuUct- '"TUe:::t '; •::;;::■ i. ..at the offense is not set out in the indictment ., , s^^li ient certainty ; that the facts or circuu.stances w nch const - : the dehnition of the offense in the act are n<>t sc. ^-!"> -\^^^; h.rcfure, the indictment is not bad. Mr. Chitty . .u lus C run nal T.aw. V 'tisa general rule that all indictments upon statutes, espee- 'the mri^nal, must state all the circumstances which const.tute lile'.lliL of tl.; offense in the act. so as to bring the defendant '■^U ^arZieluhia this rule is relaxe that case : I g^ .h m rule is that in indictment for misdenu-anors create.! by statute, it s i nt to charge the offense in the wor.ls of the statute. Ihere , , t ^\..chni..annc.4y re.p.ire.l as to form which s..en.s to have l^n , ,,t...l and sanctione.1 by long practice in cases of fel.,ny ; and h ,...,Ut to some crin..s, when particular words must be " - ; - - 2r words, however synonymous they .nay seen. -"^'^ ^ ' ^^^;,. ■n,ns far the court simply say that the plea.ler m.cd not '- » ^ ^ „...l words in describing the offense, but that the wor.ls o - «t' ,.Ul be suificient. " «ut th.at in all cases the o"--;"'-;^^;;^^/;' ^ with clearness, and all necessary certainty to ap,>r.se the ---';'- ,,,„. with which he stands charged." The Supreme Cou, u^^ ,u.Ucs a distinction between the technical words "-^---^^ ;; ^ i„ des..ribing an offense, and the circumstances necessary to show that I rnitcdStatc.r.Mill.s7 I'el. HO; Wl.arl. I r I,., BCC. 3U0 and note. a vol. l,i).2»l. 3 7 I'ot. 12(J l'l!.\ll> AM) KALSK I'liKTKX.SKS. an (iffc'iisc lia>- hecri c'oniinittvd. ;Mr. Cliitty iiuikos tlu' same distinction In ]i\> work oil ("liiniiuil Law.' lu' says: "It is, in ^'cntrnl. ncoes'-iLiy only t«> set forlii on tin- ii't-onl all tlic (•irciiinstaiHTs wiiirh make np tin- statiitiihlc (IcCmition of tlio offfnsi', hut also to i)iirsiio tho inrcisc ui^l tfjchnical lanjiuajjc in whifii tiioy !UT oxiufssod." "Tlit' rcrtainty i >• sfiitial to tin- c'iiarge coii^ists of two parts, the niattiT to !>o i'liai<;(Ml, and tilt' niaiiinT of cliar^in;.' it."- Tlio terlniical nicotics, calli'd ty Lord Hail! nnsoeinly nioi'tii's, wliicii wore allowed to prevail in llir early Eni^lish easfs, were n\irretted \>y many eminent and Karm .i jnd.^es in Knjiland — Lord Ilale, I.,ord Kenyon, Lord EUenliorDM^Ii ami Lord JMansticlil ixiiig anion;; the numlier; hut these rejirets related i . nieie formal ohji'ctioiis hased upon the manner of charging the offeiiio ill til*' use of wor(l>, or evi'ii in the oniissinn of a letter.-' Hut none of the judures have gone so far as to admit tliat it would !h' safe in practice to relax the rule which r»'(iuires clearness and certainty as to the matter charged. Tiiis einhraees '• a eerlain description of the crime of which the defendant is accused, and a statement of the fads i)y which it is constituted, that the accused may know what crime he is called upon to answer; that the jury may he arranted in tindiiig a ver- dict ; and that the court may see such a de.. ,ite offense upon the rec- ord ; that the judgment and punishment which the law prescribes may he applit'il ; that the defendant may plead the conviction or acqnittai, should he he again called to answer a charge for the same offense; and, I may add, that it may he impossilile to convict an innocent per- son hy liispensiug with proof of the facts and circumstances which con- stitute the crime." ^ "Therefore an indictment charging the defendant with obtaining money hy false pretenses, without slating what were the particular pretenses, is insullicient." '• For the defendant must be ad- vised, not only of what he has to answer, but the court must be advised what the pretenses are ; for it is not every false pretense which will bring the case within the meaning of the law." But it is urged on the part of the prosecution, that in thia country the courts have modified this rule, and dispensed with the degree of certainly, formerly required in setting out an offense in an indictment and that it is now necessary only to charge the offense in the words of the act creating it; that in this case the facts and circumstances could not be set out, because unknown to the attorney of the United States ; and that tliis case is governed by rules and principles entirely different from a case arising under the law for obtaining goods by false pre- 1 vol. 1, p, iH.1. J I Chit.Cr. I.. IfiO, 170. .•"Chit. Cr. L.l-Oel$eq.; 2 Hale'B 1'. ( . m. ' 1 Chit. Cr. L. 178. ' 1 (hit. Cr. L. 171. <■ Hex V. Uoodhail, Kuie. A R;. 461 ; Whart. Cr. l-.,scc«. 2086,2087. t^m UNITED STATKS I'. liKTTIUM. 127 iimo distinction [it'ral, ncoes'.jiiv irh lUiikc lip till- tln' jirocise uii'l "lie rcrtaiiity i >• to lie c'luiifjcil. :etifs, ciilh'il ty pri'Viiil in llu lit and liaiDi.i li'nlioroiitrli ami ijircts related lu ging the offense i that it would Ic ■ It is clear that ,lH. Supreme Cru.rt, in the case of United Statrs v. MilL^, above cited, ,,ul' wliich is relied upon to sustain the position that certainty and par- ;,.nluritv are no long-r necessary in charging the matter of the olfensc, aoes not sustain that poM.iou, but quite the contrary, as has been shown above; that it changed in no res,)ect the rule laid down by thitty, as tiu. exponent of the most learne.l, wise, and just tribunals of hngland, ,„akin- a distinction between formal and technical niceties xn words, ,,„1 the statement of substantial matters - and that is certainly sub- stantial matter which is de^-.rii.tive of the offense, ami which nu.st be ,,n,vcd as laid -and nothing can be proved to sustain the indictment wliich is not charged therein. The reason given for not having set out the circumstances of the offense, that it was impossible, because they could not be known, .9 un- tenable, because the grand jury could find no bill without proof of such facts, and they must be within the knowledge of the prosecuting officer before he can conclude that such offense has been committcl, and be- fore he will cmsent to lay a bill before the grand jury, unless the posi- tion be true that the words "or otherwise," in the statute, must bo construed to create an offense under the act in which there is neither intent or ingredient of fraud. If such be the correct construction of those words, then the indictment need not charge that the entry was effected by false sample, false representation or device, or by collusion but simply that the entry was effected at less than the true weight or measure thereof, for that would be otherwise than by false represc.nta- tiou or device. But the rule that effect must be given to all the words iiF.AR;. 461; Whart. 1 13 Int. BcT. Uec. 195, IW.. tm 128 FKAl'D AND FALSK I'UETENSES. of an act, and that noiio of tlic |proviH!oiis of an act must fail, unless so ro|)ui;nant that tlioy can not l>c reconciled, nuifra. UNITED STATES V. HEXNINO. 120 fail, unless so e ()vcrlookt'il he oxhibitiun I'sentution oi- V." and also cress inti'udcd 'sentation. dc- se : and if tlif • false samiiii'. er of the rev- rds " orotiuT- \- whieh all the iir oUienvise " neans whatso- le construetiun ct i)f the oilier The means gist (if the of- and if so. the ■arly stated in )\\ that a false ed, what false viec was used us had, or how. s effected. It Stales V. Bitl- )uld iuevitaMy use " orotber- eral, which, by le limited and 1 it, relate sim- )iit also to the ' ' the facts an- or may not be iml as a conse- rovcd in order ee. as it would •onstruction of ity and uncer- ist tribunals in It is evident, by reference to and comparison of some of the decis- ions of the ablest jud<:es both in England and this country, that the rule as to certainty of the matter charged has not been changed or mod- ili.d.i All the counts in the indictment which profess to charge an offense to have been committed under the section and act abova re- ferred to are defective in not having set out the circumstances required, .^s I have shown above. And this is in accordance with the ruling of Ihi. court in the the case of United States v. Conant, and has been the uniform ruling in all similar cases. Upon a thorough re-examination of ,1,0 authorities, I see no reason for changing or reversing those decis- ions or for adopting a different rule. Other defects have been pomted out in this indictment, but I do not deem it necessary to examine it fur- tlier as the question discussed disposes of the case. Tlie indictment must be quashed. ATTEMPT TO UEFRAUl) NOT INDICTABLE WHEN. United States v. Henning. [4 Cranch, C. C. 608.] In tho United States Circuit Court, Diitrict of Columbia, lS3o. An Attempt to commit a statutory fraud is not inUictable.s The court (Ckanch, C. J., contra), arrested the judgment. .MoitsELL, J., was of opinion that an attempt to commit an offense, created by statute, which was not an offense at common law, is not m- (lielable. ruuHSTON, J. The following remarks are rather an answer to the pc.int made and attempted to be sustained by the attorney for the Inited States, than an opinion on the indictment itself. I came into court after the indictment was read, and did not hear it; but the two positions stated at the head of the following opinion, were taken by Mr. K.v and as they involved considerations of great importance, I wrote (with little time for deliberation, and without the means of consulting hooks), the suggestions which are stated below. The United States v. Haney Hedley (otherwise Washington Hen- ning). Indictment at common law for attempting or offering to sell a free colored boy as a slave. 1 Ucx V. Holland, 5 T. R. «23; Com. v. M. Afce, 8 Dana (Ky.), 29; Peoplo ^- Taylor. > nemo, 91 ; Biggs r. People 8 Barb. 647. 3 l)Ki-i-.x<'i;s. 'J 2 See antt, Vol. III., pp. (140-748. i;',(> rUAl 1> AM' I AI-.^'K I'UKTKNSK- The attornt-y for the Uiiiti'- eover where the force and arms coul.l be found in the setting out of the offense. Therefore, if this peace, this great and long-nourished i)an- oply of our social happiness, be not only assailed, but attempted to be. by any overt acts, it may be, prol)ably, an indictable offense. So at- tempts to bribe a judge, or a iu(inber of Congress, or an executive ollicer, to betray his duty and trust, mi-ht lead, if carried into effect, to the utter corruption of the fountain of justice, of legislation, and of the due administration of the laws; and, ther.'fore, the danger attending such an act, its ruinous cousequences to society, are of such vital im- portance, that an attempt, even, to perpetrate such a crime, may rea- sonably afford just ground for an indictment; so of murder, robbery, arson, and, in short, every offense (to say nothing o( their enormity), where the perpetration nuist necessarily be attended with a breach of the pence. I will not say that an attempt to commit some other offenses denominated viala in x,', might not be indictable; but I will take the converse of the rule, ami br)ldly say, that there are infinite acts of moral fraud, of vmla in se, whieh are not indictable, Init reniediable only by civil process. For my present argument, and as at present ad- vised, I will take uiy stan.l on this tangilile, visible, well defined ground that an atterai)t to commit any crime or misdemeanor, which, if car- ^Mi UNITKl) STATICS V. IIKXNINO. l;'.l port this indii't. or" Si (.•(iiiiisol, mi or misdi'iiU'uiior mm:, because il nut, would lead n sense euii lol- of opinion that L to jio ; and tills lieh, if attended it embraces only tempt be carrieil order, or lead to itutions ; amoni; may class meie peace. Such is Is, and its sensi- ,s l)een cherished f our institutions ed, or ingrafted, injicnuity to di>- ietting out of tliu I-nourished pan- attempted to be. offense. So at- or an executive ied into effect, to lation, and of the langer attending of such vital im- , crime, may rea- murder, robbery, their enormity), with a breach of mmit some other table; but I will •e are infinite acts i, Init remediable as at present ae.l ririliler only. Ib.t these are vuda in .se, and m.u'ally criminal. Hut it oeiow we sec rvery day indit^ments for botii ; but 1 have never read of, heard of, or known an indictment for an attempt to commit an assault. Sujipose a mail were to threaten another that he w(Hild beat him, and make demon- strations to that effect, and is held ba.k by others, so as to prevent an assault even, would this be indictable? If so out of the million of cases of assault and battery in the l)ooks, and in this court, we siiould have heard of, reail of, or actually witnessed such a pios.-culion. These considerations are apiilicatde so far to com.iion-Iaw offenseti only. Next, as to an attempt, or offer, to violate a penal statute. I endeavored to show to wliat absurdities this position would lead, if carried to tirio was free ; it was precisely like all those offenses, which, thoui,di morally wroni,', wert; left entirely, for redress, to civil tribunals, ami were not indictable ; such as false warranty of a horse which |)roves uiisoiiml ; sellinu: wine of iufi'rior quality, for wine of better (piality; assertiii<; a riLzlit to sidl a horse, or other com- modity, which turned out to be the property ut the offeu.leis to lij^ht. This is :.s it slioull l>»', i)roviiled due n-gard be liail, not to involve the innocent (innocent, 1 nieiin. in the eyes of the law), with the guilty, which I c( n- f, ^s it is nr)t easy for gentlemen not skilled in the law, always to avoid, if all, or any large proportion of presentments and indictments m.'ide. and which probably will bo made during this court, be sustained, tlicy display a woful amount and increase of crime. Ibil to r»-lurn to my subject. 1 am willing to lay down this rule, and without some rule we are afloat in an ocean of uncertainty: "That all ill tempts to commit an offense, whi.'h, if carried into «'xecuti(m, would iTo to corrupt the fountains of justi.'C, of h'gislatioii, or the executive udministration of tlie law; or, if perpetrate.!, wor:!d involve actual vinK'nce or breach of the peace, whether statutory or connnon-law olieiises, are indictable, otherwise not." We have adjudged that to incite another to commit an assiUiU and luittery, is indictable; this is the only case of the kind that I am aware if; and there I think we have gcme to the utmost limit; but i look iilM.n the inciting another to commit a breacli of the j . .e, of more :ijr>;:>.} In tilt' Eufilish Court for Cron-n dixes Resorreil, l>^-'>7. 1. It is not a False Pretensti to nlitain iiiiiiu;y (i>i- ii thing by fiil.^^uly puning nnd exagRei Iltlllg Its l|U.'llll\. ■i. Case In JudKraeni. — Ii. fitUcly ii'i'resfntt'd to a imwiibroker lliat oortnin spoons wen' (if ilio lic^l iiuahiv iiii'l wfri' o>iual tn Klkington's A hraml, ami tin' |ia\viil)rc>ker nilviiiioc I money on tlioni on this represt'ntation. Held, that li. was not trni'ty of a fal.oons. The .jury found the prisoner guilty of fraiululenlly representing that the goods had as much silver on tlu ni as Klkington's A, and that the foundations were of the l)cst material, knowing that to be untrue; and that in consequence of that be ob- tained the moneys mentioned iii the indictment. The prisoner's coun- sel daiuu'd to have the verdict entered as a verdict of not guilty which was resisted by the counsel for the prosecution; and entertaining doubts upon the question I directed a verdict of guilty to be entered ia F.S . NTUl'K PUFFING tH falsely pulling nnii exaggci IT lliat cortnin spoons «ori' 1(1 till' pawnbroker nilvaiioc I ol Kiiilty of a fal.-e prelen-. tilt; foiisiilcratioii ami HcrordiT of Loiulon. irisdiftioii of tlu- Ccn- y, A. 1). 1«.'>7, Joliii liy fiilsf iircti'iisc's. llu' (lifftToiit counts of jriiilty of tlicra by the lowing pretenses were liK'cd liy the jJiisoiuT ml to Klkiiijrton's A. kiiiiftoii, ami staiupcil n was of the best uia- lem as KlUinjiloii's A. i pii'tcnses were iiiadf ng advances of money mcr by way of idcdszc in the indictment bv ifcrior quality to thai IS said that had thcv iiH!cd money upon tin' Kit it was the dcclara- )ods, and nothing else. The moneys ndvanceii iiid the prisoner guilty :is nuK'li silver on tin m • of the best material, luence of that be oli- Thc prisomr's couii- ict of not guilty wliicli ion; and entertainiui; guilty to be entered iu R. V. IIRYAN. 135 order that tl... judLrment of the court for the consideration of (Town (•:,sesmi-ht be 'taken in the matter; and the foregoing is the case on svhich that judgment is re.p.ested. ^^^^^^^^ ^,^^^^^^ ■n,i< (••.se was argued, on "Jd of Mixy, 1.S57, before Cockhiun, C. J., ,,,,,„„,„. .1., Cu..w>.,:u, .1.. W.u..:s, J., and HuAMwna.i H. U.nlinr (ii'J'n-d ai-peared for the Crown, ami B. L . hobniso,,, (/. ///,('»•/.< with him), I'or tlie prisoner. _ '/; ( ' nohi„.nn. for the prisoner. This is a mere rei>resentation as to ,,,Uitv If a man frau.lulently represents a thing to be in specie what it is not, it is a false pretense : but if the misrei.resentation is merely ,,f the riualitv of the article, it is not. ■n,, ,.ourt"here intimated that the case had better be argued before ,l,e fifteen jud-es at the same time as Rrniua v. .Sherwood.^ _ ■n,e ea.se was acconlinglv argued rm the llth of May, is.u, before I.,rd CAMeuKLL, C. J., C'.M:Km UN, C. J, I'ou.o.K, C. H., (\,m....ui.ok., J., l.;,:,.,., J., (woMPToN, .1., Cnowi.K.i, J., Wn.i.Ks. J.. Huvmwki.l, B., W\T>oN. H., and CiiANM.i.i.. B. The case was argued immediately after lienina v. Skencood.- (}. Fr,ina v. liali:^ in which articles were represented to be silver, which was not silver. In both those cases the misrepesentation was as to the species, not as to the mere quality of the article If such representations were to be held to be within the stat- nto tr vd(« could not be carried on with safety. The jury would in such case be made the judges of the offense; quality being inmost cases a matter of opinion tmly. G. Fmnris, for the Crown. This is in fact a misrepresentation of quantity and substantially the same as Ito^jhin v. Sheru-ood. Lord CvMeBia-i., C*. .1. Of the quantity of the silver? O Franch. Yes. Elkiiigton's A is an article of ascertained man- ufacture, and by representing the spoons to be equal to Elkington's A. the prisoner represented that they w-.e covered with the same quantity of silver as Elkington's spoons would bo covered with. The money was therefore obtained bv a false representation that there was a greater wei.vht of silver than there really was, and, therefore, there was a false nrerense of an existing fact within the statute. Secondly, if the repre- sentatiou was of quality merely it is within the statute; the money was obtained by the represent.it ion, an.l the jury have found the repre- sentation was made with the intent to defraud. B. C. Robinson, in reply. The articles were of the species repre- scntcd. • Po,.,.ocK, C. B. Supposing a publican represents that his beer is not really Guinness's beer, but equal to Guinness's? Lord Cami-bkll, C. J. The goods were the gocls bargaineu for, but of inferior quality. . • *„„ BuAMWKLi., B. What would you say to the sale of a paste pin, for a diamond pin? , » ;» B. C. Robinson. There the species would not be the same ; but it I fl Cox, C C. MO. s Car. A M. M9. ^t^m n. V. BRYAN. 137 t ft cheese came 30 than this, ami III is good ft mail lUl be inOictabli, cases? d ]>e indictable, t is nought, it i-^ I boast cth." that the spoons nibled liegina v. the blacking of ch articles were h those cases the lere qualit j' of the le within the stat- ury would in sueh ing in most cases sreprcsentation of •IVOdd. rV ascertained man- to Elkington's A. the same quantity vitli. The money liere was a greater , there was a false ndly, if the repre- ;atule; the money ,'e found the repre- the species repre- that his beer is not bargained for, but of a paste pin, for ? the same ; but it would not do if the rejiresentation was that the diamond was " of the first water," wlien it was not. Lord C.vMi'BEi.L, C. J. I am of opinion that this conviction can not he suiiported. It seeuH to me to proceed upon ft mere representation, duriiii,' the bariiaining for the purchase of a commodity, of the quality of that commodity. In the last case which we dispost'd of,' after the luiiehase had been completed, there was a distinct averment which w;'s known to be false respecting tlie (piantity of the goo.ls delivered, and in respect of tiuit misrepresentation a larger sum of money (the lunount of which coul.l lie easily calculated) was received by th.- person ^^\^n soUl them than he was entitled to ask and, therefore, I thought, :i.ii(l I think now, that there was clearly a case within the Act of Parlia- iiieiil ; but here, if you look at what is stated upon the face of the case, it resolves itself into a mere reiiresentation of the quality of the arti- ( Ic ; and bearing in mind that the article w.is of the species that it was ivpresented to be to the purciiaser, because they wore spoons with sil- ver upon them, though not of the same quality as was reiiresented, the pawnbroker received these spoons, and tiiey were valuable, although the quality was not equal to what had been reiiresented. Now, it seems to me it never could have been the int»!ntion of the Legislature to make it an indictable offense for the seller to exaggerate the quality of that whiili he was selli - . any more than it would be an in.lictable offense for the imrchaser, during the bargain, to depreciate the quality of tiie <:o.hIs, and to say that they were not ecpial to that which they really were. Such an extension of the criminal law is most alarming, for not only would sellers be liable to be indicted for exaggerating the good (lualities of the goods, but purchasers would be liable to be indicted, if they depreciated the quality of the goods, and induced the seller by that depreciation, to sell the goods at a lower price than would have been paid for them had it not been for that rejiresentation. As yet I find no case in which a mere misrepresentation at the time of sale of the quality of the goods, has been held to be an indictable offense. In Rcjitid v. Roebuck,^ the article delivcreil was not of the sjiecies bargaini'd for ; there the bargain was for a silver chain, and the chain was not of silver, but was of some base metal, and was of no value. But here the spoons wi re spoons of the species that was bargainee for, although the quality was inferior. It seems to me, therefore, that this is not a case within the act of Parliiunent, and that the conviction can not be supported. CocKBiuN, C. J. I am of the same opinion, and for the same rea- sous as those which have been just pronounced by my Lord. It seems tc me to make all the difference whether the man who is selling merely .M. 24'J. I Ucg. V. Sherwood, D. A B. 2S1. • D. A B. 4. }^mam 138 KKAll* AM) KAI.SK I'HKTKNSKS. rpprcscnts. as in tliis instance it appears \\o diil, tiio articles to he better in iioint of (piulity tiian tiiey really arc, or wliellier. as in the case of Rcqinit V. Uni'hitrl:, he represents them to bo entirely different from what they really are. There the representation was that the thintr-* were silver, when in |)oii>t of fact they were of base metal, and entirely different from wliat they were repre-iented to be. Here, if the person had represented these articles as being of Klkinjton's mannfaeture. when in point of fact they were not, and he knew it, that, wonld be an entirely different thin;j;- bit the represe.italinn here made was only a vavintinii and i'xa, in a public street, with a view of defrauding the public, aMed uo value, there, I think, the statute would apply; but I think the statute does not apply to the or- dinary comuu-rcial transactions between man and man, and certainly, as has been observed by the Lord Cliief Justice, if it applies to the seller it cipially applies to the i)nrchast'r, although it is not very likely that cases of that sort would arise. It would be very inconvenient to lay down a i)rineiple that wnuM previMit a man from endeavoring to get the article clu'ap, which he was bargaining for, and that if he was endeav- oring to get it under the value he might be indicted for obtaining it for less than its value ; and there is this to be oliserved. that if the success- fully obtaiuiug your object,, cither in getting goods or money, is an indicialile offense, any offence or step towards it is an indictable offense, as a misdemeaiKir, because any attcmi)t or any progress to- wards, the completion of the off use would be the subject of an imlictmcnt, and then it would follow from that, that a man could not go into u broker's shop and cheai)en an article but he would subject him- ik^ K. /•. nUYAN. i; s to be better u tlie east' of lifferent from ;it the thinL^< , find entirely if the person manufiieturc. 1, woiiUl be an ;le was only :i whicii he was tiouiar inanu- veen this ease II opinion that 1 laying down lar ease, but I ly to the onli- I am n(jt pro- becauso I am ng and selling I substantially I think if a irchandise ex- and for some- statute would street, with a i caleulatcd to e, I tiiink, the >ply to the or- d certainl\', as 39 to the seller ery likely that ivonient to lay ring to get the le was endeav- ibtaining it for if the success- money, is an au indictable y progress to- nibject of an n eould not go d subject him- self to an indictment for misdemeanor in endeavoring to get the article nn.ler false pretenses. For these reasons, I think it may be fairly laitai.c'es do great injustice, and wouhl be making a party answer crim- inally where in truth he had no criminal intent in his mind. (uKS-^WEix, J. I agree that this convicti(m is not to l)e sustained, lam afraid that the law upon this .-.ibject of false pretenses is in a Mite which is well calculated to embarrass those who have to adminis- t.r it. This case is distinguishable from ]{e>ii„a v. Abbott,' and Iteghui V. nnrbnrkr but if I may refer to what I said on a former occasion I then said I feel bound by authority an.l I a<-t upon it. I therefore think tliose cases ought to i)e binding, unless a time should arrive when they are overruled by an unanimous decision of the whole of thcjudir.'s. In this instance the case is distinguishable, and we are not bound by them, and I think this conviction can not be supported. Km 1- J. I am also of opinion that this conviction can not be sus- taiiied.'not on the ground that the falsehood took place in tUe course 1 1 Den. C, C.273. Dear... A n. C. 0. -'4. 140 rUAUI) AM) FALISK PKKTENSKS. of n toiitract of sale or puwninsj;, hut on tlio taiiicd from liiin a transfer of the projierty in the goods, h.' intending not to give the v.-ilue of them, or where by a false i)retense in sale, a man put off upon another n counterfeit article, which he knew was not truly the article intended, and so got money paid for the specific thing shown, that being apparently what the buyer intended, but being in reality a totally different thing; the property was under those circumstances held to liave been passed, and the matter was held to have amounted to a cheat; at the same time, where a party intendtd to i)art with the possession only and a fraudulent person obtained Uie article animo fiintmli, and took it off, although the possession was so passed to him, still it was held to be no transfer of the property in law. but the property remained in the owner notwithstanding, as in t! 3 or- dinary case of a man coming up to the seller of a horse at a f: . ..;/; saying, " Allow me to try that horse ;" if he rode it away wr; ^.-y . a, and the Mirv was of opinion that he got this possession animo ^ .idi it was a larceny ; Imt if he jirofessed to the seller of the horse, " i boy your horse." and paid l>y a false check, or deceived by a false pretense of future. payment, and the seller said, " I agree to that," although the jury found that he did thisaiiiwo furKntli, he was held to be not guilty of larceny liefore the statute, which seems to make persons responsible R. V. nUVAN. 141 it tlic falsehoo'l risluture. It is I than !i dei^nilc ture, and in tlic t be as far as I as a past faci iiiattLT of opin- tatute lu'vcr iii- uw a party who it of any t'xajj- (1, and rail tlio lis ground I am statute : hut as cts f(,r sale not ary, tiie statute of contracts of i>en a failure of [ind it therefore idictable niisdc- Qouu ing to lar- ccn .» failure of ler where a per- pretense in pur- II the goods, 111' a false jiretense •tide, which he ley paid for the myer intended, lerty was under [natter was held party intendtd on obtained Uie issessiou was so property in law. ig, as i!! t! 3 ;-,i- ie at a f; . -..;.": vay luyr.. s..ry , ^^ animo ^ .idi i horse, '• i buy ft false pretense ," although the to be not guilty ions responsible .riniinally. wlicn there was a contract of sale falling within the same ,atcj:(.ry of criminal intention as tlie cases I have adverted to, where the possession only had been obtained unbno fnrandi. Now, looking at all the cases that have been decided upon the statute, those that have been the subject of the greatest eommeiil appear to me to fall within the (.linciple relating to initting off counterfeit articles in sales where tlu. substance of the contract is falsely represented and by reason tlirreof the money is obtained. In Re'jina v. Roebuck,^ the thing sold «;is not the thing which it was sold for — a silver diain. Here, silver, Ihou-xh ill form of an adjective, is in reality the substance of the con- u-.ivL The silversmith had no intention of buying a chain, but he in- tciidcd to Iniv silver, and what was represented to him to be silver was n,.t silver. tlKMigh it wa-i a chain ; the proi.erty in the chain passed and ti:e money was paid, still clearly there was a false pretense as to the silver ; and so in the case of ii'eghm v. Bull,- so also in the case of />/!»(» V. Abbott;-^ the substance of the contract was not a mere cheese, a thing in the shape of a cheese, of any quality, but the substance of the till- purchase was a Chedder cheese (or some other species of cheese), iiiul tiie taster which a fraudulent person had inserted in the cheese sold was of that species, and it was sold with a false aflirniation that the ar- ii, le was Chedder cheese, which would be a totally different article fmm the Gloucester ciieese or whatever the substance was said to be ,.f the cheese that was sold. In the case of Everett's blacking," ii is the same thing. We have it in evidence, in that case that a new iMiicking, salable in the neighborhood under the name of Everett's Mucking, was a vendible article; the prosecutor purchased it for the purpose of retailing it, and unless it had been Everett's blacking, he ^v(,uld have had no demand for it. The (luestion whether it was Everett's blacking was as to the substance of the artide ; it was not a Mucking he wanted, it was Everett's, and though it is in form an ad- j.Ltive, it is in reality the substance of the bargain. These are cases ,.f putting off counterfeit artides. As to the case of Regina v. Kenrick;' ultl.ougirin the case of Rex v. Pyiceli:' it had been held not indictable to praise the quality of a horse, knowing him not to be worthy of the praise put upon him, yet in Regina v. Kenrick, so far as I under stund it, and I was counsel for the man, the fact which brought the case within the definition of the crime was the fact that Kenrick averred that the horses had been the property of a lady deceased, were now the property of her sister, had never been the property of a horse- dealer, and were quiet and proper for a lady to drive. The purchaser 1 Dears. AH. C. C:. 24. 2 Car. A M. 549. « I Den. C. C. 278. « Beg. f. Dundas, « Cox, C C 3S0. 6 !, g. H. *'J • 1 Miilk. 402. 142 rUAL'l AM) lAI.Si: PKKTKXSKS. wnnU'tl tlioso horses for a woiiuiii of his fumily. The s^iilotauce of i ^ cohtriitt in his miml was that IhiT were the i)roi)t;rty of n huly \n!i had drivt-n the iiorsL's, and il was u false assertion of a definite existini; fact to say, " 'riny are tlie properly of her sister now," wiien tiny were in faet the property of a lior.se-deaU'r, and liad run away and pr^ - dueed a fatal aeeident. 'I'iie case of Hvijinn v. h'rurick, was not ll;. warranting a horse sound, as in tlie ease of Hex v. J'>iu'tU, but it waa the alHrniinj: a false faet which the parly knew to he false, andontiiat jrroiMni the conviction proceeded. It Hceins to me that tliese cases wliidi have ^'iven rise to a jjjreat deal of observation, fail to bear out tin' prin- ciple eonli'uded for by the prosecution. No doid)t it is ditlicullto ld, where the pur- chaser r the other party ^ to be sold ami 8 the party gets a s is the difference iiney or eiiattel is ut the real loss is lifference in valiM' vorth if the repre- I think that it would be dau.t;erous to construe the statute as exti-nd- iii.r to every case of a false warranty, and 1 think that the conviction sboiilil lie quashed. (•iiowi)i.u, .1. I am of opinion that the conviction is bad. I tliink this lase <:oes further than any of the cases that have yet been decided, uii I I ain clearly of opinion that they have <-oiie quite far enonyli and ,ui-lit not to be extended. I think the distinction that has been taken 111 'this case ouiiht ta exclude it from tlie category of .hose decisions ; ll.r distinction being that the false statement is with respect to the .puiliiv only of a known specilic article, viz., plated spoons. It was true liiat they were plated spoons, but it was false that the plating was (if a quality equal to that which Avas then known as Klkingtoifs A. Now tiie oases that have already been decided in respect to contracts „f sale and other dealings between parties liave not gone beyond this, tliat where the subject-matter about which the parties have been dealing is of a specilic denomination, and that denomination is falsely given, it has been held to be a false i^ctense ; but the present case is a stej) l)e- y lu.l that; and, as I am very doubtful whether the statute was ever inuiided to go the length to which the decisions have carried it, I am of upiuion it ought not to be extended further, and that it could not be so (xteiuled without confouiuling the distinction between civil and criminal tus.'s. I have, therefore, come to the conclusion that this conviction can not Ite supported. Wii.i.i-.s, J, My opinion is of little value after those which have been .xpri'ssed ; but such as my opinion is I am bound to pronounce it, and I do so with the less ditHdence because it was the considered opinion of the late Chief Justice Jervis, than wliom no man who ever lived was more coini)etent to form an opinion upon the subject. I am of opinion !iiat tile conviction was right and that it ought to be atHrmcd. It ap- pears to me that a great nuinl)er of observations have been brought to hear upon the construction of the statute which would not have been attended to if the words of the statute had been looked at, and I can not help thinking that in many of the cases to which reference might be ma ie, and they are very numerous upon this subject, the judgments would have commanded more attention in after times, if the words of ill.- statute bad been attended to, and those who delivered those judg- meats had not permitted themselves to consider, instead, whether a liarticular view would or would not be convenient to trade, cither in its present state or in the state to which it might be reduced, by a proper administration of the law. I think that the words of the statute should be implicitly followed, and the Legislature obeyed according to the terms in which it has expressed its will in the ftfty-third section of the 7 U4 FKAII) AM) I'AI.SK I'HKTKNSES. finil H (jcnrp:p IV.' I :im lookintr ti> tlii' wonlnof tluit soction, and I am iiiiabU' to l>riii>i iiiyHilf to think that the Li'<:ishitiirc was at all dealiiiL' witli aiiythitifj in tlie iiuturc of a diHiiiiction bi'twecn the case of property friiudulotitly ol)laliu'y fraud ouj^lit not to make any difference in favor of the cheat. Tlio section conunences with the recital that '• a failure of justice fre(piently arisi's from the subtle distinction between larceny and fraud." Tliat is the recital, ami I had on my mind an Im- pression that the recital of a statute may have the effect of enlargiiiE;, but not of restraining the o()eration of the subs quent enactment. The enacting part of the section is, " If any person shall by any false pre- tense ol)tain from any other person any chattel, money, or valuabk' security with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor." And it appears to me that tlie only proper test to apply to any case is, whether it was a false pretense by which the property was obtained, and whether it was obtained with the intention to cheat and defraud the i)crson from whom it w as obtained. Now in this case it should seem that there was a false pretense, there was a pretense that the goods had as much silver upon tliem as Elk- ington's A. and there was also the pretense that the foundations Ti^ere of tlie ln'st material. If I could bring myself to take the view which my brother Eui.e has taken, tlwit this was mere matter of opinion, and not matter of fact, which couhl be ascertained by inspection or calcula- tion, possibly I might take the same view of the case ; but it appeara to me that, on the face of the case, it should seem that Elkington's A, must have been, for practical purposes, a fixed quantity ; the quantity of silver on it must have been fixed, and the proper material, the best material, for the foundations of such plated articles, must have been a well known quality in the trade, because it appears that the prisoner made a statement with respect to the quantity of the silver, and the quality of the foundation with the inU'nt to defraud. It appears that persons who made the advances were thereby defrauded and thereby induced t > make the advances, and the jury have found that the state- ments were known by the prisoner to be untrue, and that in consequence 1 cli. iu. U. »'. UliVAN. 11 r> lection, and I am •as at all (lealiu<; case of property Iract and poods nod. 1 can not tlio statiito hill! ey would, iu llic tcrnirt even nidri' L'li is obtained liy the interposition :c any differenee e reeital that ' • a ti notion between my mind an ini- }et of enlarging, enactment. Tin l»y any false pre- ney, or valuabk f the same, every Vnd it appears lu whether it was a id whether it was jfson from whom *e pretense, there pon them as Elk- foundations were ce the view whieh r of opinion, and icction or caleula- ! ; but it nppearJ it Elkington's A, ity ; the quantity material, the best must have been a that the prisoner he silver, and the It appears that tided and thereby nd that the state- at in consequence -if tliose statements lie olilaint-d tlie money mentioneil in the indietUK-nt. It jippiurs t.. me that, for all practical purposes tiiat ou-rlit to be taken t.. 1. ■ a snilhi.nt f:ict, coining within the region of assertion and calcu- l;ili,,n. and not mere opinion, and that it should l>e consi.lered i-s a false |.rr|.nse. Well, lh>'U the statute says, "obtain from any (.tlier per- -mm any chattel, money or valuable sc.'urity." It is found in this case t|i:it llie money was obtaineil. If the matter was a simple commenda- tion of tlic goods, without any specilic falscln.od as to what they were ; if ii was eiilirely a case of one person dealing with anotiier in the ,v;iv of business, who miglit expect to pay tlio price of the articles, Hindi were off.-red for the purpose of pledge c! .sale, and knew what til. y were, [ appreheml it would have been eisiiy disposi-d of i»y the iury. who were to pa>s an opinion upon the si-lijecf. acting as per.sons of rommon sense and knowledge of the world, and abstaining from .Mining to any such conclusion as that pniise of that kind should have the effect of making the parly resorting to it guilty of obtaining money on a false pretense. I say nothing, on the effect of a simple .xagLTc ration, except that it appears to me it woidil be a (picstion for the jury in each case whether the matter was such ordinary prai.sn of the goods {(lulus buiius) as that a person ought not to be taken in by it, or whether it was a misrepresentation of a specilic fact material to the eentract and intended to defraud, and did defrand. and by which the in..ney in cpiestion wasobtaimul. Well, then, there is the latter part of the secticm — "with intent to cheat and defraud the person of the >;im"." It must be with the intent to cheat and defraud the; person of the same. I am unable to bring my mind to any anxiety to protect (jcrsons who make false pretenses " with intent to cheu,t anre .something is delivered or given, as well as fraud used by the fraudulent person, as it may be said that the money or chattel is not obtained by fraud, which means fraud alone, since, but for the delivery or giving of something by the fraudu- lent person, he would have obtained nothing. I can understand the 1 ch. 39. 2 Reg. V. SlicrwooU, Dears. & B. C. C.i.M. nultiply prosccu- wliii'li fnmd w form. I iijirt'i' in )Ii('lllllo to 8tU-tl :i , that if lliPio lir tutiitf lu'ii)}; liiu t mill foiiform !■> :)win^ fraiidiiliiit •(', ii|i(in tilt' plain [iforgc IV.,' tiiai 0(1 lliat tliorc \va'< I lliat then' wus a is knowli'dffi', lor ricy, wliiili lio lu- 1 tliut the convic- jiidgmtMit in thin ; hut the int'liiia- siistaiiH'd. I cnii ' applifs to those icy is <^ot by f uInc ic't, as in the last »e niakiiif^ of the divercd were of a led never to apply , or sole cauHe, of by fraud, and tlio siiance of that, or n^ The first casi' my opinion is, the d, but with great ipply exeept when B fraud, and docs a contract, which the contract does se of the delivery ig Is delivered or , as it may be said vliich means fraud ing by the f raudu- in understand the i, Dears. & B.C. C.2S1. K. r. IlKYAN. 17 statute, bciiiij limited to the llrst olass of eases or extended to lioth; litil 1 declare I cannot understand the ineilimn course su^'u'csted lo-d ,, iiainclv that the statute does apply to some tif the cases in the second diss, but .lot's not apply when the pcrsou defrauded gi'ts in specie the tliiii,' contracted for, though with a difference in the (piality, I'akc the present case. I do not know that I am intliu'necd by the fad. lull we were told last time that in truth tiicre was lut silver on lli.'-e tliin,:.;s, and that as compared with Klkiii;j;toirs they were valueless. Now, it seems to be suppo>ed tliat the inisrcprcsentations wen no more than ft kind of praise, e.vajfgeration or puHiiig. I confess I can not coinprehend that, and as WfU as 1 can undrrstand the opinions that have liitMi expressed, this result would follow, that, supjioso Klkinij;ton's plated articles had got half an ounce of silver on them and the prisoiuT's articles had got none, he would liav been indietalile ; but if Klkington's liad got oiu! ounce of silver and the prisoner's only a ((iiaitcr of an ounce he would not, because it would have been only the superior (lualily that was exaggerated. I own 1 can not understand tiiat. I can not help looking at the statute and I lind nothing about exaggeration of ([iiality. I find t!ie statute express — •• if any person shall by any false pretense obtain from any other person any chattel or valuable secu- rity" — that means, to my mind, whether he; obtains it by fraud directly or indirectly and wholly by fraud, or by that and Hometiiing else. Therefore it seems to me the only true exposition of the statute is, to hold it either to apply or not apply to all contracts and eases where the fraudulent person gives something in return, either to say that when- ever there is a contract or something is so given, it is not within the Htatute, or to gay it is, though there is a contract, if that contract was brought about by fraud, tlrjugh something may have been delivered to the person defrauded, if, but fertile fraud, the contract would not have been entered into. As at present advi.sed, I think that the true meaning of the statute is, that it shall extend to people who make these bargains hy fraud, and so by the fraud get possession of the chattels or property of others ; and I incline to hold the conviction right. W.vTsoN, B. I am of opinion that the conviction is wrong. J think that the cases which have been decided upon this subject have gone (luite far enough, and I believe much further than the framers of the statute ever intended it should go. I agree with my brother Ckowdku in this point, that this case does not fall within any of those decisions referred to that are now to bo considered authorities. In my oijiihon, the conviction is wrong. The question is this, whether this representa- tion, false as it may be, merely of the quality of the article which is pawned as it would be upon a sale, is a false pretense within the mean- ing of the statute. In my opinion it is not. All that is represented iHH 148 FRAUD AM) KALSR PRKTKNSES. here is, tliiit it was of the first quality, equal to Klkinurton's A, and tli-- fouiidaticm of IIk' Iti'st inalerial. and had as Ynnch silver asElkington's — in ordinary lan;>i"ip;e niorol^' pulling the article, which may be nntrui'. In an ordinary ease if a party wishes to ])rote('t himself, he ought t' taUe a warranty of tiie quality of the ai tiilc offered for pawn or sale. The result of holding this efrjviction right would be. that on every sale, where any exaggeration lias taken place, the tradesman might be con- victed of obtaining money on false pretenses. For these reasons I think it is not a false preAease within tlie statute, and therefore the conviction was wrong. CiiANNKi.i,, B. I am of opinion that the conviction can not be sus- tained. Hut for the doiil)fc expressed by my brother Huamwkli., and the more decided opinion expressed by my In-other Wii.lks, I should have contented myself with saying that I concurred in tiie judgment of the other memViers of the court; but I think it riglit, under the circum- stances, to state the grounds of my opinion. A certain number of spoons were produced to the pro-^eeutor; those spoons were represented not as silver spoons, but as having silver upon them; tiiere was then the further representation tljat they had as much silver as Klkiugton's A, and further, that the foundations were of the best material. I con- sider the spoons w^ere the same in sjiecies as they were reprosonted to be. It is not as if the purchaser had been induced by the representa- tions made to buy them for silver, and then had found that the spoons had no silver iqion tliein. The reiircsentation is that the quantity of silver on them was eipial to the quantity on Klkiugton's. I consider that is, in substance, the same as if lie had said the quality of the silver upon them is the same as on Klkiugton's, and that the statute does not apply to such a rei)resentation made in language which the jiroseeutor must be taken to know is mere matter of opinion. In that point the case is distinguishable from Rerfina v. Roebuck, the ground of that de- cision being that the representation was that a certain chain was a silver chain wiien in fact it was not, and therefore did not resemble at all the article intended. In tliis case the spoons did correspond to that ex- tent with the representation, and they were spoons of some value, sup- posing value to be an element taken into consideration. The other case of Rcffina v. Abhntt is plainly distinguishable upon the ground put by Mr. Robinson. On these grounds I am clearly of ojiinion that the con- viction can not be supported. CoHV ict ion quashed. KK SNYDER. Mi) tifiton's A, and Ui>' '.r as Klkington's — ch may be untnu'. msclf, be ought ti for i)awn or sale, that on every sale, man uiiixlit he eon- i)r these reasons I and therefore the on ean not be sus- er liuAMWKLi-, and V "\Vii,Li:s, I should in the judgment of , under the circum- certaiu numher of IS were represented ■ni ; tliere was then Iver as Klkington's ■it material. I eon- were lepiosonted to by the reprcsenta- uid that till! spoons iiat the quantity of igton's. I consider rpiality of the silver the statute does not liieh the jiroseeiitor In that point the ground of that de- in chain was a silver ; reseinble at all the respond to that ex- of some value, sup- :)n. The other case \ the ground put by tjiinion that the con- jiiriction qinnihed. KMSK I'UKTKNSKS-DKLUSrVK PROMISE- FALSE IMIETENSE TUUN- INd OUT TRUE-1'HOMISE AS TO FUTURE EVENT - HABEAS lORl'US. Re Snyder. [17 Kiis. 54 L'.] In the Supreme Court <>/ Kanmis. ' A Pretense which is False when Made, l.ui true by tl.o act of the person making the (ciMiP, wluM. tlio vro^.Tiilor relu:^ theruon and parls Willi liis im.pcrly. is not a false pvi'U'iisc wiUiin flic staliUo. ■ It must Appear that the Pretenses lelled upon relate to a past event or t» some ,,r..M'i,l .'xi-niiK fan, an.: iiol l« sonielhing to happen in tlie future. A mere promise is not HUtlicient. Original proceeding in habeliowed or in any manner tended to sh.iw that there was any probable .atise for believing that said A. .1. Snyder had been guilty <.f any offense whatever under the laws of the State of Kansas. Yet, notwith- standing the premises, the said justice of the peace refused to dis- charge the said A. J. Snyder or to admit him to bail, as under the laws of the State of Kansas he was rc(inii-e(l to do." The petition further alleged that the order or warrant of commitment under which Snyder was held in custody was illegal and insullicient in law. It also states that the reason the application was not made to the probate judge of Linn County, was, " that such probate judge is dis- .lualilied from hearing the same by reason of being an attorney «)f 1-.0 FKAUD AND FALSE I'KETKNSES, rcconi in a civil suit involving tlu' stuno transaction." And the petition fiirtliiT alif in money and a check drawn by Snyder &1C"<>., on Hood & Kincaids. in favor of Snyder & Co., for the sum of ?1.,'.()0. upon which check the said .Tolin Hood wrote across the face, • Tlie Kiist Nati()nal Hank of K:uisas City. Missouri, will please pay, — Hood it Kincaids.' from the linn of Hood A; Kincaids by false pretenses and with intend to defnuid Hood & Kincaids ; that on said December 1st, said justice of the jieace issuecl a warrant, reciting fully the alleged offen.se ; tliat Snyder was arrested ; that upon the i)relimin- ary examination numerous witnesses (giving their names), testified; that the evidence taken at the examinatinn was not reduced to writing; that upon the conclusion of the examination the justice decided an offense had been committed, and that tlier*- was probable cause to believe said Snyder guilty as charged in the complaint and warrant, and ordered th.-it he give liail in the sum of $.'>.()n() for his appearance at the District Court of said Linn County, at the next term thereof, to answer said charge, and in default of such bail to be committed to the jail of the county of Linn ; that no bail whatever was offered ; that said justice of the peace then made out a written order of con)niitment,and gave the same t(- the respondent to execute ; that saiil respondent was and is the sheriff of said Linn County, and held said Snyder in his custody as such .sheriff by virtue of said order of commitment." Copies of the complaint, warrant, and decision of the justice are attached to the return. The oriviin.nl ordt'r of commifinent was also produced by tiie sheriff on tiie hearing. A iv[)\y was filed to the return of the ofiicer, staling that the testimony mentioned in the return, and the evidence given by the witmsses named, were not sulllcient to authorize tiie magistrate to find Snyder probably guilty of the offense charged. Afterwards, under the re(|uirements of the court, an amended reply was tiled, setting forth in detail the evidence of the prosecution before the justice. ^m / RK SXYDKK. IT) I nd the petition Hon. W. C. imi County is, was rofused. " iioxed thereto. I l)v the court, whirii II return body of said I cause of thi Llug and upon peace of Linn ith having, on iieck drawn by & Co., for tilt- rote across the uri, will please luaids l)y false i ; that on said , reeitinpf fully II the i)reliniin- les), testified; •ed to writing ; (*e decided an table cause to d warrant, and learancc at the reof, to answer \ to the jail of liat said justice t, and gave the was and is the ustody as such he justice are t'iuent was also ?d to the return the return, and t snllicient to of the offense rt . au amended he prosecution The case was set for hearing, and was heaid, on the 30th of January, l,s77. On the hearing, the (juestion as to l)ail and the illegality and in^iifliciency of tlie warrant of coniniitnient were waived, and the only .dl,-."iti.)i« relied on bv Snvder was the one contained in the petition i,mcerning the " all. ged want of probable cause." The counsel for ihf respondent admitted that the testimony contained in the rci)ly set f..,tli all the evidence admitted before the justice, excepting that pur- puitin.' to have been giv.n by .lohn Hood, one of the witnesses for the ,,roseaiti(.n and a member of the firm of Hood & Kincaie I by the teller, returned to his ollice, and delivered the \r\u-v of credit to'snydcr. Snyder looked it over and remarked that hr tin. u^ht there would be bother about it on account of the words " '.All , f lading attached." At his request. Charles Tainterwrote out another Iriter of credit, of which the following is a copy.- — " Kansas City, Mo., Nov. 22, 1876. ■•.\/.NsTS. Hood & Ki)t,:ai(h, Plea.miitnn, Kansun: — •■ Dkar Sius: We will honor Messrs. A. J. Snyder & Co.'s draft on us to tlie amount of four thousand -lollars ($4,000), to pay on livestock consigned to us. •' Very truly yoiu-s, '' I). A. rAiNTF.u & Son." Snyder took this letter also, remarking that if he couldn't use the one 1... wunld the other. Snyder then went to I'leasanton, and on the 23d !,.• called at the banking house of Hood & Kincaids, and presented the al)ove letter of credit and said he wanted to get n.oney to buy stock with. Hood asked him what amount of currency he wanted ; he an- >wered about $2,000. Hood toM him they were short in currency, but \:)2 FKAll) .\XI> l\l„sK I'lJKTKNSKS. slioiilil dciid ii|i to K:iii>:is City iiiid liave soiiir >lii[ii.c(l down, bu- tlial tljiT could not sec to tilt' slii|iiiinay on stock, to the amoiintof four thonsand dollars." On the 2.'kl, op the 2llh (the witness Hood fixes the 2»tli as the date), Snyder again called at the hank and asked Hood what was the matter with the tele- gram — and then stated he had l)een to Fort Scott to get money on his draft on Painter iV: Son, and that the bank tliere had telegraphed to H. & K., and H. it K. had answered they would honor the draft on cer- tain contlitioiis, that he had bought the pick of .1 large lot of cattle, and wanted money to pay for thorn. Hood thinks lie said about one hun- dred head. Snyder then stated he would send to Painter & Son and liave the le^^ of credit modified. AfU>r this conversation, Snyder took the cars amf^ent to Fort Scott. On the 2Uli. late in the afternoon, li- drove out to 1). (i. ( ilasscock's. in \'ernon County, Mo., nine mile- northeast from Fort Scott and sixteen miles from Prescott (Prescott i- on the railroad, six miles south of Pleasanton). ( )n the morning of the •-'.'•th Snyder ami (ilasscock went out and looked at the cattle (Jlasscock was fattening, and Snyder made a bargain for the cattle, by the terms of which he was to take eighty head of steers at three and one-fourth cent> per pound, thirty-seven or thirty-eight of them to be d:'livered on the ui'xt Monday, the 27tli, and the balance about the middle of February. Snyder paid (Jhisscock SlT) on the cattle and took his receipt therefdr. (Uasscock also sold him his hogs, twelve or fifteen in number, and agreed to try and get up a car load. Snyder then retured to Pleasanton, and on the same d-ay telegraphed to Painter & Sou: — " The words, to j)ay on stock in the way Say to Hood you will, (tr will not pay. Answer quick. '' Smtpek & Co." Painter & Son telegraphed back to Hood & Kincaids, •• Wi- will honor Snyder & Co.'s drafts to the amount of four thousand dollar>." This telegram was received by Hood before Snyder called at the bank on the 2.">th. About noon on the 2.')th Snyder went to the bank and asked Hood how it was '• in regard to that money to-day." Hood toM liim ho thought everything was riglit now, :tnd asked him how nimli rtMi KE SNYDKU. lA.'i ijifd down, but lii> <'i)iivL'rsnlin!i r iV; Son. Siiv- Hood & Kiii- I. «>c K. to era I ;yi)KI! & ( <). " I dis|,atc'li, tolf. Co.'is drafts, tn Oiillif 2;Jd,or ), Snyder again •r with the teh • > uet money on telejjniphed \i, liG (h-aft on eer- e lot of catth , ahoiit one hnn- nter & Son anil i)n, Snyder took e afternoon, li- io., nine niil(~ )tt (I'rescott i- nioruinir of tli.> atth' (Jhi.ssco(k bj'the terms of ne-fourth eent> l:'livere(l on the ie of Febrnary. eeeipt therefor, n nnn)I)er. and to I'leasauton. )od you will, (tr 'DEli & Co." ds, •■ We will isand dollar>." ed at the bank I the bank and •.'• Hood to!.! him how mu( h i.^ money he wonid need. He said he thought that S.'KHOO would <•" ill lurrcncy, and a eertified eheck on the First National Hank at Kansas City for SI. .")()(». Hood said to him at tiie time that he sup- posed the eattle woulyd be shipped on Monday night. Snytler said no, tlnii ii would take a/ couple of days to get them to the station, that lli.y were about nine nules northeast of Fort Seott and sixteen miles from Treseott. Hood remarked to him that he ought to get them to r,,il Seott in less time than that ; Snyder said the eattle were to l)e de- livered and paid for at Young's scales, that Young's seales were nearer ,,11 the roatl to I'rescott, and tliat the cattle were fat and woidd Imve t,. he di.ven slow. This conversation l)etween Hood and Snyder oc- curred while Hooil was certifying to the check. Snyder tirst drewa ilruft for 8 ">.•"><', but its tt-rms being unsatisfactory to Hood in not !„ing payable at sight, Hood made one out, inserting tiierein. " Pay to tlie order, at sight, of Hoo.l & Kincaids," etc., and Sny.ler signed liie tirin name of '• Snyder & Co.," thereto. Hood testilied he Itelieved all the representations made to iiiiu by Snyder to be true, and that he \v;is induced to deliver to Snyder th*. §l,.'i(tO, in currency, and the ortitied check of 8l..'>00, on Novendier I'.Mh, upon Snyder's state- iii.nt that he had enough cattle bought, antl that he would ship them to l';untir& Son, and believing that Painter & Son would pay this draft iihrii tiie cattle were disposed of. if not before; and furtiu-r, that he «,.iild pay H. & K. twenty-five cents on the SHK* for exchange. Hood iilsi) testilied tha:, at the time he delivered the money and certified check lo Snyder, he did not know the ilnancial condition of 1). A. Pa -iter & Son. and that he did not have at liie time such conlidence in Painter & Son as to have advanced the money obtained on tluir credit alone ; that lie iiad conlidence in their integrity, not in their hnaiuial ability, aiul his contidence in their integrity was l)ased upon representations that li;,a iieen m.ide tj him by different j.arties that they were respectable l.Mlcrs. Snyiler returned to Fort Scott. On Sunday, Snyder and Shufes together went again to Glasscock's house, and calh'd him out to the fence. Shores said, " 3Ir. fUasscock, we've come to see if we (oiildn't get you to liold these cattle another day. Our linaneial mat- ters is so we can't pay for 'em to-morrow, and if it would suit you aa w.il, we'd like for you to hold 'em another day." Glasscock rather ul.j.cted to this. Then Shores said, in tlie presence of Snyder, "If v -u would rather do it. we'll have to gi't you to ship the cattle in your nun name." Glasscock then consented to keep the cattle another day. Snyder then went to Fort Scott and engaged four cars of Jliug, the agent nf "the Missouri River, Ft. Scott and Gulf Railroad, to be used Tuesday night for Glasscock's cattle, and others. On Monday he went to J. V. 154 1 KAii) AM) falsi: puktkxsks. Morrison, a ft. and Hood gave Snyder a certilied ciieck for the amount. Snyil«r then tried to get on the i)ay car going north (I'rescott is south of Pleas- anton) ; could not get on it, and then got on toSykes' cal)oose again, showed Sykes a large amount of money, rode with him to Kansas City. At nine o'clock on tin' -".'th he got the 8H."»0 check caslied at Wyandott.', at tiie banking-house of Northrup & Son. The g.'i.OdO draft in favor of Hood & Kincaids was sent to Katisas City, ami Painter & Son bein^' unable to pay the same, it was protested. On the 'itHh, 1). A. Painter went to Wvaudolte to see Snytler and Shores, and asked them w hat luck RK SNYDKK. 155 Missouri, Kansas 1 cuttle, and niudi' sown name to St. ipiiigof them, and )ek'8 with him tlic nt to (Uasscock's noniiiig,tliey went tto tniie, and then turned hack, and lad a;;reed to taki' more profittible to ic l;ad sek'eled. he ■* Snyder would iii>t s. (llasscock still ou ean't do better ; fall hack," and i'cted would wci;,di the thirty-eijiht vould atnount to auft. I amount. Siiyihr tt i.s south of ricas- kes' caltoosc again, lim to Kansas City, siied at Wyandotte, .000 draft in favor •ainter & Son beins; .MHh, 1). A. Painter ked them w hat luck 'l!,.vlKid buying cattle. They .stalt-d that they had liargaiiu'd for (ilass- i.ik- c:itllf ; that (ilasscock had disagreed with them about the selce- ti,,ii (if the cattl.'. and would not h'l them have the cattle. I'ainter said u c... ) (haflhad come on, and Ihcy had been forced to lelitgo to protest. i'liiiter, Snvder and Shores then went to a saloon, where they iuid fur- tiir talk about the 8'5, 000 draft. I'ainter insi.sted that if they hadn't Ik iiirlit any stook they must have the money ; that the money ought to ^r,, lo piiy tin- draft. Snyih r replied that they were not going to com- mit thtin-*elvcs ; lh:il tiic^- were awaiting (levelo|iments. I'ainter sug- -,>ie(l that if they were keeping the money for what his lirm were ewuig them, that he would pay them on Kriday ; they reiilied that they \\;\v not going to commit themselves. After Snyder was arrested on iiiii-i ehaige, he said to one James Ueynolds, ■■that tiu'y had put altout ,i ,000 in Painter's hands last spring, and he didn't like the way things \V( re iioing lately ; Iw said he hadn't lost anything, oidy STdO or ?H0O." i; vn lids also tcstilh'd: "I can't say wlu-ther Snyder said that he hid (.'lit even with him. and was going to ke»"p even with him. or viiellier he had taken this plan to get even with him." While on his jwiy back to Pleasanton, aftc his arrest, Snyder said to Mc(!lothlin, the imtv sheriff wlio had him in ( harge, that Painter & Son owed him .,'10(1; that he did liiis to get his money, or that it was the only way .■ IkuI to get his money, out of Painter A: Son. While in the jail at \1 iinnl City, he made a similar statement to Rol)ert Fleming. He also 1-iid he didn't care who 11. & K. looked to for their money ; that he IS >Midying his own care. Painter & Son owed Snyder «& Shores at It.iis time from g.'fOO to 870t>, ;ind were aide to pay that, itut were not able ; ii:iy the 8:i,«">0, without the cattle. They were persons of limited iniin-. Neither Snyder, nor A, J. Snyder & Co., had any money on M iio>ii with Hood & Kiiu-aids at the time of these transactions, and Mi ""1 iV Kineaids have never been paid any i)art of §.'!,. H.')0. riu' foregoing statement of facts was prepared by the chief justice, h'liinscl appearing for Snyder in this court were ./. I). SninUbj, A. F. l/'i ami W. ./. Burliiiii. Counsel for respondent Lamoreaux, were ■ jihru JI. Alh'n and IP. R. BliUUe. The case was argiu'tl orally by JM.ssrs. Snodihj and El;i for petitioner, and Messrs, AUfn and Biddle I fr respondent. An order for the release of the i)etitioner was made hml issued ou the '.tth of February. Tlie opinion of the court was delivered by Ihutxos, C. J. rpon the hearing of the case on the merits, the i)etitionor objected to lie witness Jl- lieved the representations made to him liy Snyder on the 2.'ld, 2 llh, •-'•'ttli and -Jsth of Novemlx-r. The ohjections were overruled, and, for tlie reasons above stated we think the evidenet! competent. It is indis- pensable to the consmnmatiim of the crime of obtaining money or prop- erty under false pretenses, that the person who has been induced to part with his money or property thereby must believe the pretense is true, ami, conlidiuj,' in its truth, must by reiwon of such conndenee have been cheated and defrauded. We do not mean by this ruling thiit such evidence is the best, nor the most reliai>le ; nor that it is necessary for the prosecutt)r to state he believed and relied upon the pretense. All of this may be inferred. We simply hold the evidence admissible. The material (jnestion, however, in this case is, whether on the evi- dence submitted to us an offense is made out against Snyder for ftdse pretense, within the statute, in his obtaining from Hood & Kinciids. on November 2;')th, the 8 1..'.()0 in currency and the certiiletl check of 81 ,.'iO(l. The counsel for the petitioner contended that there was no evidonce of the procuring of the money or cheek by any fid-^i: pretense. First. In- asmuch as Hood, at the time he let Snyder Iiave the mouoy and check on the •i.'ith of November, had an absolute ordiT in the form of a tele- gram from Painter & Son to honor Snyder & C'o.'s drafts for four thou- sand dollars, and had previously refused to pay the money on a letter of creilit, which he construed as reipiiring him to see to the shipping of the slock to Painter & Son, it is conclusively shown that such tele- graphic order of Painter & Son was the sole inought the pick of a large lot of catth", about one hundred head, was true on the 2.')th, when the money and clieck were oittained ; luul that the statement that the cattle would be shij.ped to Painter & Son at Kansas City was a representation or assurance in relation to a future transaction, and di^i not amount to a statutory false pretense. As to the tirst proposition of counsel of the petitioner for his discharge, we answer that wc are not satisfied that Hood parted with the money and check solely on the tele- gram of credit of the 2.'>th. The testimony temls to show that he was Induced to part with the property in controversy partly on that telegram, I Peoplo V. Herrlck, i;i Wcnd.sT; I'cople V. suUy, !> I'ark. (N. V.; ( r. lUp. Ul, People r. Miiler. -2 Park. fN. Y.) Cr. Ucp. r.iT ; Tlii>iutt> 1-. I'uople, .H N. Y. ajl. ^Mi RE SNYDER. 157 jt'C'tioll was lint well It was proper fur ions of Sindcr liml )sccuti(m luiist liavi' ojjiiiion of tin- wit- 'stimoiiy tliat he I>l'- 1 11i."2.'i(l, 21111. •-'.Mh rruli'd, ami, for tlie K'tcnt. Il is iiidis- tiiiijj inoiH-y or prop- las lut'ii induced to ii'vi- the prctt'iisc is of such contidciice m 1)J' this riding that r that it is uccossarv I upon the pretense, evidence admissible, whetlier on the cvi- ist Snyder for fsiise Hood & Kinc.ids. on iiied check of 81.."iOil. e was no evidonce of |)retense. First. In- hc raouoy and check II the form of a tole- drafts for four tlioii- he nioiie}' on a letter ee to the shipping of lown that such tele- ceinent by which the (ind. That the repre- lad liought the pick ■ati, was true on tlie id that the statement at Kansas City was a transaction, and di'l lie tirst proposition of swer that wc are not ;ck solely on the tele- ; to show tliat he was rtly on that telegram, partlvoii the representation of Snyder that he hi,d bou-iht about one limidie 1 head of cattle, and partly on the statement that he would ship llie cattle to I'aiiiter & Son. In an examination of his character, wc are not to pass absolutely on the guilt or innocence of the prisoner ; if wi' shall lind an offense has been committed, and there is i^-obable cause to believe the prisoner guilty thereof, the prisoner should be com- mitted f )!• trial. As different motives were assigned by tlic i)rosecMtor as operative in producing the delivery of the money and check to Snyder, the examining magistrate, and this court, are only to ascertain that tiiere is jirobable cause to believe that the jirctenses proved to have been false and fraudulent, if within the statute, were a part of the moving causes which induced Hood to part with the property, and that Snyder would not have obtained the same if the false pretenses had not he.ii superadded to the telegraphic order of Painter & Son of November •.'.Mil, to authorize tlie holding of Snyder for trial. It is not necessary, 10 constitute the offense of obtaining goods by false pretenses, that the owner should have been induced to i)art with his property solely and entirely by pretenses which were false ; nor need the pretenses be the paramount cause of the delivery. It is sufflcieiit if they are a part of the moving cause, and without them the prosecutor would not have parted with the property.' This leads us to examine the second proposition upon which the coun- sel for the petitioner claims his release, and to consider the representa- tions made by Snyder, " that he had bought the pick of a large lot of cattle, about one hundred head," and that "he would ship them to Painter & Son." The first representation was substantially true, when the money and check were obtained on the 2.')th of November. At that time the cattle had been contracted for by Snyder with Glasscock, and a part of the consideration paid. This representation, when made on the 2;kl or 24th of November, was false. On the 25th it had become true. Is a pretenso which was false when made, within the statute, if true when the property is parted with? We think not. The pretense employed is only the means by which the offense is perpetrated. The Mihstance of the offense consists in the obtaining of the property, and thereby with a fraudulent intent depriving the lawful owner of that which properly belongs to him. If a party by his own acts makes tlie false representations good, before obtaining the property, there is no consummation of the crime, and there is no criminal attempt, for it follows that, when there is a change of purpose on the part of a person seeking to obtain property by a false pretense, before any other wrong- ful act" is committed than the making of the false pretense, the crime , 2 Pink. (N. Y.) rr. Hep. I't'ople, M N. V. 3J1. 1 I'eople f. Uaynes, 14 Wend. 647. 158 KUAII) AM) r.M>F. I'KKTKNSES. Of the attempt is takon awav. The fact that, in this case, Sny.ler novor al.'in.l..tu..l thf sclui.u- t.. .h-fraiul s-mo oiif, when he delivered th. ,n..neyau.leheci<, if at that time tho representation had hocnio true' No property ^vas parte.l witli hy Hood on the '.>:!d .r 2 Ith. The repre- sontation then nui.le by Sny.h'r as to huyin- the cattle, was true, on the '>r.th, and before he ..l.tain.'d the mon.y, or check: and if he is to u held f..r the comniission of a crime hy obtaining' prop.rty un.ler false pretenses, it must bo upon s..me other representati..n than the ropre- se..tatio.» .m the i'M or 2 111., as to having " bought the pick of u large lot of cattle." As to the representation of Snyder. " that he would sh,p the cattle to rainter& Son, at Kansas City." we follow authority in holding such statement is not a statutory false pretense. The false pretenses rehe.l upon to constitute an offense under the statute, must relate to a paM event, or to some present existing fact, and not t.. something to happen in tho future. A mere promise is not snlllcient.' The representation that the cattle would be shipped to IMintiT & Son, related to an event which was thereafter to happen. It was a promise or assurance of a future transaction. Ipon the evidence we are. therefore, compelled to say, that as the only offense charged in tlu- complaint, and in the war- rant against Snyder, was tho obtaining of the ?1,500 in currency am the certitied chock of $\jm on November 2r,lh, as therein stated and as the Older of commitment was issue.! on the fin.ling of the examining magistrate, that tluTC was probable cause to believe Snyder " guilty ns char.red in the complaint and warrant," there is n.. h-gak authority for hol.Ung the petitioner in custody, and he n.ust be discharged. It is, perhaps, unnecessary to add, that in point of moral turpitu.le, Rny.lor is as guihy in obtaining the property of Hood & Kincaids on the 25th of November on a false promise, if such be the fact, as if such pre- tense was within the statute. The criminal law, however, can not reach the perpetrator of every fraud. "The statute may not regard mere naked lies as falso pretenses." It has been well said: "The operation of the wisest law is imperfect and precarious; they seldom inspire virtue ; th.-y can not always restrain vice ; their nower is insufficient to prohibit all that they con.lemn, nor can they always punish the actions which they prohibit. • ' Wo have intentionally abstained from comment- ing upon "the transactions of the 28th of November, when Snyder is . Uex. ,-. Yo„Mg.3 T.R.98; Uex r. Lee. Ungh.mr. State.50hio 8'; J^^ »«7*;: L * C-. 3.« ; Ootfun.,nwoaUh v. Drew. 19 State, 12 Ark. 6.5 ; State t-^.Magee. U Ind. IM . BJch. 179; State v. fiver.. 49 Mo. 542 ; Dll- SUte r. Green. 7 W >8. 676. KIATK V, LlHCir. ir.'.t msc, Snyilcr ncvor )t militntc ajiainst ct wlu'ii till' proii- •fliod ujioii ii falx' 1 lie (Ulivirod tln' had boronio tnu-? 2 I til. Tlu' rc|'if- ', was tnu', on tlii> and if lie is to bt ojicrty nndcr false (111 iJiaii llie ropre- lic picli of a large (1 .sliii> tlie cattle to :y in holding sntli se jirotenscs relied list relate to a past imetliing to happen riie representation related to an event or assurance of a 'fore, compelled to lit. and in the war- 00 in cnrrcncy and therein stated, and ig of the examining Snyder "guilty ns ) ioga\ authority for > discharged. It is, d turpitu0, liecansi' tliere is nothing ill the proceedings before tin- niagisliate, or in this cuiiit, to |)re\'ovem- lier, and to shed hght u|ton the intent of Snyder. That the force of this decision may not be misconstrued, wo may proj.erlysay, that the evidence shows there was no culliision between the lirm of Painter & Son and Snyder, and that the imrchase of the catth- by Syduer of (Wasscock on the morning of the 2.'>lh was made in good faith. It is evidenl, however, that Snyder jiever intended to ship any of the cattle to Paiiiler & Son, and all his stalemeiita to that effect were in pursuance of his scheme to successfully carry out his fraudu- lent purpose. Let the jietitioner be discharged, .vli the justices concurring. FALSE PRETENSES— TRlJTil OK PRP:TKNSE — EVIDENCE. State v. Lukcii. [r, WcstC. Rep. 110], In the Supreme Court of California, 1S85. In a Criminal Proaecution for Obtainlnfr Money under false preteneeB, where the alleged laleo prclenBO consiKts in rfpresenling as gcnulno a note which had bcfii forged by the dofendaiit, cvulenctMlint llicdefciidmit signed the iuiiucn of the parties tu the note with their consent is admissible. If the note was so signed it was not a for- gery. Appeal from Lane County. Tlie opinion states the facts, W. Ii. Willies, for the appellant. J. W. Hamilton, District Attorney, and Geo. S. Washburne, for the respondent. Lord, J. The defendant was indicted, tried and convicted for ob- taining goods under false pretenses. The criminal code provides that " upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing, but It)() ll;\l n AM) KAI-Hi; I'Ur.TKXSKS. H.icl. nrcton'^c, or soinr ....f or moinoran.Unn thoroof. must l.o in writing, an.l .itluT siihscriluM l.v, or in tl.o l.anilwrilin- «f thr d.f.n.lant The Hnl..tam.o of tl.. ull.-a.ion i<. U.at the dof.mlant, mU.m .nj; (o cl.r.tt an,J drfraiul I'lu.l.o H. Kin.ey of Irt n.on. y au.l property, fals.lv an.l feloniously .r.l prelen.l an.l represent tliut a certain instrnmeut u. writing, purpo^tin^' to he a promissory note, was the gennine proinis- Hurv m.tcof l.ur.h Bro.., A. 11. Spare, an.l Samuel D.Ilard; that >.■ two 8i.'natnr..s to the said note purporting to be the si-naturo. of the sai.l Spare an.l DiUar.l, were the true an.l genuine si.rnatur..H of the saM Spare and Dillar.l ami that t'u- sai.l Spare an.l Dillar.l ha.l signed th. sai.l note as seeurity f.-r the payment of the same, when in truth an. fMet, the sai.l m.te, purporting to be the m.te of Lureh Ur..s. an.l si.rucd bv the sai.l Spare an.l Dillar.l, was n..t the genuine note of th.' said Spare an.l Dillar.l, or eith.-r of them, nor their true or genuine si.rnatur.'s, or either of them, but were forgeri.-s, which fact the Haul defendant well km.w, etc., * • * l,y im>ans of which saul false nrctenso ami pretenses the sai.l .lef.Mulant di.l then «>»l. '';7';-'^;- unlawfully, knowingly and feloni.,usly obtain from the .sai.l 1 h.ebe K Kins.'V, liine hun.be.l .l..llara, etc., with the intent to cheat and defrau.l the sai.l Ph.ebe B. Kinsey of her goods and money. ^ Bv the bill of exceptions, it appears that the State, to maintain the iss,.; np..n its part, called as a witness, Mrs. I'h.ebc B. Kinsey, who testiiie.1 that on December 15, 1S:'.:5, Mr. Washbnrne, her agent ami attorney, cam.- to her house will, the d.fendant, and saul that the defen.lant wanted to borrow nine hundivd dollars; that she asked Mr Washburne what security the defen.lant oul.l give, and he saul he coul.l give the note of Lurch Bros., with Samuel Dillard and A. 1 . Spare as security The W'ncss was th.Mi aske.l wh.^t the defendant Lurch sai. to her in regar.l to getting Dillar.l and Spare to sign the note, an.l answ..re.l, that he t..l.l me that he woul.l take the note to Cottage Urovc, and have it signed by Dillard an.l Spare, and return it next Monday. This was on Saturday. V/ i hburne being calle.l, testified in substance, that the def.-n.lant came u, h •, ollice an.l wanted to borrow seven hun- died .lollars t.> nine hu...ln«.l; that he tol.l him that Mrs. Kinsey ha. some m..ney to L.an. ur.-i .hat tlu-y went to see her, and that she sai.l that she woul.l let the def.-ndant have the money, if I approved of the securitv I5cing aske.l what security the defen.lant said he could give ihe witness answer.-.l that the defendant said he could give Spare and Dillard He was then aske.l wh.at did Lurch say at the time in regar. to gettin- Spare and Dillard to sign the n..te themselves, and answered that the defendant said that he would take the noto to Cottage Grove 1 Code. sec. 173, p. 362. STATK r. MUCH. Ifil must 1(0 in writing, II' (li-fiiiclant.' iidant, iiiU'iidin^ (o 11(1 [iropiTty, fiilsilv ■rtnin instninioul in lie liciiuino proinis- •l Dilliird; that tlu' Hs sij^iiiituiea of the LrnuturL'S of the said Hard liad signed tlif ■, wlii'ii ill trutli and f Liinli UroH., und irOIlllilU! notl- of till' I'ir true or fronuim- which fact the said of whicli said false 1011 and thiTO, etc., 11 the .said rhu'be B. ,o cheat and defraud tato, to maintain the ii'hc B. Kinsey, who urne, her agent and ;, and said that the ; that she asked Mr. , and lie said he could I and A. H. Spare as lefendant Lurch said o sign the note, and ote to Cottage Grove, turn it next Monday. testified in substance, to borrow seven hun- that Mrs. Kinsey haliysical a( tof writing the names was not theirs, it became so by tlieir direction, (dusint and authority, and was in legal effect, their signatures. Their (lireclion to sign their names was a sigi^ing by them, and in such case tlie sitrnatures would not be forgeries, nor the note si)urioiis. It is not a f:dse writing, i>ut a genuine note. And, if this be true, the defend- ant gave to Mrs. Kins.y tl^e s^-curity which he represented to her that he could procure, and upon which she parted with her money. The ."^tatc had deemed it material to prove that the defendant had no author- ity from Spare or Dillard, or either of them, to sign their names, and if 3 Dkkexcks. 11 1,;2 rUAUD AND TALSK I'KETKNSES. it was. wl.y should not the .Icfe.uUu.l be allowecnt value an.ply to secure the sum of $..no. I u mort"a».o, .1 .s immaterial that the respondent represen.e.l the real estate much more valuable than .t aetually wa-'. il. ib.l to,.-or.r,, ».. .ub)..l lo ,„...r ll»..l.u, which d... ... «. •!.."> ••" describe them, is insufBcient. , ,.. . 4. Bepre.eatatioa. of Future EvenU are not false preten.e.. which mu.t be existing fai'ts. BvsKiuK, J. The appellant was indicted in the court below obtaining propertv by false pretenses. The indictment cmta.ns ^ counts, which, as to the false pretenses charge.l, arc nearly ide cal. The ap,>ellaut moved to autliorizftl hy them, and had represented he woull > intent of connnittino unoertiiiii and IndcOnite. otal.'iliO mortgage, whore the pre gage was worth Jii.WH), iin allegation lent. The indictment shoiiia fh"" o secure the sum of I-VIO. It ieoiu. le of a mortgage, if the real e.-.tat.' nply to secure the 8um due on Hie resen'.ed the real estate to be very le of a mortgage, where the pretense Rubject to any prior liens, an allc)t.i l)ut which does not set them out or ne preten»e». which must be »» to ted in tlie court below for The indictment contains two t charged, are nearly identi- 1 count, but this motion was oviiTuled, and he excepted, lie pleaded not jiuilty, and was tiic(l by :i jiii V and was found miiity. Tiie cnmt nvcrriilcd tiic niolioiis in aric^t nf iu(l>:nit'iit and fi»r a iic.v trial, to whicli exceptions were taken, -hidg- iiu'ut was rendered on tlie verdict. The ai-.i'.f'.'.r.iit has a'siy:in'il fur error, tiie overrulinart3' a certain i)iece of re:il estate, to wit, a house and lot of "rround, situated in the city of liidianapoii.i, in tlie county of Marion, ill the State of Indiana, for a larj^e sum, to wit, the siim of thirty-five liuiulred dollars; that said real estate was of great value, ami fully wnrth the said sum of tiiirly-live hundred i Robert II. Keller, uiion the purchase-money of said Imuse and lot of ground so sold as aforesaid, the sum of live hundred (InlJars, and th.at there was no lieu or incumbrance on said house or lot (if !,'rounil except the said lien of five hundred dollars, f.)r the purchase- money thereof, due the said Rol)ert II. Keller, as afmesaid, ami that if tlie said (leorge \V. Boyer would sell and deliver to the said Robert II. Ivllor, goods, chattels and property to the amount of live hundied 'iolhirs, he, the said Robert II. Keller, would pay the said George W. Hoyer therefor, in and with a promissory note given and being for the said ■-inn of five hundred tlollars, the purchase-money due the said Roliert II. Iveller, upon the said house and lot of ground as aforesaid, and ti) 111' made payable to the said George W. Boyer, on the 1st day of March, ill the year 1H7.J, and secured by a mortgage upon said hoii-e and lot of gnniud, and that the said lien of five hundred dollars, fur the imrchase-inoney for the said honse and lot of ground, anf the first error assign.-d. The Hrst count in the indictment has been set out, and as it is quite lengthy, we will summari/e its averments and negations. ^m KKLLEIl V. STATE. \\\:* \ purchase-money :is ^\ to the said Geor<;.' , the sum of five hun- md there made to the 'ller. us aforesaid, he, th intent to cheat ami lly and feh^niously ol)- , tlie foHowing I'AI.SK PUKTKNSKS. lowed l)v a stiiU'inent thai tlic apiull.'uit had owno(l and recently sold lot -Jr, in Yundes' sulidivision of oullot No. I2H, in tiie eity, county and State aforesaid, and that the representations relied upon were made in refereiiee to such property. If the name of the purchaser of such lot was known to the grand jury, it slituld have been stated, but if unknown, that fact should have been averred. Tlio negation to the first averment is as follows: — '• Whereas, in truth and in fact, the said Robert H. Keller \\nd not then recently sold to a certain party a certain piece of real estate, to wit, a hi>use and lot of {rnnind situate in the city of Indianapolis, in the county of Marion, and Stale of Indiana, for a large sum of money, to wit, for the sum of thirty-five hundred dollars as aforesaid, and thai said liouse and lot of ground wore not then of the value of, or worth thirty-five hundred dollars." By the above averment and negation, the guilt of the appellant is made to de|)end upon the question whether the house and lot of ground had been sold to a certain party for the exact sum of thirty-five hundred dollars, and whether they were worth that exact sum, when it should have been nuide to depend ujion whether the appellant had sold said house and lot of ground to any i)erson for said smn, and whether the property was of sucii v.alue as to amply secure said sura of five hundred dollars alleged to be due. The sec Mid averment is, that appellant represented that said real estate was of the value of thirty-five humlred dollars. It is contt nded by counsel for appellant that a statement of the value of property is a mere expression of opinion or judgment, about which men may hon- estly differ, and if there is no fixed market value, an estimate that is too liiixh will not constiute a criminal false pretense. The question discussed by counsel does not squarely arise upon the averment in tlie indictment, and hence we do not consider or decide the question, preferring to wait until it arises on the evidence or instruc- ti be given upon ipon the party. without any averment or notice in llie indictment of the fact sought to lie proved.' The llfth averment and its negation are sufficient. The sixth relates to a future event, and can not constitute a criminal false preti'use. Hishop, in section 1-20 of his Criminal Law,- says: — '• And l)olh in the nature of things, and in actual adjudication, the doctrine is, tluil no rt'presentalion of a future event, wiiether in the form of a promise or not, can be a pretense, within tlie statute, for the pretense nuisl relate either tj the past or to tiie present." •' Although some of the averments are sufficient, yet. standing alone and disconnectt'd willi other averments, they are not sufficient to con- stitute a good indictment. There is a direct re|)ugnancy in the averments of tiie indictment, wiiich renders it fatally defective. It is alleged *' that if the said (ieorge AV. Boyer would sell and deliver to the said Robert 11. Keller, goods, eiiattels and property to the amount of live hiindnd dollars, he, the s:iid Robert H. Keller, would pay the said (Jeorge W. IJoyer therefor, ill a promissory note, given and being for the said sum of five hundred dollars, the purchase-money due the said Robert II. Keller upon the said house and lot of ground, ns aforesaid, and to be maile i)ayable to tiie said George W. Boyer on tiie first day of March, in the year 1876, ami secured l>y mortgage upon said house and lot of ground," etc. It is alleged that Keller was to pay Boyer in a note given and being for the saiii piirdiase-money, and it is tlien averred tiiat said note is to l>e made payable to tiie said Boyer, and secured by a mortgage upon said ri'al estate. In State v. Lorke,'* the indictment was hv.UX bad be- cause it chaigcd that the i)retcnse was made to induce Kiser to become llie security of Locke, on a si\ hundred dollar note, but that, instead of going security, he became a principal, and made a note for six hundred dollars payable to Locke, The indictment was held ambiguous and uncertain, and an indictment must be direct and certain, as it regards the party and the offense charged."' It is a settled rule of criminal pleading, that the offense charged must be proved in substaiue as charged. This can not be done in the averment under examination. The two averments are directly rei>iig- iiant. Both can not be true. The facts of the case are not directly stated. It is averred that the note for five hundred dollars had been given to Keller, ami was secun'd by mortgage. It was shown upon the trial that, at the lime the representations were ma.le. Keller had 1 People V. Miller, ! Park. O. C. 197. 8 vol. 2, p. 2.10. 3 See Jones v. Statu, 50 Ind. 473, and authoritcH there cited. < 35 ind. 41?. ' Whitney r. State, 10 Ind. 4W ; Walker ». Stale, 211 /'/. fil ; Hii'kneirs Cr. Pr. 80, 93, 'J4 ; Stiito f. I^cke, lujira; Com. v. Magowan, I Mete. (Ky.) 3l<)W to sustain the motion to »H it use the temu elf of lilt' slat ale ol u A Demurrer to an Indictment may 1)0 withdrawn by the defendant, by pcrmlBsion of »..■ .-...nt, after the court has intimated an opinion that .t ought to be overruU-d. but before Judgment. Tiie defendant in tliis case was arrested on tlie 1st of May, 18'2'.>, in riiiladeli)hi!i, by a warinnt IssulmI at the instanee of the TTnitid States, upon an allidiiVit ma.le bef: le a justice of the peaco in Washington, I). C, by Mr. Amos Kendall, wlio, on the 2M\ of Mareii, lH-_".), was :ippoiiiti KAI.SK I'RETF.NSES. the iMirpnso aiKl intt-nt of pluciiif; in tlie liands of tlio aiiid J. K. raui.linjt, navy aLT.-nt as af(Mvsai.l. ll.c sum of gl.OOOof the mont-ys of the riiitni Stalls, which n(iuisitu.n is in the wonls and li00 h.' wouUrreeeive Sl.dOO under the appropriation for the payment of ' ar-enraues-), and on the 2Mi of July, lH-.>7, drew again nu J. K. P. for S.^oo" and sold the draft to T-owler for $oOO, which he (T. W.) kept and disposed of for his own use, and wrote another letter of adviee of that date to S. K. T., and directed him to charge it to ' arrearages.' "That the said letters and drafts so as aforesaid written and sent, and drawn and sold as aforcMiid, and th.e said reiiuisilion caused and procured to be issued as aforesaid, were, and each of them was so written, drawn an.l sold, and caused and procured to be issued without any authority therefor, ami not for or on account of the public service, t)ut for the private gain and benefit cf the said Tobias Watkins, and with intent to defraud the said United States, and as false pretenses to i-nable him to obtain to his own use and benefit the said two sums of $'>00 each ; and that by means of the said several false pretenses, the said Tol)iaa Watkins did, at the time and times aforesaid, defraud the said United States of the said two sums of 8.")00 each, and dispose of tlu> same to his own use and benefit, to the great damage of the United States, and against the peace and government thereof." The second count in the same indictment charges a similar transaction to the amount of 87.-.0 in January, 1H-J«, and contains an additional averment that the draft on J. K. P.. in this count mentioned, was paid »)y him; and tliat the recpiisitipn was procured by the said T.W "ostensibly for the public service, but falsely and witiiont authority" for 81'-',*^H<).12, exceeding the sum for which J. K. P. had asked a re(iuisition by the sum of $7r)0, " which sum of $-;>() was by the false suggi'stion and procurement of the said Tobias Watkins. acWed to tli.- aniinint rcquirc' Mr. Southard, 'rousury to issiii or $!.l»(»(), to l)> 1 for " arrearages )0n of the money-- a J. K. rauhling. te and addreisaed, I'tli r in tlie words istead of 8;'>00 Iw ■ the payment of again on J. K. 1*. Yhich he(T. W.) another letter of I to eiiarge it to I written and sent, lisition caused and h of tliem was so I be issued without the puhUc service, )l)ias AVatkins, and i false pretenses to the said two sums al false pretenses, aforesaid, defraud ) each, and dispose reat damage of the it thereof." I similar transaction tains an additional lentioned, was paid by tlie said T. W. witiiout autliority" K. 1'. had asked a ■50 was hy tlie falsi' itkins, added to tlx' purpose and intent avy agent as afore- lited States, to meet the payment of tlie ssiid draft so made and sold as aforesaid to the said (". S. Kowlcr, which recjuisition is in the words and figures following, to wit," etc. The averment of false pretences is exactly like that in the former count. Tlie second indictment charged a similar transaction with Mr. Harris, ;i navy agent in Hoston, to the amount of 82,0(»(), with similar aver- ments, and tl'.at the drafts were paid by Mr. Harris. 'J'wo of the drafts were in favor of Tlumias I'ottinger, and there is an averment that the indorsements of the name of I'ottinger were cither genuine, for the aieonimodation of the said Tobias Watkius, or were falsely made by the said Watkins. There is also an averment that Mr. Harris sent his regular quarterly a!)stiact of expenditures (containing three charges of three drafts of Wiitkins) to tlie said T. AV. as Fourth Auditor, " who was the proper ()t!k('r to receive the same ; and that the said Watkins, having received the same, the said Watkins, in pursuance of his said fraudulent intent to deceive and defraud the United States, and to consummate his said fraud, and to cover and conceal the same, that he might thereby be .iial.ied to keep to his own use the moneys he had obtained by means of the said drafts, and thereby to defraud the United States, did after- wards, to wit," etc., " falsely and fraudulently alter the said abstract l.y .rasing therefrom the words, ' T. Watkins,' ' Draft,' ' Do. of $500,' • Do., Do.,' opposite to the dates September 1st, lOth, and 20th, pre- fix. d to the aforesaid three items in the said abstract, under the head nf • arrearages prior to 1827,' hereinbefore set out with intent to defraud liie United States." "And the said letters and drafts, so as aforesaid written and sent and drawn and sold and paiil as aforesaid, and the said requisition caused and procured to be issued as aforesaid, were, and each of them was so written, sent, drawn and sold, and caused and procured to be issued as aforesaid, witiiout any authority therefor, and not for or on account of the public service, but for the private gain and benefit of the said T. W., and that the same were made and done and pro- cured, and also the erasure of tlie said abstract made and done, with intent to defraud the said United States, and as false pretenses, to eiiahle him to obtain and keep to his own use and benefit," etc., as at the conclusion of the first indictment. Ui!\N( II, C. J. The substance of the first indictment is. that Tobias Watkins, being Fourth Auditor of the Treasury of the United States, iirid intending fraudulently to obtain, for his own use, money of the I'nitcd States, falsely and faudulently, wrote a letter to J. K. Pauld- ing, a navy agent of the United States, advising him of liis (T. W.'s) ■■■iM 1 FKAll* AM) FAI.SK I'llKTKNSKS. (Irnft on liim for $.">n(i, to tit- clmrpod to '■ urrt'tiragcs," niul tlmt lie would roifivc ii tnasiiry tlra'ft for the siuiu'. to meet it. That T. W drew Biich a draft and sold it to ('. W. Fowler for, aii()Oeach, and great damage of it thereof." transaction, for oindcr. unt to an indict- Jnited States, as I offenses ; and, uses against the tense, if it bo an r, and not as the lot an indictable iction of Federal •ts could not hold iiirisdiotinn of this cause, because it is not a eriminjil offense against Ihc I'nited States, wiio iiave no criminal common law. And tliat tlie St:ite c lurts couUl not hold jurisdiction of it, because, if it be au offense at all, it is exclusively an offense against the I'liited Stales. 'I'his argument is certainly, at first view, the injury of a citizen of Maryland, or of a foreigner, or of another State, or of a foreign sovcr- ( i-n, or of the United States. If a fraud to the injury of the State of IVnusylvania should be co..imitted in Maryland, it could not be tried in I'liui'-ylvania ; and siiall it be said tliat it is no crime in :M:uylun(l to do ail unlawful act to the injury of Pennsylvania? Wliat is there in tl'c ciicumstances of the transaction to make it a c:\se of exclusive Feikral j irisdiction? Is it because the defendant is stated to have been Fourth Auditur of the Treasury of the United States? lie is not charged with liaviiig done any act in tliat character, or by color of that olTlcu ; nor is lie ehiirged with the violation of any official duty, nor with having made ii-e of his olllce, or olUcial character, to perpetrate the fraud. Is it 1m cause the person upon whom the drafts were, drawn was an otllcer of the United States? That circumstance is i)erfectly immaterial, and can II 't change the nature of the transaction. The fouiulatiou and sub- stince of the offense is fraud, — moral framl, — crimen fuixi ; the tur- IMtude of which is neither incri'ased nor diminished by the circumstances that the draft was drawn by one officer of the United States, and iuiepted by another, neither of them acting in his ofFicial character, nor hy virtue of his otfice. Is it because the fraud was committed by means of a requisition from the Navy Department upon the Treasury of the liiited States? That circumstance iloes not alter the nature of the cffense ; it is still a simple cheat or fraud. Is it because the United Slates is the sufferer by the fraud ? The same answer may be given — the nature of the offense is not thereby altered. We are, therefore, of opinion that there is nothing in the character cf the parties, or in the circumstances of the transaction, which would make it a case of exclusive Federal jurisdiction ; but that if it be, in its 174 niAUU AM> KALSE rUETENSKS. nutiiif. a commoii-lHW offi-iisc, and liaiJ lucii lominitt.-tl in ft State, it niiglil liavf lu.n tii. «1 in a Slati- court, us an (ifft-nse iigain-.t tluit Statf. \\\' thiniv, llKTi'fori', tlial if it hf a cnnnion-law offfiiso, i-onimiltnl in thin .iiuiity. it is witliin tlif juiisdi.tiuii of this t-onrt, wli.)s« coinmon- la»v jiiiiN«lirti..n is dorivi'il from tlif common law of Maryland, wliifii was, by tlie ft-ssion of Maryland and tin- a(Mc|.tani'f of ConjiU'ss. un(' - the i)rovi>ion in the (Oiistitiition of tlic I'nitcd .States, transffrri'd fr Maryland to the I'nit.d States, with that remnant of State sovereif^nty. which, after the adoption of the Fedend Constitntion, was left to Mary- lund. All tlie Slate i.rero>.'ativc wiiiih Maryland enjoyed, under the common law. whieli she adopted, so far ns eoneerned the ceded terri- tory, passed to the liiited Stalis. All the ju.wer which Maryland had. l.y virtue of that commou-Iaw prerogative, to punish, l>y indielment, offeu.lers a.L'iiinst her sovereignty, and to protect that sovereignty, Im- came vested in the Uiiiied States; and authorized them to punish offenders against their sovereignty, and to protect that sovereignty i)y the same means, so far as regarded tin- territory ceded. We tlicrcfore think that, in regard to offt-nses conimitte;! within this pait of the district, the liiited States have a criminal common law, and that this court has a criminal common-law jurisdiction. The next ground of demuner is, that fraud is not an indicta' '> off.nse at common law. unless it he effected l.y means of some puldic token, such as false weights, or measures, or marks; <• means which effect tiie public generally, unless it l)e fraud against the king and the public at large ; and, even then, it is not sutHcient that the king, or the public at large, is the party injured, but the fraud must be effc^eted by means which arc likely to affect the public at large, — means wliich are generally mischievous, such as adulterating provisions, etc. Rut to tliis it was answered, that frauds affecting the public at large, or the public revenue, constitute a distinct class of cases, punishable by indictment, although the fraud be not effected by means of false public tokens, or by forgery, or by conspiracy, nr by any particular sort of means; and this i>osition seems to be supi)orted by i)rinciple and by precedcMits. 1. ny principle. Why are any acts made punishable by public pros- ecution? Because they are acts which, in their nature, are injurious to the public interests.' The interests to be protected by the govern- ment are, the public peace, the public morals, the pul)lic property, and tnc public justice. Why is theft or robbery an offense against the State? Because they lead to a breach of the peace, to violence and bloodshed, in the protection or the recovery of the property stolen. Why are public lewdness and disorderly houses indictable offenses? Because they tend to injure the public moral*, tliey are mischievous to many — to an indefinite number — to the public at large. UNITKI) STATKS '•. \VATKIN8. 175 I'll ii) II State, it ;iiin->t tliiit State. <«', c'oininiltt'il in , whoso cotr.nion- Miuyliinil, wliii'li ' Conjirt'sH, u»(' - tnuisffiri'd fr itiite sovi'ivijinty. wnH U'ft to Mur>- joyi'd, uikUt tilt' I tlie cciU'il ti-rri- •h Maryland liiul, ti, by indictirn'iit, t sovcroigiity, Im- l Mictn to punish at Kovi'ii'ignty ])y [I. initt«>;l williin this comraon law, and ). not an indictn' '" 'ans of some or niari\s ; c fraud against tiie , sullleient tliat tiu- tlie fraud must be at large, — means ig provisions, etc. lie public at large, ses, punishable by ans of false public particular sort of ■ principle and by blc by public pros- Lure, are injurious ti'd by the govern- blic i)roperty, and iffense against the e, to violence and e property stolen, idictable offenses? are mischievous to Why are violations of the public property offenses against the Stntt^ ? Hciiause they immediately afftct. the public interest the interest of an iiidtlhiite number, who can not individually complain - - whose separate interest is not injured, but who, colleetiv»'ly only, are sufferer-*; ai\d wlio, collectively only, have the right to seek redress. Why art^ acts which tend to obstruct t)i« due administration of justice indiclalile (iffiuses? Because they are, in their nature, injurious to the public at Ifirge; for the due adnunist ration of justice is necessary to the protec- lion of all the other great interests of Hocl"ty. To such cases the rule nijiUiHtihns nnn (lonnientibns jiii'd svbritihnif, can notajjply. The pub- lic can not, like an individual, be always v s, • watch If they employ iiginta, those agents may sleej), or, wli:it nny be worse, they may wink; and how can the public watch the winker? The public is <:on- tiiMially exposed to imposition ; and if they trust, it is because they are oliliu'ed to trust. Their conlidcnce is not voluntary, like that of an in- dividual, who may transact his own business. The public can act only liy agents, and can not, therefore, be subjectetl to the rule of watch- fulness. The principle, therefore, which, in transactions between individuals, reciuires, iu order to make the fraud indictable as a pulili' offense, that it sliDuld be committed Ity means of tokens, or false pretenses, or for- ^'iiy, or conspiracy, docs not apply to direct frauds upon the public. 2. This distinction in principle is illustrated by many precedents, wiiiili are collected by the elementar3' writers upon this subject. Kast iu his Pleas of the Crown,' prefaces his collectiou of them by tliis observation : "So all frauds affecting tue Crown, and the pul)lie at !aige, are indictable, though arising out of a particular transaction, or (imtiact with the party. This was admitted by the very terms of the "lijeetion in the following case." He then jjroceeds to give the sub- stance of the indictment in Treoes' Case, from the manuscript notes of -bulge Duller, and the otheV judges. It was for knowingly, willfully, deceitfully, and maliciously furnishing certain French prisoners, whose uiiines were unknown, then being under tlie king's protection in Kast- Wdod IIosi>ita'i, five hundred jjounds of unwholesome bread, wherebj' they became injured in their health, to the great damage of the piis- "iiers, the discredit of the king, the evil example, etc., and against the [leace. The objection was, that it did not appear that what was done was in ^(reach of any contract with the public, or of any moral or civil duty. This objection was overruled, but it did not appear upon w iiat ground; nor is it material, because the case is cited for the principle 1 V- 8-21. r<:e. J7(i FRAUD AM) 1-ALSK TKETENSKS. j aclrnittod in tl.o objection; whici. principle i.:, that if it had been in Jn of a contract .itb the pui>lic, tl.c indictment woul. have be « g ol. It may have been supported upon the prinople winch we a . Ifore assumed, that a fraud, which is to the njury «f ^^ ^^^ n„,nber of persons, who have no -M>-ute ncuvulual c.m^ of ^^m-M U is indictable at con.nu.n law. Such was the case ,n 2 Ch.ttj t m.n.l Law,' acrainst a baker, for delivering bread short n, wc^ht under a contract with the guardians of the poor of ^'onvich, '' to . grea^ ,huna. ind vidually, could not prosecute, unless for separate anon t government, the asylum being u myal n,s„tut>on; (>) that it as to f he injurv of an indetinite nan.ber of children, who were supported at vlun • and (r.) that the means used, namely, selling o unwho.- some biead were such as were likely to injure the public at large, ^o question was made whether it was not an offense at c-unnon hvvv. ^ In Pou-cll's C.se-^ the principle is more clearly recogn.zed by th Supreme Court of Pennsylvania. It was an indictnjen at --mo w a^linst a baker employed by the army of the Unded Sta es, fo, a d <^U rnbakin. two hundred and nineteen barrels of bread, and "-^mg h m .,s wei.dun.^ eightv-eight pounds each, whereas they weighed on >■ mM>- ; d is It was objected that such fraud was not indictable at ^oinr ;:w.- 1.. ^> the ;.ourt said that this was ^^^^^^ ^^^^ the public ; and the fraud the more easily perpetrated since it was tl. j^Tstom o take the barrels of bread at the marked we.ght, w.tho t weighing them ugaiu. The public, indeed, could not, by common pru- 1 pp. K<9, BfiO. i i>. '281 (fJl). ; parish, mny be found In Comb 287; 5 Mod. 179; 2 Camp, 269; 1 Bott. Ui, 5 Nulan's I'oor taws, v!48, 371. .'5 Dekkxcks. * 3 Chit. Hf;K I'KKTKXSKS. rl l.aw.-v.M- t.) tlu" nrosiM.l in.lictiuout, il is not iu- u,c„„..ic. .,.„.,„„. .„„.,,.,„, ,„.,;„,„, ;. W ■■ o.rU,i„ to a «rl„i„ M,t..„t ,„ gc"-" •■ -'' ■"'■" li,.. inil.-,i„l shall lie lalo'l, l).v lntonil„l>'nl. '„, r L „f 7V,. A-...,/ ..»."■».-' ".« "■''<""•"""" «.' ■''■"»" ''Z''' , I, r, •„■.■ ■■ (V,tah,lv, to a ra,!ai„ Inlcnt .„ gc.ral „„■;,„- ;';:;;;, ,',:;L.i:a,i,L,,,.,,iuatio,,.a,.,n --"•,':,;■;::.;;:!:„:; .H( us-ilK.n una in ivtnrns t.. writs of vmndmnm. 1 It chaise acms.itiun, an , ■ j^., that without intending any- , 1, .ir v,T.li.-l n,«l ll,0">„rl i" ll,« j"'lp™"' ""'.v »'■'= <>' S'".' , ,, .T„. o„„iv«oal ll,OV «l,all l»' '»><.■■, „,o»t »i™»g1.V «!-'»,■>* tUo ,,a,l> ", , ., r f„r t il t,. I.e i"U-„>l.,l ll.at ovcy p.'.-". s.atos l,„ ,.a« i"™ '':"," : 1 , 1 aM,o,.n,lo , ..u. II- la.,g"a4e of t„c „l«a,U„g i- :: [ra::a.,„a„i.. .„u.„., „t .... --■!;;:;;;,!",::::;„:: :m 1' Sll 1 , rni a Sfui^s to the neeount of Mr. PuuhUng, who is respons.ble 1 ,.r.n ciiffpr no loss; and. tneieiori, u 'I'lj a„,loa,»uffo,, „».o „„,, „„t „,,o„ the r„it,-a Stales. "'" ;••„,' ,: r Sr t" ,.a" it r:' .., e„a,.e„ t., M. V.^^,: 12Ha,vk.r.r..<-l,.2.sKef. .U.;I»«}anlr. Mali-oiH.2 '•-'"''• *•'• 3U«r.Horne.Cowp.C.:.l Clut. «n I 1. 337. 4 V. vnt .'. Alanil, 1 !«nlk. K.'.; King r sioi.bei.b nn.l olhorH,.'.Ku^t.ift7; AmlitM>i r. SUInm'r, 12 KaM, 270, antl Woolrotll .. Meadti« f, i Eatt, 41^. UMTKI) STATKS '•. W.M'KINS. 171> ot lu'fcssary t" lilu' siitlk'iciit iilly si't forth :i )untry, every in- ; " and " uotli- ym>i liegif,' M"- . n uentTiil incun^ J railed fcituiii. r; ami is what i- in the charge or 'I'he charge m\\>\ It intending any- he is to answer, iiry may be war- icy are to give." ' crything shall lie rather, that if the against the i)arty on states his ca.'-e of the pleading \> ind where an ex- 3 taken which will vonld defeat it.'" ' any fraud is sutli- the public. loney was charged who is responsible lited States, which t, as Mr. Taulding Ihey have suffered. was committed, ii lited States, ired, that it is not hUoMf. rauldiug: " as navy agent; ' ,ii, 1 Salt. K'l; King i- .TH,."! Kui-t, -JST; Amiieif! It, J70, ami Woolrotb '■ ;md there is nothing stated in the indictment to show that it ceased to f public money in his hands. r.y t'le fourth section of the Act of Congress of tlie ;id of .March, isn;i.' the navy age'its are directed, "whenever practicable, to keen the iiMic moneys in their hands in some incorporated bank, to be desigualetl fur the purpose by the President of the I'nUed States." Tills clearly shows that the umlerstanding of the Legislature wa.s. ;li;il the money, when it came into the hands of the agent, did not ceiise !i) he public money ; and that if it should be lost without any negligence or fault of tiie agent, it would not be h\< loss, but that nf the I'liited Sillies; and if the money should have been charged t) him in account, we must suppose that under such circumstances the United States would credit him for the loss. It has tieeii suggested, on the part of the accused, that he is only iiiil'le to the Tnited States in a civil action for the money which he re- ceived. But if he is so liable, it must 1)e upon the ground that the money which he received was the money of the United States. If Mr. I'rmldiug was induced to pay these drafts by such artful contrivance, or false pretenses or tokens as could not be guarded against by ordinary care and iiriidence, the United States might , very justly, allow him credit f>'r the loss ; and as the loss in that case wo-.ild fall on the United States, it would be a fraud on the i>.ihlic ; and how would it he less a fraud ui"in the public if Mr. J'aulding was not so deceived and imposed upon, !iut jtaiil the drafts, knowingthat the accused hfld no right to draw? It ciHild not have been less a fraud upon the United States if others had participated in it. For these reasons we think that the money drawn by the accused, out of the hands of Mr. Paulding, was the money of the United States; iuid. tlierefore. that the fraud, if any, was a fraud upon the public. The next fjuestion is, whether the fraud be sulHciently set forth in the indictment. An indictment must be at least as certain and precise as a special verdict, in which no material fact can be inferred. This indictment is undoubtedly intended to be for a fraud, and ought to aver the means by which the fraud was effected. This is admitted liy the terms of the indictment; for it avers "that by means of the .-aid several false pretenses, the said Tobias Watkins diil, at tlie time and times aforesaid, defraud the said United States of the said two >uins of five hundred dollars each, and dispose of the same to his own ii>e and benefit, to the great damage of the United States, and against the (leuce and government thereof." 1 estate, at LarKe.SS."). 1^,, KKAUI) AM> 1-ALSK. PUKTKNSKS. The Offense, therefore, which the accused is called "P^"^'; --"- is a f.au in the i.uUetment; yet there ,s not. n bo r l^t'Jf theindiefnent. any -iirect ^^"^^^^ ^^^X:^;::^^ true or f -dse. U is true that t here is a preceding averment that tl e sn, tte s an^ iratts. so as aforesaid written and sent and drawn and sold ,;r::::!l an. procured to he iss 1 as l^^-^J;;;:- J ^ rl i;;: ::i!.s^aise pretenses to ena.>le hin. to ohtain to h. own use and ,H.„efit the said two sun.s of five humlred dollars each But it do..s not state what the pretense was. It does not tat. t. ,„„,ts .,.,■.. ..ra.n "I -' '< ! ;,,„ t» Ccahu,' .vHbo„t .uU.-r- ':" " or' •>. ;e t t orc'n,,. ....no f... ... ...cunt of ,l.e H.li. ' • 1 „ ;^/ e p.iv.Te gain »i"l '"■'"■«' »' '"« "■"'"■■''• "'"' '"" ir'a :;'.::.'„;;:/.;; r:o.t «... ... .-».. --^-'j'y «»;^-j- le ct, or to .lra« l..o .Irat.s. o.- to oWain .no re.|...»it.on, or t.,.t Ihcj .^Jt n yVfo tl- 1>'1>1'^' service, hut falsely and without authont> , ;irr,;,nt' to «" ^'lo... t„at .. -.,.., .ro...., or .«r.o. « tbo Soorolarv of ll,o Navy, or ... a..,v .....or o."f« »' ""^ t*"? ""' ^orc drawn and sold, and the requisiUon was ohtained, as P '"nTe word ''as" means like -not the thin, itself, but somcth.np * f J t Ua if t were to be construed as an averment that the lette.s ;rif":i:a l requisition ;^^--n-:;tr=:: such false pretenses, the accused ^^'*'-^"^^^^\!^*^.^'^ ''' r^,,^ ;^,rmcnt UNITED STATES ?,'. WATKINS. 181 upon to answer, of the false piv- ori' is not. intbo ■ pretense, eitliiT lit "that the said drawn and sold, rorc and ouch of I'd and prooured •for, and not for I gain and benefit raud the United ) his own use and Iocs not state thut ly. If there was tzc this averment, •llten without au- ty. 3d. Thattlu- cy were sold with- L'd without author- jount of the public accused, and witli verred that the ac- )rity to write those sition, or that they his own use. ctmcnt, that he did without authority, rtnicut a certain re- public service" do •nded or affirmed to f the Navy Depart- sent, and the draft^ incd, as " false pre- tself, but something nent that the lette.s, cs, and by means of nited States, such an tain. The averment pretended was false ; and wherein and in what particular it was false. The gist of the crime is the falsehood of the pretense; and it is therefore necessury tliat it ^llould be made apparent upon the face of tiie indictment by positive :ind precise averments. This rule is supported by many authorities. One only will be cited. It is in the case of Rex v. I'vrroH.^ It is true, that this wsis an indict- ment upon the statute of ;5() (George II;- but the statute does not i.(liiire that the pretenses sliould bo particidariy set out, nor specifl- oaliy negatived, the words of the statute being merely these: "That all persons who knowingly or designedly, by false pretense or pre- tenses, shall obtain from any person or i)ersons, mimey, goods, wares, or merchandises, with intent to cheat or defraud any person or i)erson3 of the same,"' " shall be deemed offenders against the law and tlie i.ub- lie peace," and shall be punished by tine, imprisonment, pillory, whip- jiiu^. or transoortalion, etc. Hut the juogment of the court was only an application of a general rule in regard to all indiitments, whether upon a statute or the com- mon law. Tlie indictment aveiTed that the «lefendant, intending " to cheat and defraud one Bullen of his moneys," etc., " unlawfully, wickedly, know- in^'ly, and designedly, did falsely pretend to the said Bullen, that he, tlie defendant, could olitain a protection for Bulkn l)y favor of the Lords of the Admiralty, by feeing tlie clerks, as he had an uncle a Lord of the Admiralty, and that it would be no great expense, as he could get it done through favor," etc., " by means of which said sev- eral false pretenses," the defendant obtained the money, etc. The cause was brought up from the assizes to the King's Bench by writ of error; and the error assigned was, that there was no averment to fals- ify the matters of the several pretenses set forth in the indictment, by wliieh it could appear to the court, upon the face of the indictment, thit any or either of the pretenses alleged was false and untrue. Lord Kli.nborough, la delivering his opinion, said: " Every indictment (lujrht to be 80 framed as to convey to the party charged a certain knowledge of the crime inii)Uted to him." " To state merely the whole of the false pretense, is to state a matter generally combined iA some triiih as well as falsehood. It hardly ever happens that it is unac. companied by some truth. Suppose the offense, instead of being com- lirisid within five or six separate matters of pretense, as here, had lirauc!u' i Mau. & 8el. 370. i ch. 24. \H2 fi;ai I) AM> 1 •M>i'' rKiyrKNsi>. f.M,.lunt is to propure to acfei.l himself i^uinst tl.c whole: ll.ut «ouhl !..• .■ontnu-v to tlu< phvin sons, of ll>c pn.oo.di..^, which re.pMn s th-a th.. fahric.-.tina should U. api.li.'lic:U..l transaction, parts of which only are ,neant to he in.p.-aohed ..f falsehood. It has been argued that perhaps everv one of these ehar,'es may be false ; but the ruhs as ,t has been derived from cases of a n>ixed nature, where part .s true and pa, false,has introduced a course of separating, by speciho aver.nents, all that which is intended to be relied upon as false. The analogy of the crime of perjury is so strict, and justice also suggests the same and I think it should be speeilieally announced to the party, by distinct ave - „K.n-,s. what the precise charge is. It has always l)een done in .nd.et- nuM.ts for ohtaining money by false pretenses: and whenever a more ..nerd form of indictment has come under consideration it has nut Tnet with countenance; but the eourt as in /?...• v. 3/.. .so., have repro- bated it. If it were good, every man might be l,rought into court w th- <,„t tu.v possibility of knowing how to defend him.- » >\''"« "'^ 1 e lihuic, in tl>e "same case said: -The argument Is, Inat alleging th:a the defendant did falsely pretend, etc.. etc., generally, and in a lump is e.,uivalent to averment that each of tlu.se pretenses was false. But a .nimher of pretenses m:iy consist of some facts which are true and .omc false • and it is a neeessary rule in framing indictments, not only that the offense should be truly described, but that it should be described m such u manner as to give the party indic:Ued, notice of the charge. Therefore, when a party is charged with obtaining money under false pretenses, the indictment ought to st:ite iu what par.icuhir such pre- tenses are fabe. lb-re it is eharged in the first c un.t, that the defend. a,U did falsely preteml "that he could obtain a protection from the Lor.ls . f the Admir:dty. by feeing the clerk, as he had an uncle, a onl. „ul that .t wouUl be no great expense." " Now, that - M)- ense consisting of several facts, part of which may be true, -'M- ^ ^ > • It nK.y b: true, that he h:ul an uncle, a Lonl of the Admiralty ; but if h. had, it does not follow that the rest m:,y not he true; therefore the iii- dietment sliould have charged what part was false, This case shows that, aecording to the general rule of certainty appli- cable to indictments, the particular pretenses must be set forth, and .t must l)e averred in what particulars they were false. rXlTKI) STATKS V. WATKINS. 183 whole? Tliiil wliifli reqiiiri'H tiling to be faU- Iso of nmukiiui );\rt of llio duly ■l\ai'j;e should ho ; is to coiuo inv- inidst the eonfti- ts of wliieh only ■on argued, thiil lie ruli', its it has is true and pari io avernnnls, all ' analogy of the s the same, and I by distinct uver- .•n done in iudiit- whenevcr a more ration, it has nut >(.so»), have repro- it inf'» court wilh- Mr. Justiie liiat alleging thai y. and in a lump was false. But a ire true, and .-.onic •nts, not only that lid be described in i-e of the charge, noney under false .rtioular such prc- t, that the defend, irotection from tho d an uncle, a lord. that is a pretense rue, and part false, clmiralty ; but if he ; ; therefore the in- ■ of certainty appli- be set forth, and it \Vc are. therefore, of opinion that this can not be sustained as an in- ■ lirtiiient for a fraud or cheat by false jjretfnses. Hut ii has been contended that it is a good indictment for a forgery ■a'- common hnv. riic forgery, it is said, consists in having " ostensibly for the public ..rvice. but falsely, ami without authority, caused and procured to be i,Mi.d from the Navy D.partment of the United States," the recpiisition >, 1 forth in the indictment. II is a .sulllrient answer t.. this idea to say that the indictment itself nlniitsitto be a true re(|ui.-iti()ii. and contains no allegatu)n that the (i, Icmlant forired and counterfeited it. riie second count does not vary, substantially, in point of law, from till' first, rpon the wliole, the Judgment of the court upon this demurrer, must li.' for the defendant. The indictment upon the transaction with Mr. Harris differs, in mat- ter of law, from that upon the transaction with Mr. Paulding, in tlie ! ,,■ following particulars only, namely : — 1st. That it avers that two of the drafts drawn by the defendant i; Mill Mr. Harris were drawn in favor of a certain Thomas IJ. I'ottinger, :, ,1 sold by the defendant with the indorsements thereon of the said IMtinger, to C. S. Fowler, and " that the indorsements of the said I'.ttinrrer'on the said drafts, were cither the genuine indorsements of tie said Tottinger, made thereon by him for the accommodation, and at t le request of "the said Watkins, and without any interest of the said I'.Uinger therein ; or were falsely made thereon by the said Watkins." ill. That it avers that Mr. Harris, being navy agent, on the :?Othof ^Hiteinber. 1.H27, at Boston, "made out his abstract of expenditures :.. such ntivy agent, as recpiired by the rules and orders of the Navy !.,|.artmentof the United States, for the third quarter of that year, .Miling on the said :5i)tli of Septemlier ; which abstract contained, among ni:m-/other charges of expenditures as aforesaid, the foUowing three i:,!ns and charges, uniler the head of arrearages prior to 1827: — li'iT. Sept. 1, ir.M. " 10, If.'.i. " 22, Watkins do do draft do of 8500 do $.")00 491»..'j0 r>oo 81,299.50 uhieh abstract is set forth in words and figures; and it is further :.M rrcd that the drafts referred to in the said three items were the drafts . tnic charged to have been drawn in favor of C. S. Fowler. file indiamcnt then proceeds thus: "And the said Harris, having •: iiisraiticd tho sai'd abstract to the said Watkins, as Fourth Auditor of 184 KUAII) AND VALSK VKKTKNSKS. the Troasurv of tlu- Inite.l Slatos. who was tl.o proper olli-.r to rocnv. „K- Hu,.u., llu. sai.l Watkins, in purs..am-. of his sai.l fra.uh.hM.t .nt.-,. to docoiv.. an.l .U-fra.., that he nn^rht thereby h.- .nat>l..a to ke..p to his o.n us.., the m..Meys he ha.l ohta.Me.l >v uu-aus of the sai.l drafts, and tlu-nl-y to defraud the Vnite-l States, .hd, after- wards, to wit, on the .lay an.l year af..resaid. at the eonnty aforesa,.!. falsely an.l frandnh-utiy alter the said abstract, hy eras.ng therefrom the words : — ■\\ Watkius .Iraft Jo .lo of f.'jUO. do «1" opposite to the said .lates ..f September 1st, Dth, an.l 22.1, prefixcl to the af.>resai.l three ite.ns an.l ehar^es in the sa.d abstraet nn.ler 1 e head of arr..arafjes prior to 1827, hereinbefore set ont. w>th .ntent t., defraud the United States." An.l there i. a sv.bsequent averment, that the letters, .Irafts an. requisition, " and also the erast.re ..f the said abstract were made an.l dol.e with intent to defrat^d the TniUMl States, an ..f 82.000, and d.spose of tin- same oh own use and benetlt. to the great damage of the United States, and against the peace and government thereof." The averment respecting the indorsement of Mr. Pottmger, seems to be wholly immaterial to the charge contained in this indictment which, like that in the ..thcr in.lictment, is f..r obtaining money by false pre- tenses, an.l there is no fal.se pretense allege.l in regard to that nulorse. ment. Bnt if it were material, its alternative form would render it nerfectly nu-atory. It is an averment that it was made either by Mr. Pottinger, or" Mr. Watkins, without fixing it u,.on either This aver- mcHt has no connection with the charge, and may be considered as mere '"SeTrlisure of part of the abstract is charged to have been done by the defendant as a false pretense for obtaining the money for his own use. The i.idietment Itself shows this to be impossible, b.^-ause U shows that the money was obtaine.l before the erasure was made. Bn Tulso averred, Uiat it was done by the defendant to enable him . keep the money to his own use. But the offense charged .8 not the keeping the money, but the obtaining it by false pretenses. The erasure, however, is also averro*! to have been made with intent UNITKI) STVTKS {'. WATKINrt. IH^ olli<'«r to roocivf fr:iiuliil«Mit intent ) iMnissinnmatc liii iiii;ilit lliori'by lit- (luiiiod by meiin^ Ntatfs, (U<1, aftfi- (■oiiiity aforcsiiiil. rusinj; tlicrofroiu \ 22il, pii'fixcd to ibstrait iiiulor tlic out. with intent tu Iters, «lrafts, and ft, wore made and i false pretenses to nefit, tlie said sov- nieans of the said d, at the time and f the said several of the same to his United States, and Pottinger, seems to indictment, which, noney by false prc- ,rd to that indorse- rm wonld render it made either by Mr. either. This aver- e considered as mere > have been done by ! money for his own [possible, because it ure was made. But lit to enable him to charged is not the e tenses, en made with intent to consummate his said fraud, that is, the fraud in obtaining money by fiiUo pretenses. But the indictment shows that that fraud, if com- mitted at all, had been lonsuiuuialed before tlie erasure was made. It is also averred, thai the erasure was made with intent to cover and ivviccal his said frautl ; but the charge in the indictment is for perpe- tniling, not for covering auil concealing the fraud. 'I'liis averment, therefore, so far as it regards the cliarge in the indictment of obtaining nmney by false pretenses, is wholly immaterial and irrelevant, and ilurefore may, in that respect, lie considered as mere surplusage. Mill it is said that the averment concerning tiiis erasure conslilutes a Miii>laiitive and sullicient cliarge of another offense, namely, a churgu .if forgery at common law ; and that whether the indictment be good or l.:i(l iis an indictment for obtaining money by false pretenses, it is good as all i ilictment for forgery. It can not escape our notice, tiiat the only injury to the United States complained of in this indictment is by the fraud committed by false pretenses; and that this forgery, if it be one, is only alleged incident- :iily as one of those pretenses. The defendant was not informed by this indictment that he was to come prepared to answer to the crime of forgery. It contains but one count, and that is for obtaining money by false pretenses; and if that same count contains also a specific charge of fcjrgery, it is bad for duplicity. No man is bound to answer to two or more criminal offenses in one count; ami even if they are contained in several counts, and be not of the same nature or class, tlie court will compel the prosecutor to elect that upon which he intends to i»ut the accused upon his trial,' but in no case is he permitted to join several offenses in one count. In civil actions, advantage can be taken of duplicity only by special cieiiiiirrer ; but in criminal cases it is fatal on general demurrer.'' Tiie present count undoubtedly contains a clear and distinct, although not a sufficient, charge of fraud by false pretenses. If it contains also a charge of forgery, it is bad for duplicity. It does not, however, Bcem to us to contain a cliarge of forgery as a separate offense. What is said of the erasure is merely surplusage. If this indictment can not be supported as an indictment for forgery, (and we think it can not), it is bad as nn indictment for obtaining money by false pretenses, for the reasons stated respecting the preced- ing indictment. Tlie judgment upon this demurrer, also, must therefore be for the defendant. 1 Young V. King, 3 T. It. 106. a Arch. Crim. PI. 25; Cora. ti. SimoniU, 2 Mass. KB; United States v. Sharpe, 1 Pet. 131 ; Slate v. Montague, 2 McCord, 287. 18« FU.M l> AM> lAI.SK I'UKTKNSKS. Tnru.ToN, J., .r.s..MU..a an-l sui.l tlwvt, -.n tl.e .lay .l.al U.e ur,M,.nenl i„ U s 1 was .,,H.m..l, h. l.aa n„l sat iu ..url. a..! tl.e sla c of tl.. I'Zi his i!!-l>oilth,ana llu, clisUUK-c of i.is n.si.l.u.o n.,n the cour. ; 1 ad put it out of his ,...wcr to exa,ni„e th. -t 'o.-..u. on . uhioct as cloH.lv as he coull hav. wislu-1 ; hut he helu-voa I e h..i .; d h.. main part of the ar.uu.ont, and had paid very close allot .., ' t ; and h. h:ul hro..,ht his .nind to the c ...lusion Ihat u- .Wn^n. <>„..l t to he overruled, and that the indic-t.n.M.t was sulUcu .t. Inn. o U.e views of his brethren he had concurred ; hut as to the u.snli .e,a averlnent in the iudicfuent of a fraud at c<,mmou law, he d.ffered fr.>„, ''•nu-re was not a single charge in it of an act done, that was not sH «,,t m<.st specincally to have I.een done with a fraud.dent '^-'l^"- '' aid not know, he said, what the precise duties of ^ - ^"- " ^ud. .re He did not doubt that the Fourth Auditor m.jjht have had a n,ht ;., demand of the Secretary of the Navy a requisition, and that the .ssu- /..r the requisition n.i.ht, if properly done, have been a le,nt.,nat.. L which could not be questioned here. But the des.,n w.th whu , the requisition was procured to be issued must be looked at. S Is ■ nneut vets, said he, show the design to have been fraudulent ; and t . s nciently set out in the indi-t.nent that all the acts enumerated .n tl, i were fraudulent, and were, therefore, false pretenses. He dul .u „oncurwith his bretluen in Uu-ir disquisition us to the s.gn.t.eat.on o the wonl "as," which, he said, dhl not merely mean s.md.tude but properlv fornu..l part of the sentence eontainins the allesatioa of f a s. ol-nses. I think, said he. that the in.lict.nent is sullKMent, and that n gi sfull notice to the party of the charges against ^'i-- "^j'^^- express his opini.m m .re precisely, for the reasons winch he hud stated ; ^'hieh was of less importance in this case, as his brother h>u pronounced a contrary opinion. If this indictment was no a su hc.en one he concluded bv saying he thought it was hardly poss.be to fra.n o.u 'that wo..ld s..stain a prosecution for a fraud at eommon law agai..st ^'' ^Vcl^!1al^?unc■ :^d. A third indictmc-nt was this day presented to the cou.t, .» which, also, there was a general demu.Ter. Tbis indictment charged that the defc.dant, beh.g Fourth Aud.tor o the Treasu.-y of the Unite-c- ludulcnt ; and it is enumerati'd in tlic uses. Hi" did not ,he signitication of •an similitude, i)Ul allogalioa of false iHcient, and that it him. He did not ana which l»e hml %s his l)iothcr hstd was not a sutlicienl y possible to fraiiu' :ommon law against tis day presented to rrer. T Fourth Auditor of j^ fraudulently and his own private use, udulently " wrote a informing him that ) arreargis prior to ;e has ccrtniiily not ilono IS-.'T. uiKhr wliich head a irmittancf woidd he made to him. immedi- :,u"lv ..11 til.- Srcretary's return to tlie city; i . rr.iuestin.-j; Mr. I'aiild- „,', in tiie meantime, to pay tlie draft out of any unexpended halanee in liis liamls. to be rephiee.l on receipt of the treasurer's remittaixe. Tl,:,t the def.ii.lant drew the draft, sold it to Mr. Fowler, received from hin, the money, and disposed of it for his own use ; and that the draft «;is afterwards paid by Mr. I'nulding. ■y\<:d tiie ilefendant. " ostensibly for the publi(! service, but falsely. fniiHiiilentlv. and witiiout authority, caused to be procured and issued fp.,„ the Navv Department of the United States a certain r.M|ui>iti..n tn ,|„. Secreti.rv of the Treasury of tin- Tnited States, for tiie purpose and intent of placing in the han.ls of the stud .1. K. I'auiding. navy nt.as aforesaid, the sum of 8:\iKt of the moneys of the Tnited Str.es (whirh reiiuisitinn is set out rn-h„lim). by which the money «;,>phuedinthehandsof Mr. I'auiding ; and the indictment charges ihia the said letter and draft, so as aforesaid written sind sent, and ,ii:ovu and sohl as aforesaid, and the said nMpiisition caused and pro- nuv 1 to be issue.l as aforesaid, were, and eadi of them was, so written „nd sent, drawn ami sold, and <'aus,'(l and procured to be i.ssued as aforesaid, without any authority therefor, and not for or on account of tl„. public service, but for the private gain and luM.elit of the said To- bias Watkins, and with intent to defiaud the said Tniled States, and as fals.. pretenses, to enable him to obtai.. - n, iitidiT tlif additional li.u;lit uffocdi I l)ytlu! al>U! ai;;iitiu'nt of tlic Itanii'd t'oiiiistl, dirnctcd exac-tly at tin opinion itsrlf. \\ <• liavo bi't-n tlu' ii'.oiv wiliin;; to do this, booausc, ii> tiuTC Ih no appeal in tlii'so cusi-a, a lu'nvicr responsibility is thrown U|Min this conit. Wo shall pio'.tful, therefore, to a consiih-ration of the piiints in whidi the corroi'tni'ss of onr fornuT opinion has bci-n (jius- lioncd, with ii hope and a eonlidenee that, if in this examination wc shall find that we have eonimitted an error, wc shall not bo prevented, l>y any pride of oi>ini()n, from ackuowehlgiiig it with candor, and correct- iny; it with pleasure. We have taken time to examine the authorities to whieh we have been referred, with a de<;ree of attention, as we hope, in some defrree commensurate with the iniportanec of this cause in tlip «>stimation of the public, and with its real importance in the point of law. The objection taken, by the counsel of the United States, to the ile- cision of the court in the former case is, in substance, that the couit drew a false conchision from the i)remi8iH which they had e3tablisheliat thoy omitted, sold the draft, received the money, and app a to his own use), " and that it is distinctly averred that by these ts he did de- fraud the United States of the money mentioned in these indicti >'nts. " And the counsel for the United States contend that " all that can be necessary to set out in the indictment is, that the party accused intended to defraud the United States ; that in pursuance of that intent he com- dMi UNITKI) ^iTATKS r. WATKINS. 1«1> , of wliioh it li.H iinl liL!;lit iiffonli'il cd cxac-tly iit tlii ) this, booaiisc, ii^ isibility is tbrown insidcmtion of the >n llilS llClMI (jlll'H- iininatioii wc aiiiiil bt! prevented, l>y idor, and concct- iie tlie uutlioritii'H Dtion, as we hope, ' tluH cause in tjie ?e in tlie point of States, to the lie- cc, that tile coiiit y had eatablishi y means 3od indictment nt 1 are true, ment, be admitted at tliis indictment effected by means ect before, denied lie counsel of tlie t their conclusion. c proposition when " tlie accused, di- rote and sent l! he (1 ft (1 pi(i- ir liut thoy pt it to his own >8i its he did de- hese imlicti 'nis." it "all that tan In- y accused intended that intent he coin- iiiitted certain specitlc acts ; and that by those acts the Inited States were defnuideil." liv tlie exiiresHion " set out " the court understood the counsel of th»! 1 lilted States as meaninj; no more than " aver " or " allepje; " and the (diirt, therefore, understood them, in effect, to say, that it is only neces- >;\rv, in an indictment at common law, for u fraud upon the I'liitiMl Miitis, to aver that the defendant did certain acts with intent to difraiid the United States, ami that by those acts the United States was de- frauded; altlioiigii the same acts, without the ivermnut of a criminal iiitiiit, should apjiear to be innocent. The proposition to be proved is, "that this indictment docs suffl- , iniily set forth a fraud upon the public, effected by means other than fiil'i' pretenses." it must sutliciently set forth a fraud. Fraud is an inference of law from certain facts. A fraud, therefore, is not siilllciently set forth in .m indictment, unless all the facts are avcind which in law constitute ihc fraud. Whether an act be done fraiiduItMitly or not is a (I'.iestion of law, so far as the moral character of the act is involved. To aver I hat tin act is fraudulently done, is, therefore, so far as the puilt or iminceiice of the act is concerned, to aver a matter of law, and not a iiuitter of fact. An averment that the act was done with intent to (oiiiinit a fraud, is equivalent to an averment that the act was done fraudulently. No epithv'ts, no averment of fraudulent intent, can supply the place of an averment of the fact or facts from which the Icfjal inference of fraud is to be drawn. Starkie, in his late treatise on eriniinal pleadiuji, in p. ICS, says: "Whether particular circumstances funstitute an indictable fraud, is a question of law; and, therefore, aiKirding to a fundamental rule of description in iiidiclments, such cireumstances must be set out, in order to sliow that the facts amount to an indictable offense." The case of King v. Knight,^ was an information against a recciver- gvneral for falsely indorsing certain exchequer bills, and paying them into the cxcheciuer "as if they had been received for customs, and as if they had been truly indorsed ; to the deceit and fraud of the King." Tlie statute of 8 and 9 William III.,^ required him " to put his name to the bill." The information only charged that he indorsed it. Lord Thief Justice Holt, in delivering the opinion of the court, said: "The word indorse is not sufficient ; for indormvit imports a writing on the back of a thing, but not putting his name upon it. But it was urged ly the king's counsel that it might plainly be understood by the ulk. 375. 2 ch. 20, sec. 6S. UIO KHALU AND lAI-SK 1'UI:TKNsKS. words (iinisi rrc<'i>tce cssent jiro rustomiin. 1 aiiswiT this liy :ir .Saikeid,' it is said: "To say /(//.so indorsitrit (jitasi ri'cephv e,s,s(>)/^ is no di.ect charge of any thing that is criminal. 'Tis true it is said in deceptionem domini rcfr-: hut this is only matter of inference and conclusion; whereas the charges contained in every indictment ought to be so certain that the defeiuLant may know what aiHwer to make, and that the court may .sle to the terms wrongfully, unjustly, wickedly, willfully, corruptly, to the evil example, maliciously, and such like; which an I p. ISO. " 5 lUirr. iWiC. ii Cr. ri, fcS. &«Bi i;s . LNnr-I) STATKS V. WATKINS. lit] WW this liy :ir<:nm(nt very canst'; fur all leading. Bnt fnrtlirr 'n deceptionem domini 'act that appears innn- ajii^ravation, as y((/.^", rent, as writing, wliieli iiul the jury fiiul it .so, ■ otluT siile it wa^^ sa.'i, It here is no chari:<' ; lur.t appear to 1)0 so." kelil,' it is said : '* To I di/ect charge of any cptionem domini »•«/'>,■ iclusioM ; whereas liie be SI) certain that the tliat llie con it may .sit e, that if tlie dofendaut ay plead luitrefois co' - 1). 'Tis true that i'.x' tacit ; but that will not nits of the indictment , erb/u/.so will not make -says: "That all the .IK. 8 of law from the ■t finds only what tiie ;;», he says: "If th.'v a libel, or did not find ent, it would not affeet to be proved or found IS been said that wher^ iwful, it is unnecessary uth, the averment is in ption of the offense jh ted, be illegal, it would he fact stated be le.L'al. d the same observatinn ly, wickedly, willfully. 1 such like ; which an unnecessary if they are not to be found in the very definition of tlie .iffriise, either at common law, or in the purview of the statute." So, also, Archbold, in hi.-* treatise on criminal pleadings.' says; •■\n indictmeat for an offense against the statute must, with certainty .md precision, charge t'.ic defendant to have committed the acts, under IJH' circumstances, and with the intent mentioned in the statute; and if any one of tl'.ese ingredients in the offense be omitted, the defendant may dei aslini receipt an.l application of the money to his own use by the de- fendant, he then being Fourth Auditor of the Treasury Department of the United States, do, of themselves, show a fraud. They niiizht, indeed, be evidence contributing t ) establish a charge of frau'"K (I from him S:''>'i I own use ; wliicli n the United States, peri)etrated by means of the false pretenses inviously set forth in the indictment." If, indeed, the court had seen, that, independent of the averments II -pocting false pretenses, there were, in the indictments, other suffi- cient averments of facts showing other i^'ceitful practices by which the fraud was committed, the question migiit have occurred which is now liiailc, to wit, whether the indictment might not be good notwithstand- iii; the allegation that the fraud was committed by means of certain f:dse pretenses imperfectly set out. The court, however, did not see, in U' indictments, any allegations of other facts showing other deceitful 1 r:ii tices by means of which the fraud (in the language of Starkie, in the passage cited by the counsel for the United States in p. 10:i, 101), " t'luM have been effected." That passage was cited to show that it i' not necessary to be very particular in setting forth the means by "huh the fraud was committed. ;> Dl'.FrXCKS. 1:! 194 FRAUD AND FALSE FKETENSKS. After saying, as before noticed, that, whether particular circum- stances constitute an indictable fraud, is a question of law, and. tlifi. - fore, must bo set out, in order to show that the facts amount to an indictable offense. Mr. Starkie observes, in regard to the question, how far it may be necessary to particularize in describing tiie mmuis df effecliufi the fraud, " that if some means be specified, and by those tUr fraud could have l)eca effected, uo objection can be taken ou tlu- ground that the descrii)tion is not sulHciently circumstantial. The cii-*- from which alone he seems to have drawn this conclusion, was that of Young v. King.^ The fraud in that case was effected by mean^ (if a false pretense, respecting a certain bet which the defendant lial matle " witii a colosjcl in the array, then in Bath." Upon a writ of error, one of the errors alleged was, that the name of the colonel wus not stated in the indictment. But the ol-jection was overruled by th. court, who said, that " perhaps his name was not mentioned, so that li. could not have been described in the indictment with greater ac- curacy. " The general principle thus extracted by Mr. Starkie from the k;in case of Young et al. v. King, is cited to justify the court in saying. that it is only necessary, in an indictment at common law for fraud against the United States, to state that the defendant did certain ads (whether fraudulent in their nature or not) with an intent to defraud tlie United States, and they were defrauded thereby. It is evident, however, that Mr. Starkie intended to say, in effect, that the means specified nuist be means by which it might be ai)parent to the court that a fraud could be committed ; that is, deceptive means, deceitful practices ; for without deceit, or the use of deceptive practices, fraud can not be committed. Tiie court, therefore, not having perceived in the former indictments any facta alleged (excei)t the false pretenses, which are now admitted to have been imperfectly set out), which showed any deceptive meaii^ or deceitful practices by which a fraud upon the United States could be effected, had no occasion to advance the doctrine which the counsil fi-r tlie United States have supposed was advanced by the court, nor to ileny the principle contended for on the part of the prosecution, thai " utile per inuUle non vitiatnr." Whenever the circumstances of a case shall raise the question, whether an indictment for fraud allege.l to have been committed l)y false pretenses imperfectly set out, can be supported by evidence of other deceitful practices which may happen to have been set out in tbr indictment, but not averred to be the means by which the alleged fraud 1 3 T. R. 98. ilM UNITED STATES V. WATKINS. 195 irticular circMui- law, and. tlifn - t3 amount to an be question, bnw \s tlie moiuis (if and by those the >e taken on tin anlial. Tlie c'u>i' ision, was tbat of 'ected by nieau^ le defendant lia 1 Upon a writ (if f the colonel was 1 overruled by tin tioned, so that In with greater ut- ile from the kan ; court in saying, ion law for fraud lit did certain ai ts intent to defraud to say, in effect, might be ai)parent deceptive means, eceptive practices. ormer indictments are now admitted y deceptive mean-' ed States could be ich the counsel for the court, nor to ; prosecution, thai lise the question, »een committed by I'd b}"^ evidence of been set out in tbi' ti the alleged fraud was eommitted, it will be proper to decide it; and the cases cited by the oiiuiisel will deserve great consideration; but as we think that that question is not raised by circumstances of the present case, it is not ueeessary to decide it now. It lias been stated in argument, by the counsel for the prosecution, that it has been .settled by the opinion of this court upon the foriu>--r in- lii Inionts, ' that defrauding the United .States was indictable at com- mon law without the use of false pretenses." The proposition thus extracted, and drawn away from the ideas by wliieli it was accompanied in the opinion which was given, and presented t.i the view thus badly, apitears to have misled the counsel for the United States, and may tend to mislead others. If the expression, •false pretenses," be taken in its most extensive sense, it might, at fust view, be doubted whether a fraud could be committed without a f:dse pretense, for falsehood and deceit are the essence of fraud. But ihe phrase, "false pretenses," has become familiar to the lawyer's rar; and ever since the statute of 30 George II., ' which made certain frauds upon individuals indictable which wore not i-^dictable by the ciiniMioii law, the phrase has acquired a technical character, and has ^'euenilly been understood as descriptive of such false pretenses as were punishable by the statute, and as woidd make those frauds Indict- alile which were not so before. It is evident, by the manner in which it was sued by this court in its former opinion, that it was so understood by the court, and was used as ;i description of a particular class of deceitful practices. It is evident, also, that the court was considering the question, whether, in an Indictment for direct fraud ui)0ii the public, it was neces- -ui y tiiat the fraud should appear to have been committed by the same -nrtof means which would be required to support an indictment atcom- !ii II law for a fraud upon an individual. Thus, after stating one of tlie grounds of the demurrer, namely, that fraud is not indictable at 'I'inmon law unless effected by means of some false token, such as f-ilse •veigbts or measures or mar!i)ly ♦he want of the averment of facts showing the 1 1'. C. HIS, 821. mm INITKD STATKW V. WATKIX8. 197 does not apply coedcd to ilhis- vate frauds, liy il practices by consifet of false then observed, itated by Etust,! rge, or effected felony), wliicli ses at common •t seem to us to lerstood as say- ipan the United which show that le sort or other; icessary to show Ise pretences, or al practices not d the opinion of ndictraent which npanied by false ut any averment akia'j^ to set out Whatever the nly waa not ex- tes, that, accord- necessary matter his respect, also, urt gave no such , that the indict- plainly charged; ;he acta by which Iraft, the reqiiisi- I not defraud the an intent to de- facts showing the diccitful practice wliicii constitutes the essence of tiic fraud. It is not tlit^ injury alone, but tlie injury by means of the deceit, wrhich consti- tutes tlie crime. Hut it is said, that tlie actual perpetration of the fraud is plainly iivrri'cd. Tlie simple averment of fraud, or that the United States were de- friiiidcd, is oiily the averment of a matter of law ; a legal inference from fiicis; wliieh facts must, themselves, appear to justify it. Tiic acts, by which the fraud was committed, it is said, are also set forth, luunely, the letter, the draft, and the recpiisition. These may be lunong the acts by which the injury was done to the United Stntes, but they are not such acts as show the deceitful ])ractiecs by which the fi:iud was effected. The only facts averred respecting those papers are, that the letter was written and sent; the draft was drawn and i-old and paid, and the requisition was procured. These facts, alone, do niit show the fraud. A^'ain: it is contended oa the part of the United States, that, " whether these acts did defraud the Uniteorty ^l«P^"'»;'^;- ^j ,1,, ,,„„on law that our revohUion It wa. upon h P en Of ^^^^^_^.^^ ^^^^^^^^ ^^^^ ^.^^,^^ ,,^ N«t ;;; i^porLce to certainty in the law, i. certainty .n the accus. '"Mr Sfukie in his treatise on Criminal Pleadings,^ says: ''The gen- , -Mo t s on iKH-n estaMished that no person can be nuheted, l»u eralnilelms loiifl iHtn I ^r nnni^h(>ll unless such act or •mis- „„.„t, 11.,. onmn..! •""»"'=';, ^,.„ t„„ ,,„,Ucular f.ct» » or acquittal nia> taun, I m « therefore, shouUUx I i>. 73. ^Mi UNITKI) STATKS %) . W ATKINS. lit'.) ht that his patriot- tier that ton pniltv of those ruh's of ion of the personal iild be ahrogiitiMl. upon the peoph' I'v )ntaneously ir. tin times. Tliey were spirit of our slunh uem of those ri^litv ^ismuhiri. Sucli of lis country, ohiinu'l ovisions, they c-luiii: ity of their personai that our revohition jsumcd tl\e riglii cf sly declared that tlu ction of tlie common diould give them u].. •tainty in the accussi- ;s,> says: "The gen- can be indicted, bm less such act or •mis- •ocision and certainty part of the subjert b roper briefly to notii e • law exacts a certaii. it is evident, supvU ticular charge is to 1h tlie face of the indif > ffensc, which are con- ! particular facts ami of that offense, l^t- jury should find a Wl! L his trial in chief, for defendant's conviction I ion should he be agaia , therefore, should h: se, enable him to ple8>i , previous conviction or acipiittal of the same offense, ndly. To war- rmt the court in granting or refusing any particular right or indul- „..„(.,. which the tlefendant claims as incident to the nature of his case. 4thiy. To enal.le the defendant to prepare for his defence in particular oaM^s, and to plead in all ; or if he prefer it, to submit to the curt by a.inurrer, whether the facts alleged (sui)posing them to l)c true), so .upport the conclusion in law, as to remlcr it necessary for him to make uiv answer tp the charire. r.tl.ly, and tinally, and chiefly. To enable •,he court looking at the recor.l, after .^onviclion. to decide whether the f uts charicii( e of custom over reason was conipic- nous, he concludes: " Wherefore, wo ought to adhere to tho usual form ; but in this case It wuA not the usual form to allege tho elec- tion uniler the word licet, as you may see in till! buiik of entries; wherefore, since the prii«eciitor was not tied down to any usual furni. iiiit was at liberty to take such words as were proper for tho matter, nnd hna not iliino so, we ought not to hold with tho words more than will wanant." And again, upon another occasion, though at the first, an avuwry wag held bad for want of being averred, yet afterwards, says tho reporter, the protlionntaries searched their prece- dents, and told tho jiistieeN that the common ucago was tomakellus avowry wlthoutover- ment ; with which the justices were satislled. Mr. Starkio, in his Criminal I'leadlng, pp. fi'.t, TO, h.is tho following Jnillcious observa- tiiiiis: "The law distrilmtes crime into tlireo great classes; treason, felonies, and iiiis- dcmeanors inferior to lelony. Kach of these is attended with peculiar incidents, both before andafterconvictlon. It is, therefore, ono important ofllce of an indictment to specify, in technical language, tho particular genus of crime imputed to the defendant, that he may avail himself of those advan- tages which tho law allows him ; that he may bo excluded from those which tho law withholds; and that tho eciurt may bo auth- orized, aftarconviction, to Intlict tho appro- priate punishment." A strict adherence to such language may, in some cases, appear too nice and critical, to serve the ends of justice ; yet it seems founded upon strong and substantial reasons. For instance, by sucecsHive decisions, the legal value and weight of a term or iihrasc, of art, Ik ascer- tained, and should a doubt arise as to its meaning, reference, for the purposo of removing it, may be had to former authori- ties, whilst every new expression would introduce fresh uncertainty, and the benefit to be derived from precedent, would be wholly lost." 3 See, also, in support of the opinion of the court, llurridgc's Case, 3 1'. Wins., 481, and Margaret Cooper's Case, •! str. U46. 202 FHAll) AND I'AKSK I'HKTKNSKS. constilnic tin- ciinit' f)f forfri'iy, and if thry tliid tliosc farts and intent- that tluy aru bound to call the uffunue I)}' its li'gal uaiui', and aftn argnnuMit. Cham II. C. .1. The counsel for tlio United States Imve moved tin court to iiistnict tiio grand jury, " tliat tiit- fai't.s and intents, found In thiin in tiie indictment, wliicli was dctidfd ])y tiie court to l»o inMUlli- cient l)e(anse it diil not use tho word 'forjicd' or ' connterfritcd. constitute ill law, tiie offriiso of fortjeiv at common law; and tliat if tliey liiid, in a iiill of indictment, all tlie facts and intents necessary 1' constitute a leiral offense, they arc hound to call tho offense, in tho in- dictment, liy its le Uiiiui', uiul iiftn Imvc moved tin iiitoiits, found 1') iirt to bo insulli ' couiiterfritril. law ; and tliat if cuts iifc'i'ssary 1" offensi', in the iii- IV tlicsc. In the st till' prcsonl (le- ans of false iirc- at Uostnii. TliMt Mit, for want of Ainonir these pre- I the alteration of •(Is " foi'jie and." which was nfter- moramu:^." This 3 counsel for the xactly like it, Ittit alter," which tin- ence iielwcen the dant did " falsely id the latter, thsit e alistraot. Both 1 latter indictment not u»e the word 'nited States, that t up to the grand ites by false pre- to be inMUlHcicnt, they had already ^ry, althoujxh they ifter consultation, could not find the now whether they luld not alter the opinion, the facts )n law, and would i,.,,ifv them in Ih.din;, the bill as it was sent to them and. t^.at . lu > , i ot .H:Uisru..l with thi. opinio... they had better ask the advu • of the /,.t Thevsaid they were wiUi..^' to Ib.d the bill without the wonl :: ;.. T:wi;ieh L .Utomey repUed, that If they did not u.ree to ,, ll th.- bill ns it was, he would send them another like U, but om.,tn.« 1 vord, and the cou.t wo..ld decide whether the f"Hs an.oun ed b „,.,,V. The orand jury, without n.Uinjrthe adv.co of the cou.t u- un.ed the bilCco.Uaini..,' the word - fo.'j^e," ignoramus; upon wh.ch L. bill, . hichon,.tted that wonl, was sent up, and the grand ,u,y un d it " .V true bill." Ipon Ion, argun.ent and great de .beraUon court, upon deuu.rrer, decide.l that it did not cha.ge the o (e...e h sum lent legal p.ecision, bcausc it did not aver. In express term the defend:nt " forged," or '• counterfeited " the abstrac B „., court did not give any opinion ..pon the .p-est^on, f^'^^-f^^^^ stated in the indictment did, in law, c..nsft..te the o tense of fo ge J ,, ,,„,„,,„ n.w. yVhereupon the counsel of the rn.ted States ma.^ U o motion to instruct the grand jury, whi.h is ,.ow he «" '.--t;' ^ ^^^ „ion, and whhh, at there.,uest of the court, they reduced to vsr.t.ng. '" [^i::: t:'^.;;;:;:.;;:: rei^Tthe motion m ^.e words before .atea, '" U wThf p^^.ived that this is. b. elTect, a motion to the court to ' ..„d ba.k to the g.and jury an indictment, which the same gn.nd jury 1..HI some days befo.v, at tho same term, retu.ned " njnommus w.th :: i'nst'uction that, if U.ey should find the facts stated in it to be true, thev shoidd return it a true bill. Suchan.otiou is certainly unprecedente.l in t -ou,t and noca^ Ins been f<.und even i>» the acts of the most arbitrary of the l-.ngh.h :;l;: m the worst of times, which culd justify the court in giving „u. instruction asked, in the particular circumstances of t'- --• «" the contrary, in n Ilar.rave's State Trials 'it ^'^'^J^l't^ Serog.rs, Ch J. North, Mr. Justice Jones, and Mr. Baron >\ -stoi., wcic , Z' ed bv the House of ComuK.ns, in »•> Car. I. and one of 2 charges against them was, that they ha.l dh^harge the gnm,U..ty iH.fore they had finished their business, because they had asked the cou t ,., present their petition to the king, praying him to call a parnuneni Ye the counsel for the United States contend, that .f this c..urt should 1.0 of opinion that the g.and jury refused to fin.l that bdl, from an un- .viUingness to convict the accused of the crime of forgery, he court omlht to discharge this grand jury, and and hold the pany bound to unswer to another, which should be immediately sunnnoned. 1 p. IM. 204 FRAUD AND I'ALSK rKKTENSES. The opinion of the Cliief Justice of llic Supreme Court of llie United States, in the case of Colonel Burr, has been cited in support of this motion. But the motion in tliis case is fur more extensive than the motion in that ; and the instruction now asked goes far beyond that which was actually given by the Ch.^f Justice. There, the instructions prayed were conlined to the admissibility and competence of evidence in crcueral. Here, they extend to all the par- ticular facts charged in the bill, as constituting an offense. To give this instruction, therefore, is t. prejudge the whole question, whi-h would arise upon a demurrer to the indictment. There, the opinion actually given, extended only to papers of a cer- tain description, which might, possibly, be offered as evidence to the grand jury.i Here it is not confined to the admissibility or competency of the evidence, but takes in the whole merits of the case, upon the par- ticular facts alleged in the bill. There, the motion was originally made immediately after the Chief Justice had delivered his general charge to the grand jury, at the open- ing of the court, and beforo any bill had been sent up ; and the instruc- tion was given while the bills were pending before the grand jury. Here, the instruction is prayed after tiie grand jury have acted upon the case, and i-eturned the bill igyioramus. There is, therefore, no similarity whatever in the circumstances of the two cases, except that the prayer for instruction did not, in either case, come from the grand jury themselves. There is no doubt that this court may, in its discretion, give an addi- tional charge to the grand jury, although they should not ask it ; and, when they do ask if the court, perhaps, may bo bound to give it, if it be such an instruction as can be given without committing the court upon points which might come before them on the trial in chief. This is the utmost extent of the dictum of the Chief Justice, in the trial of Colonel Burr; for he there said — "That it was usual, and the best course, for tae court to charge the jury generally, at the commence- ment of the term, and to give their opinion upon incidental points as they arose, when the grand jniy should apply to them for information; that it was manifestly improper to commit the opinion of the court on points which might come before them, to be decided on the trial m chief ; that he l.ad generally confined his charges to n few genetal points, without launching into many detail . One reason was, that some of the detailed points might never arise during the session of the grand jury, and any 'nstructions on them would, of course, be unneces- sary ; another was, that some of the: points might be extremely diffl- 1 Rob i-tson'B Rpt. of Burr's Trial, vol. 1, p. 201. le Court of the United ited in support of this [)ic extensive than tin- goes far beyond that ) tlie admissibility and extcn _ ,,v Chittv,^ and by other elementary wn ers; and after a^Uhg nt search, we have found no case, ror djc.um to ^;^;^-;^J'^:^^ fJ.^.\ 'inv case in which it had been decidea by . court, tun .r in leZy imd found or .-ciecttd » Lill, co.tmry to tUe .n.tn.ct,on of cause mty "»" *„„ ihat rPiHon summoned to attend support the trial by jury ; for of what value would the tml by jury be, 1 Uurr'8 Trial, vol. 1, p. 1"*- 2 vol. 4, pp. 306, 308. 3 Cr. Pl 3*. 4 »«#•. I- a-i'i. 206 FRAUO AND FALSE PUETENSES. as tbe " palladium " of personal liberty, unless the jury should be inde- pendent, and could give their verdict, especially in criminal cases, freely and according to the dictates of their conscience Vr Sir William Blackstone says, that the trial by jury is the grand bulwark of an En- glishman's liberties. " The antiquity and excellence of this trial, for settling of civil prop- erty," he says, " has been bciore explained at large ; and it will hold much stronger in criminal cases, since, in time-) of difficulty and dan- ger, more is to be apprehended from the violence and partiality of judges appointed by the Crown, in suits between the king and the sub- ject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has, tlierefore, wisely placed this strong and twofold barrier, ot a presentment and :i trial by jury, between the libertici of the people and the prerogative of the Crown," "The founders of the English law have, with excel- lent forecast, contrived that no man shall be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury ; and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should be afterwards confirmed by the unani- mous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. So that the liberties of England can not but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, an 1 courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet, let it be again rememben-d, that delays and little inconveniences, in the forms of justice, are the i)rice that all free nations must pay for their liberty in more substantial matters; t hut these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitu- tion ; and that, though begun in trifles, the precedent may graudally increase and spread, to ihc utter disuse of juries in questions of the mose mnmeu'ous conr« nri And Sir Matthew llale,i says: " But, in my opinion, fines set upon grand juries by justices of the peace, oyer and terminer, or jail deliv- ery, for concealments or non- presentments, in any other maimer " than by anotlMT iaquest, under the statute of ;5 Henry VII., 2 - are not war- rantable l)y law ; and although tbe late practice liath been for justices 2U. r. 1'. C. 160. :cU. 1. UNITED STATES V. WATKINS. 207 hould be inde- riminal cases, r Sir William axk of an En- r of civil prop- 11(1 it will hold ciilty and dan- d partiality of ig and the siib- ir, to settle the las, tliereforc, entment and a he prerogative i,ve, with excel- answer to the y accusation of r ; and that the 5 of indictment, by the unani- ferently chosen, England can not id inviolate, not ly as to make), d undermine it, justices of the nscience. And less all a'-bitrary , let it be again n the forms of r their liberty in sacred bulwark of our constitu- ,t may graudally questions of the 1, fines set upon ler, or jail deliv- ■r manner" than ,2 '• are not war- )eeu for justices to set fines arbitrarily, yea not only upon grand nuiuosts. but dso upon e petit jury, in crim-.nal cases, if they find n-.t accrdu,, U tl^ r lin. tlons, it weighs not much with me, for these reasons: 1. B - se I have seen arbitrary pradi. o still going from one thing to Another. The fines set upon grand inqu- ^i. began, then thoy set hues pon the pe.it juries, for not finding according to the ^.-c ions of the , uif then, afterwards the judges of ,nV,. i)nH,s proceeded to fine the uries in civil causes, if they gave not their verdict according to direc- ion even in points of fact. 2. My second reason is, becaus the .t,,;,te of 3 Ilenrv Vll.,^ prescribes a way for their fining, wluch would ':oc liavcbeen if tliey had been arbitrarily subjected to a fine befove * 3. It is of very ill consequence; for the privilege of an Kiv lishman is, that his lifo shall not be drawn in danger, without due ;,.;.oiitment or indictment; and this would be but a slender screen or lafewed by tliem, privately preoccupute the opinion ot the judges.* But upon a point so clearly supported by the principles of natural justice, it is needless to state authorities. Another reason why the court should not give the instruction, is, that it is a very debatable » p. 29. UNITED STATES V. WATKINS . 20S> I properly criminal, ), for having been I judge." on of the evidcncp fortiori, should ll>p onsideration of tlie ecjually sacred ; nt 1 respect to the vcr- oper that we siioukl usel fur the United ve it, some of which ction extends to the instruction that the V, to charge the dc- thereby forestalling vhich might arise on B court, upon points jcution, we consider iited States), to be 1,1 has the following be more indifferent, I the indifferency of inion beforehand, of illy." "And there- i beforehand upon a nee of the party ac- have. delivered their , when a small addi- V doth it stand with d lawfully serve our stice, and that they his subjects." And irned counsel should f case put, or matter of the judges. * principles of naiurnl her reason why the is a very debatable .nestion whether the facts stated in the bill wh.ch is now propo t, l Mt u,> or r.thor .ent back, t.,the grand jury, do .n law, co.st.tu.o ^^n o o f orgerv. at common law. Much n,ay be sa,. , and nmoh 1 Huia, on boih sides. The court did not find itself obbged to eh question upon the fonuer argument, and therefore decbned the same reason il declines now. These reasons for not gn.ng tl :ru;:i::itwiii i. perceived, ^^^^f^y^'^-i^j^^t i„rv did or did not, act under a n.istake of the law. 1 hat quest on, tue ;.2t does n.'t undertake to decide iu this stage of the prosecution, for 'V::Z^:Z:i:^e court deems it to be itsduty torefuse to in- JZ tl;: iZa jury .. prayed by the counsel for the Umtcd States.^ Judges not to give their opinion permaturely. TmusTON J., dissenting. W le this que..lon of instructing the grand jury was pending, t^ia Wly found three other indictments against ^^^^^f^^;;^ ^ ^ tnuiactM.n with Paulding as before stated, one for ^-' ^ ;;^^^ *^^^;"^; partv and one for $2,0U.» with llambletou, a purser in the navy at 1 e 1 To each of these indictments there was a general demuiTC . The indic'n 1 averred that the defendant, T. W., was Fourth Auditor ft r^^^^^ of the United States, and as such required by law to ce^ aUac^Liuts accruing in the Navy Department or relative tkreto- to keep all accounts of the receipts and expenditures of the ! n^oney:. or the United States in regard to that department and debts due to the United States, or moneys advanced relative to L Lfdieiuirtment, to receive from the Second Con^^rJ. ucounts relative to the said department, which had been final y : :S, and to prepare such accounts with thdr vo-^- -;^-;^ ' .L and to record all warrants drawn by the Secretary of the ^a^^ , e; mination of the accounts of which is by law assigned to he ad 1 our'h Auditor ; ana to make such reports on the busmcss of the said h iu to 'as the secretary of the Navy shouKl deem necessary aiid L ;;^ for the services of that department. ^^ f^JJ^her -^ «^t Samuel L. Southard was Secretary of the Navy of the Untccl State , Z a. such had authority to issue requisitions to the Secrc^tary of the T a rv of tl e United States, countersigned by the Second Comi^i-o ler I reltered by the Fourth Auditor, for moneys appropriated by law t^^T^f Uie Navy Department; ^v^ereupon the Secn.a.y o J^ Treasury was authorized by law to grant his --"^^^^ ^^ '" ^;^7 j ^ of the United S. ates for the amounts, and according to the sums of tl^rK Guiding was a navy agent, residing in the city of New 3 Defences. 1 See 1 Chit. Cr.L. 14 210 FRAUD AND FALSK PKKTENSES. York, and was required by law tc. render his accounts to the Fourth "^TluvT'on the 2d of March, 1827, an act of Congress,^ was passci, maic d<.fendant, so being Fourth Auditor as af oresau , aM be. g an evil disposed person, and devising and intenduig fraudulently and :ni:X to obtai.' and acquire for himself and for his -M^XrfVr the money of the United States, with force and anns, on the 16th of Ja - ua,y 1828, at Washington County, in the Distr.ct of Columbia fal.ly vnd'fraudileutly wrote and addressed, and caused to be sent to tl.e n^^ T K Pauldin- navy agent as aforesaid, in the city and State of N t Yo^^a tior'i: the Lds and figures following to wit (here waTinserted the letter of the IGth of January, 1828, w nch was inserted iu the first indictment wlueh was quashed o.ylemu.Ter) It then avers that the defendant drew the draft on J. K. P., navy agent in New York, for $750, in favor of C. S. Fow er, at one day s sfght, and sold it to Mr. Fowler, and received therefor he -- oU «; and kept and disposed of the same for his own use. That on he 16th orjanLry, 1828, Mr. Paulding, as navy agent, wrote and sent to Mr. Southard, the following letter: — "Navt Agent's Office, New York, 16th January, 1828. .. Sib • Be pleased to direct a warrant to issue in my favor for the sum of «12 139. 12, to be charged to the following appropriations, viz. : - Pay Aft. $1'942 " Shore Stations 1,058.25 " Civil Establishment 64.3.32 " Repairs " Medicines " Increase " Sloops of War ^ $12,139.12 2,488.54 1,000 2,904.90 2,102.11 required for the purposes expressed in the list herewith inclosed. I have the honor to be, very respectfully, your ^^^tl^^;™^;^^ . -Hon. Samuel L. Southard, Secretary of the. Navy Department. "^Whfchttter was received by Mr. Southard, at Washington, on the 19th of January, 1828. 1 i Stat, at Large 206. ■i ante, p. 44l<. I'NITKD STATKS v. WATKINS. 211 j to the Fourth s,* was passed, e United StatL:;, earages prior to isaid, and being raudulently and own \)rivatc use the 16th of Jan- !olurabia, fals^:ly ) be sent to the jity and State of iig, to wit (hero lich was inserted Q J. K. P., navy Icr, at one day's the sum of $750, That on the ICth } and sent to Mr. lanuary, 1828. favor for the sum ations, viz. : — $12,139.12 •ewith inclosed. I it servant, K. Paulding," Navy Department, Vashington, on the That the said T. W., "being then and there Fourth Auditor of the Treasury Department of the United States as aforesaid, and being an ill- disposed person, and devising and intending fraudulently and unjustly to acciuire for hinisi If, and for his own private use, tlie money of the I'luted States, and well knowing the premises, with force and arms, on the said nineteenth day of January, which was in the year of our Lord one thousand eight hundred and twenty-eight, as aforesaid, at the eoiinty of Washington aforesaid, did falsely, fraudulently, deceitfully, k.K.wingly, and designedly, apply to the said Samuel L. Southard, then being sl'cretary of the Navy of the United States t.s aforesaid, to add to the Taid sum of twelve thousand one hundred -and thirty-nine dollars :uk1 twelve cents, for which the said J. K, Paulding had re(piested a warrant to be issued as aforesaid, the sum of seven hundred and fifty dollars, and did then and there pretend to the said Samuel L. Southard, Secretary of the Navy of the United States as aforesaid, that the said sum of seven hundred and fifty dollars, was required for the use and service of the navy of the United States, for the payment of claims settled and adjusted under tlie appropriation for arrearages due by the Na.y Department prior to tlie first day of January, which was in the year of our Lord one thousand eight hundred and twenty-seven, and to "cause the same to be placed in the hands of the said J. K. Paulding, navy agent as aforesaid, for the purpose aforesaid, at the same time, and together with the said sum of twelve tliousand and one hundred and thirty-nine dollars and twelve cents, for which tlie said J. K. Paulding had required a warrant to be issued as aforesaid ; and he, the said Tobias Watkins, did thea and there unlawfully, fraud- ulently, deceitfully, knowingly, and designedly, cause and procure to l,c issued by the said Samuel L. Southard, then being Secretary of the Navy of the United States as aforesaid, a requisition to the Treasurer of the United States for the additional sum of seven hundred and fifty dollars, and did cause and procure the said sum of seven hundred and fifty dollars to be added to the said requisition of twelve thousand one hundred and thirty-nine dollars and twelve cents, which he, the said J. K. Paulding had requested to be issued as aforesaid, and thereby caused the sum of twelve thousand eight hundred and eighty-nine dol- lars and twelve cents to be included in the said requisition, instead of the said sum of twelve thousand one hundred and thirty-nine dollars and twelve cents, so required to be so issued by the said J. K. Paulding as aforesaid ; which said requisition so caused and procured to be issued as aforesaid, is in the words and figures following" (here was in- serted the requisition verbatim, including the sura of $750, under the head of " Arrearages prior to 1827,") which said sum of twelve thou- sand eight hundred and eiglity-niue dollars and twelve cents, in the said 212 rilAUl) AM) FALSE rUKTKNSES. .,li„6tcci .mdcr the .pproprlation for "i-^^g""""* 1'. ' „, j2,,.,r)-, nicns thereof, in manner «^f«-^«^^^' f ^^ ;\„^i ,,rvice of the navy of Unitoa States, should be apphed ^« ^I^J "^^^^^^^^^ ^^^er the appro- the united States, ^^ ^^^^t^^:! ,rlor to the first priation for ^^^^^^^^^ ^,^^ ,^\^^l^^^^^^^ thousand eight hundred and day of January, v. eh . m t^e ea ^^^ ^^ ,^^ ^^^^ ^^^^^^ ^^ ^^^^ '^TjTv^Z^^^--^^'^^ ''- purposes afo.e. ' bu^tLn and" here intended fraudulently to defraud the Umte Sa es o tt sant and to convert the said sum of seven hundred an J; rP:Sng for .000, an. >,a. .»o ecu.. TUe^^^^^^^^^^^^ to himself from J. K- Paulding, navy agent at New \ork. UNITED STATES V. WATKINS. 213 ly warrant from lie United StuU-. ands of the said 1 of twelve thtni- e cents, then ana intent to defvniid •(>d and fifty tiol- aa aforesaid, and \f of the Treasuiy e Treasury of tlip said Tobais "NVat- (vell knew that the said requisition in- )f tlic navy of tlio tlie same from tlie claims settled and by the Navy Do- day of January, and twenty-seven, K. Paulding, navy d whereas, in trutli time of making tlic lat the said sum of n included, and, h\ he Treasury of the vice of the navy of ed under the appro- snt prior to the first i eight hundred and in the hands of tlie the purposes afoie- ) defraud the United C seven hundred and cby defraud the said id fifty dollars to the nple of all others in i government of the as upon a transaction The first count states ', being Fourth Audi- to obtain and acquire ^ew York, the sum of .'.00 of the moneys of the United States in tlie hands of the said J. K . dig "uulJvfally, fraudulently, ami 'deceitfully ' wrote -l sed to be sent to the said J. K. Paulding, navy agent at New \mk ;,rfollowing letter, purporting to be dated and ^vritten from the office of the Fourth Auditor tee,. : — „ , <^ . , ico? 1 Treasury Department, Fourth Auditor's Office 8th O^tobe^' B^'^; Sir- I have this day drawn on you in favor of Charle S ^-^^^'l^' U r e hundred dolll, which you will please to charge to Arrearage ♦« i«.?7. ' nn.lor which head a remittance will be made to jou ITctJ.; ,; J slrX-' rot.™ « *« cay lu «,« ,„ean t|,„o |. to be replaced on receipt of the ireasurcr s i^^^^ respectfully your obedient servant, , , ^ Watkins. ' ' It then avers that the defendant drev. the draft sold it to C S. Fowler, receive KAI.SK VUKTKVSKS. and tlmt that Hum was required for the use and sorvico of the Unilcilj States, Mr. Soutlmrd, as Ser-retary of the Navy, issued tlie requisition, ns re(iuestcd. Tliat llic said sum of S-',0(H), in conformity with the Huiill reciiiisitioii, was, by wurrimt from tlie Secretary of the Tniasury, driiwn out of the Treasury of the United Slates, and jihieed in tlio hands of the defendant; " Wliereas, in trutii and in fact, the said T. Watliins, at llicl time lie wrote liis letter aforesaid to the «aid Samuel L. Southard, Secrc. tary of the Nav> , as aforesaid," "had not been reciuestod by the snial S. Ilamhleton, Jturser, ns aforesaid, to cause any reciuisition to be isMinl] in favor of him," " payable to the order of him, tiic said T. Watiiiiis,' as aforesaid, for the said sum of $2,000 ; nor had tiie said S. llambleKiiil drawn any drafts upon him, t!ie said T. Watidns, for tlie said $2,000; and whereas, in fact and in Iriitli, tiie said Tobias AVatiiins, at the tiini> he wrote his letter, as aforesaid, did not intend that tiic said sum of $2,000 should bo applied to the use of him, the said S. Ilamblctoii, ! purser, as aforesaid, or to tlie use or service of the navy of the Unittd States, or to the payment of any such drafts, as aforesaid, but then and there intended to defraud the United States of the same, and to convert the said sum of money to his own proper use and benefit ; and did, by means of the pretenses aforesaid, defraud the said United States of the said sum of $2,000, and did thereby then and there convert and appro- priate tiie said sura to his own proper use and benefit, to the great damage of the United States, to tlie evil examiile of all others in liivc cases'off ending, and against the peace and government of the United | States." There was a second count in this indictment, containing the same preliminary allegations as in the first count, and averring that the de- fendant, " intending fraudulently and unjustly to acquire for himself, and for his own private use, the money of the United States, and well knowing the piemises, with forcQ, and arras, on the said sixth day of March, 1827, aforesaid, at the county aforesaid, did falsely, fraudu-| lently, deceitfully, knowingly, and designedly apply to the said Samuel L. Southard, then being Secretary of the Navy of the United States, as j aforesaid, to cause a requisition to be issued on account of the said S. Hambleton, purser, as aforesaid, for the sum of $2,000, under the head of ' Pay Afloat,' to be paid to him, the said Watkins ; and did then and there pretend to the said Samuel L. Southard, Secretary of the Navy of the United States, as aforesaid, that the said sum was required for the use and service of the United States, and did then and there I pretend that the said S. Hambleton, purser, as aforesaid, had drawn drafts upon him, the said Tobias Watkins, to the amount of the said $2,000, and that he, the said S. Hambleton, had requested the said requisition to be isr 1, for the purpose of meeting and paying ^>. &rv. 'V* ^V%> IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1.25 • 50 *^ :! m *^ 140 — 6" 2.5 2.2 zo 1.8 U IIIIII.6 ^^ '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N... 14580 (716) 872-4503 %■ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques C^ UNITKO STATF.s ". WATKINS. 117 "•;""'.. :^rveitl.U,ion so ,n:ule to hin. ., .!..• sai.l Tobias U at- ;'■ .f < Kan.! ln.li..vin. tho sai.l su,n of S:^.: "^ .= . n..,mn..l ,W tlu. use a..a servu.- of U.- I n I M U ^^^ ^^^^_ hlo.on bad .Irawu drafts "1-n l.n u t . .. 1 „^^„„,.,,„, „,i :uu,.u„t of the said ^2..)..o, u.ul t at ., . ^^^ ^^^^ ^^_ .,_ ,„,uosted a ,vM..isition to be >ssu..d, .•^^'-/^ '.,, „^.^,,,,,,, ^f u,. „„. ,.,„. said WatUins to ^^^^^^1^^;^^^^^^^ ia.vh ., 1^27, N.vvM.tc., which letter Cna.v.b-tl--^ en R ^^__^^^^ ^^^^ ^ .^^ ,,t fnrth in the first count). Ay.. ^""'^"; "'^ •' ..^,.. „f ^,,, T.ea>.n v ,„,„isiUon to be issued, ete. ; ^^^^''^^^^''' '^^^^i"^^ ^,,n.,, i. „i,a „is .arrant to the T-asure,s etc. u e .nd ^ .^ . ^^^ ^^^^ ^-' "^ ^rt;::t;tr;r u:;ia:d::^^^ thedefend. ;;r^^':':y , '^t n.u!td m fJet, the said sun> of n,oney. in the >;inl. loi any sum i ..„e.,i,i .ir^iwu v h,di<.....«» l-o 1«... fu,„„n,y.„. .n,„„ ,u,y, L'lS I'ltAI l> AM) lAI.Si: IMM'.TF.NSKS. til whic'li tlio (lifiMitlanl li;is (It'innrrcd. Tlic first ground nf doimirrcr h coinmoii to tlir llircc iii(]ictiiiciits, and if avuil!it)li> at :dl, is a har to any prosciMilion wlialcvcr. for the matters thi-roin cliary the counsel of tlio defendant, that it is an offense exclusivelv against the I'nited Stales in their national char- acter, in wliich character they have no common law ; and, therefore, there (•an 1)C no offense afrainstihe I'nited States ( in that character), which has not lieen delircil, and its jiunishniciit |)rescrn)ed hy statute. And, that as there is no statute applicable to the matters charged in these indict- nieifts. tliose matters are not indictable or cognizable l)y any court of the I'niteil Slates as such. That .as the creation of ollices and ollicers, and their duties, are jnatters of exclusive Federal legislation, and as tile judicial iiowor of tne I'nited State." is co-extensive with its legislative })ower. no State court can take cognizance of the malveisations in ofliee of any Federal ollicer. That this court can not, b\' virtue of an}- trans- fer ()f jurisdiction by Maryland to the I'liited Stati's, exercise any Juris- diction, which a State court in Maryland could not havi; exercised ia. This doctrine may or may not be correct; l)ut, if correct, it does not apply to the present cases, if tiie charges in these indit'tments be not for olliiial misconduct of tin,' defendant, as an otlieer of the national grivrnillient. Ill idiisidering the demurrer to the former indictments against thi'* ilraft ; and liow Ins pr-'tense, that the sum of $7.')0 was reipiired for the use and service of the navy of the I'nited States, IMTKI) SIATKS V. WATKINS. LM'.i >f (loiiHirrcr i-s > !i lt:ir to any It supposes ict of the (Ic- of the TTniti .1 I'fc'iidiint, that iiMtionalchar- uTi'fori', there lt), which hiis e. And, thiit 1 thcsi' iiulict- ■ any conrt of s and olliceis, latioii, and as I its legishitivc lions in oflitv of any trans- .'iso any jiiris- : cxcreiscd o 'nited Stales, f,,r pivinen! of urrearafres, mi-ht deceive or impose ni.on the Secretary ,,f the N-.vv. to in.lnee h=m to increase tlie requisition in favor of Mr. ,.,„l,li„,. :.nd to show whv those ofllcers should have -iven their conh- ,U,,ec to ihe dc.ondant. But tliis averment of his „Hieial eliaracter and ,l„lvs is not an averment that the acts, with wiiieh he is chai-ed, were ..ommittod in. ur l.y virtue of, his ollico, or constituted any violation or nc'dect of Ills oUieial iluties. U has l.eeti justly observed, tliat t.i char-je that the defen.lant, hems Fourth Au.litor, etc., commitle.l larceny or robbery, or mur.ler, is not to ( iiir"-e him with oilicial malversation. ri,>. ,",urt is. theref..re, of opinion that these indictments (for that which we have just considered appears to i)e the strongest ease in favor of the defendant, upon this point), do not char.ije the delen.hmt with olVieial misconduct onlv, Imt that they stand, in this respect, up,.n the ,1k. -une .nound as those upon which tiie former opinion of this eonrt was ^riveu? which opinion, we thinlv, is not shai<.M. by th.' ar-ument in M,r present cases, but is as applic;'l>K' to these as it was to tiin-,e. Hut it is said, that if tlie.c indictments are not for otlicial misconduct, yet each of tiiom is insulUcient. for want of preei^. and I'xplicit aver- iucMls of the deceitful practices ,by whicli the frau.ls are supposed to lK.^vbeen effected, and that the frauds were effected by means of such d.iei'.ful practiees. With a view to this question, it will be necessary to examine them separately. The iirU is for tlie S7:.0 o!)tained from Mr. Tauldint,'. After s.ntin- out the olHcial character of the defendant, as Fourth \uditor and his duties, the authority of thc^ Secn-tary of the Navy, to i^.ue requisitions to the Secretary of the Treasury, and of tlie latter to ..nnt warrants on the Treasurv of the Tniled State., accordin- to such r,.,.Mi.iti.)ns. the ollieial <'haracter of Mr. I'aulding. and a pnrt of his du'.ies as Xavv A-ent : and tliat an appropriati.ui of S-o.ooO had been tnilr bv law .,n the -J.l of March. 1S-J7, for the us.^ of th.^ Navy Depart- ,n, ,.t. for arrearages prior to the 1st of January. ls27, the indictment ehar-es that the defendant. l>ein- Fourth Au.litor. etc., and intending fraudulently and unjustly to obtain and a<-.iuire for himself, and for his own i-rivate use. the money of the rnit.>d Slate... with force and arms „„ the Ifith of January. is-.'S, at Washington County, in the District of Cnhimbia. falsely and fraudulently wrote, addressed, and caused to he sent to Mr. I'auldiu-. navy a-enl in New York, a letter of that date in the words and tijtures followino;: — '•Treasury Department. Fourth Auditor's Olllce. January IC. lSi.'8. Sir— I have this day drawn on you for -even hundred and fifty dollars, m favor of C. S. Fowler, on one day's sight. lo meet which a ivmittanee J20 KUALl) AM) FAI,sr, ri.'KTIONSKS. will 1(0 iii;i(k' to you l)y tlu- Tri'iisiiriT of tlio riiitcil States, ho soon u- tlic nM|iiisili(>a can pa^s llinmjrli ilic forms of ulliei', under tlic licad of 'Anvarajres |)rior to \s-27,' of tlio like sum, and to tliis lieud you will hi. pleased to cliarcretary of the Navy a letter, re- questing iiini to i^>;ue a requisition, in his favor, for the sum of $1:.M:!'.I.12, under certain specilied hey -i of appropriation, the head of "Arrearages" not being one of them /hich letter was received by tlie Secretary of the Navy, at Washington, on the P.»th of January, IHl's. That the defendant then and there, l)eing Fourth Auditor, etc., and in- tending fraudulently and unjustly to acquire for himself, and for his own private use, the uKuiey of the I'nited States, and well knowing the premises, with force and arms, etc., on tlie said lUth of January, l«2s, at, etc., did falsely, fraudulently, deceitfully, knowingly, and design- edly apply to the Secretary of the Navy to add to the sum for which Mr. Paulding had requested a warrant to be issued, as aforesaid, the sum of $7.'>0. and did ther. and there pretend to the said Samuel L. Southard, Sec- retary of the Navy of the I'nited States, as aforesaid, that the said sum of ST.'iO was re(iuired for the use and service of the navy of the United States, for the payment of cl.aims adjusted and settled under the appro- priation for arrearages due by the Navy Department of the United States, ))rior to the 1st of Janu.i-^, 1827; and did then and there un- lawfully, fraudulently, deceitfully, and designedly cause and procure to be is-;ucd by the said Samuel L. Southard, then being Secretary of the Navy of the I'nited States, as aforesaid, a requisition to the Treasurer of the United States, for the said additional sum of $7M ; and did cause and i)roeure the said sum of ?7.")(> to be added to the said requisition of Sl2.l;i!t.l2. which the said J. K. Paulding had requested to be i.ssued. as aforesaid, thereby causing the saicl sum of §12,889.12 to Ik' inclmled >tati's, so 90011 II- under the licaii nt is heud you will In iDiidu ntono day- roach yo'i in diu ou will be j)lea>te ..id requisition, instead of the sum of S12.l:;:U2, .o requiivd ' V hJl i.l .1. K. l'.nldin,, as aforesaid (which rcqms.t.on is s ^•;i;, words ndn.ures), which said sum of S12,H^.. 1:^. nient.onod ' lr..misition was in conformity tlu-reto. by warrant under the 111 fad, IH, 11'^ s.iiii ., jpf,,, sitioii m- n 1-.W.W iliil the said sum of bi->^>i I'l lue >.nu ni„.,.s»,^ i„.r ,lr>t the navy age.,t had asked for a requisition foi S1-, 1-' on. , ; : 1 'i:.;f jLi^ry, I^^H, appned to tl>« Secretary o the Isavyo ■M <^7.-.0 to the requisUion; and falsely pretended that it was for the ',■: L and service, and caused a requisition to be ^--^ J ^ ;^ ^ ;^ II.. .7.0, which sum was. in conformity there o. ^'^™f ^' ? ^^ Uu. Trea ury of the United States, and phuanl m the hands of he n.,x> :!;,!t and did thereby defraud the United States of the said muu of ''iL objection, we think, can not be sustain.!. U -- J;; Jj^ court that this count charges only one offense, the ^^^^^^J^ r„it..d States of the ^ToO, by the means set -'^ ;';/^' ^^ ^^^J;;, ■1-he first part of the count charges only some of the '"'""^"^ ^ ^^^ ,.,.,„„,•.,! the fraud ; the second part states the -uUie and Us a^ i d a«.oniplishment, which is averred to have ^-'y^--/'" „ ^ ,;';t w„rd. the counsel for the defendant have justly said, icfus to the whole preceding matter contained in the count. 222 rUALU AND FALiSK I'KETKNSKS. The next ()t)jection is. that it does not appcur in the count by wliat tleci'itful practices tlie (U'fendaut got, or t ilil have got the money of the United States out of tiie hands of the navy accent; for until Iki ■ money was got out of his hands, the offense, it is said, was not com- pliite. The false pretense to the Secretary, it is supposed, only slio\v< llie deceit by wliichthe money was drawn from the Treasury, and iiiaccil pi the hands of the navy agent; but that wujs no fraud on the Unitcii States, for it was safe in his hands. Iiut the answer to that objection is, that the getting the money on- of the Treasury was a necessary link in tlie chain of means to acedn:- plish the fraud J and if that single link was obtained by the deeeptiw practices of tlio defendant, those deceptive practices are as effectual in constituting the offense, as if every other link in the chain had beih forged by the like deception. Another objection has been taken to this indictment. It is said thai, in order to show an indictable fraud in tliis case, it must not oul\ appear that the defendant drew the draft on Mr. Paulding and tl- ceived the money, and tliat the draft was i)aid by Mr. Paulding out of the public moneys in his hands, but that the reqiusition which was obtained by false pretenses, and by means of which the money was drawn out of the Treasury, and placed in the hands of Mr. Paulding, should, by a proper averment, be connected with the transaction between the defendant and Mr. Paulding, in regard to the draft, which, it is supposed, is not done in this indictment ; and that, as there does not appear, on tiie face of the indictment, any connection between the SToO drawn for and received by tlie defendant, and the $7.^0 transferred from the Treasury to tiie navy agent, it must be inteudod that there are two distinct sums of S7oO mentioned in the indictment; and thai, tlierefore, when it is said, in the conclusion of the indictment, that the defendant " did thereby defraud the United States of the gaid sum of S750," it is uncertain which of the two sums of $750 is meant; and that, therefore, the indictment is bad for uncertainty, and f(n- not con- necting the defendant's receipt of the money with the false jiretenses. It has already been said, by this court, that the getting the money out of the Treasury was a necessary link in the chain of means to accomplisli the fraud; ami that if that were done by the deceptive practices of the defendant, those deceptive practices are as effectual in constituting tlic offense, as if every otiier link of tlie chain had Ijeeu make by the like deception. Rut it is now urged that the links of that chain are not connected ; that the ciiain consists of two parts, which have never been joined ; and that the false pretense is applicable to one of those parts. '"'M UNITKI) STATKS ('. WATKINS. ill the count by wliat ive gut tljo moiK'y of iii,'eiit ; for until tliu is said, was rot ccmi- iipposcd, only slunvs rreasury, and jiIuclmI fraud on tlie United || etting tiie money out of means to ucedin- ncd by the ueceptivc es are as effectual in the chain had been lent. It is said that, e, it must not ouh r. Paulding and le- Mr. Paulding out of iquisition which was hich the money w;is ids of Mr. Paulding, vith the transaction I to the draft, whicii. id tliat, as there doe.s nnection between tlie I the $750 transferred 3 intended that there ndictmcnt; and that, indictment, that the tis of the said sum of $750 is meant ; ami aty, and for not cou- h the false jiretenses. he getting the money e chain of means to ne by the deceptive ;e3 arc as effectual in f the chain had been in are not connected ; iver been joined ; aiul B parts. Tlio chain of facts is this : — -.t i- i • f n' "ter from the defendant to the navy agent at New ^^ m whiili he informs him that he has drawn on him, ui favor of C. S. • ir o $7;.0, at one day's sight, to meet which, a remittance o a Mm will be ma.le to the said navy agent, by tlie Ireasurc.- of the , Sta s as soon as the requisition can pass through the forms of ,t m t^ri^ad of ^.ArrLages prior to 1«27," and that to tins 'U hould charge the draft, when paid ; and that, if the remittanc , no re^eh him in due season, he should pay it out of a.iy fund ■:;;!.^ls,td make the necessary transfer on the receipt of the "r xll^^dr^drawn on the same rnitcd States in his hands. "; The requisition and the Treasurer's draft, in conformity with the ■ismivance contained in the letter. , '^ 7 The false pretenses by which the requisition and the Treasure,- s ,,.aft were obtained; and by which the $750 were drawn from the •rieasurv and placed in the hands of the navy agent. ,,,,,.,, s The averment that the defendant .lid thereby defraud the I n.teut they are only such -\-^^^-'J'^^^^ 10 show the false pretenses by which the defendant obtained that Treas- ury draft; and do not break the connection of the material circum- stances by means of which the fraud is supposed to have been effected If the allegation respecting the Treasury warranv l>ad "nmediate y followed the averment of the payment of the draft by Mr Pauld.ng and it had been introduced by such words as these : " An.Uhe juiors aforesaid, upon their oaths aforesaid, further present that t be sa Tobias Watkins, in conformity with the assurance contained m the said letter of the IGth of January, 1828, afterwards, to wit on he IJth of Jar.uarv, 1828, at the county of Washington aforesaid, did cause the like sum of $750 to be drawn from the Treasury of Umted States, and 221 IKAI i> AM) I Ai.sK i'i;i;ri:\sKs. placed ill tlu- lifiiuls of Ww Hnit, which tin defendant, by anticipation, perhaps, drew out of the hands of the navy ageiil. through the medium of Mr. Fowler, the broker. We have said, " by anticipation, perhaps; " for it docs not appenr, upon the indictment, whether the Treasurer's remittance reache(J Mi. rankling before or after he had ymd the draft. Nor is that questicm material ; for if he paid it before he i. .'cived the remittance, he paitl it uiton the assurance of a remittance which was afterwards actuallj^ made. In either case, diereiorc, be paid it out of the moneys of the United Slates in his hands. It seems to us, therefore, that the chain of facts and circumstances which are set forth in the in ;i nil iinni:iteri:ii tlian tile l:iw • witli the nviM- , the connect ii III , 182H, and iii- arent upon tin ppear tliat tlic iug llic I'niteil rant, wliieli tlu' ids of the navv oes not appear, re reachtuj Mi. is tiiat questiiiji inoe, he i)ai(l ii aetuallj' uiadi'. ! of the Uniti'il I cironmstaneo pf effect iiifj; tiic deceitful prac- ibtainiii -.(I, 17, 15:,-2. Tlie ingest, 50, IT, l.V.', '• '" maUihU, ratiUahitin mmi 22ti rUALlJ AM) IAUM; I'KKIKN.sKs. T^iit tluTc is iinotlicr view <>f ilii-i siihject wliidi lia» liccii t;ikcn 1)\ 'In (•(iiiiiscl for the I'liili'd Slutfs. ami wliicli it may ln' proper fur the lour' to iiotiri'. It is contt'inlod by llit'in that tli«' offense (meaiiiiij^ liie offense char;;!!! ill (iiis iiiiiietiiieiit, wliicli is a frami iipmi tin- I'nited States), was ci.in piete wiieii tiie (h'feiKJaiit .sold llic draft ami received tiie money frm,. Mr. Fowler, and lieforo the draft had been paid by Mr. Pauldinfj; out n' tilt! mom ys of the I'nited SItiles iu his liamls ; and that the defemhim mi^dit have bei'ii immediately prosecuted and eonvictej roseeuted, tried, or resaid, willful murdor (irf"rj:ery exeepled, unles-i the iridic tineut for tlie same shall be f.anid li\ a errand jury, within three years next after the treason, or capital (iffciiHe aforesaid, shall be done or coiiiinitted ; nor shall any per-nu be p:-oseciited. tried, or punislied, for any offense not ca|iital, nor for any title or forfeiture under any penal statuti-. unless the iiidietuieiil or in- foriiiation for the same shall be found or instituted within two years from the time of committing the oll'euse, or ineurring the line or for- feiture aforesaid. I'rovided that nothing herein contained shall ex- tenil to any person or persona lleeiiig from justi<'e." Ill answer to this objection it has lieen said : — 1st. That it diu's not appear, upon the face of the indictment, at what time it wtis found. :M. That alioiild appear to the court that the offense was committed beyond .lie time limited, they could not give judgment against the defendant. Thus, in Khxj v. Fmr///.'/,' "the court said they were of o|iinion that this was a good objoctiou ; because, by the caption of tlie indict- ment it ai)peared that the (.Quarter Sessions liad no jurisdiction. Uiion a (leraiirrer to an indictment, the court must look to the whole record to sec whether they are warranted in giving judgment on it." So in the eases of Rex v. Fishn-, and Rex v. Saunde.rs:^ " In the case of Fisher, jmiu-inent was arrested after verdict ; and, in the case of Siuiwlers. one iii'lictraent was (juashcd, being taken at an adjourned Sessions, and it not iiiipeariiig what day the origmal Sessions began, to bring it within the time prescribed by the statute." '2. To the second objection, that the .defendant can not take advan- taire of the limitation upon demurrer, tlie answer is this, that however it iiiuy be iii practice, yet in theory, and by law, if judgment, ui.ou de- miiiTer to an indictment for a misdemeanor, be given against the defend- ant, it is a peremptory jieigment of condemnation: aiies." ^fi. Ki'v, i''/»/ru, observed : ''The law ought t.) be cun- btruitl liberally, for the benelit of the accused. This case is in liir very \V(iids of the statute." This court in that case was clearly of opinion, that the net of Congress of the .10th of April, ITHO,' applied to that case, and dincleil the jury that they could not lind the defendant guiliy upon that evidence. This decision of the court has been accpiie.sced in l)y the public ; and the question, we Ijelieve, has never been niadc since. AVe are, therefore, of opinidii that the judgment upon the demurrer to tliis indictment must be fconscion.ly ,.x,,;.s.cl >nvsc-lf 10 it, I n...-l InoU f„r a.. .iM.lo-.ry in the eight ov ...nc vNv.lv. (.f (hiiiv d.'l.at., of at loust six 1...... s cac-h .lay. c-hiHly on tccl..,!- <.al points, TNliich onul.t to ho nn.lerstoo.l, if Ihey can be un.lerstood ,i ■ai at least in as nianv (lavs as ^ve have oonsumed week<. But we have, ;.s I thon.rht, ^vith gn-at patience U>teue.l to all that we were desire. u> hoar; an-l with the more willingness, as the importance of the case ua. l,..en ur.nMl with mmh solemnity, alth.u,;:!. I have never been able to diMvrn any l-eenliar ciro..n.sta..ecs wlm^h ca.i distinguish this case fro.,, that of others of the same grade. " Frand at eon,.„on law is bi.t a misde,nean.,r. This is a general te.-,n for that class of offenses whi.h are considered the least heinons; an 1 I nnderstan.l that the punishment, on conviction, is but on." d..g,'ee above that of the low..st offense. Pecuniai-y line is (.o„sideied. I bthevc, \hv li.l„..t p„„isl,ment known to the law of frau.l ; imprisomnent may In- siipiMJuhlrd, but at tin- disn-elion of the comt. If this case th.n. bo of anv pa.Micular importance, we must search for it in extrinsic circumstances; this i. fo.bidden ground to judges; we can not travel out of the reconl, and if. \u the course of juv these seats. . ., * The questious now hefo.-e the court, are ou the s.ifhcency of the two indiet.nents. Two points h.ave been .nade 1st. That offenses, charged in the indictments, are not cognizable in this court ; and if they are that thevaie not i.i-operly charged. The miestion of jurisdiction results from the statement (as it is al- lecrod) in both i>idi( tments, that the frau.l. if any, was completed n^ New Y.nk, where the nion.'V was received fn.m the navy agent, PauM- in.T-and that, therefo.'c, if the f;,cts alleged, constitute a fraud ,t ,s indictable there, and not here. The indictment, No. 1 . has also been i,np.>a.hed on the ground that it cha.'ges two distinct offenses; the one for S7.-.() received, by the means of Fowler's draft from Pauhlmg ,n New Yo,-k, and ano'ther for a liki' sum. from the Treasury, by mean>^ of the Ti-easurer's wa.rant issued here on the order of the Secretary of of the Tieasurv, upon the re(piisiti..n of the Secretary of the Navj ; which requisition included tl,e false and si-urious item of 8750 for " ar- renra-res prior to ls-27." imposed, by false pretenses, on the sa,.l Sc- relarv,to had him to add it to M,-. Paulding's legitimate demand of SI- "i;'>'.t.l-2. ihereby causing falsely, and fraudulently, the said Secre- taiTlo issue a requisiii<...on the Treiisury Department for «12,889.1-' including this imitosed item, instead of the first lawful amount. ifeM UNITED STATES V. WAIKINS. •j;u if I miconscion^ly a the eight or iiiiip , c'hii'tly on tecliiii- II 1)1' uiulerstood iit U<. Hilt we have, wv were desired to nee of tiie case La? nevor bren able tu uisli this ease from is is a ffeneral term i>ast lieinous; an 1 I it one degree above Icied. I believe, the iiuprisoument may ICC, we must search ground to judges; nurse of judii'ial in- rc may rearli us, df for l!ie accused, we tress them, while we iinciencv of the two iKit offenses, cliargeil urt ; and if they aro atcment (as it is al- y, was completed in i- navy agent, PauM- iistitute a fraud, it is , No. 1 . liHS also bi'on net offenses; the om' raft from Paulding in ; Tretisury, by mean? er of the Secretary of icretary of the Navy; item of 8750 for "ar- uses, on tiic said See- legitimate demand of iently, the said Secre- rtment for «12,889l-' wful amount. Thr indictmenl No. •_', lias lieeii stigmatized as wanting [ireci>ion and iiiii|icr avi'nui'iits. Ill support of these criticisms on tlie indietnients. a great Miinber of ;uithoiities were cited, ciiielly from compilations and digests (. mi inod- orii dale, which, if I had tin; books now before me, as in truth 1 have not. I sh 'iild not have time to examine tiiem with siitlieientdelibcratiou. ami. theiefonMUtistmaive up my t)i)inion from the imprfssioiis received ;it tiie time the authorities were cited, from general jirineiples of law. iiiid till' exercise of such understanding as it has pleased Provi- ,l,nc«' to endue nic with. But these books were, jjriiicipally, as I said t>eforc, compilations and digeer ef acts and scenes, which are shifted from i-lace to place, and time to time, till the plot ripens and is perfected. Hence, and from the pecu- liar and divcr'"K'd nature of the contrivances made use of to accom- pii>h a fraud, there must be an equally diversitied form and manner ill tiie statements in au indictment. A fraud may be comiileted at one place, and by one act; and if A. uses a false token to B., and cheats iinil imposes on him. to get hold of H.'s nnniey, this is a simple fraud, :tiid easily charged in an i.idictmeiit. Hut a fraud which re(piires, for li- aeconiplislinunl a mtire extended and compound eour-^e of decep- ti ins, partly by false rei)resentations in writing, and p.artly verbal, where several persons are to be deceived, before the attainment of the iid, and where operations are to be carried on in several distant places; here, all these various circumstances being required to be set out in an indictment, such an indictment must necessarily vary from and other iiidictinent that was ever drawn before it; and, therefore, as to its pecuUar form and structure, no precedent of forms can be found to apply to it. I do not want precedents to inform me of the leatling principles which must govern all indictments, that they must be certain and precise in their charges; tliiit the 7 ko a/it >»o must be averred, the iri<'utei\ etc. ; that the negations must exclude any possible legal iufer- « lice of innocence in the arts or intents of the accused, etc., and as far as such general rules and principles as these go, I will pay , ill due 232 FUAl'l) AM) I'AI.SK I'KI.TKN.nKS. respect, ;iii(l liavc applic'il tliein. and inoasiinMl tliesc indictiin'iits ;.y tliciii, u il have iioL found tliom tlelicieiit. My ciinlideiico in tlm-i books, iiNo, is inufli iinpaired liy wlial I iiave seen on tliis tr:a! :ind wlial 1 liavo often seen lieforc. I liave seen liook oiiposed in liooli liy opposite counsel; nay, I have seen the same hook nsed to heiir on tlie same point hy hoth sides, wiiieh leads me to the mention of an olix rvation of u very leaiiied judfxe on this snhjcet, whom J had oee:i- sinn to allude to onee liefi>re. This distinguished Chaneelior of Vir- ginia, having heen lenchred t'xeeedingly impatient at the frequent reversal of his '> and try it not by precedents of other forms of indictments for other offenses, tuit by the principles I have mentioned above. This indictment is said to charge two distinct offenses. Let us dis- . sect it and see if this be the case. 1st. The first paragraph alleges tlui! oil the IfUh and r.Mli of .January, IsvJS, and before and after that time. Tobias Watkins was .\uditor of tlie Navy Department, and states In? VMTKI) SIATKS V. WAIKINS. )>:\:\ Sv illilictllU'llts ;.y iitUli'iico ill tliii-i ecu on this tna! liDok (i|i|iOSl'(l tn luiiik iisfil to hear tlio nu'iilitin of nil wliniii J liail occa- CliaiK'cUor of \'n- t at tliu frcciiiciit \ir^iiii:i. lie inili- his upiiiioiis, aiiii " in a certiiiii casi^ Biilstrode, wliiil) 3t kuow how to p t — if 1 may use tlic author by sayiiiL'. will U^lit any .siilc luiuicralik; ukxU rii on the vciirralilc most ^se^iously iK- of books, i)arti(U- goocl lalior-saviiii: il effect on tlu! ail- lat they will, if imt 'oiumoii siiise, aii'l the most miserable and doubtful of all indictment (whidi 'tiiu'Dts bef(/re the ratai^cms, and aiti- •acant fi;;ure9 ami As to those books. cited by them, 'lo this proceeds fnnn f those authorities, lit, No. 1, for S7.'iO ictments for other I'C. .'nses. Let us dis- ayraph alleges that ,nd after that time, ent. ami states his ,lmi..s as t day of January, 1S-J7. So far, it is manifest, the indictratnt is merely historical or narrative, ',;it necessarily connetted with the charges which follow; then comes tiR. narrative of the fraud and deception practiced on I'aulding to ob- :.,iu, out of the public money, the S7:.0, commencing with the letter ilvising PauMing of his design to draw on him in favor of Fowler, uhi, h s^im would be replaced in his hamls " by a remittance to be made !i . hie season, so soon as a requisition can i)ass thnmgh tiie forms of ,Hi,v." etc., therein premeditating the remittance which the indictment. n a Mibscquent part, charges to have been obtained by false pretenses used to the Secretary of the Navy. Then follows the draft in favor of Fowk'r, and the procuring the e7;.() from him, by means of the said hall, and the pavment of tlie draft liy Paulding. Now, although this transaction is stated in the form of a charg.', and to be done with force iiiul anus, etc., yet it is not the offense which constitutes the grnniwen f this iiidictment. It might have been made, perhaps, a ground of niai. uncut as a distinct offense per se, as in the 6:100 indictment, but is not HO contemplated in this indictment. It is here introduced, because of its connection with the real charge, the fraud practiced upon the s.rretary of the Naw ; for it was to supply this defect in the public funis drawn out of the hands of I'aulding, that the subsequent fraud II tlie Secretary of the Navy became necessary; and it is that fraud iiiKl its consequences which arc the real subjects of this indictment. riien comes another narrative part of the indictment, stating the letter s. ill by Paulding to the Secretary of the Navy, dated the 10th of Janu- ary, 1S28, reipiesting a warrant to issue in his, Paulding's favor, for iV2.VM. 12, to be charged to certain specified appropriations at the foot of that leter, which letter is stated to have been received by the Secrc- larv on the l',»th of January, 1«-JH. Tlie indictment, thus far consisting merely of narrative, I consider as introdiiclorv or introducing to the main charge, that of obtaining the pub- lic money oy means of false pretenses made to the Secretary of the Navy. and dec.'it an.l imposition practiced on him. Because it professes to be, on its face, an indictment for fraudulently obtaining the public money I'ai rilAlI) AM) lALSK I'RETKXSKS. In- false pivtiinses, iiiul no false pretense is set out in the former prirt of tlu' indietnii'nt. Now, here coinmenees (lie real charge — tiie tiui' firavamcu of the in.licliiient, wliieh is. " that the saiil Tol)ias Watlvins, iieiiii,' tlieii and there Fourtii Au(]ilor of the Treasury I)e)>artment of tii, ruitetl Slates as iiforesaid, and heiiij? an evil-disposed j)ersun, ami (li'visiiig and intendin-: frauduKntly and unjustly to acquire for himself, and for his own private use, the money of the United Stat(>s, and wA knowing the i)remises, with force and arms, on the said nineteenth >h\ of .lanuarv, which was in the year of our Lord" 182H, "as aforesaid!. at the C'lunty of AVashington aforesaid, did falsely, fraudulently, d.c.ifnlly, knowingly, and designedly apply to the said Samuel L. Southard,' then being Secretary of the Navy of the United States ;.> aforesaid, to add to the said sum of" Sli', i:il». 1-', " for which the sai.i J. K. I'aulding had reipiested a warrant to be issued as aforesaid, tlu sum of" 7i-)(r'- dollars; and did then and there pretend to the said Samuel L. Southard, Secretary of the Navy of the United States a- aforesaid, that the said sum of " li>0 " dollars was required for the use and service of the Navy of the United States for the payment of claims f..r arrearages due by the Navy Department of the United States jMior to the first (lay of January, which was in the year of our Lord" ISi'T, ••and to cause the same to be placed in the hands of the said J. K. I'aulding, navy agent as aforesaid, for the purpose aforesaid, at the same time and together \\ith the said sum of" S1-. 13!>. I'i, for which ••the said J. K. I'aulding had requested a warrant to be issued as aforesaid." Then follows the requisition of the Secretary of the Navy on tho Secretary of the Treasury, at the foot whereof are the specitications of I'aulding, under the title of appropriations, in which are stated the par- ticular services for which the money is wanted, namely: "Pay, etc. navy alloat, SI. '.'I-'; " "shore stations. S1,0').S.25 ; " and, after soim- others, comes last this gTaO, the specified service of which is '• arrear- ages i)rior to 1S27, 87.'»0." The indictment then avers " that the sai^i sum of S12.><'^!'-1-'. i» the said requisition mentioned" (which includo> this false and spurious item of ST.V)), "was, iu conformity with th. said recpiisition, by warrant from the Secretary of the Treasury, drawii out of the Treasury of the United States, and placed in the hand-^ of the said I'aulding, navy agent as aforesaid," with intent <'J .U'fraud the Unite.l States out of ST-'-O. It then states, "whereas^ • vib Mid in fact, the said T. Watkins. at the time of making the sal 1 1 i.-'etenH-^ well knew." etc. From hence to the conclusion folio'- e averments of the .:.■(>)(^'r, of the criminal intent, and the ueeessary ..egations; the whole of which are. to my understanding, in apt and teclinic.al form. and relate entirelv to these $7.-^() gotten from the Treasury by means ef IMTKI) ST.\TK> '•. \V\TKIXS. ■i-if) n the former pnrt L'lmrgc — tlie tnn' I Tobias Watkins, l)e)>artnu'iit of th. lOsed piTSDii. ami .•quirt' ftir liiiiisilf, (1 States, aiul wi'l, lid iiinetet'iitli ilay IH, " MS aforesaid, L>ly, fraiuUilemly. e said Samuel I,. Uuilod States !i> for which the saiil \ as aforesaid, l!u' •etend to the said United States n- •quired for the usi' l)aynieut of claims United States jirior our Lord" IS'JT. s of the said J. K. aforesaid, at the , U-?!».l-.>, for which ;it to be issued as I the Navy on the he specitications of are stated the pur- mely: '' Pay, etc. " and, afttT smm' f which is •• arnar- vers " that the said 1 " (which includo> onforuiity with th' he Treasury, drawn ced in the hands of itont^o defraud the eas v.ib !'.nd in sai ( : ,M-eU"D^05 (jllo'' c averments saiy .w'gntions ; Hk' md teclnuca) form. •easury by means of tie taNe pretenses prueliced on the Secretary of the Navy, andjhe ,„l.se(liient transactions c,,n>e(iucnt thereon, and to no other 87.-)0 wh:l!i'Ver. . , . IPivintr now taken this indictment to pieces and ex.-vratned its parts, „•(. will put it to-jether apiin and examine it as a wlu.le. And I will ,, remise, that as to pr.'cision in the char^'es. the averment of the fraud- iiUnt intents, of the false prtlenses, and, in short, as to all the forms r,,iiiired in indictments, it Beems to be uuimp.'achalde ; nor has a sin-ile ,,:,„a^e been selected and presentei to the court wherein any defect of firm "has bi^en suggested. Let it be examined, and shown where any Micii defect appears. But the character of the offense charged lias been questioned. It was ur^ed that it was entirely ollicial, as laid, and therefore not cogniz- i.hlo h(M-e. Rut the indictment deserves no such reproach : the charges ■Mv exclusively of a private, and not oflicial aspect; there is no allega- ;i,,„ of a breach of omcial duty. It is true, that in the three first ihiuses, the oflicial titles, powers, and duties of T. Wat kins, as Fourth All iitor, Samuel L. Southard, as Secretary of the Navy, and J. K. Paulding, as navy agent, are stated; Imt this seems neces.sary for the l,iniiose''of explaining and illustrating the ccninected links in the long ,',;un of deceptions that were practiced , ))ecaiisc it was fnmi the facili- tirs derived to two of these functionaries from their official stations, and the influence of his own oflieial station, that the defendant was al)le to effect his fraudulent (U'vices, but he himself exercised no official fiiiietion in the course of his fraudulent doings, although he availed limself of the oflicial powers and faculties of the other two. What he did was not an abuse of any olHcial authority vested in him, but was entirely in his p(>rsonal and private character, though he was aided in facilitating his plans by the influence of his oflicial station. So much as to this objection. Tlie next was to the frame and structure of the indictment; that it tlia'ued two distinct and independent offenses in the same indictment. I think I have sufficiently answered this objection in my analysis of the instrument. I will add no more on this point. Th- next and last objection there is no ground for. that the fraud was not completed within the jurisdiction of this court, but in a f.jreign j irisdiction, namely, New York. Now the i-irA) having been obtained frnui the Treasury by the Secretary's warrant, rendered the offense (nmplele here; for if" the Treasury be anywhere it is here ; and where i'milding received it is of no account, nor does the indictment state where ire received it. The money was also appropriated to the pri- vate use of the defendant, for it was applied to the i>aynient of his debt to Pauldin'^. to reimburse that s:un whicli, by fraudulent devices, 23B FliALI) AND FALSE I'KETKNSKs. he had drawn out of liis liuiids, and the pul)lic' havo sustained a loss to tliat amount. This iiKlicltiient, in the view I have taken of it, is not liable 1o tiie ol)jeclion, that the fraud was conipleted in a foreign juris- diflion ; and if it were, I should doubt of the validity of the objection. I think tlio whole of the late argument on this point, as to this indict- ment, was totally inapplieable to it. I am, therefore, of opinion, that judgment on this indictment be for the United States. (The defendant proposed to withdraw his demurrer in the $7.")() ease, and to pliiid (he general issue.) Cranoh, C. J., delivered the opinion of the court (Thirstox, J.. dissenting). After the court had given an opinion thi. none of the exceptions taken to this indictment, for defrauding the United States of $750, could l)e sustained, and before any judgment had been rendered by the court upon the demurrer, the counsel for the defendant moved the court for leave to withdraw the demurrer and plead the general issue, To this motion the counsel for the United States objected, and prayed that peremptory judgment of condemnation should be entered against the defendant; contending that the court has no discretionary power to permit tiie defendant to withdraw his demurrer and plead the general issue, after the argument upon the demurrer, and after the delivery of the opinion of the court. It seems to be certain, that if the court should now proceed to give judgment upon the demurrer, that judgment can not be judgment of respondens o^ister, but must be judgment of condemnation. The questions then are, 1st. Whether the court has a right, in its discretion, to give the defendant leave to withdraw his demurrer, and plead the general issue, after the opinion of the court has been expressed against the validity of the objections taken to the indictment? and 2il. Whether the court, if it has that right, ought, under the circum- stances of this case, to exercise it? 1. U[)on the first question, it may be observed, that the right in civi| cases is conceded, and has been often exercised. But it is said, that there is no instance in which this court has exercised it in a criminal case. This may be true, but it may be because demurrers, in criminal cases, are very rare, inasmuch as upon a motion to quash, or in arrest of judgment, the defendant may avail himself of all the matters which he could upon demurrer. But, because no criminal cases in this court have called for the exercise of the right, it does not follow that the right does not exist ; and no reason is perceived why it should not exist in ci'iminal as well as in civil cases. NSKS. UNITKI) STATKS V. WATKINS. 2;^7 hiivo sustained a loss to have lakon of it, is not lileted in a foreign juris- alidity of the objection. i point, as to this indict- )n tliis indictment be for miirror in tlic $~')0 caso, e court (TiiunsTON, J., none of tiie exceptionjt United States of $75l), ad been rendered by the e defendant moved tiie plead the general issue, ;es objected, and prayed liould be entered against discretionary power to ur and plead the general md after the delivery of uld now proceed to give can not be judgment of idemnation. discretion, to give the plead the general issue, sscd against the vaUdity lught, under the circum- id, that the right in civi| ed. But it is said, that ixercised it in a criminal 3 demurrers, in criminal to quash, or in arrest of ill the matters which he inal cases in this court not follow that the right ly it should not exist in On the contrary, Chitty. in his Criminivl Law,' speaking of crim- inal cases, says, that " by leave u demurrer may be withdrawn." And again, in p. 4 l(», ho says, " when once a demurrer is filed, the de- fendant can not withdraw it without the consent of the parties on whose prosecution he is indicted ; or, at least, without the permission of the court." And although he says, in p. 4'M), that " in cases of misde- meanor or judgment of respotnleas ouster is of right demandablc, when an issue in law is found against the defendant, for the decision opcrals as cniiviction," yet he says, " as a matter of favor, the defendant ma,\ still be permitted to plead not guilty." That a rvspondeaK mister is not of right demandablc, in tlio present case, is admitted ; and if we now proceed to judgment, that judgment iiinst be peremptory. And the law is admitted as laid down by Chitty, in p. 441, tliat, " in mere misdemeanors, if the defendant demur to the indictment, and fail in the argument, he shall not have judgment to an- swer over; but the decision will operate a conviction." Here the defendant does not ask the judgment of the court, upon the demurrer, that he sh .11 answer over; but he asks leave to withdraw the demurrer, before the actual decision of the court upon it. Tiie cases cited, which, at first view, seem to support the counsel of tlie United States in opposing the motion, on the ground of the want of siicii a discretionary p )wer to suffer the demurrer to be withdrawn, only show that the judgment, when given upon the demurrer, must be a per- emptory judgment. In civil cases, such a motion has been often made and granted, in this court; and we think we have as much right, in our discretion, to grant it in a criminal case as in a civil. Indeed, we tiiink the reasons for it are much stronger in the former than in the lat- ter, in proportion as a man's reputation and liberty are dearer to him tlian his lands or goods. 2. The second question is, whether the court, in the exercise of its discretion, ought to grant the leave which has been asked? That a man has mistaken the law, and, therefore, mistaken his defence, does not seem of itself, to afford a reason why the peremptory judgment of conilemnation should be entered up against him ; and if he IkuI a probable ground to suppose that he was not bound to answer crimiiially for the act charged, but is mistaken, it seems hard that he siiould not be permitted to deny the fact. For although, technically sjieaking, he must be considered as having admitted the facts, before he toiiid call upon the court for their opinion, whether those facts consti- tuted a crime, yet it must be seen that such admission is only made for 'lie purpose of raising the question of law. > 1 vol. 1 p. 437. 'j;5s ri!\ri) AND rAi.si: viMvrKNsKs. 'I'hiil the (]iu'-ti'in> of \ii\\ . w'nicli liiivc arisi'ii in tliis vi\hv. witi' itn- portani, iiinl iu sunn- ilr^ici' dnuhtful, ami tlisit -kuw of tliciu were luw. Ill lc:i>t ill tliis court, must I'C nppari'nl from tin- tiiiu" consiinuMl in ;ii- jrumi'iil hy 111*' alile counsel, ami liy 'li« ti"iL' whic li the court (liHMiinl necessary for deliberatiou. This, therefore, can not be called a frivd- lotlS ilellllllTtr. It may lie olisorvetl, also, that, althoii-li tlie jiidgmunt of the court upnii the (lemuricr. if airainst tlie (lefondaiit. is pereiuptory. it is iint -n if a;.'iiiiist the I'liited States; fur tiuy may send up new hills of imlict- nieiii successively, until tliey shall have made their caae perfect in form. Another circumstance is, tliat in this case there is no appellate court to reverse our judtrment. and correit it if it shoiihl be erroneous. It also deserv.s consideration, tiiat, from the known practice of tliis court to suffer demurrers, in civil cases, to be withdrawn after arjiii- ment, ami after an expression of the o|r,.ioiiof the court, and from tin' circumstances that thi re has tiecn no criminal case, in this court, in which such leave has lieeii denied, and that the reasons in favor of it, in criminal cases, were apparently as strong, at least, as in civil casivj; the defendant, or his counsel, may have been led to believe that tlu' same iiidiiltreiice would be extended to criminal cases; and this belirf may have been kept up diuiny the arj:umeiit of these causes, by the cir- cumstance that the witnesses for the rnited States, who were to support the indictment liet'ore the petit jury, have Viccn detained here duriiiLrtiu' whole of the ar^rumenls upon the demurriT. Whereas, if the I'nite'l States had dischar<;:cd those witnesses as soon as the defendant had di- nuirr"d to the indictment, so that the defendant might have undeistooil that the United States expected a peremptory judgment, the defendiiiit might have offered to abandon his demurrer before the opinion of tlic court was declared, and even before the argument of cminstd. It is true that the defendant might have availed himself of the same objections to tiie indictment upon a motion in arrest of judgment, as by demurrer; but it is not perceived how tlie United States would have been in any degree benefited liy such a course. On the contrary, if the judgment upon the demurrer to any one of the indictments should W against the Uniteil States, it would save tlie exiiense of a jury trial uiion that indictment, and the United Sti-tes miglit send up a better. The court is, therefore, of ojiinion that tlie leave asked by the defend- ant's counsel ought to be granted ; provided the defendant shall waive his right of moving in arrest of judgment for any matters apparent uiion the indictment. < TiiuKSToN, J., dissenting saying: That lie felt himself compelle.l to differ from a majority of tbe IMTICK ST,\Ti;s i\ WM'KINM. tins ciisi', wiTi' itii- t' of tlii'iii were luw. iiiu' cout*iinu'<; to lielieve that the ises ; and this bclitf sc causes, by tlio cir- who were to support lined here dnriiii^tlif lereas, if the I'nite'l le defendant had tlt- lyht have iindei stool ;nient, the defendant re the opinion of the of counsel, himself of the same it of judiinient, as by il States would iiave n the contrary, if the diet incuts shouUl ho a of a jury trial uiion up a better. asked by the defend- lefendaul shall waive jatters apparent upon court, in the opiuiuu Jmm r.'ndciv.l by tluni. That h.- should br w, II .;ili*lied that tlic ui. rits ,<{ th.. ,,,so should lie lu^ard, wIimIi would ;rive :lic accu.sc.l a fair opiK.rluuity ..f provinjj; his innocence to the woHd, .111.1 uliich, by tlH.J,„|^r„„,„t of thccnurt. he will have; but he .•nuid n .t sec that he has from (liitly's Criminal Law, in support of his position. The liist was-i •Uheucmce a demurrer is (iled, the defendant can not withdraw it without the consent of the parties on whose prosecution ho is indicted, nrat least without the leave of the court." That, althoufrh this p-J- >a-r nii-ht seem to favor an ap|)lication, in ceilain cases, for leave to "itli'iraw, yet it is far from sustaining the motion in the present case. Ihat it was very true, perhaps, that, after d.ininrer filed, even in a case "f misdemeanor, the court, before arjrumcnt, woidd allow the accused ■^'"'HspatHitentin'; nnd not tic him «lown to a step which he may have 'ait the proprict}' of cxiTfiMing it in tla- prosi ,it casi', ftfliT tilt! (Icfciiiliiiit had rost('(| on his (It'inurrcr with Mich coiili- tlciicf, and supported it wiMi such oiistiiiucy : and persisted in refusing to ask tlu! t'xercisi' of this power in his hehiilf, until ho iiad become in- formed of the opinion of the court. The judge, then, to sustain the remarks above made, read tiie follow- injx authorities: ' " hut in inert! niisdeiiieanors, if the defendant demur to tiie indictment, whether in aliatement or otherwise, and fail in the ar<.Minient. he shall not have juilgmeut to answer over, but the decision will operate as a conviction." That tliis authority appeared, from the references, to be supported by a solemn decision of the Court of Kintr's Bench, in which all the judLres concurred. That the laniiuajxc of Lord Ellcnboron<;li, and all tiic judges, in that case, was so positive, and therefore the authority (in I lie absence of a single case against it, either in the books or in our own practice), so imperative, that he could not resist it. This case is to be found in 8 Kast.-' Lord Kllenboroiigii thcio says: " Only one instanci' h.'is been mentioned of tiie same privilege " (meaning the privilege asked of this court to withdraw the demurrer and to plead over),^ " and thai is the precedent referred to in Tremainc, on account of the magniiuile of the punishment for striking another in the king's palace, being no less than the loss of the offender's hands." Grose, Justice, concludes his opinion with these words: "But it seems that in criminal c;;se3, not capital, if the defendant demur to an indictment, etc., whether in abatement or otherwise, the court will nut give judgment against him to answer over, but final judgment." "All the judges of the King's Bench concurred in that opinion ; and he felt himself bound by such ])ositive authorities, and therefore was obliged to dissent from the opinion of the court, and to refuse the motion." Tbo defemlant having thus had leave to withdraw the demurrer to tlu' indictment for the ToO dollars, pleaded not guilty, and the case came on for trial upon the general issue. 1 1 Chit. Or. I.. Hi. 2 )). ll'i, King I'. Uilison. 3 But see the ruso ittcK. SSKS. w;is clear I lint lir luul ;i ■awn, undiT fxistin^ i ir- i'rci«iiig it in tlif prosi'.it iniirnT witli Midi cniili- 11(1 ptT^tistfil in rt'l'iisini.' until he liail beoonic in- made, road tiic follow. if till' dcfiiidiiiit dt'iniii liorwisc, and fail in tin it over, but the deciHion noes, to l)e supported In , ill which all the judi^'cs •iiliorougli, and all tlic refure the authority (in the books or in our own it it. This case is to ho ys ; " Only one instanci' iniug the privilege asked plead over),^ " and that count of the niagniuule king's palace, being no these words: " But it defendant demur to an •wise, the court will imt final judgment." "All lat opinion ; and he felt therefore was obliged to 'use the motion." Iraw the demurrer to the lilty, and the case came the cuso itacU. NCOTT r. I'KOI'l.i: I'll KALSK I'RF.TF.NSEH _ AUF.NT AN'D riUNril'Af, COLLUDu\G AS TO I'lUCK (i|- I-AND — MOTIVK. S((»TT ''. PkoI'LK. [t;j lliirb. t;;t.] l» thr Supreme Court of Xmr York, 1S7'.}. I An Indictment for Obtaining the "luniitiiro of n luirchniicr to promli^nory note « (tiven r.ir llii' luiichasc pricii ut |irci|i(!il>- miIiI di liliii liy false- prriiiiiHi'n nml io|ii'CBt'iitatioiiH iiH Id tin' inicc askcil f.ir llii" |ir(i|icrlv Ity ii tlilnl iiiTHori, wlio wiii' tin- nwinr, ran v>{ lir -untaliii'il, wluMi' tlic piHiif Mliiuvt thai no ri'iprcriciilalioiiM wen) iiiailc liy llio (lifciidaiil in ri'ttanl to tlif |irici', i'X('i>|.l that In' tnl.l tim iiiir('lia..i'r, in tliu cuiirM! of tlii' m't.'n(ia- lion-, that lin iliil imi think Ihnt tho ni'ljcr would laku lt" (luiiianded liy llic HclItM-, at lliollinr of I lie Hiili', Ihn mot ire iniiHkiiiK that prltf I ^ of no ciinsoipK.'noe, sii far HA tliu olfciLHc I'liarKcil i« conuernuU. Writ of error to the Jefferson Oyer and Terminer. The plaintiff in error, Scott, was imlicted jointly with one William 15. Nicholson, for nlitaining under false pretenses, the signature of one CJcorgc A. Wilson to six promissory notes of Sl.dOO each At the close of the jiroof tiie prisoner's counsel moved the discharge of the prisoner, on the grounds generally of the insufficiency of the imlictment and the proof; which motion was denied. Tile jury found a verdict of guilty in miiiiner and form as charged in the indictment. A motion in arrest of judgment and for a new trial »;i> made upon the case as settled. The motion was denied, with exceptions. .loiiNsoN, J. The plaintiff in error was indicted with one Nicholson, fur olitaining the sigmituie of (ieoige A. Wilson, to six iironiissory iicles of §1,000 each, liy false pretenses, iijioii the jiurchasc by the latter of Nicholson, of the title to one-half of a ci'i'tain patent right. Several pretenses alleged to have been false were set out in the indict- ment, only one of which it will be necessary to consider, as the judge will) presided upon the trial, when submitting the case to the jury charged and instructed them that upon that one only could the plaintiff ill irror be convicted of the offense charged. That i)retense was in regard to the real ami true price for the whole ri^ht. The charge in the indictment upon this siibjed, was that Scott, ilie plaintiff in error, and Nicholson, falsely pretended and represented 3 Defences. Ifi ^jo VlUri) ANP VM.SI' VHKTKNSKS. ^,^.^^ ,„„ ,..,,, „.a true pri-e in n.ou.y. usko : ;. ntiff in error was convi<-to,l on thin oharizo m tin- nuhctn :: •:: ;"o Ni:;::i:on, t^e own. an,l .... of „.e ..U^nt ..n. . .s n witnc^H l.v the People. The only facts in rejzarcl o tie > h ;^ "<.ntatlon. in respect to it, which ,hc evi.leneo ende. o .. ,-0 h.t Nicholson, who was the owner of thepatcnte.lr>,ht e ;^".l ,.c san.e, an.l wished the plaintiff in error to ass.t nn n. the sale. That the plaintiff in error in,,n,re.l ..f >h'1h - - wl :o.d take for his ri.ht, and was inf.-rnu.d by l^iebolson tl.t^^ ^ lu. S:M.(.0. That thercnpon the plaintiff in ---"f^;^^ '' hat he wonld ,et him three goods notes for U, ^"^'^'^^^^^ .sk Sl2.f.0() or Si:.,imO for it, so that l.e, the phunt.ff m error tnkl sonn.thing ont of it. On the evening of the same day the ^ ;.. .r and Nieholson together saw Wilson, and neg. uUkm s :!,:,dforthepnrchnscoftheright. ^i-l^olson ^firs^^U.Ul. Wilson tluandit the price onght not to be over $10,000, but in- iix d by Ki..holson at 812,000. and the bargain was made p" e The plaintiff in error pretended to be a jo.nt pnrehas W ison of the ri.dU,. Wilson gave the notes in -p.estion for Ins 1 h n'rele p.'c;, and the plaintiff in error pretended to g.ve s. tSs'rhishidf. Tbepatentwasthendnlyt..nsferroa^ amUhe plaintiff in error, who became the owners thcre<>f. At ?r de W.S thus consnnunated, Nicholson retnrned to the^lauU ^ itie he had turned ont and the six notes given by W. sor di'- ded between Nicholson an.l the plaintiff in error, each tak.ng Th ret some conflict in the eviden . in regard to the represcn ITt price ; but the judge charged the jury that if they fou, ;^ tltionJ in respect to the price to be fal.e, as char^'d indictment, they should render a verdict of guilty agam.t the """rhe'muition whether the indictment in this particular, set out a offe se an« That the contrivance between Nicholson and the pUunt.f m ^hich the trade was effected, and the notes obt^a.ned fiom \N .L ; ssly unfair and dishonest, in a moral point "f v.e.. must, o be admitted, lint it d..es not f..llow from this that the t a c nl.ted the crime of obtaining ^^^ f^^^^^'Z pretenses, as charged in t..e in.lictment. ^Vdson, by t, ba.. Hivrr.NSKS. SCOTT r. I'KOI'I.K. 243 ,1 !uh1 lixi"! liy Nicholson for MTiis, intniUi.tlu'tnicpric.i!; 1(1 Ni(;hi)lson. wusoiily S:5.nii". :1i1h c'liiiriro in Uif iiHlietnuni. nilorof thepatiMit, lK'ingus,a ctsin rc<:!inl to tlio i>''i<'0, ainl the evldonco ti'iuU-a lo prow. rof tlu'pii'f"'*''^'''?^'''-'''^'''''""' in iM-ror lo assist him in nink- iniiuiriMl (if Nifholson what he (.(1 by Niobolson that he would iff in error iiifornuMl Niehols"n for it, l.nt he. Nicholson, niiM le, the plaintiff in error, coald ing of the same day, the phiiii- Wilson, and negotiations coin- s'icholson at first asked $15,001). ) be over $10,000; but it was id the bargain was made at tluu d to be a joint purchaser with notes in .luestion for his half of error pretended to give separate thendiily transferred to Wilson the owners thereof. After the „n retnrtied to the ,)laintiff the ix notes given by Wilson wen- ntiff in error, each taking three, in regard to the representations the [ivry that if tlu-y found the e to be false, as charged in the diet of guilty against the plain- in this particular, set out any such B on the subject of price, admit- the State to be true, was sulBcicnt gnatures to the notes by false pre- fs forms for the plaintiff in error, ,on and the plaintiff in error, hy notes obtiiined from Wilson, wa^ 111 point of vic'v, must, of course, V from this that the transaction ,e signatures to the notes by falsi Mit. Wilson, by ti ;> bargain, L^ot all he harij;aine(l for, and all he expected lo get. tf) wit. tlie title to one- IimU' the patent right, and wiiether it was worth more or le>s tiian the |irie(' he agreed to p.ay by his notes, tiL(' ea.se does not discidse, Tho I (se as it stands upon the evidence, is, not that WiUou was really injured and suffered loss by the bargain, but that he might have made a more ativantageous iiuichase, and g.uiicd more, had tlic facts in rcizard to what Nicholson was to receive been stated and made known ic him. The point is, was there a faNc representation as to price, at the time of the trade, which was material in the eye of the law. There is no evidence to show that the |)laintiff in error made anv representa- tion whatever in regard to the price, except that he told Wilson, in the Kiiirse of the negotiation, that he did not think Nicliols.ni would take it ss than $1l',e held to be thoNC of the jilaintiff in error. But that rule, 1 apprehend, tloes not ap|)ly to a case like' this. Ihit whether this m so or not, it is perfectly well settled that the pre- tri,st> alleged to be false, must have formed some part of the induce- MHut to the doing of the act, and nnist bt; of some existing fact, anil made for the purpose of inducing the [irosecutor to part with his prop- I rly, or to do the act. Both the inducement and the fraudulent pur- |iose are facts to be {)roved, and are not to be presumed. It is to be I • me in mind that the false pretense charged, and up'^n which the iMiiviction was had, was that the price of the |)atent was S 12,000, where ia truth it was only S.'i.OOO; and wt; are to lon, still continues and from tlic very natun- of tilings, must continiu' as long as foniincic ia caniod ou. When, therefore, Wilson the purchaser, testifies that li would not have signed tln'se notes for $r.,OI)0 if he had supposed tli price was not 812,000, hut only S;5,000, we can see that he only intend to say tiiat he would not have given tiiat price if he had understood h could have purchased for less ; and not that the lixing of the high prir formed, or entered into, the inducement to make the purchase, and sii: any notes to complete it. But in regard to the existing fact, as to fli price, how is that? Price is the value whicli a seller places upon ir goods for sale. It is not a fixed and unchangeable thing. It may I one thing to-day and another to-morrow, and one valuation to one cu tomer, and a different one to another on the same day or hour. Wha over a seller asks any one to give is the price, until he changes it f( another. The ymvc asked is the existing fact, until it is changec When the price tisked is changed to another price, the former price no longer an existing fact. The existing fact is not what a party mi be willing to take in case he can not do better, but what he then pr jioscs to take. The indictment in this case, in tliis respect, and the e\ deuce on the part of the People, and the charge of the judge to tiie .j.ir all proceed upon the assumption that the price asked, when this barga was matle, was not the price, i)ut sometiiing different ; a mere fal jiretense. Tliis is a mere confusion of ideas. That 81-,000was t price that Nicliolson in fact asked on the occasion of that trade, no o denies, but all the evidence, on both sides, conclusively establisla He first asked $lo,0(»0, and was offered $10,000. He finally car down to 812,000, and avowed his intention not to sell at that time unh he could get that price. There is no chance for dispute about this, least on behalf of the People. lUit it is said that this price was fixed collusion Itetwi'cn Nicholson and the plaintiff in error for the purpose defrauding Wilson. This may be so, but it docs not affect the (pi ti n we are considering. That may have been an oi'fense of another ch acter, but it was not the offense in (luestiou. No matter so far as t question is concerned, how the price came to be fixed and asked. prett'nded at that amount. It was. in fact, asked, and though it n have been asked for the purpose of taking a dishonest advantage Wilson, the asking was the existing fact. No other price was asked. named, or fixed between the parties to the transaction, onthatoccasi than that aliove referred to. The motive in asking this large i>rice is of no consequt-nce, so far this offense is concerned, if, in fact, the price was demanded by seller. It wouM be a most extraordinary and unheard of thing to c vict !i mereliant of obtaining money, or the signature to a note, by fi PKNSES. R. '.'. lUHKOWS. M"« ,wooii incMi, still continues, iliiiiit' as loiiji :>s cniniiu'Hr purcliasiT, tor^tifu's tliul lit 00 if ho had siipi)Oso(l tin an st'i- tliat he only inti-ml- je if he had understood In the lixing of the higli prin lake the purchase, and siL'n the existing fact, as to flir li a seller places upon his mgeable thing. It may !»■ 1 one valuation to one cii>- same day or hour. What- ice, until he changes it fir fact, until it is clianged. r prici', the former price is ict is not what ii party may ■Iter, hut what he tlien [n-o- in tills respect, and the evi- rge of the judge to tiie .inrv. CO asUed, when this bargain ing different ; a mere fal: L-e for dispute about this, n* 1 that this price was fixed li,v ff in error for the purpose of it dms not affect the ipn- ■u an ol'fi'use of another c!i:ti- u. Ko matter so far as tlii- e to be fixed and asked. I'l •t, asked, and though it nui} ig a dishonest advantage 1 1 No other price was asked. "■ transaction, on that occasion. of no consetpience, so far !i~ I price was denumded by iLi and unheard of thing to ccui- signature to a note, bv fal^c ITi'tcnses, because in selling his goods. l)y whicli tiii' iii'Micy or note was oiiiaiiu'd, lie had asked tiie purchaser, and obttiined, a liigher price for ;ln' goods than his price-mark, or than he had offered to sell tlie same L'nods to another customer, or than he would have been willing to fake, hnd tlie purchaser refused to give the pretended price asked, and in- -i>ted strongly enough on a lower price. Or, take the case of a person who procured the aid of an agent or liroker to assist him in making sale of his property, real or personal, ,111(1 wiio is willing, and proposes to such agent to sell at a given price, :uid w'iio at the suggestion of the agent consents to ask a higher price, ami to give the difference between the two i)rices to the agent in case the hii^her price can be obtained; can it be pretended for a moment that either the principal or the agent could be convicted of obtaining uiciiiey, or the signature of the purchaser to oldigations, by false pre- tenses in regard to [irice, even though, as in the case before us, they iiad pretended that the higher price was the true and only price, and that they would refuse to sell for anything less. The --ases are precisely analoj^ous so far as the false pretense is conerned. The element of collusion and conspiracy, which has been brought into the case at bar, belongs to another and different class of of- fi uses. It must be seen, we think, and admitted, that the false pre- t( nse as to the price charged and sought to be proved in this ease, is not the false jiretense contemplated by the statute, and that the plaintiff in error was wrongfully convicted of that offense. The judgment should therefore be reversed, and the plaintiff in en or discharged absolutely. Talcott, J., concurred. FALSE PRETENSL'S — PRISONER MUST KNOW THAT PRETENSE IS FALSE. R. r. Burrows. [U Cox, 258. J In the English Court of Criminal Appeal . 1Sf;9. On an Indictment for fraudulently obtaining goods In a market by falsely pretending that a room had been taken at which to pay the market people for their goods, the Jury found that the well-known prurtice wan for buy.rs to ongiige a r i at a publichnuK', and that the prisoner, prctetiiling to be a buyer, i-onveyi>l to the minds of the market ptoi'ln that eho had engaged such a room, and that they parted \yith Iheir goods on «uch belief: llrlU, there being no evnlence that the piisimer knew offuch a practice, and the caBe being consistent wilh a promise only im her part to engage such a room and pay for the KixkIs there, a conviction could not be sustained. i>jt; Kii.M i> AM> r.M.si; i'i!i:Tr.\>r.s. Ciisc reserved fur the opinidii of (lii-i cdurt liy IMr. Haron I?1!.\m\vk Tlii-i was an iiuliclinciit for (iMainiii'jc pKids hy false pn tenses. was tried l)of()io iiic at tin- last assizes for llertfoidsliire. 'I'lieeviUei was as follows : — • Kli/.a Oshoin (wife of William ()sl)oni) : <'" Friday I'\>l)iiiaiy I'J went to 'I'riuif iNIarUet. Met prisoner at. (i^•e ininnles past nine. ,*■ came and aske(i priee of plait. I said " fourteen pence." She s:i "Tiiirteeii pence,"! said " .\o ; it was very flood work." Slie asl how many seores there were. I said •• 'I'liirty." She said, "I i have it." I said. " l-et me i)rim,' it in ; I will keep it dry." She sti '■• .No, I will lirin^- it in." That means bring it in, as I sup|iosed. the Ivose and Crown. I asked for a ticket. She said, " That did i matter." I said, ''Then where do yon piiyV " She said "In lii.se i\m\ Crown tap-room ; there she would pay me." She tool tlien : I let her have it. Our general way of speaking to the buyer to sav. " Where do yon p:iy." ^Ve have to ay, she got the jilait. How. I saw the prisoner. She took plait, and asked whr wante(l for it. I said " Fight pence." She said, "Seven ponce.' a-ked her where she paid. She said, "At the Rose and Crown.' said. " Wliere ari' you paving, or where will you pay?" She s K. V. uinnows. •2V KI'KNsr.S. rt liy Mr. Haron I?1!.\mwki.i., lods hy falsi' pn tcn-cs. li Icrtfoidsliirc. 'I"lu' fvitleuee : On Friday Fcliiiiary I'i, I \\yv niiiuilos past iiiiii'. Sh'' foiirti'cii ixMico." She saiil, ■rv ^odd worlc." Slic iiskrd 'liirty." Sill' said, "I will vill ki'i'p it dry." She saiil, ring it in, as I supposed, to t. She said, "That did not l)ay':' " She said "In tliL- uld pay nie." She Uuik it of speaking to the buyers is to go to a puldic house to he pay me. I did not know hir [ilait dealer liecause she bid ,• for it. Several buyers pay They liepfin to pay about half he had said she would pav ii 1 not find her. Other deal- g market thirty years. Slue after slu' told me, I believed it. There are many publit- le private houses. I went to ir. ell. Tring) : She asked wli;it e iialf|)einiy." She said, • Where do you i>ay, go ' ! Featliers." 1 said, '• I (bm'' ' Hosi' and Crown taii-rooin. rule for many plait buyers t est woman in the tap-ronnit •i-ed ten [lenee, and then touk ill. liere she would pay, she had ik plait, and asked wh.at I ■;he said, "Sevea pence." I At the Hose and Crown." 1 will you pay?" She said. "You'll be sure to find me." I believed she was an honest woman. I tlKUight she took the room as well as others. I thouijlil she had been tiire and taken a room to pay. That is the i>raetiee. We ask the .nivers if we don't know them. I bi'lieve 1 she had taken the room. T'uey sto|) a i)enny out of the price, and we have beer; some do, and some do not, l)ut pay the room themselves, and stop nothiu'j;. To me: I parted with my plait. I because I though she was an ii iin'st woman, and h:ul put up there. Sarah Kidd (barmaid at the Rose and Crown): It is the practice of •Mail buyers to have so mueli beer. They eome and ask for the room. I'iie l)ecr is for the use of the room. 'V\h' sellers eome to receive. I'iuV don't pay for the room. Two front rooms were taken this day. K all buyer had a separate talile. The prisoner liad not taken a room, I, .!■ auvthing to justify her in saying slie was going to iiay there. Cross-examined: If they did not have beer they would have to pay. 1 , an swear, I think she was not there. There was no strange plait iriMP that day. The buyers pay for the beer. I'he prisoner was not la the room. Tome: We have regular customers. Have had no fresh ones for -ix years. Uoliert Goodyeiir: I .....k prisoner at Leighton that afternoon. I ~ arched every house in Tring first. Could not find her. Leighton is ;, !,dle fromTri:!g. I said, "Arc you a plait buyer? " She said, " 1 buy a iiitle sometimes for my neighbors." I said, " Have you bought any lav?" She said, "No." I said, " Tell tlu' truth ; a woman has been . I'ling market and got a lot of plait without paying; have you been M I'rino- market? " She stiid, "No." She turne 1 to the persim and sii i, " You know that." Cpstairs in a back room, i found plait. She iifuiwards said, " IIow ranch further have I to go?" She said, "I .u'bccn to Tring Market, and bought plait and paid for it, but not f ; llrst two bundles." C'xld (counsel for the i)risoner) submitted there was no case. riie indictment was appro|)riate to the case proved. 1 lold the jury as follows: If it is the practice for buyers to engage .1 mora, or table in a room at [niblie houses, of which the Kose and ' )\vn is one, to i)ay sellers of plait, if that practice is well known ; if ' al she, prisoner, said, natur:illy conveyed to seller's minds thai she : ■! done so; if that was untrue ; and, if they, or any of them, parted " h their goods in the belief that she had done so, then they might find In r guilty. Iiiey found her guilty. 1 have to request the opinion of the Court of Criminal Appeal whether 24 « FIJAII) AM» FALSK I'KKTKXSF.S. tlnTc was ovidonco of llu- mutters left to tlio Jury :is to any of ihe cases, ami wlietlier tlie tlirectiou was correct in point of law. If tiu! direction was correct as to any of the cases, and there wa< evidence to support it, the conviction as to sucli case is to stand, other- wise to be (juashed. The prisoner is on liail. G. Bramwell. Co(U, for tiu! prisoner. The conviction was wronj;. All tiiat tlit? evidence amounts to is a breach of contract. The false pretense laii'i in the indictment was that the prisoner alleged tliat she had t.aken a room, but the evidence does not support a conviction on that ground; all that the case siiows is that said she would pay for the room. No counsel appeare the lot to K. he did not have the intent to defrau required by the statute and ehuuld not be convicted. J. The Party Alleged to have been Deflrauded tnust be induced to part with hi? mmic by means of the false pretense, it., he would not have parted with U i( the pretense ha act been made. B*ld, that the evidence in this case does not establish this fact. KNSES. 10 Jury :is to any <>f tin 1 iioiiiL of law. tlic cases, and thcro wa- i;li case is to stand, other- G. Bramwell. ras wron<». All that t'u' . Tiic false jirotense lani 2cil that she had taken :i )nviction on that groum!; )ay f^)r the room. hat is stated in the case •kct, not knowing whether d havinir made some pur- ?m at the Rose and Crown •inise she hatl not taken a QO evidence that she knew ooin for making such pay- lice that all she meant was •e pay for the pnrchases. n must he quashed. Conviction quashed. UD ESSENTIAL — PKOSE- SENTATIONS. LTH. jinia, 1S79. ting to buy a certain lot, sold it to Dncy for it. Aftfr selling to It., F cif till' prici', liut he never paid ilie vviiN prosecuted for obtaining P..* 1 8tatenieut that he owned the I'.t. and obtained his money, hone.-lU' did not have the intent to defraud he induced to part with hi? mnney : parted with it if the pretense liaii loes not establish this luct. FAY »'. COMMOXWKAI/nC, •21 J» In Septcraher. l«7r., William P'ay was indicted in the Hustings Court of the city of Richmond, for stealing divers notes of the United Slates ciirreiiey, amounting to two hiindied and eiuht dollars, the prop- ,iiy of Nelson Randnlpii. lie was tried at the Oetolier term of (1, comt, and was f..iind guilty, and the term :>(» FUAIII) AND I'AI.SK rUKTKNSKS. piirallcl linos ono liiindicd anil twenty-five feet to an alley in comiuot foniti'cn fi't'l, (U'.siapor, the pris oiitr said tt> Howden, " I have made one hundred dollars tn-day, to I have sold those two to colored men," and asked that the deed shouh not be made until they paid, and then made to them, to save expense that Bowden rei)lied, '• T don't care, as I have got ray price ;" that tin prisoner thenceforward paid the taxes on the lots, Bowden declining t( jiay when the bills were presented to him, and sending the collectors t( Fay, the jjrisoner, telling them that Fay had bought them ; the taxes oi l?:uulolpli's lot being charged to him, and paid l)y him to Fay i-i tb first payment to Fay; that when the prisoner's first note fell due 1^ failed to pay it, saying the negroes had not paid him; that he paid i eventually, but in installments. And that lie failed to pay the balance, continuing his excuse fo failure to pay on the samt' ground, and did not pay at all ; the balauc remaining unpaid until i)aid by the negro, Randolith, in April, 187(1, t Bowden, in order to get his title : and that Kandolph never knew or wn informed that the i)roperty did not belong to Fay until he asked for hi deed. It was further proved that shortly after the last paj'ment on said note Fay went into bankruptc}', and has never j^aid the other notes. It was further proved that, upon Nelson Randolph completing hi payments as agreed. Fay gave him the following order on Bowden to wit : — " April ;?, 1876. " Mh. Bowdkn — Sir: This is to certify that Nelson Randolph ha pailii 252 FIJAin AND KAI.sr. I'lM/rKSSKS. jicl." Other inducomcntHinay liavi' coinltint'd wiili tlio false prett nsc^ to imliiee the owner to jpiirt willj liis properly ; I'lil it iiiUMt appear th;u but for the false preleiises the owmr would ii"t have parted with bis property, that they luid the eontrolling. pr«'\ ailing,' inlhience.' The only proof of any false prelcnso in (his case, or that the pri'^- oner made any statement that was not Htriclly true is, that he said he was the «»wnir of the lots. It ai>|Kara from the eertilU-ale of facts that, in tin sprinj,' of 1H7;?, tlu- prison-r had uu interview with Georijo K. Howdeu, the owner of two lotsof iand, in wliidi Howden expressed his willingness to sell the two lots tr.)'ielhcr for S.'illO, but deelariMl tlmt he would not sell them separately; and that afterwards, in tho laltir part of January, lM7t. the prisoner sold one of them to Nelsin Randolph, a colored man, for S'-'Oi). tcUiu'.' him he owned them; tliiU Han^lolph paid him, tifty dollars in cash, and agroeil to pay the hahuRc in monthly installments of tiftecn «lollars each. It is contended for tiiu Commonwealth, that " telliny that declar ation to make the purchase, and that he would not have purchased iuid made t'le cash payments, but for that declaration of the prisoner, nonan it be inferred. It is rather to be presumed that Randolph desirin;.' to have the lot, wouhl have accepted the offer of the prisoner if he had siiitl nothing to him about the ownership, as he made no inquiry of him about it. so far as this record shows. It does not appear that the declaration made by the prisoner was made in response to an impiiry made by Randolph, but seems to liav. been incidentally mentioned by the prisoner. 'I'his defect in the proof. if it had been in the allcL'ations of an intlictment for obtaining nKJiity on false pretenses, would have lieen fatal on demurrer, and it wouM seera ought to avail the jtrisoncr as effectually in this proceeding. The court is of oi)inion, therefore, that upon this ground the verdici was contrary to the law and the evidence, and ought to have been sii aside. The court is further of opinion, that unless the selling was by false pretense, with intent to defraud the buyer, the case is not within tlit statute. It follows that the fraudulent intent must have existeil at tlu time the false pretenses were made by which the money was obtained If there was an intention by the prisoner to defraud Randolph, he eouli not have intended, when he sold him the lot, and received fifty dollar in part of the price, ever to pass to him title for the same. But the facts, as certified by the court, show the contrary. Anable'8 Ca»e, 24 Uratt. 663, S«7. KNSKS. r.W r. COMMON WKAI.TII (I Willi tlio false i)r«'t( nsi« ; lull it iiiUMt appt'ar tliiu nni liuvo piirted with his iiiii^ inlliionce.' Ills cuso. or lliut the ini- \y trill! is, that lie sniil \w II the certilk'iUe t>f l;i( ts III! interview with Cl(ur;;c I wliich Howden expre'^M'il .r S.'ilM), but ileehired tliiit t afterwards, in the hUlir OIK' of them to Nel- 11 liiii he owned tliein ; tli;it ujrroed to pay the halaiK t It is contended fur tia' c owner of the lot " w;i~ I inlluencod by that dechir Id not have i)urehased :m\ ion of the prisoner, nonun that Randolph desiriii;.' to the priiioner if he had said made no iniiuiry of liim made by the prisoner wa* mdolph, but seems to liavi This defeet in the pionf. ment for obtaininjj mcjiity )n demurrer, and it woiiM y in this proceeding. )on this ground the venlict md ought to have been set IS the selling was by false the case is not within tin it must have existed at tin' li the money was obtaineil efiaiid Randolph, he roulil ■, and received fifty dollar- for the same, low the contrary. ,8«7. It is a fair inference from them that he had previously been in treaty «itli Mowdcn for the purchase of the hits, and ascirtnined that he could , iiiliase them together fnr three hundred dollar-, an 1 was well satisfied :ii;it all that was •lecessary fur him to do wa ; to acicpt Bowden's offer, uiid the lots were his; and tinding th.t he could sell each lot for two !: indrcd dollars, and make a handsome s|)ei'ulatioii, he determined to ■ike them at Howdeii's olfcr, ami consideicd them as virtually his. It is ■ videiit that lu! had no piirjiose to cheat Handolph by inveigling him to :iv him his monev for property which he had no right to sell him, and ; 11 which he could not and did not intend to nciUe him a title. This is -h iwn by the fact, that a few days after the sale to I{aiidolph he went t'l IJowdcn and c.miiileteil the contract of purchase with him, jiaying iiiiii ill cash fifty dollars, the money or the amount he had received ipnii liaiidolph, and executing his notes for the deferred payments, and Altering into articles of agreement with him, setting out the terms i^f till' sale and purchase, informing him that he had sold each of the l.i> for two hundred dollars, at an advance of one liiindri'd dollars on ;iir price he was to i)ay him for them, and reipiestiug him, when the .iiiciiase-moncy was paid, to convey tlu' lots rcs|)ectively to his vendees. llv ti.is conduct hi" showed a bomijiili' intention that Haudol|)h sliould M what he sold him, and for which he had received the cash jiaymeut, iiini conclusively repels the i \\r> lAlx; I'|;KTKNSKS (h-nc- is wholly insiilllficnl l.. rsi:vl.Ii>,ii Hi., frmi.liilciii innm. which , ,.„. diisioM is siivntrilu.,,,,,! Uy ,1... (a.t that, thr |.hs„mT hMs ivm.!...! i,, ilu- city for twenty \ (Mis in ir,,u(| ri'imtc ^ Tlie iiicli.tinriit, char^r,.^ ih,. iaivciiy of .livers notes of the riii!,.,i Siiitesciirivncy, for the piiyimMit of divere sums nf monev. in the ui,,,, amonnliiii,' to tiie s„m of S-.'(is, the property mid n.'.ies of NH U.'ui.iolpji. Tile .-viiUiiee .lo.w not show that the prisoner reci^ivcd fmm lianWoipli notes in riiite.l Mates cnrreney The proof is. that he n. ceive.i fifty .joHars in easli, and that K'andolpji agreed to pay the l)ai,,i„v in niontlily instalinient.s of lifleen dolh.rs ea< li. D the'autliorit v of the cascof Johnson v. Comnmuwoollh,^ the court is of opinion tli.ii m thcalwnco of proof tiiat sneh money as was ejiarired hy th.^ in.jir,. ment to iiave l.een stolen was rec.-ived liy the prisoner, the jury was not Warranted in lindini.^ a verdic' against him. ITpon tlie foreu-.in;,' ,L;ronndH the court is of opinion to rovers.' the judgment, and to reinund tlie eaiise. Judgment reversed. FALSE PRETENSES - CRIME NOT COMMITTED WHERE NO PROl'- ERTY ODTALNED. Statk i\ Andkuson. r*7 Iowa, 142.] In the Supreme Court of Iowa. Where by the Agrreement L.tween the proserutor an.l ilio .lefendnnt, the defendant gru no tUU. in the pro,.erly whirh ,., .Icl.vere.l h, him .„. the (i.ith of the ullcKe.l fal«e pre- lenses, the ernne of obtaining property l.y false pretenses Is not committed. Skuvkh.s, J. The indictment charged '-that * * * defendant did obtain from the St. Paul ilarvest.'r Works, through J. C. Yetzer, • • one Elward harvester, of tlie value of one hundred and ninety dollars." The defendant pleaded not guilty. The false pre- tenses used for tlip puriK..-?,; of obtaining said property were in writing, and were as follows: -■- "^"''•"^^ Atlantic, Iowa. July 12, 1875. " For value received, on or before the first day of October, 1876, I, the subscriber of Benton Township, eonnty of Cass, an.l State of Iowa, promis.. to pay to the order of the St. Paul Harvester Works, one hun- dred and fifteen dollars, at the Cass County Bank, in Atlantic, with I ■Jltir.^tt. 565. srs. lllc'lU illli'Dl. Hllicli , ,,„. oiHT lijis roidi'il ill Un, IS llot( s o( tlir rniini I'l' IlKilicy. ill llir wholr and null's of \il„i|i liiixiiur received fr..in le pntof is. fli;it lie |,. reed to pay the h.ilaiKT Tl the !iiilli()rity of t is of ()|iiMi(iii that ill 3hur<;ed l)y (he indict. ioncr. the Jury was nm pinion to reverse the Judgment reversed WHERE NO PROI". STATK v. ANDI'.KSON. .'.!.» ^(endant, the defendant gret» th of the ullcged falne pre- not coimuitted. * * * defendant hroiiirli J. C. Yetzer, )t one hundred and ilty. The false pro- perty were in writing, WA, July 12, 1875, of Oetober, 1876, I, s, and State of Iowa, iter Works, one hun- mk, in Atlantic, with ,,.,e,est at ten per eent per unnutn, fm.n date until pnid. and. in addi- ;„,„ , ,vill pay live- per .eul att,.rney-s fees, if suit is eo.nu.eneed on ""-nllexpress eonditi.... -if Hh- sale and i.urrhase of the Klward ha.- ,.,..,. f.u- whieh this note is ^dven, is sue!, that the litl'". ">v'H''-"P; ';'• .session, does nut pass frun, said St. Paul llarveMer NN or'.s untd t h s „; i. paid in full ; that >a,d St. I'atd Harvester NV.uUs shall have ful ,,..ver to .lec-lare this t.ute due, and take possession of said ntaciuue at :,,,, Uu.e they .nay deetn themselves iuseeute, even ..eljuvth^^^^^^^^ .f thiH..nte. Knrthe pu.-puse of ohtaiuin- ered.l. 1, 1 • II. An.U.son, ,,„nhv .-.tify that I ow... in n.y own na...e, fo.ty ae.es of land ... sec- ,i,„.ti.i.'tv-.u.e, tow.shipof nentou. eo,..ity uf Cass, and State of uwa „,„, ,,,,„v-live ae.es in.pruved, wm-th Sl.uu.. whieh .s ..ut u.eiiu. U-red ;;l,rt.a.e or otherwise. exee,.t ■ I -w,. S800 worth u, per- -;,nul pr^operty over and above all i.,dehted..ess. ^^ ^^ ,,,p,„,oN. •• V. O. Atlantic, county of Cass, State of Iowa." The " State introduced evidcee whieh ten.led to show the reprosonta- ,i„„s .uade a..d their falsity, a..r- te.,se, or by any privy or false token, and with intent to defraud, ob- tain from another any money, goods or other property • In ^ Vrchbold's Criminal Practice and Pleading,- .t is sa..l : In or- ,ler to eo.,vict a man of obtainb.g mo.iey or goods by false pretenses, il ,nust be proved that they were obtained under such crcmstances that the prosecutor n.eant to part with his right to the prope.iy in th. thing obtained, and not merely with the possession of .t. J'"« ^l"^" t.inr .s recognized i., 3 Greenleaf ,■' and also, as we understand m 2 Wharton on Criminal Law.'' 1 Code, sec. 4073. 2 p. 467. a sec. IIW. < sec. '2149. 25() FHAII) AM) FALSK rUETENSES. The only cases cited by tlio attoniey-geneml •■■- ',cii held he could not be convicted. It is evident, in the case at bar, that the seller did not intend to part with either the right of property or possession, for it is exi)ressly provided in the contract of purchase and sale "that the title, ownership or ))ossession does not jiass" until iIk' note is paid, and the right '• to declare the note due and take possession of the machine at any time," was expressly reserved. The defendant did not even obtain an umiualilied right to the pos- session. The plaintiff , in a l( the ease at bar, that ribtaiuH from another not lie agaiuet one who by false pretenses cbtains the cunscnt of a rity to the entry of n judgment against it iii an action then pending in hi-i favor, and receives a sum of money in sallbfacllon ot such judgment. Colt, J., delivered the opinion of the court. The defendant was iiulieteil for ol)tainiiion it was in a legal sense ol)tained by false pretenses which were used only to procure the consent of the city that the judg- ment should be rendered. ' com. f. MoPulty, I'.'ii Mass. i')S ri;\i I) Avi> r\i>i'. I'IM-.tknsks. Till' mdicliiii'iil :ill(>'_'f-< tlif l';(rt of a jiiilirinciit in fnvnr of thi' dofiini- ;int wliicli, if Mi>l roiu-lii'-ivc iis luMwci'ii tlif imrtifs to this crimi .al lnosiMiilioii, is :it all ovciils conclusive l)ctwccii the parlies to tlic tiaii- action. 'I'o lioltl that tiic statute which piini-lics criniinally the oiiticn- iiiil of properly by false pretenses, extends to the case of :i paynirnr ininle tiy a jndiruienl (ielitor in satisfaction of a .jiuljinieiit, wht^n tlu' evi.ieni'e only shows tiiat tli<: fals(> pretenses were used to ohtain tiju.l-- ineiit. as one -tep towards olitainin^Mhe money, would i^racticaiiy inak. nil civil actions for the re<'ov.ry of daniair'.'s liaMc in snch cases !■ rcvisiou in the criminal ourts. and suhject tiie judirment creditor tn ]>rosecntion criminally for collectiniT a valid jud^jrinent, whether llu- same was paid in money or satistied liy a levy on property. Kxceptions siistaim-d. Citw. ('. .!•. Ami> and Soii.i, .1.1.. di>-sented. F\LSK PUKTEXSES - K.Vl.SK I{r.PKl..Sl- NT.VTION MfST UK MADE HEFOUK DELIVKHY <>K (JOODS. Peopi.k '•. IIaynes. [14 Wend. .".H;: -^^ .Vni. Dec. o.'.O.] Tn tho Court for the Correction of Errors. Xew York. J)i;-rml,er. JS:ir>. 1 Purchase and Sale of Goods - False Representation as to Solvency by Pur- chaser Subsecuent to Delivery. - II. '"'Ugh. .ertau. nuTclw.M.UM. ..i A wU,ch »,.- „„. „. 11 iK.x, M.aik.d win. II. ■> i.iiniL. and a.ldr.-H, and d.-liv.Mcd ..i. b..iiid a boat nam,.! l,V liim lo I,.- cani.'d to lu. I...,„c. AfLr tins Mit butoie A. wli- had lercivcd tlu- Mui- „",.rN re-.Mia and invoMO ha.l Kivoi, Ih.ni l- II. A. lioarinj: that H. wa.« in ..mharra-^-: '■irci.n-lahrcs in.iiiirrd „f luni. In answer Ihcri.to. >l. mad." false rupres. i.tatn.ns «• u^ hm s„lv.n<-5-. Hel.l. Uial tli.^ jto-ds haviiiK l.«'<'i. ..l.tainod i.y H. aii.l in his possCBM.i. Inf.nc these r.-pivsoiitalions were made lie was ii.,t guilty -f false pretenses. .... Whether on an Indictment fnr thiamin,' .- Is by false pretenses, .n "'•'''■t'"'''' s,.llu.K' lortl. sexe.al lalse pretenses uidiiring the .ale ot the gunds wil. ne si.- uined b, proiif iif siiin« id llie fuNe pretenses, f/uirre. 3. An Untrue Answer to an Inquiry as t.. .mr- flnaneial ability is n.,t a lalse preten-. i ForErrLrs on Mere auestion- of far., the renudy of the Ininre.l parlv .s by n ir.otion for a new trial. .N. writ of error lies to an inferior court f. review its dee.Hion upon ma- tersoffaet. Imlictmont for obtaining' S'>'"ls ""<1»t f^l-c pretenses. The Genera! Sessions pronounced jtidizment on the verdict of ^oiilty. Krror to \hi< comt. The facts are fully set, forth in Chancellor Walworth's opinion. F. /{. Ci'ttln'j, for the prisoner. ^". Slirrii-Ooil. for the People. I'K.oi'i.K '•• II wsr.s. •_»:)'.• f:iviir of th(.' (lofi'uil- ifs to this crimi i;i! parties to tlif tiau- riiniiiaiiy tlio olit;iiii- e case of a pnyniint jiuijliiK'iit, wiU'll tin- sell to olitain ajuil-- mltl |irartii'iilly iiiaio lijf ill Midi casi's tn jiidirinfiit crcditnr to iLMiHMit, wbether llu' iroptTty. S' MUST BE MADE S. ] nrk. [)i'-(mhei\ JS.'l'i. as to Solvency by Pv.r- iorrli:iiicli-i' "I A. winch ».i- iMi'ti "II bditnl a Ijual iiaino 1 wli" had reiiivi^it the Khii- that H. wa.- Ill I'liiliarra-M'l i\ false rupre.-i Illations a- i" by II. ami in hi.i possCB.-hi. if falsi- prutiMiM's. o pri'lensos. in in-lictintiit IV nixnU will in- .sii-:;iim'(l bv bilily 1.- luit a lalsf iiri'tcii-' injiiicd |>arl\ is by n ii.olion I'cvii'W Us (U'CisKui upon mat ctonscs. Tlio CfcniTn! <.'iiiity. Krror to tiii< )!• Walworth's opinion- Wu,wo.Tn. ClKUU.ollni-. W.. aiv .alK-l -M-i ui ilu^ • — f U...i.ionof til. Siipmn. t-urt, upou a hiU uf .xcvptions tak. n on : iotlie plaintiff in cn-oi.. upon a. in.lic.l.n..u, for olLaminj. ■ V f N ■ pr tenses. No l-iH of .■x.vplions can be taken m a e.iin- -:^2,:'a:t..o,.i.ea..pe..io..eonntoc.<...eetanen-oneo..^ ,,,e eonrt helow, on the deei.on of a ju.v. upon ma Ue.s o. a .;. Tl.en.eentprovi-.ionoftl.eKevi.e.lS,a.u,es only autho, I. . '.•M,aantont.^Ha,ofaninaie,n.cn,.toe.eeptt..^^^^^^^^^^^ ,. ■ .,11,1 HI the same iiKinner proMiled ii_\ law :;:roM,.; ilnof,hejnry.,ponn.ane,.soff^ ..; i.!^ ... a Viill of cxeoplions, .heiv the.v has heen no eiTonoous a- :,, he eonit upon matters of law. The lenieily of the party .ho , ,,„, ,,, , „,is, ireetion of the eo-irt or an erroneous venliet of v \'; , .■ ,. ,pu.stions of faet, is i,y an applieatiou for a new trial •h., Siipren.e Court of the rni.e.l States, m the ease of ( mm ^. ./-a ; " he e ,nrt to .hieh a writ of error is hrom.ht has noth.n. to . o :;;; ; , e r) f tin. rt liohiw upon mere matters of faet, or w . h : ol L^.,u.n the weight of evi.leme. Sueh "'•:-='»"'-' , tiKl to 1 e a.Ulressed to the jury as the ultimate .,nn. L'f.O l-|iAi;i) AND l-AI.SK I'KKTKNSKS. ill 111' iii(ik'tnifiit must thfrcfun" lio hud out of viow by this court in its (h'cisiou. !is lu'iufi iniTcly tiio t'Xpros>i()H of an n|(iiii(iii upon ([iic,- timis of fad whiiti wcic siihiuitteil to thi' jury for llicir cousidcratioii. ami not !in iTiont'oiis (U'cislon of the court upon :i queslion of law, for which !i liili of oxi'options would lio. It is insisted liowover Ity the counsel for the defendant in error, tlia* the cliarjj;e was erroneous in point of law, iiecause tiie jury were in- striU'ted, that it was not necessary for tlie piiliiic jirosecutor to estali- lisli tlie falsity of all the pretenses charged in the indictment as false ; tint that it was suHicient to autlmrizi' n conviction, if tiic jury were smI- isfied tiiat some of tlie pretenses were false, and tliat the accuscii olitained the goods suit iy and entirely on tiicse pretenses, which wm proved to be false, witii an intent to cheat and defraud tlie persmij frcim whom tiie floods were tlius obtained. On this point I agree will, Mr. Justice Nelson, wiio delivered the opinion of the Supreme Court, that the charge in tiiis respect was more favoraiile to the accused than a correct construction of tiie statute would warrant. It is not necessary to constitute tiie offense of obtaining goods by false pretenses, lliat tiio owner siioiild have iieeii induced to part with liis proi)erty solely and entirely iiy preten.ses which were false ; but if the jury were sati.-lied tliat the jiri'tensi's provid to have been false anii frauduleni, were a part of the moving causes which induced the owiiir to part with his property, and that the defendant would not have ob- tained the goods, if the falr-e pretenses had not been superadded to st.'itements whicii may have been true, or to other circumstances havui;: a partial influence upon the mind of tlu! owner, they will be justified in finding the defendant guilty of the offense chargi <1 within the letter as well as within the spirit of the statute on this subject. I am accord- ingly of opinion, that in the case now under consideration, althougli .'ill till' pretenses stated in the indictment, as tho^-e upon the stri'iigth of which the goods were obtained, were charged to be false, if eitlierof tlu in was in fact false, and was intended to deceive the owners of tlic giiods, and thus to indu'-e them to part with their property, and actu- ally jiroduce that effect, the indictment was sustained. One fal>t' pretense was sulUcient te constitute the crinii', although other false pre- tenses were also charged in tiie indictment. As a general rule, if an averment in an iuilictmenl, is divisible in its nature, and any one part thereof is siiirieient of itself to constitute t!ie crime, the otber parts of the averment ueed n wiit nd dofrand tlio i)orsiiiis I tills point I u^roo witi, of tlu' Siipronn' Court, iijr to the accused tliaii ant. ; of ol)taining froods liy en iiiduced to part with hicii wore false ; but if I to liavi' lietii false anii iiieh induced the owiiir lant would not have oh- ot !)een superadded to •V eircnmstiinoes liavin;: tiiey will be justified \n r<;it' Ithough other false J)it- As a general ride, if an s luiture, and any niu' e crime, the other part> hey ure descriptive and iitial to tiie charge con- (•\('ial overt nets of tlic .,„,.. treason are charged in one count of the indictment, it is sullicicnt Mi-tain tlie count, if any «ine of them is proved.' s„ in an indictment upon the statute, making it a .•apital fr.cny for i,,ks, c:.nie,s and others employed in the care or trnnsportat.ou of ,, ,„ail, to st.al or take out of a l.ttcr any Imuk post-bill, lu.lc. Mil of vh'in.H. etc.. it was hehl sullicieut f. prove that the detVmlant was .,„,,lovcd in one capacity, in the care of tlie n.nil. although the ,u.^u•t- , ut chni-cs that he was employed in two; and where the ind.etuu.it ,,Pn.d that tlic letter whi-h was purloined contained a bank poM-hill mI bill of cNchange, it was held suHicieut if the proof showed it :;,„i,,,, ,i„H.r.^ In the case of h'l.,! v. //.»/,:' which was an nuhct- ,„„fer eomposin^r and publishing a li!>el. Lord KUenbnrough held it ; .,i,.i,„t to prove the publication, although no cvhh.nce was a.ldu. e.l •isl.ow the c .mpnsiuu' ..f the liln.l by the defendant : that if an indiet- 1 ,,,,t ehar-ed that the defendant did and eause.l to b. .lone a particular- ;:., it was'em.uirh to prove either, lie al-o says: " Tliis distin.t.ou us through the whole crimiual law. and it is invariably enough to .,ve so much of the indictment as .hows that the defendant has co.u- uiiih.l a sulistantive crime therein specilied." '' N,it icr is it ncccssarv to constitute the statutory offense of which the utniff in error was convicted, that any false token shouhl be used, or „,t the false pretensi^s should be such that or>!ina.y cure and common u.lenee were not sunieient to guard against the deception. Such was ,„loubtedly the rule in relation to cheats which were punishable by li.tmeut bvthe common law in Kngland. On this subject our Kn- i,h ancestor's originally adopted a laxer rule of morality than their sottish neighbors, who very propi-rly h.'ld the crime of swindling, or of htaiiun.r.n)oX>2 11! ui> AM) !\i.>K i'I!i;ti;n.si:s. tlif (•uiiliact..rs ,|,.|k. iMkiii- ii|> fDiM-c f,.r i!,,- u^,. ,,f tli.' iaviii:v .IdMiiiia K'itkrihy w:i- aUo coiivictcil «.(' >« iiulliii;: in (>litaiiiiiif>' Wcaiin.' si|i|iar('l. Iiy ii-..suiiiiii;j: a falsi' naiiu' ami iaUily pivn-miiii^r that s!r> h.,,; lo^t licr i'l,.tli,.s hy sliipwivck. In /{"i'l's C'r-.'.' tin- fraud foiisistcii i: falsely aNsiiiiiinij the iJKira.UT of an rxcisc i.lliccr. and thus ,,|,iai,ii,|. iii'iiii'y iiiidtT the prctin-i' of coiiiiMniiKlint; for tlif forfeit iiif on jr,>,„l- llial hail lie.ii siiiiiLiirled. In //.'/•.'//"n Tk.v- .- the i>ri>oner was en],. vieled and lraM-|.orled f,,r seven years, for ohtaininj: iroods ile|.()>iiei, with another l.y ihi- (.wner for safe keeping:, under the false preteuM that he was I'inpl lyi'd l.y such owner lo receive tiie uin of nmney from a hanker in Leith. undn the fal-e preiens,. thai he had a sum of money in the hands of hi- banker in hon.lon. and aee-irdinuly (lrawin<,' a draft on a banker tiurr with whom he had no accunnt. and when he had no reason to sMppn>, the draft would he paid. It was found in Kn<,dand. a- early as the rei<:n of Ceorfje II., tluit ""■ '"''■ "f I'"' Hn.irlisl nmon law was not sudiciently riirid to jiroted ■ •'' •■""• iiii-iispici(ins — that class who stand m<,st in need nf ' I'll — a<;ain^t the falsehoods and impositions of swindlirs ; and u statute was thereupon passed to remedy the defect of the tMunmon hnv, which is tiicoriiriii <.f our own statut(u-y provisi,,iis and of tiie suhscpun- ^■''' '"•''*' • '« on thissul.Ject. These statutes have adipted the pnii- cipK's of tac ^••••,lt,.,h c(Mninon law and the decisions under them, hnti, in this State an.l in Kn-Iand. have heen suhstautially the sanu' as in lli, cases aiiove referred to from Ilnme. Hurnet, and Alison, who are Hi. principal writers upon the conunnn law of Scotl.ind. I'nder these st:il- iitcs, as in the law of Sc(,ilaud, the offen-e consists in intentionally aii-i fraudulently inducin;,' the owner to part with his .roods or other t'hini:" of value, either by a willful falsehood or by the offender's assuming :i character he does not sustain, or by representini>: himself to be in a sii- nation he knows he is not in. Thus in Airp'i's Cusr, under the Knt;uninir l':iy for the carriairi- of .roods, upon the false pretense that lif had delivered tlie nro,,ds and taken a receipt for the same, which he hud lost t' (if the CtlV I : ; ill iilitaiiiiiin Wi{ii ,;i tfiiiliiiir thai sill' li r: 111' fraud foiisisli'il i: ■. and tliii-; olilainiii:, .' foi IViiin'c (111 o^onii, Ik- pri>niirr was (-..n- iiiiii: ,U()im1> (lc|)()>iioi, iT tlif false prctriM ' <,'(>iids ^O dopd.sitc il; In lie tr:ills|i()itt'd fiir inker ill I^citli. inidn in tiie hands of hi- ift on a liaiikt-r tluiv lo reason to !s'1|i|ium 1 of r.eortje II.. tiitit I'litlv rijiid lo iirott'd iiid most in need cf of swiiidiirs ; and i of llie fdiniiion hnv, ii |ii!ii- ns under tiiem, hniU !y the same as in I In Alison, Mho are llii 1. I'lider these st;il- i in inteiitiniially aim joods or other tliiiii:- ffeiider's assiiiiiiii!; a iniself to he in a sii- "', under the Kiigli.sji I for seven years fei alse pretense that Uv same, which he had ipon a false account !S8 of a maniifactin- as intrusted to pay for their wages, was •i Kast, 30. „,ld to be within the statute. In /.'.v v. .hl.usnn,^ upon an indictment f„, ohlainin- Is uu-Ut tli.- fals.- pretense of immediate i.aynient l>y .ivin.r i„ pavnunt a eli-eU on a hanUer willi whom the prisoner had no fund:, and with .iiom h. kept m. aeeo.int. Hailey. .1., said the same ,,„i„t l.ad reeentlv Leeii before the twelve judges, and they «-ere all of ;,,i„i.„. „KU it was an offense indietalde ni.der tlie statute, to obtain „',„ds bv -nvin- a ehe.k upon a banker, with whom the party kept no ;..vsh. an'd" hieh hi- knew would not be paid. In this State, also, so far .,., ouestions have been bnu.tiht before the lii-her tribunals, the statute i,,3 H'.-ived a .similar ••oust nution; and the deei>ions in the eourts of . .ver and 'rerminer. so f.r as tlu y havee..ine under my i.otu'e, espee.ally M„,.r the decision of the ea-e of rmph'y. Juln.snn in IS].,.-' have been „ ..onformitvwith the prim.i,.les adopted by the Knjzlish .jud^.-s, in „iviuff,..l to their statutory provisions on this subjeet. /.//'eV' « r„se'ciled bv the counsel for the plaintiff in error, from the City Hull U....„rder -^ was inconecllv decided, a> the ofbnse in thai case was clearly „Ui,in the statute. The fact that che.d.s are freMueidly draun by men of business, before they have funds ae.ually in l.mk to meet them could not alter the law of the case ; as it must always be a .p.estioii for he ...msideration of the jury whether the prisoner intended to commit a fraud by imposing a check upuu another which he knew would uut be paid when presented. ,„,,,.„ I am aware fn.m numerous cas,.s which have been umU-r my o bsorNa- tion. judicially an.l <,therwise, thai the rule of morality establishea by the decisions under the.se .statutes and by the common law of Scotland, l.as been deemed too strict lor those who in 1H25 and subse.piently have been enoa^a-d in d.-fraudin- widows and orphans, an.l the honest and unsuspecting part of community, by inducing them to invest their little all, which in manv instances was their only dependence for the wants and inlirmities of age, in the purchase of certain stoc ks of mcor- pontted companies, which the vendors fraudulently represen ed 08 ound and p o.lnctive. although they at the time knew the institutions o,: insolvent and their stock perfectly worthless. But I urn yet to learn that a law which punishes a man for obtaining the property of h.8 unsuspectimr neighbor l,v m.-ans of any willful misrepresentation or deliberate fdsehood with intent to .lefraud him of tl--"J; - -tab- lishing a rule of moralitv which will be deemed too rigid for the re- s' aM merchants and other fair business men of the city of ^ew 7U or of any other part of the State. Neither do I -'-e ^ ^ -f honest man will be in danger of becoming a tenant of the ^ "^te mon if the statute against obtaining money or other things of value b^ false 1 3 Camp- :''0- 2 12 Johns. '292. 1 Citv Hall llec. l;W. 2<;t FRAUD AM) FAI.SK IMIKTENSKS. and fiMiKhiloiit prott-nscs. is ciinicd into full effert, arc'ording to iIk primiiiK's of the deiisions to wliicli I lisivc rcffrri'd. Hut it may imlcni limit and ivrftrsiin tlio fraudulent speculations and acts of sonic wIk.m princi|ilc8 of moral honesty are regulated solely by the denunciatimm of the penal code. The law upon tiiis point as laid down by the Sw prenit« Court in this and numerous other cases, is luuiuestionably llu settled law of the land, in conformity with both the spirit and the in- tent of a i)osi;ivc let^islative enactment, liut if those members of tin- court wlio arc .*>enalors, believe that either the morals or the welfare of the connnuiiity will be proniotdl l)y repeiding this statutory provision for ])unisliing the crime of swindling, which in point of moral turpitiidi isfrc(iuently more agiiravatcd tlisinsomc cases of simple stealing, it will be then tlu ir duty in their legislative capacities to vote for a repeal of tlw law ; leaving the honest and the unsuspecting to protect themselves as they may against the acts and decei)tions f)f those who intentionally ilc- traud them of their property by willful and corrupt lying and other faJM pretenses, calculated to deceive that class of citizens which is most iu need of the protection of the law. In tliis place as members of the court of dernier resort, it is our duty to declare the law as it now exists; so that the declarer(lin. prosecutors, who was .i wm. , , llavnes, he considered '..red on b.ard t'^^^;- •;:!-;; j'^stoiln. Aftc the r us being at the risk of the l.itt* i ir a ^^.^^^ ;.. had i;^en thus delivered on board he '- ; ^ '^^l J .^ ,,,,,,,, U-, of that faet, the -it-ss heanl a . . r HIH n„ ^^^^.^ .Uich induced him to suspect us -';';;^^;^ ::,,,, ,,,a .Un-ady • ,., store the ..tness, «;t»-^ -J^^;-^^^; Id nordcliver the g-od, ,,een sent to ^»''' ^^^i; ;;;^,^:; :^; ^,l^..a a note protested. I'pou u consequence of having in .iru u ,„ his situation and credit .UK.U occasion the false »*-n>--"^^ l^^ " ^ ,"^,^ ^ed to bin. the ...re made ; and the witness being f^^^^''^^^^;^, u, same at „...eipt and the invoice of the goods, and to,.k his not. thirty days. . . , . ^j jj^urt so to in- „. counsel ^-j^^^';:;:-:; :rCl:.'^-d of the boat was .tiuetthe jury, that the dtliv> t, „^„,|e aft-'r , complete delivery, and tliat as the 1^ ;,'" (-^ ..ch delivery, although they m.g lit ^>-« "-X J „^" 'Lt^as not , Co. from obtaining a '-•'^■''^7^, , f ' '^.^ „t. The court, .,«eient to ^^^^^iX^y^^ :! ^ hJ^trubtedly obtained liowever, charged the jury tnai u.c i indictment ; to which ,„„ g„„,„ from U,e „ro,e.^ors '^^;-^-^ltZ>^^^' -oug lions were made. ^i^Hvprv of the ''oods as incom- The Supreme Court consulered the '^«^'\7> *^,; ' ^^^ j,,i,ered nor ,lcte and conditional, because the invoice »^"' »«^ '^^ ;^;;,^^ ^^^^,^,,, l,.e security for the P^-l'-^'^-^^^f y^!;,: ,^0^^^^^^^^^^^^^ l\lo of the master of the boat was still m the l^^"'" ^^^ _'^^^ ;.^^ not understand from the testimony howeve., ^ >- »';^;;;^ J, ^ -,,,,, ,nent or understanding ^^^^^^^^^ ;^l^:';^^ ^^.o delivered that the goods should be retained unt the --' " ' ^ ^^, ,,^. ^,,. and a note given for ^^^j;^-;:^^;^^ 'I^l^.. to show ter of the boat was merely taken ^y ^"^^ ^ ^ j,. ^,,e testi- Uiat they had sent the goods on the '^^^^^^ Z not n.-ces. mony it also appears that the y^^^^^'!']^' ^^^'^^^ Uieir arrival at sary to enable the purchaser to obtain the goods upon 2('.t; FUAiK AM> r.\r,sK i'ki;ti:n.sks. tin |pln(t> of (U'Stinalion. Kvcn wlitri: gootU an- sold uiion tlic undei. stamliiiL; lliat tlicv arc to be paid for on di'livciv. if tiif j:i>ods mv dtliv- trt'd witliout iii^isliii^ ii|">ii |iayini'iit at llir liiiu' of liu' tirliviTV, the title i)ah:M's alpN;)luU'i3- tn tiif imrcliaMT. imffr^s Uierr is a sju'cial nijri'r. iiu'iit or a ii>a<:i! of tradf >lu)\viii^ llic drlivrry to lu- I'oiulitiiiiial. Di'livcrv of fji'iuds also to a servant or a^tiil of tiic inirclia.siT, or to :i caniiT or iiia>l»T of a vi'.s.-sel, wiu'ii tlioy art- to lie Iransiiorlvd liy a car- rirr or liv walt'r, is ((niixaii'iil to a dtliviry to the jtiircliastT ; and tlif |iroiK'rty witli tlic corri'sixiiidiiit risU, iiiiiiirilialcly vests in tlu' pur- ciia-fr, siihjcct to tin' vrndor's rij,'iil of stoppage .//( trunsitn. if tin' piir- ciia-ir lufoims iiisolvi'nl In-fore tin* r by a notice to the carrier not to deliver them to thi' vendee, or by some equivalent act ; and until such \vj.\\i is actually exercised, the right of property and possession remains in the vendee, who may maintain an action of trover against any one withholding the goods from him. But the actual exi-roise of the right revests the title to the properly in the vendor, and enables him theri'iifter to maint.iin irover against any one who subae- (puntly to till' cxi'rcisc of his right, obtains possession of the goods and refuses to «leliver them to him.'' In the present case the right of possession and of property was actually vested in Ilaynes, by the delivery on board the steamboat at the time the false and fraudulent pretenses were j)nt forth by him; and the vendors had not in fact 1 -' Kent's Com. 4;>'.i, Dawns n. :l:lti. riik, s T. 2 Per Lord stowcll in llio case ot The ConHtantia, c. Udb. Adm. 3'il. 3 Litt r. Cowley, 7 I'uunt. 169. I'KorM: '•. iiAVM>. 2U7 upon the under- I' y a car- iircliasiT; and tlu' vi'slis in tlu' pur- ruiitiitn. if till' pin- iil llii'ir jtlaic of pccially iiainod hv k we art' bound to L to be sent on to <■ ac'CMinling to tlie lie {iuods. so an U> title, leavinji tliem puicliaser's insol- a sccnritv fcr the a middleman, was IS a mere i'n.^ , ...P.. of the fad of the delivery of the gou.ls „n board the .s ea,nb„a, , :/,„., ,i,.., the falM. representations as to hi. si. nation and s-heney „.,,, ,.,,,., Al,h..„,l, in puint of n.oral turpitude there .s - i- U.fferenee between obtaining the possession of the gooils by w,l f 1 n ,..,„.,,,,e falsehood in the iir.s, instance a.,d prev..n..ng he vem.orf.on , .i„. a h.gal equitable right by nimiiar frandnlent.md eonnpt : . ir wouUl, . ..o„l. be going too far, in a pro.eeut.on f..r fi ony. ,o .:.v the two eases are .0 san.e, and that the accused nu, be i - ..d of the latter offense under an indie.ment ehar.mg hnn w th Zoning the delivery of ,he go. da by means of these fulne pretens i Uu.,'f,.re for .h>s rea.M. only, think the judgment of the court below was ennueous an.l tiiat it shouhl be reversed. T.at the supre.ue court has erred tn dec.d- '"^■lie •::i;:;ment was under the statute against obtaining property by ,,,, ,„,,u.nses w„h intent to defraud. The proof on the tnal w t ..„i,,jv to show that the goods were obtained .m a pr^.i...!, e, ab- hshed'credit. without any pretense or repri^e.dat.on ^^ '- • -^ „.,st that after being so obtained the defendant -'--' « ' ; ^; the possession of them by n.eans of false preten.es. If t u> b. th. t C a acter of the transaction the defe.nlant was conv.cted of an off en c .0 ;lhibited by law, and for which he ..rtait.ly was - -^^^^ Whi'ther it be so or not de,.ends on the fact of tl'-^^-''-- > ^^ ^ Zu. Addoms, the principal witness forthe K---'";- ^j^;;:;^ Havnes hud a very good cred.t with the house "-'-,^.^ ;;;:;;;; a partner ; that he (Haynes) selected the goods h.n^self ; hat th .ire nn aside frotn the rest of the goods, packed up >n a box wh h -...8 :^::^n Ihe out.ide and addressed to Tharles »;;'y;- / -- bein.. the place of his residence, th.t the goods were aflerw.t d. . n^ to 1 e Providence stean.boat, accoruing to Ilaynes' dn-ect,ons, and a • r u bv the cotman I hav, no doubt that these facts eon- :r :i^2oL:':i;;:n and mdeed it is ad.nitted o,. all .des that tt 1 such a delivery as put the property wholly at the r. o U^ -^ -N ami it might be added «ueh a delivery aa would -ahle n^ o .^ n U trover or any other action for their loss or .njurv . ut t r while the gooda were in this situation, -^ ^^-^ \. ^ ^^ actual possession of tUem. inis i >i.ij • 2»)M FI!AI l» AM) lAi.sK IMiKTKNSKS. Ilnyn.'s was on tlir spot. |.crs(.n(ill.v l<. s..|,..t tlir j;..n.|s. nn.l to hav,. Ih.'iii liii.l !i>m1... I.un,.,! ,.,,.,1 .lin.ctf.l. m.,.|„s t,, „„• to !..• i. |),.rf,.,M fJfOlll'.' The case is in tiiis ivsp..! .li.tin^r„isl,ahIo from tiios,. in w „• ponettle. Hiililwiii, .-J 1(1. 175; Wnglii i I.awts, 4 rx; ««P- '^^^ " 2 Vern. iOT. ■-' Kmgf. Meri'(litli,.'C!.iti, :l I!us. .^t I'ul. r,m ; ( li:iiiiiiaii 'J Kent's Com. 4'.>J. I'KOPLK r. IIAVM'.H. •Jtll' foods. Mini to liavr lie a pcrfi'cl (lili\- 1 oil 111. Ml. I tilKf if. ytl if they !iir rraiiH^ciiu.iit, .-m f,, lii'ii upiiii tlit'iii i> lioso in w ic : lia\i' niily iia.->i'i| t'i>iiii !is a carrier, llllpiisil|;r tin. fact tisilic of tllC jro()(l> Jii, and that llicy ii lii'iJ on tikiii, ir as owncrsliiji i-; ;it or even to the layiies saw tit to 1' e(|iiitalile lien of foods to the serv- iister of a vessel, ei|uivaleiit to the was to lie pi ■ ' by t the effei eh iverycoie ', insfaiues may en- ds strictly belong le than the lien, dance belongs to of >toppage con- liction in terms," wii goods, or has iglitof the vendor dee, originated in in V. V(inilcj)utt,^ il by the courts of mtial justice, yet ) rescind the con- of equity has no 14; s. c. Ki Am. l>i'C. Ibii the .Siiprenie Court thinks thtit although the property wann- (loiilitedlv for some purposes to be eonsiileied deiiveied, yet the (lelivei V was " incoinplete and eoii) the receipt of the master of the boat was in tiie hands of the vendors. The first and last of these circumstances no way affect the fact or character of the delivery; the invoice or bill of the goods was immaterial, and the receipt of the master of the l>oat was lucessarily given after the dilivcry and of course any disposition made of il eouhl not affect that fact. The objection tliat " security for the pun hase-money had not been given," assunu-s what nowhere appears, that security was to be given. The utmost security that could have been contemplated was the purchaser's note, and if this had been an eqiress condition of the sale, of which there is no evidence, yet it was waived by a delivery without a concurrent and express demand. This principle was fully settled in Clidpnitnt, v. J (ttliropr and in lliis court in Lnjna v. Murii'/'i In every view, therefore, ihat I can take of this point, I am sutislied the exceiition that there was no evidence that the goods were olitained by means of the false pretenses was valid. I am also satisfied that another exception was well taken ; it is that to the instruction to the jury, that if some of the pretenses were false, and they (the jury) believed the goods were obtained solely by means (f them, tjhe indictment was sustained notwithstunding other pretenses alleged to be means of obtaining the goods and averred to be false, were not proved to be false. My impression on the argument was against this exception ; but on re-examining the opinion of the Supreme Court, their views on this point appear to me to be plainly erroneous. The offense of obtaining goods by false pretenses is combined of two dis- ti.,ct dements, to wit: false pretenses, and obtaining the goods, neither of them alone constitutes an offense. An indictment, therefore, oy, 7T. Ii. iVo. 1 Hi'sscy f. Thornton, 4 Mass. 406; Far- niss r. Home, 8 Wend. 247. 2 (1 Cow. 110; 10 Am. Uoc. H't ' T Wouil. 77. 'J 70 lUAl I) AM) VAI.M; rWKTENSES. „u,>t ^I'i fnrtli th.' i.rot..ns..s l,y wlii. 1, llio -onds nvro obtaiuo.l !iml ex- pressly avrr tl.c.n f . h- 1:.1m. : aiul wIkm. so mI f-uth mm.I uvrml to fdM- "lli.'V, to-'CtluT with tlio (ihtMii.injx of llio jioods, coustmite .... offriiM' .hnr-cd. It follows lu'ccssiu-ily lliat ovcry pivlfiiso thus set f„rth and diai-cl to ho falso is nui.U' a suhstantivo luiit or constitiuna ,,|,.„H.iit of tlu> ..ffonse for w hidi lh»^. iudictnu'nt is found, and of course c.,n not ho doemo/l imniatnial. niu.h los impertinent. Tlie distinction between inateiial and immaterial avermmls in an indictment is settled to he that if the avcniHiit he connected witli the char-e, it must he proved • but if it he wholly immaterial, or if the aveimont he totally „„,.„„noet.d with the char-e, it n.-od .lot be proved.' Here each an.l every invteiise .set forth and alie-.d to be false is not only lutimatrly connccte.l with the cir.'iimstancos that constitute tlu- crime, but -s m fact a part and portion of the crime ch.iroed. It is. therefore, a nuuh stronger case than tiiose usually put to distinguish a material from an imi'-.aterial or impertinent averment. The general rules and principles of i)leadin^^ with respect to the structure of a declaration are ai.i.licahle to an indi.'tment, and if we look to the decish.ns as f. avermi'nts in the former which must he pr..v. d ■i« laid tlu're would se»MU no room for doul)tin*>&. :i i Mau. * Scl. ;!70. < '.) Wi'iiU. 18J. wcio nV)taiiuMl sukI t\- (Uth iiiid averred to et ;ive part or eonstitueul 3 foiiiul, ami of eour:so iiu'iit. Tlie (UstiticlidU 111 indielineiit is settled ilio eliariic, it imisi lu' ic averment be totnlly •oved.' Here each :nid ■ is not only intimately itc the crinu:, bnt is in It i-^. therefore, a nuicli iiish a material from an ng with respect to the I indictment, and if \ve ■r which nuist lie provi d ns tlio necessity in tlie Ullit.- setMed by a jnd;.'e ■n ti>ey interfered with comparison as material iirt seems t<> regard the IS authorities which snp- 1 tind- nothing in them •ertainly not in the lirst the necessity of niakinii tlie falsity of those pre- ) be relied on as coiisti- nsable thus to desigaate ted and averred, can be iinected with the circiun- able to pi'rceiv;e ; and in the court seeming to con- f several assignments of lio delivered that t>p'"'""' iiily the pretenses hdied to negative all the false cssarv to prove them all :witlistandiug his intima- PKOPIK ?•. IIAYNKS. 271 ,io„of its bei.m suir.rient to prove one of several assigmnents „. the vm.e count, he perceive.l the necessity of making the j.roof, on an in- ,li,.tment for false pretenses, co-extensive with the pretenses especially .,v> rred to be false. 'I'ho supposed analogy to an indictment, for per- 'j„rv does not hohl. Here several porjnries. cich couslitnting a distinel offense may be assigned in the same count, and proof of one is suth- cie.,1 which is in.leed no more than to say if several off.'uses are ,lcu-.re pret..nse. is to give to it a sweeping an. mischievous construction ^- a construction which if carri...l out to al the cases it would reach, no court could eufor.'c. no nmimumty co.d.l '"I'allmit with L.)r.1 Kenyon.' that tlie offense ..i^ated by the statute is & sel. ;170. 1. IS'J. I VouiiK 1-. Kiiijr. :>T- 't ^^^' •2'2 KRAll) AND KALSK PUETKNVSKS. (Icscribcd in terras I'xtii'inely general and that there is difIieuU\- in diawinii a ilistimt liuo between the cases to which it does and to wiiicli it (lues not apply. But this very admission of Lord Kenyon made inanv yeiirs after the statute was in force, proves what till very lately has never been doubted, tiiat a bare, naked lie, unaccompanied with any artfi'l contrivance, is not what the statute denominates a false pretense. If it were Lord Kcnyon's remarks would l)e altogether unfounded ; for in thai case there couUl be no difllculty in drawing tiie line, indeed there would be no line to draw. At common law no mere fraud, not amount- ing to a defined felony, was an indictable offense, unless it affected the public. Jjord Mansfield observed that " au offense to be -ndictaljle must be such an one as affects tiie juiblic ; " and he instanced the use of false weights and measures in the course of general dealing, fraud i)y means of false tokens, etc. But fraud liy a false token, designed to cheat only the individual defrauded, was uot indictable at common law ; it nuist be a false token designed to affect the public generally — jueh as false weights and meiLsures, counterfeit marks on goods, etc. To meet the insuflicientiou of the term 2 Itev. Slat-. i;t;, sl'c. .lil. TKOrM'. r. IIAYNKS. '21 ^ re is dillicullv in (I008 and U) wliic'li Lt'iiyon made inanv >ry lately has iievor [I with any artfi'! false pretense. If unfounded ; for in 3 line, indeed there fraud, not aniouut- nless it affected the i be -ndictaljle must itanccd the use of 1 dealing, fraud i)y token, designed to ble at common law ; ! generally — Juch on goods, etc. To e statute 33 Henry by means of privy ttled that to consti- -as a ring, a key, 1 effected by verbal ntrivance and well I case of most flagi- unwhippcd of jus- lotvvithstanding the cautious man off his the statute against term false jjretenses. I which it is j)laced in with a regard to the attached to it a i>ar- " Every person who, edly by color of any ," etc. The inquiry 8 anj' false assertion [>sent case, when the nrrassed, he replied •ould naturally have is nddressed ('([uiva- iloptiou of the term U.iivfs me witli no .l()ul)t tliat the latter is lis statutory Mieiming. It in- ,|> ,.,1 is not as clear as it has been a^sumed to l)e, tlial the common 1, xieo^rniiiiical meaning of pretense is assertion. An authorized deli- i,iti..n"i)f it is "a delusive appearance produced by false representa- tions:" and this comes much nearer to my notion of its statutory in. aning, tnan any detinition does which confounds it with a naked falseliood. It was many years after the act of (leorge TI. before the Enghsii , omts nia.li- any considerable advance towards the construction that is I ,,w so much favored. Yuuxfj V. Kiwj.^ may, in this respect, be con- Mltred a pioneer case; and when the facts in it are compared with Umsc of s..nie modern cases, it will be seen how fast of late the new ,i,.rtrine lias been traveling. In that case four persons conspired to ,l,fiaud another by concertedly and falsely representing to him that a i,,,>re bet had been laid with a colonel in the army that a certain pedes- triim feal would be performed, and that, they, or some of them, had sharrs in the bet, thi'reby inducing him to advance to one of tliera a Mim of money, and become a shareholder in the wager. This, which in tniih. was indictable at common law as a conspiracy, was held to be wilhiii the statute, and the rule was then laid down that when a party h:,^ obtained money or goods by falsely representing himself to be in a siiiiatiou in which "he was not, or by falsely representing any occurrence thn* had not happened, to which persons of ordinary caution might give CIV. lit, he was guilty of the offense. This rule the Sui)remo Court udnpttd, without argument or explanation, in the case of Pcoiile v. Jnimsuu:^ and it has been gradually enlarging itself down to the present c:iM'. The rule, as originally announced and applii'd, is not, perhaps, exceptionable, except for its vagueness, and great liability to abuse- It meant in the case where it was (irst applied a false representation wi;:i circumstances fitted to deceive a person of connnon sagacity, ex- eni-ing ordinary caution. It is now con-trued to mean any false declaration by which any person has been ileceived. The construction adopted in this case is, I am persuaded, not only an incorrect, but a mischievous, construction of tin' statute — a construe- ti m which, if strictly maintained, would overtlow our courts with crim- inal prosecutions, alid our jails and penitentiaries with convicts; the wlmle penal code beside would not be half so burdensome to execute, or !i:df so fruitful of convieti7t niAii) AM) I'Ai.sK I"i;i;ti:nsi;s. bcoii ii(lvaiiO(>(l ill till' iipiiiioii we nif ivvii'wiiiLt is. iliat •' wIuto faKi- lio.xl lias a material iffocl lo iiidiirf a pfrsoii lo part wiiii his pn)|n'n\ , tlif offense has heeii committed." Apply this rule not only to iIk' •rreat exehanjies of property, tint to the iumimerahK' and eomparativt ly iiisi;,Miilicaiit (lealia.tts of men — to every swa|) of horses — in tine, to every transaetioii l>y which property is traiiNt'erred, a n.'tc piven. (h money paid — and ikj man eonld eomit tlie ea-^es it would reaeh. jMe:- cliants and others in the lialiit of <.n\ ing credits, of iiiciirrin;.' jrreat risk- <;f the cliance of gn'at prolits, niii:lit at lirst lie gratified with a nil.' that eiial)led tiiein to enforce collections hy the terrors of a criminal prosecntion; hut when even handed justice commands the poismiol chalice to their own lips, ami they shall find themselves arrai^nicd at the bar of criminal ju-.tice for every misrt'preseutation of the cost, (luality. salableness, or value of every article they had sold, they too will W ready to »'xclaiin: " 'Tis ritcor, and not law." It can be said. I know, there will be no ;iuning of time; but how feelile have human laws proved in their efforts to enforce them. Hoes it fol- low if men are not honest and will not tell the truth, that they are to !>■■ arraigned and tiieil and convicted as felons? What scheme of criminal jurisprudence conld carry out this priiici|.le? What prisons could con- tain the convicts? Wc iiave it from the highest authority that by nature " all men are liars ; " and a master judge of tlie human character has said that " to be honest as the world goes, is to be ouc man picked out of ten thousand." To punish as a crime then, what the multitude of offenders make a custom is an attem])t to what wo can never hope to execute. It is the remark of a profound philosopher that "the opera- tion of the wisest laws is imperfect and iirecarious ; they seld(nn inspire virtue; they can not always restrain vice ; their power is insulllcient to prohibit nil that they condemn, nor c;in they always jninish the actions whichthey prohil)it." Though the laws will not justify, yet they must recognize tho frailties and imperfections of human nature, and they do (leal with men as being subject to propensities and jiassions which they may aid to restrain, butwhich it is impossible to extirpate. IIow incon- sistent would it be, when the law will not receive a ma \'s oath, if he has sixpence at stake iii)on it, that it should send him to ilie State's prison for an untrue answer to an inquiry into his pecuniary affairs, which he may have the strongest motive for concealing. And how disturbed and uncomfortable W(ndd be the condition of a community like ours where tralhc and credit are inlinitely ramilied and unceasingly active, if every person (li-isatisfhMl with a bargain or disappointed liy a misplaced conti- dence, in the responsibility or punctuality of another, shall be quick- ri'.ori.K /', H.wxKs. , iliui •• wluTC faUi - rt Willi liis pmiu-rty, ilo not only to llio r and coinpiirativtly lior-ii's — ill tiiio, to il, a ii-'tc p;iveu, or WDlllll ICtU'll. IVIcM-- iiifiiriiii;^ frrcut ri>ivH ^ralitit'il with a. rule I'l'iiirs of a criniinal iiaiids tlie poisdUiil Ivi'S arraigncil at the of tile cost, quality, kl, tliey too will l)c ty if men are honest f truth and honesty ; inc ; hut how ferMc ( thi'in. Does it fol- 1, that they are to W It scheme of criminal at prisons eouhl et)n- ,t authority that l)y tlie human eliaractir ) he nuc man picked . what the multitude ive can never hope to )her that "the opera- ; they seldom inspire )Wer is iusutlicieiit to ys punish the actions ustify, yet they nuisi 1 nature, and they do I passions wliieh they [tirpate. IIow incon- ma I's oatli, if he lias to I he State's prison iary affairs, which he rul liow disturbed and unity like ours when- !inf rtdres- or rev('ii'.:e. t<< reciill(>(t sonv nniiue ri pi'i'scntalion made in the course of t!H> transactinn. .Stiimiiatcd liy the hiipc of ii'sciiidini^ a liad liaii^aiu or of securinif a douhtftil dcht, or initati'd l)y the iiinxiicctcd loss of what he liad sujiposcd a pood one — linw natural it is that he should ))ersuade hiinsclf that " falschnod had a nialcrial effect to iiiutatioii and p.ersonal lilirrly of anoliier. If po-- sc'-'-ed it would lie often alnised ; and it is inevil.alile tli.'it perjuries would be multiplied, and injustice and raiili op|)ressioii promoted. 1 can not concede or eonct'ive that a coiistructi(ui is sound, orlittedfo aiUancethe gcuier.al welfare, which ])ropose3 to protect property from loss by impositions which the owners c:ni easily guard against and ex- poses rei)utation and liberty to invasions which no prudence or integiiiy may ; bvays repel. Besides it is an I'toiiian idea that the sanctions of eriiniiial justice can be made co-exteiisive with moral delinquencies. However agreeabh" to our seiitiinents of natural justice, it might be to punish every immoral act, it would be Quixotic to attemiit it. No coinnnmity ever assumed the obligati(»n of protecting by penal laws (Very member of it from the consequences of his own credulity, impru- deiK e or froposes to do. is to protect individuals from those ingi-nionsiy contrived frauds :iiid unusual artifices against which common sagacity and an ordinary experience of inaiikind will not afford a sndicieut guard. Beyond this nun must trust to their own prndence and caution, with such aids and reiinss as may be obt.ained from the civil tribunals. For all and each of the objections I have stated. T am for reversing the Judgment of the Supreme Court. 0[)inioiis were also delivered by Senators Edmonds, Edwauds, and Mai^iin-, concurring wilh the chancellor and Senator Tuacy in their con- clusions that the delivery of the goods on board the steamlioat w.as an absolute delivery, and invested the inirchaser with both the title and possession; and that conse(|iiently under no possible view of the ease, eonid the prisoner be considered as having obtained the goods l>y false pretenses. •2,>< ri!Ari> .\M> ivi-sK i>Kr.TK\si:s. On ,iu. su-o«tinn -f the .■l.nnc-oUor tl.c nmrt afrm-.l ,„ t u- f.r.t .n. .t. . : t.. pa^s onlv u.K.n ti,e .,.ostinn wlu.,!..,- th. .U ivory of the ,o..l. n .ani ho ...au.l.oat. un-lor tlu- cin.un.stan..os..r , he case, .aB an ,- " ,0 l..livo,v, una inv..s.o.l ,ho purchaser .vith the title as well a. th. s .in «f-t lu- poods ; a-ul on the question l.eing ,,ut the members of S co« rt unani,ncLlV ex,>.e>s..l ,he opinion that the del.very was a - =^ute Whereupon the judgment of the Supreme Cour, was reversed. soiuie. YTutri I Judgment reversed. yALSKPUKTENSES-..nT.UNlNK cnARlTABLK DONATIONS Pkoplk v. Clouoii. [17 Woml. ;^.-.l ; 31 Am. Dec. 30:5.] In tin' Saprnn,' Cmirt of Xew York, Johj, 7A77. money llicri'liy. Indi.tmeut a-'ai.;.! the put the case ou the 1 p. 'iSlt. PKOI'I.K ?•. CI.Ol (ill. m ppd ill tilt" first ill. livery of the jxcxul- ic ease, wiis an at - title as well as tin lilt thenienilters of e delivery was al - "ourt was reversed. dtjment reversed. ) DONATIONS ;/, 1S37. not indictnlile as a false t ami 'lumli aiul nbtaiiu money I'y 'alse pre- ut>, aud tlierehy ol>- 1-1= tnietit whieb was < of this court could ise depends upon the .r of money or goods izen from frauds be- ;eries and other liUc impassion and induce 1 tiud no case or die- -ation of this statute, writer repr».6euts as a ' a man who maimed ic for asking charity, lis led me to exammo HI put the case on the fniiiil, I'lit on the max lu'in. and anordingiy treat of it under the title • Maiiiiiiij^." Thi'y all ^o on the case stated i)y Lord Coke, who says: • In my circuit in anno 1 Jacolii Regis, in the county of I.eiccster, oik, \V iulit. a vouiig) strong and liistie rogue, to make himself im|>.)tenl tin rchy to have the more color to lieg, or to he relieved without imtting hiiii-clf to anv lalmr, caused his coiii|iauioiis t'> striki' off his left hand, :iiid liotli of t. em were indicted, lined and ransomed thrnfor; and that liy the opinioa of the rest of the justices for tin." cmiisc aforesaid." i Phis and other causes are introduced by Lord Coke with the ohscrva- tion, "Note, the life anil inemi)ers of every subject are under the >ateviccs (if their trade, is itself enough to raise a doubt. The exercise of the virtue of charity has practically been left, where I suspect the law iii- leiiiled it should remain, upon the basis of the mere moral duty, both of the beggar and donor. The virtue is sutliciently cold, iiKjiiisitive ;ind scrupulous to be safe without the protection of the criminal law. The duty of the donor ii one of imperfect obligation and i am not iiware that the beggar's duty as to the means of calling it into exercise is aiiytliiug more. I should even doubt whether an action for money ha.l and received would lie to recover back a charitaiile advance made (111 a false pretense ; for I believe the understaiuling is always to let the scanty pittance go on the rcpresi'iitation, true or false, better or worse without any implied duty of restoration. I admit that the crime in (piestion is one of a very dark moral grade ^o are adultery, ingratitude towards benefactors, and various other moral offenses not noticed by the criminal law. I admit, also, th.at it i> within the words of our statute and within the enacting elaii>e of .".o (leoige II.,'- from which our statute is vop'ml. Our system of rexi-ion however, has in this, as in many other cases, unfortunately obscured the history and reascm of the law not only by alterations of words, but MKiiiy times liy dropping the recital. The true reason of ix-lh the I'.ngiish and New York ijtatutes was, doubtless, the same : and it will be useful, therefore, to look at the reasons stated for the first. After recil- iiiLj " Whereas divers evil-disposed pi>rsoiis, to support their proMigale way of life, have by vtu'ious subtle stratagems, threat-, and I'AI.Si: I'llKTKNSKS. fiaii'liilonllv (.l.ttiiiicd divers sums of inoiioy. jioods, wnirs, and ni.i- tliandisfs I'o 111.- -real injury of industrious familios. aiid to ll.e n.anifi-^i prriudic-o of trade an.l credit." tl.e statute proceeds as follow-: " Tlierefore, for puniHiiintr of all smli offenders, hv it enacted, ete.. that from and after, etc., uU [.ersons who knowingly and ilesi-uedly, l.,v false pretense or pretenses, shall obtain from any pt-rson or person>. iu..nev <^oods, wares or nieri'handises. with intent to cheat or defraud M.v lierson or p.'rsons of the same; or shall s..nd. etc. (a thrcateninf: Ut'ter) with a vi.'W to extort, etc., shall be deeni.-.l offenders afiauist law and the public peace." It tlu'U prescribes the punishment which h 1o be by One, imprisonmout, [.illory, whipping, or transportation to tins c.untry.' Looking merely to these punishments, one can not but admit that some of then, are u.lmirably calculated for such " lustie rogues' us he of n.v Lord Coke and many others; but the r.-cital seems clearly to point out evils entirely differ.-nt from any which ever arose in the history of charity. AVhcn did wc ever hear of industrious famd.es ruined, and certainly never of any prejudice to trade or credit, under any system of fraudulent beggary? On the co..trary, our books of moral's and tales, with a few scalteri.ig exceptions, are continually con.- plaining of deaf ears and hard heails, even when add.essed by the best authenticated stories of ival distress ; so much so, indeed, that our law has been obliged to interpose a system of rogulat.-d public chanty f..r the p.otectiun of the honest suflVre.-. Nay, it makes the offense of begging a ciime, punishable by summary ,)roceediug befoi-e a uaagis- tra"e.2 Looking to our statute, the man who merely gives to a l>cggar without ordering him instantly to be taken into custody and carried be- fore u justice of the peace, as he may do.^' wo.ild seem to be amoral participant i.. the crime of vagrancy. It would sound somewhat ex- trava-'ant were we to ai>plv a law severely penal to such an act. O.rthe whole, we all feel quite clear that this indictment is not sus- tainable. We all agice that the pretense, had it been exercised in a matter of trade or cifdit, would li.ave fallen within the statute ; but we «an not bring ourselves to hold that this or any pretense resorted to merely to e.iforcc a beggar's reqm>st. is cognizable by the criminal law. The Sessions are advised to discharge the defendant. 1 'ii Pick, stilt. lit I.ainc, 114. .; 1 Uev. Stats., r.io, tui (Jil «(1.) aces. 1, ; ■) rd., ace. :. i;. r. iiKN>il.\>v. 2T1> , w'lics, and nn r- lul to tin' tiianiffst •('('<1h art follow-.; • il ciKuted, etc., ukI «lesiy iTson or porsoiis. ( cheat or di'fnuul i"tc. (a threatening; offenders ajrainsl uiishnient whieh i> nsporlation to this can not but admit h " histie rojjues'' cital seems ch-arlv 1 ever arose in tlie idiistrioiis fatniUes de or credit, under •ary, our hooka of re continually coni- dressed by tlie best uhH'd. that our law imblie charity for lUes the offense of ug before a niagis- ly gives to a beggar ody and carried be- seem to be a moral ound somewhat ex- such an act. dictment is not sus- been exercised in a the statute ; but we [iretense resorted to by the criminal law. t. I'ALSK I'RKTKNSES-MUST UK OF EXISTING FACT. R. r. IIknshaw. [L. *. C. I4t.l Tn ihi' Enffinh Court /<»• Crown Cases A'e.t'Cce'/, IS(i4. 1. In an Indictment f-r (also protonscs it must .Icaily ii|.|.oar that llu-r.- wa^ a false pre- ti'iii-e 111 :iti K\i>liiig fart •J. An Indictment Alleged that C. proton.lod to A.'s nKCnt that M... A.'^ agonl, «n« to givi- liHM JOS for II. aiPl that .\. was RMinK K. allow him Mf. a wc.^k. Ihl.l, that it ilid iiul Dumcicntly appear that thoro was any falso protcmtc »( an fxi»tiiiK fact. The following case was stated by the Recorder of Brighton. At the (ieneral Quarter S.-ssioiis of the Peace for the borough of Brighton, hol.len on the l8tli of March, IHf.l, Lewis Ilenshaw and John Clark were tried l)efore me upou the following indictment: — Borough of Brigton, to wit. The juroirt for our lady tlie Queen upon lli.ir oath iiresent that Lewis Ilenshaw and John Clark on the llth day of January in the year of our Lord IHC. I unlawfully knowingly and designedly did falsely pretend to one Henrietta Pond who then lived at one Madame Temple's and acted as her represent.-itive that the said .lohii Clark had come down from London to the residence of the said Lewis Ilenshaw antl that the said Henrietta Pond was to give him lOs Mild that the said IMadame Temple was going to allow the said Jolin (lark ins a week for the benelil of his health, by means of whieh said fiilso i)retense the said Lewis Henshawand John Clark did then attempt uiilawfidly to obtain from the said Henrietta Pond the sum of lOs, with intent to defraud, whereas in truth and in fact the said Henrietta I'.iiid was not to give the said John Clark the sum of 10s or any other Sinn of money, and whereas in truth and in fact the said INFadame Tem- l.le was not going to allow the said John Clark the sum of 10s a week or any other sum of money for tlii> benefit of his health, as they the said Lewis^Henshaw and John Clark well knew at the time when they did so falsely rei)resent as aforesaid, against the form of the statute in such cast! made and iirovided. The facts of the case, so far as they are material to the point re- served, were as follows: — On the loth of January last, in tlit; evening, the two prisoners went together to the shoii of Madame Temple, in Brighton. She has also a siiup in Loudon. After Ilenshaw, in the presence and hearing of Clark, had made a statement to one of Madame Temple's assistants, he re- ((iicsted to sec the one of the assi.stants who kept the accounts, lleiiri- otta Pond, being the person by whom the accounts of Madam Temple's 2.s() ritAM) AM> 1 \r.sr. im{i:tknsks. Hrijihtoii c-tiildisliim'tit urf kv\>\. tlu'ii lanu' forward, llif evidence w:is: •' llcnaliuw. in tiif pitsfiir.' niiil lu'iirin^j; of Clark, naiil tliat vniinu' mail (iiifaiiiiiu' Clark) liad coiiu' tlow ii frniii F-ihuIdh ; tliat he (iiican- iii;,' Clark) had lici-u iii llii' Uiomptoii lliispital willi a bad lf;i ; tlial \w (iiitaiiiiiLr Clark) '""I > Mailaino Tciiiple in Loinluii ; That Midan, 'IVinplc said that, I (lli'iiriclta Poii.l) was to p;ivc liim (incaniii.^ Chirk) lO.s a w.-ck, while lit- was at Hri<.dilnn, for tlio hi'iiolit nf 1, . health. I ri'fiistd to do so sayiiiiJC that if Madaino Tomplo wisiiid inr to do it «lu« would send mo a K'ttor (he in'xt iiioruiiiji. Onco or twiiv lIi-iiHliaw said, ' You do not iiitind to fjive the lOs? ' lliiisiiaw said to Clark. 'Was that what Madamr T<'inplo said?' ("lark said, ' Yes.' llciisliaw then said tliat lif would write to Madame Tiinple; and tin prisoners went, away tntrether. " Madame Temple was called, and denied ever liaviti-;; seen or haviiia any knowled^n- of either of tin; prisoners. The counsel for the prisoners ohjeeted that the iiHlietment ane<.,'ed iiu false protewse of an existing fart, and nejj;atived nc) false pretense i4 anexistimr fart, all the faets alle-j;e(l or negatived lain-,' future. I liild tliat the false pretense that the said Henrietta Pond was In •jive hiin lOs was a sullieient false pretense of an existing faet to siip- poit the indictment, and thut the second false pretense, even if not of an existin;,' fact, mi;.'lit, therefore, he taken into consideration in eon- junction with tlio first false pretense, Imt reserved the point for the consideratl III of the Court of Criminal Appeal. Th(! jury found both prisom'rs guilty ; and they were sentenced by me to four calendar months' imprisonment willi hard labor, and wen committed to the House of Correction, at Lewes, in execution of that sentence. The (pie-ition for the consideration of the honorable the justices of either Beneli and tlielionorai)le the liaronsof the Kxche([uer is, whethn ujion this indictment the said conviction was right. This case was argue sentenced liv ;ird labor, and wen n execution of tiiai able the justiees ol :clie([uer is, wlntln i nefore Pollock, C*. I'KiOTT, li. false representation liat Henrietta Ponii ) was to give Joim it seems to leave the li in tlie indictment words, " on account '3 the false pretense was tlia< Mndani Tcmph' liad given them authority to aslv for llie Mis; I, 111 is that laid? Cunoll'i. 'Ilie indie.n)ent does state that I'ond acted as .Maihime T.mph-'s representative. Tlu^ .videnee disclosed u sullliniui Ids iiiipoiH (I only I"' Hii if lie il allriiJitioM, viz. ; I WL'l'k, l)t' C'Kllsicl- ,iiro.. fiut, yi't tliut /•>'/.' it waa liiiij lii long since ceased to disturh the criminal law of this Slate. Tiiere was notiiiug in Cnminuxtccjilth v. Biirdick to sn-- .rcst such douht, as the defen.lant had willfully misrepresented that lir had a capital of ?s.(K)0 in right of his wife, while in all the cases cit( d therein there was a mi>n'i)resentation as to existing facts, hy means whereof credit was ot)taine.l. The .leciMons upon this suhject are uni- form, and it would he au affectation of learni ig to cite the cases, Manv of them may he found in the foot-note to Purdon. In the case in hand there was no assertion of an existing fact. Now was there aiivtiiing done hy which even a credit was given. The credit had heen ol.laiued when the original note was indoiTcd ; the present note was in.lorsed in lieu of and for the purpose of taking up the orig- in;d ; the failure to use it for such purpose was certainly a dishonest act on tlie part of the defendant, hut we do not think it punishahle under the statute dciining false i)'-etenses. It was urged, however, tnal if it was not cheating l)y pretenses un der the staUite, it was constructive larceny, and therefore within the provision of section 1 1 1 of the act of :nst of March, ISC.O,'^ whi-li is ae follows. "Trovided, always that if, upon the trial of any person in- dicted fov such a misdemeanor (false pretenses), it he pr(!ved that he obtained the property in (luestion in such mannei as to amount in law to larcenv. he shall not', i.y reason thereof, he entitled to he acquitted of such misdemeanor; and no person tried for su.li misdemeanor shall he liai)le to he afterwards prosecuted for larceny upon the sanv, facts." The fourth assignment of error avers tluii " the learned court erred in not holding that the facts set ^-tli in the indictment, and proved on the trial, showed the defendant , '..tained the property in (lUestion in such manner as in law would amount to larceny, a'.ul in not giving judgment for the Commonwealth." We do not tliink it necessary to discuss the line of cases cited in the able and interesting argument of the learned district-attorney, dciining the distinction between the offenses of cheating by false pretenses and constructive larciny. While the distinction is a nice one, it is, nevir- theless, clearly detined. The difliculty upon this head is not in the law. 1 J Itiin , li;i. •i V. I.. 410. 3S. hi' the assertion of an , in the future. Tho ;tates a faet, and one ncrc failure to keep n lat occurs wliencvcr a cc (iiljson doubted in lie by whioli a credit statute. Tins doulit sturl) the criminal law Jth V. Biirdick to siil'- lisrepresented that lie 1 in all the cases y pretenses un tl therefore within the rch, ISCO,- whi'h is at- rial of any person in- I, it be proved tliat he as to amount in law to Lied to be acquitted of 1 misdemeanor shall be )(,n the sanv. lacts." c> loarned court erred in icnt, and proved en the rty in (luestion in such in not giving juilgment ne of cases cited in the strict-attorney, defining by false pretenses and a nice one, it is, nevir- i head is not in the law, 410. ALLKN' V. ST.VTK. 28.') Ik ( hut in the application of the law to the facts of a particular case. We arc not called upon to pursue this imiuiry in the , resent instance. It re(iuires l)ut a moment's reflection to see that we coild not reverse the court below npon this ground. How can we, as an : i.pellate court, say wiiether it was j-roved \i\Hm the trial below that the defendant ob- tained the property iutiueslion in such nianiu-r as to .iinount in law to larceny, when not one word of the evidence is befo-e us? liut it is said, the jury, having convicted the defendant of the offense of cheat- lnt be aflirmed. SiiAU8W<.)OU, C. J., concurs in the opinion, but ^-ould quash the writ. SWINDLING -Ulil'RKSENT ATI- >NS MUST NOT BK AS TO FUTrUE K 'ENTH. Allen v. State. [15 Tex. (App.) loO.] In the Court of Appeals of Texm, lS>i4. To Constitute tho Offense of Swindling .-om.; false representation as m cxining facia or I.asl events must be mailo by Iho ac. UKe.l. Mere false prcuniseH or false,|in.fessi,)i.., oi uuenlion, Ihouith acted upon, arc not sufficient. The Informulion in this case charged, W) I'ltAll) AM) VAI.SK IMJKSKNSKS. eiibBtnnlially, that defctidant jiromliieil lo pay oiic 15. fifty •■cnl." for four certain ll.-l., ,f Haul II. would deliver llie (-aiiie at lii.", defendant's, house ; that It. did ^« deliver the ll-li. and that Iho said represeiitati'Mis ol tii • defendant were llien and Ihere fal.se, ete. //(■;,/, thai the inforinatinn was insu'Ueient to charge swindling or any other offense. Ai'Pi-.AL from tlic County Court o* i'alo Pinto. Tried below hefuiv tlic llmi. K. K. Tiiylor, Couutv \i(lge. Tlie ojiiuion .stsites the •.■ii.' deliver llie ti-li III I here f:ilse, etc. //■■;.,', y oilier otfeiise. Tried below liof iii sirs and t'onf'meiiicnl led tlie piiiiislmitiil :is up no stutenifut State. tion in this case is veiity-'-i'cond day "f Static of Texas, oiif liiK V)y false and de- ith intent, to apiird- ■ Allen, the party su 2 value of ilfty cents, •eprcsenting to him. lini, (iuat Hradfoid. deliver said tisli at Iford, did then and Duse. and which said ge Allen made wen )n article 790 of tlie of swindlinji;. The indlinj;, or any other titute the offense of facta or past events Ise {)rofe8sions of in- The information l>e- c part of the defciid- e. It does not even ,' for the lish when so information does not lie prosecution is dis- rspd and dismissed. C 838; rcoi)le f. Blancharii. i.f. Moore. 99 Pa. .St. 570. FAhSK I'RKTE.NSKS-KKMOTKNKSS Ol' rUETKNSi;. R. V. (Iaudnkk, [Dears. ><• H. 40; 7 Cox. IM.] Ill tho Eii'jl ,s/( Court of (.'rimiivil Apjwd, /.S.'Jfi The Prisoner by Falsely Pretending lliat lie wan a imvii) oflicer. •.mlnrcd tlic prvisc- cutn.'C to enter into a e,.iilracl with liiiii to loiiKe ami lioard liini at a jriiiiiea a week, and iindir tills eontrait he wa.s lodjted and .^uiiiihed wiUi various arlie.leHof food. //-)•/, Ihata I'onvieliou for oi.taining the arlieles of food hy false pretcuses eould not lie ,-ui- tmued, a.« the oblainiug of the food was too reaiotely the result of the false pretense. The following case was reserved and stated for the consideration and d.cision of the Court of Criminal Appeal by the chairman of the Cen- . nil Quarter Sessions for the county of Kent. At the (Jeneral Quarter Sessions of the Peace for the county of Knit, holdi-n at iMaidsti.ne, on Thursday the ;>d of Janiiaiy. l.'^">6, be- fore the Kight Honorable Charles, Earl of Koinney, J.wk.s K-^i-inassk, ;iiid IIknhvSiiovei.l M.\ksii.\m, Ivsiiuires, and others, her jMajesty's jiis- ti( ts (if the ]>eace for tiic said coiiiity, Wiliiion (lardnor was trun lipon Mil iiidiitment charging him as follows: that he did, on the i;Uh day of Niiviiiilier, 1S.")5, unlawfully, knowingly, and falsely jjretend to oiu; KlitMi Henrietta lininsden, that the name of him, the said William Cardner, was William Edgar l)e Lancy, and that he the saiil William (iMidner, was paymaster of the ship called the Duke of Wellington, iiiid that the said ship was lying at Portsmouth, and (the said William (liudner being then dressed in naval ollicer's uniform) that he, the said William Gardner, was the son of a half-pay ollicer, who was living at Chelsea, and that his brother was a lieutenant- colonel in the army, by means of which said fal.f Novemlier tlie dofi-iidant ox- pressed himself to prosceutrixas liting comfortaljle, and tli:it he shoul.j beliivelv to remain some lime, and stated tliat he was paymaster of lli.' Duke of Wellington, and liis name was Do Laucy, that the defendant continued ii lodger till tlie '.'.'jtliof November, and then expressed a wish to beeome a Imarder, and an arrangement was aceordingly entered vW" that lie should become a boarder at a guinea a week, that the proseeii- trix supplied tlie defendant with board, consisting of cooked meat, ten, sugar, bread, Imtter, cheese, and lieer. for the six days following, hut thedc-fendant did not pay her anything for the lodging or board. Upon the ease for the prosecution being t'losed, it was submitted liy counsel for the prisoner that the contract for board was a mere addi- tion to the tiisL contract for lodging, and that what the defendant in fact obtained by llu- false pretenses was an alteration of first contract, and not goods within the meaning of the statute. The chairman overruled the objection, ami left the case to the Jury, who returned a verdict of guilty. Counsel for the prisoner then ap- plied to the court to reserve the case for the opinion of the Court of Criminal Appeal upon the objection taken, alleging that a case similar to this was then before the court for decision. The court thereupon postponed passing sentence on the prisoner, but ordered him to be de- tained in custody. The opinion of the court is requested, whether the objection taken by the prisoner's counsel is valid inlaw? RoMN'KY, Chuintian. This case was argued on 2('>th April, 1850, before Ji:uvis, C. J., Coi,i.i!!D(;k, ,T., CiiKsswKi.L, J., Kaui.k, J., and Maktix. B. fforn appeared foi' the Crown, and liihton for the prisoner. Jh'!itoii,{ot the prisoner. The conviction was wrong. It is impor- tjint to observe the dates. When the false statement was made, neither money, chattel, or valuable security wa^ obtained by it; and obtaining lodging by a false pretense is not an offense within the statute. On tlio 2r)th November, when the contract to board was obtained, no false pre- tense was made. CoLKKiiMiK, J. Would it not lie a question for the jury, whether there was not a continuing false pretense? R. ?'. CARDNKK. i>s!) /■illiain Gaidncr liail army ; as^ainst the :ir as is material for ly of Novi'inhtT last , ciigiiLCt'tl a lodLriiiij tlie rate of tfn sliil!- • tlic (U'ffiulaiit cx- , and tii:it ho slioulil as paj'inastrr of tl\f , that the defendant K'li expressed a wish rdin.nly entered m\" k, thai the prosecii- Df cooked n)eat, ton, days foHowing, hut ini^ or Ixiai'ii. it was aulmiilted liy ird was a imTe addi- liat tin- defeiiihuit in ,ion of lirst coutracl, ,lie case to the Jury, I he prisoner then ap- liou of the Coiiit of g tliut a ease similar riie court tliercupon rdered him to l>c «U'- le objection taian ly OMNT.Y, ChuirnKin. cfore Ji:uvis, C. J., liTIN. B. he prisoner, vrong. It is impor- :nt was made, neithor ])y it ; and obtainin;: the statute. On tlio )taiued, no false pre- 3r the jury, whelbor Jiibton. To obtain a contract by a false iiieten>e i-, not wilhiii the ;nt. It is not olitainini^ floods. Ilerr. if anythinii beside* the lodginj^ was obtained l>y the false pretense it was nnt fooil, but simply a new enn'rael to su|iply board, and that would not be within tlie statute. The board miLjiil have been supplied, not in coii-^eciui'ure of f;d>i' pre- tense made when tlie contract for the Iod::in^ was obtained, but incoii- seiiuenee of the prisoner's manners and conduct after tlial time, anil whilst he was a loduer. ('ni.r.i,ii»;i:, .1. Ves ; but your point is, that there was no evidence to Lio to the jury, even supi>osiu<^ the inteival iielwecn the f:dse pre- tense !uid the contract had only been an hour. .'{ilitnii. It iscjuite clear, that to obtain lodging alone would not lie witliin tlie statute. Here the contract is for board and lodging united, :uid it is doul)tful niielher in any case obtaining board ami loilging woidd be within the statute. It would always be dillienlt to separate tlie two so as to show that the articles of food were obtained by means uf the false pri'tense ; but here, at all events, the evidence fails aitotrellier to connect the obtaining of the food with the false pretense. Jl'irn, for the Crown. It is indisputable law that the intervention of a ci'iitraet is no answer to achargeof obtaining goods by false pieteuses if the contract be part of the fraud. li're the pri.-oner h:is obtaiueil Liuods iiy means of his false pretenses, and the fact tiiat the contract was to i)ay for the board and lodging together does not make it less an oliiaining of goods. In Itcjinn v. Ki'iirick,^ the money was obtained upon the Side of horses which the i)rosecutor was induced to buy by falsi' ]iretenscs. C'ia>swi,i.i,. J. That is a remarkable ease. Sir F. Thcsiger, who appeared for the Crown, abandoned the counts for obtaining the money iiy faUe [jretenses. .Iiuvis, C. J. That case is now under consideration ni Jiprfiitu v. B'lr 1(111.'- and licgimi v. Itocburk.'-^ ll'ini. The decision in Jie/jhin v. Kevrirk, was acted upon and allirnied in Ri-cjiim v. Aliholt.'^ Where money was borrowed from tiic drawer of a bill by tlie acceptor for the alleged purpose of paying it, and upon a false pretense that he was prepared with the residue, it was lirld to be within tin; statute.'' and so it was held where a baker delivered short weight to the poor, and presented tickets as if he had delivered full wi iirlit according to his contract.'" The decision in Rfijinn v. (Jod- riii'jtoiij can not be considered law unless it can be distinguished from ■. l^ K. 4i). Hears. 4 n. C. C. II. I 'cars. A 11. ('. <•. 24. 1 Den. C. (:.2T:i; 'JCA K. Cn. i) Dkkkm i;s. ' Hex r. (;ro(. It, U. 17. « lifg. r. KuBlctoii, OiMis. C. ColS. M C. 4 P. WJU It) L'lMI FUAUI) AM) FALSK PUETENSKS. tlio sul.siMiuci.t cases of Jiogina v. KeiiHck and i?f'f/"i" v- Abbott, on the frmiind tli:il tin- false i)retonso was not sulllcicntly proved. .iKuvis, ('. .1. Tlie dimctilty in llie case of i-ontniets. is, when- the j.arty di-eeives gels not the cousideiatiou which he expects, but sorar- tiling lilvc it. Horn. In tliis case the false iiretcnsc is clearly proved ; it was a oont inning i)rctense, and the prosecntrix acting ni)on it was eventually induced to supply the prisoner with hoard as well as lodging. It is oh- jected tliat lodging is not within the statute, hand is not within Ihf statute; bu. suppose, by a false pretense, I get an estate and a pnrst of gold? Tiu' articles of food which the prisoner obtained were chat- tels within the meaning of the statute; and the fact that the prisoner gained lodging as well as board can not niaUe any difference. The question whether the fo„,l was ..l)tained by the fai.se pretense was for the jury, and they have found that it was. Ciir adr. villi, liihton replied. Tlie judgment of tiic court was delivered on M May, 185G, by Jkuvis, V. J. In this case, which was argued before us on Saturday last, tlie court took time to consider, principally with a vii^w of first tak- i„.r'into consideration the cases of Re'jhiax. liorfwck and licghw s: iCninn, which have just been disposed of. It was an indictment for obtaining goods nn.ler false pretenses, the circumstances being, that tiie i>risoncr represented himself to be the paymaster of the Duke of AVelliiK'-ton, of the name of He Lancy, upon which he in.ade, with the prosecutrix, a contract for board and lodging, at the rate of one guinea a week, and he was lodged and fed as the ri'sult of the contract in con- sequence of the engagement so entennl into ui)on that which was fouiul to be a false pretense ; and the question wliicli was submitted to us was, whether it was a false pretense within the statute ; or rather whether the conviction was right? That we have considered, and on consideration we are of opinion that the conviction was not right, because we think that the supply of articles, as it was said upon the c1 iinoarding at a hotel other than tiie said (iwiun Hotel," against the lu-ace and dignity of the State of Ar- kansas. ,, , 1, Al- "J. B. ^^oo^, ■' I'rosecHtini/ Atlorni'ij." A demurrer to this indictment, and also motions for a new trial and in arrest of Ju.lirment were successfully made and overruled. A bill of exceptions was taken and the defendant appealed. [Minor matter omitted.] Consi lotel other than tlit- of the State of Ar- " J. li. W(H)I), iciitiii'i Attornt'ij." i for a now trial and werruled. A bill of lemnrrer. They are ot disclose an indict- hle to this case, pro- uid or cheat another, itiiifi, or by any other any money, personal or effects whatever, larceny and puuished :)l)tiou of the Revised luthoritics, that there )n or future purpose, liuii, however fraudu- nay have been. The ill desxrees of mora! , but upon the neees- i of the words of the larried was I "ft uncer- that it must be a pre- to be felonious.' It w:is remarked by Mr. Justice Scott. deliverin St.ate would be exhausted in the building and support of peniten- tiaries. Seriously constituted as human nature is, in the struggles for wealth,, social position, selfish indiilgencies, political intluence, or for food and clothing, so broad a construction, even within the letter of the statute, would be impracticable; or if practicable, more barbarous than tlie must shocking h'gislation of the early Puritans. The court in that C'lse deeliHed to make any effort to lix all tiic limits of the operation of the words of the statute, deeming it safer to leave tliem to be fixed fidin lime to time in each case as they might arise. It certainly was a wi-e i)recaulion, founded upon sound views of practical judicature and a true forecast of the dangers and abuses to which such statutes may lead. For in general I suppose it will be admitted that it is wiser to leave the correction of ordinary cases of fraud and deceit to the civil triliunals, and more especially the e(iuity courts, aided by social ostra- cism, tiian to create the temptation to enforce civil claims by the terrors of criminal i)rosccutions, or to intlict the most crushing punishment and evirlasting disgrace for every kind of violation of fair and ingenuous dealing. Human nature must be dealt with as found, and wisely cor- iveted and rcstraine AM> lAI.SK l-KKTIASKS. tlif felonious intent to cliciil un^l ilofraud him, and that the roprospntn- lioiis w.ri' iiiitiiie and 15urmw knew it. 'Hie court I'onct'dod liiaHlii> .•.Mint was not liable to th.^ ol.Jrction tiiat tlif |)ivtciisi's wciv not iv;:anl. in."- cxistini,' facts. 'I'luTe was no <|nostion i-itluT, Imt that the prctciiso had Im'cu tiie innnediate imhicemcnt to llie convcvanco, or liad Iktm proiHTly HlU-f,'.-d to have la'en. The court hchl this count had. ( In. I' .Inslice .loimson deUvering the opinion of tiic court said that " it \v;,> not the intention of tiie statute to convert every fraud wiiicii nii^dit f:i!l within the cogni/ance of a court of ctiuity into n criminal offense." In that case it was coiisideri'd tliat tiie rei.resentati.m complained of \v;i-, not of so TATK, L".!.*) thtit tlif rpproapiitn- L I'oiKTfli'd llial tL « SI'S wc'i't' not ri';:iii li- lt that till- plTtciHr- k'liniT, or liad lifi ii s count l)!i(l. ( liii I' t suid that " it \va« tiid wliicli ini}j;lit l':i!l iniiial ol'IViixi'," In 1 t'oinplaiiK'il of w:i ■ » (liivo from liLs pic- liiu to divest himself no flirt hor tlian tn I with circuinstaiirts I'xort'ising ordimii) , was ht'ld bad ii|"iii isf pretfiiscs in i^'w- (■ally and with strict aiitially roauiiouiictd iioriticH. Upon tli>- case said the repni- :ie person to whom .1 ch was a case of ob- [1 sent for them, Mr. iirt, somewhat modi- i in Barrow v. State? L" pretense should \w ry prudence or cau- ere actually deceived nction on this point, e limits of its logical md, and other States 1 in accord with earh s case to say that tiu' the obtaining of tlie en the decisive cause they have materially - rupra. , nntrilMii.'d with oih.T motives to induce it. Ading ni'on the fornu r ,.,,itiou of this court, and laying down noll.im,' wliich this .msc docs not ,,,|ui,v for its d.MM^ion, leaving otlier points to he s.^lllcd an.l deler- ,„ii.ed as they ari-e. we nroeecd to examine this indictment in ihc light (if our jiast decisions. The f:dse pretenses are all with reganl to (he matter of Welsh havin- l„.,.Manac.iuaintanceof the landlord, and a guest of the (Jwinn Hotel y,\v.\-\ m town, and having left lor Kurcka. Fh-'y were damning false- l„„„ls, altogether unworthy of a respectable hotel-keeper. The object ,,f them, h.nvever. was not to get Fisher to pay him money bcc;iu-.e of the facts represented. It is not liUe the case where one wonhl go to an- utlier and say, for instance, "your fanuly is suffering at home I I Mill sent to vo'u for money to relieve them." wheuthat i. faUe. Then the iiinncy is given because of the actual pri'tcnse. Was there any rtascm in the nature of thiniis why Kislier shoidd give money to the defendant hecausehe knew Welsh, and Welsh had patronized his house, and had ,l„.n gone to Kureka? It is not pretended thai there was or that Fisher Iia,l been himself bem'fitcd by the conduct of the dcfcnroi)ci ty to defendant upon ac- count 'of the false represeiitalion8. Tlwy induced him only to make a ,,. 1,1 ract for board there. Ibit of what. li.l that defraud him? Only of the, MUtiuienlal gratilication (from all the indictment shows), of lieiug with hi-, friend Wdsh. But the result of a felonious false pretense must lie to oliiain i)roperty. The money was paid for board in advance. No false pretense as to furnisliing iioard and lodging is averred or shown. Nothing appears to .liow that it was not as good as any other hotel. The money was paid for value, and the defendant was willing to give value, all that he prom- i-ed. Indeed, nothing more appears on a careful study of the allega- tions than this, that he was cheated not out of any property or thing of value, but disappointed of his anticiiiate.l pleasure in being in close connection with Welsh. If he had any remedy it seems that a civil rcinedv to rescind the contract might have been ami)le. A fr:iud had I.ecn doubtless perpetrated upon him. if the indictment be true, and a verv reprehensible one. Rut whilst the contract stood, he was not clieated of his money. He eouM get thi- full value of that which he ex- I'ccted of it when he paid it. The payment of the money for board is too remote a conseiiuence of the false pretenses. Thev were not made directly for the purpose of having money advanced because of the facts. The oliject as disclosed mm 1 2W FKAin AM) I AI.si; IMiKTKNSKS. by till- indictment, was to iiidurc Ki-luT to liocoinc a rrnv>*i. Tliis (Ioc> iioUoiiic witliin tlu' iuliiliitioii of tlio Hliitiitr. To -rot llio fiistoiu or piitroii!i<;c' (if II fjiii'st, is not. to ^rct property. I>ut, to iiidiioi' ti conditidii if tiiiiii:H or rciiitioii of tlii' purtifs out of whieh u contract to pay luoiiiy fir value may arise. It wa-t held ill Jt'ijina v. Onrdner.^ as reported in Wharton's CriniiiKil Law."-' that when' ii person ohtained food and lo(lf,'inL!; as a lioanler, i ii the prctonsi! that he was ii naval olllcer, the ol)tainin<,' of ssuch food ami lodjiin;: \\&>* too remotely the result of the fal.se pretense. We think the court erred in overruling the demurrer to the indict- ment, and also \\w motion in arrest. Hoversi- willi instruetious to arrest the judftment and sustain the de- murrer til the iudictmcnt. Judfjinent reversed. falsi; IMil7rK.NSi;S-OHlAIMN(; MOXKY RKillTFULLY DUE. CoMMONWKALTII V. McDl'FFV. [120 Ma.ss. Km, J 111 the Siiprnne Jiidiriul Cnnrt of MituKachusetts, 1S70. A Person who by False and Fraudulent rcprcsontatioiis obtains from another a aura of Miiiiicy wliich IS nil niiir.- tlimi i" iiKlU'iilly iluc liiin from tlio latter, can not bi- I'l.n- Tictcil ofobtiiininK money by faJM' inetennes.umler llieticneral Statuter.,-anit,at ilielniil of an Inilictnient aKUiiiHt him on that statute, eviiieuc.e of the amount of the tiebt to him in a her of bills for such materials; that the money was to ije sent to Mrs. Howard at Lowell, by Sweetser, from Saco, 1 ;tii Kng. Law A Kq. licp. 2 sec. 21'.n!. I oh. 1«1, secM. « lb. 101. sec. M. IS. rOMMONWEALTII M l>l I'lV. 297 i\ ^iR'st, Tliis (liii , (> jiet tlio I'listdih 1,1 iiidiici' II cDnililinii if iilract lu pay inoiay 11 Wharton's Criniiiial fjiiiLj: :is !i lioiinliT, cii linji of fsucli food iimi L'tCllSC. imurrer 1o the indkt- it ;m(l sustain the ile- Judcjment reversed. nilTFULLY DUE. f'\. husetts, 1S7D. obtains from another a sura tlie latter, can not bt; ('"ii- ral Statuto, 'ami, at ilic tniil e amount of tliu <)fbt to liim uiiig money of Corne- N, J., it appeared that !, Sweetser became tlie lid Iter two daughter?; : fut with tiie cestvis que. tlon of the trust funds, ibove named. It also le upon this land, and )U9e with money wliic h me to time, upon tin' erials ; that the money Sweetser, from Saco, . :>4. .Maine, where he resith'd ; tlittt the final settlement for the building of the liouse was made on Septemlier IC, bs?.'); tliat at tliat time a dial't, (Iniwii by tile cashier »>f a l>aiili in Saco, upon a banli in Hostoii, Cor S'.lMMi, dated N>, payable to Mrs. Howard ororder, and iiidorsrd by iier, was given by her to Sweetser, and l. was to be piiid out upon other bills contracted for the house. The defendant contended, and asked the jinlgo to rule, that, us a uiMlter of law. Ihi- money paid to the defendant, at the time of the Mllleineiit, was not tln! money of Sweetser within the allegation of the indictment; l)ut the judge refused .so to rule, and the defendant e.scepled. The defendant contended that lie could not lie convicted upon the in- (liclnient, because, iiiion the settlement at which it was alleged he made the false representations set forth, he had been allowed nothing for his services in l)uilding the hoiisi- ; that lie was entitled to recover for his pei'sonal services the sum of $tu>() ; and that, if the sum he received in fact was not more than enough to pay him for the bills actually paid and for his services, then he wtis not guilty of false pretenses, even if he had made untrue stateineuts, because he had defrauded no one. When the defendant was on the witness sfind, he was asked what sums he had actually put into the house upon certain bills ; Itiit the judge ruled llie inquiry immaterial. The defendant's counsel then suggested that it inishl lie important to the defendant to prove that he only received iiioney cnougli to pay him what he sictually paid out, and what was actually due for labor and materials furnished at llie time of the settle- iiniit. Hut the judge ruled that, if the defendant actn-illy made false icpresentations as to what went into the house as materiais, he might be <:iiilty, even if he had not received more than was due him. The defendant asked the judge to ride as follows- "1. If the de- f(nd;iiit only received, at the time of the settlement with Sweetser, money ' iioiiudi to pay what w.as actuidly due him, then this indicrmcnt can not 1)0 inainttiined. 2. If the defendant made representations only for the imi-poseof getting tlie money due him, and not for the purpose of olitaiii- iii!,' monev not due him, then this indictineut can not be maintained." 208 FRAUD AND FALSE PRETKXSES. The judge declined so to rule ; but ruled that, if the defendant made the false representations fo'- the purpose of obtaining money that lie believed to be due liira, and believed that ho had a right so to obtain the money, the indictment could not be sustained. The jury returned a verdict of guilty; and the defoi.dant alleged exceptions. T. II. Siveetser & G. A. A. Pecey, for the defendant. J. F. Brown, Assistant- Attorney General, (C. li. Train, Attorney- General, with him) for the Commonwealth. Louu, J. The only question in this case upon which we feel called to give a,n opinion is, whether the instructions, requested by the defendant or either of them, should have been given. It is not easy to understand why, in the view of the law as stated by the presiding justice, evidcnee of the exact amount of indebtedness to the defendant was excluded ; for such evidence would be apparently competent upon the issue of the defendant's belief. Nor do we see how the question whether the defendi-ut believed that he had a right so to obtain the money can of itself be a deciaive test of his guilt or iimo- cence. We understand the use of the word " right" to signify legal right, and not moral right, although its use might perhaps tend to mis- lead tho jury, and lead them to suppose that, in order to acquit the defendant, he nuist have believed that he had a moral right to lie and deceive for the purpose of obtaining what was justly due him. W • do not however, decide the case upon any criticism of the particular form of lang"age in which the instruction was given, nor upon any apparent inconsistency between the instructions as given and the rules previously laid down as to the admissibility of evidence. We understand the broad and naked «;uestion to be presented, whether the offense of obtaining property by false pretenses can be committed when the party charged obtains no more than is rightfully due him, by whatever fraudulent means or devices he thus oiitains it. This loads to an inquiry into the essential elements of the offense, in Commomvealth v. Drew,^ Morton, J., says that to consti- tute the statute offense four things must concur: (1.) There must be an intent to defraud; (2) thuie must be actual fraud committed; (3) false i)retcn3es must be used for the purpose of perpetrating the fraud ; and (1) the fraud must be accomplished by means of the false pretenses made use of for the purpose. And in Commonwealth v. Jeffries,- Bigelow, C. J., says that the intent to def.aud is part of the substance of the issue, and must be proved. We are not aware that the precise question now presanted has ever been considered by this court ; and we 1 19 Pick. 179. ■-' 7 AIU'n,ri48,S68. CSES. C05IM0NWKAI.TII V. Jl DUFFY. 2!l!» , if the defendant made btainiiig money that lie [ a right so to obtain the tlie defendant alleged efendant. C. li. Traill, Attorne\'- n w hich we feel called to uested by the defendant • of the law as stated by lount of indebtedness to lee would be apparently belief. Nor do we see 'd that he had a right so test of his guilt or inuo- ■' right" to signify legul ijht perhaps tend to mis- .t, in order to acquit the I a moral right to lie and Justly due him. AY) do aa of the particular form 1, nor upon any apparent and the rules previously jstion to be presented, by false pretenses can tains no more than is leans or devices he thus essential elements of the s, J., saj-s that to consti- •: (1.) There must be an il fraud committed ; (3) f perpetrating the fraud ; !ans of the false pretenses ommoniv^alth v. Jeffries,^ [ is part of the substance u)t aware tiiat the precise red by this court ; and we liuve not been abb to find any decision in any court of last resort that a party may be convicted of the crime of obtaining property by false pretenses, when he has obtained no thing \v value which he would not hcmtitlcdtoasof right. In Rex v. WiUiinns,^ a servantofB., obtained property belong to A. by means o^ falsehood, to enable B. to obtain piiyment of a debt owed by A. ; and it was held tliat if C. did not in- tend to defraud A.., but only to enable B. to obtain what was due to iiini, he could not be convicted; and Coleridge, J., in that case told the jury, that if the prisoner did not intend to defraud the prosecutor, but only to put it in his master's power to compel him to pay a just delit, they ought not to convict, and added, that it was not sufficient tl-.at the prisoner knowingly stated that which was false, and thereby obtained the propertj', Imt they must be satisfied that the prisoner at the time intended to defraud the prosicutors. In People v. Thomas;^ the defendant was charged with obtaining property by false pretenses, the fraudulent pretense being that a note f)f the prosecutor which he had for the amount had either been lost or hurned, which was knowu by him to be false, and afterward he nego- tiated the note to a third person. The court held that a false repre- sentation ti 'ig merely to induce one to pay a debt previously due from him was not within the statute against obtaining i)roper._, l»y false j/e- tenses; the court saying, " a false re|)resentation, by which a man may lie clieated into his duty, is not within the statute," and in Common- wealth v. Henry, ^ Woodward J., makes use of almost precisely the b^ame language. In Pi'ople V. Getchell,^ the defendant was charged with procuring the indorsement of the prosecutor to a promissory note by fraudulently pretending that a former note for the same amount sf) indorsed was de- stroyed; and in bis defence, he offered to show that the proscr^itor was bound by an agreement with him to indorse for him to an amount larger tlian both of the notes, and that the money obtained on the notes was used for the [)urposes contemidated by the agreement. It was held tiiat such evidence should be received as tending to disp-'ove the presumption of an intent to defraud. We are, of course, not to be understood as decidl. -; that a mere pre- tense of indebtedness by the person from whom the jjroperty is obtained 's sufficient ; nor is anything which we decide to be construed as in conflict with the well established ruU^ of law that a party is to be presumed to intend all the natural and ordinary <• msecjut .ices of his acts; and fraud and falsehood are always evidence u'ndinir <" show that the party had a dishonest purpose: aw! Mie iiuest.;!! for "U' jury ■i48, nfis. 1 7 C. * P. H54. '^ 3 Hin, 169. s tr P». St. 253. 300 FHAUD AND FALSK rUETENSKS. to decide is whether, upon all the facts and circumstances, the defendant had an intent to defraud, and effected that purpose, and whether, in ord-r to accomplish it, he made use of fraudulent representations, and succeeded by means of such representations. The defendant should, therefore, have been allowed to offer evidence in support of the facts upon which his prayers are predicated, and the jury should have been instructed that, if proved, the defendant was entitled to an acquittal ; and for this reason the exceptions must be sus- tained. Upon the other point in the ca3e we make no decision. Undir the provisions of the General Statutes,' the indictment might be sui- ported if either the actual or constractive possession of the money, or the general or special property in the whole or part of it was in the person named in the indictment. We do not think the facts upon this point are so fully and carefully stated in the bill of exceptions as to r. quire us to say, as matte, of law, that neither the actual nor c(.fistnh ■ tive possession, nor the general nor special property in the money obtained, was not in Sweetser. That ipiestion will be open upon another trinl, where the evidence relating to it may be varied, or may be more fully developed. . Exceptions sustained. FALSE PRETENSES - ORDINARY PRUDENCE REQUIRED OF PROSE- CUTOR. Commonwealth v. Gkady. [13 Uush. 285.] Tn the Court of Appeals of Kentucky, 1877. A False Statement that a House and Lot were TTninoumbered, when, in fact, they were subject to ii lecoi .I.mI inorlguge. is not a false prctenee within the statute, hocnusc the party d to Hdvai.ce if.'iW) .is purl of the capital of the concern, a...! B. I.fterwa.-d« rocoK„i^ed and acted upon Buch partncrahip. //eW. that tbi. was not obtam- ing money by false pretenses, as the money was still undc the control of B. The facts of this case were as in the 8yllabus above. The prisoner w«.s convicted below, i)ut iiis case was reserved for this court. It was argued on tiie 21st of November. 18,57, before Cookbukn, C. J., Eule, J., Williams, J., Ck >mi'ton, J. and Ciiannell, B. Bulwer appeared for tli*^ prisoner; no counsel appeared for the ^^Bulwer, for the prisoner. The question is raised on the three first counts of the indictment. CocKBUUN, C. J. How was it put to the jury? The aggregate of the ]>reteuse3 alleged in these counts may have induced the prosecutor to part with his money; but instead of being put into one count tliey are subdivided and split up. Each pretense forms the subject of a dis- tinct and separate count and in each count the money is alleged to have been obtained by the particular pretense mentioned therein; and as tliese pretenses are .ali made in the course of one transaction it is diffi- cult to say on which the jury believed tho prosecutor acted. Bulwer. The chairman after reading the evidence and making some observations to the credit of the witnesses, told the jury that if they believed the account given by the prosecutor they would find the pris- oner guilty on the throe first counts. Crompton, J. If the money was obtained by a mere fraud and not received by the prisoner as a jiartner in the concern the conviction miglit be right; but that question was not left to the jury. Buliuer. The general effect of the evidence is that the prisoner ex- acrgerated the nature and extent of tlip business, and thereby itduced the prosecutor to enter into partnership with him ; and this rais.s the question whether it can be said that the money which the pro&ecutor thereupon advanced to the capital of the concern was obtained by the prisoner by false iM-etenses. It is contended that there has been no R. r. WATSON. WA riTii — partner- t other questions n to the jury was, st find the prisoner l)eon submitted to defendant carried e was not a fiction, l)icsentation as to bin the statute. 11 not be sustained, ership, not repudi- lip, the money was nviction quashed. .AW. 'SIO. iw must be such as would 11 not puard ag.iinst, as by e i.s a ('ouspiracy to cheat, gmeiit, falsely protending li did falsely, fraud- id pretenses, obtain, acquire and get into liis possession from one K. llrown, the partner of I. Dickinson, a receipt and full disciiarge of judgment obtained by lirowu and Dickinson against Babcociv, under color and pretense that he wdukl ])ay a sum of nione}' on such judgment and give his note for the residue, with intent to deceive and defraud, etc. The defendant was convicted. Gold moved in arrest of judgment on the ground that the offense Wiis nut indictable at common law.' Fa»i Fec/iieu, Attorney-General, and JV. Williams, contra, contended that indictments iu cases like the present were to be found;-' that cheating was classed among offenses against public trade;'' and tliat an indictment has been held to lie for tearing an account after it had been signed and settled ; ■• also for selling wine as Lisbon wine, when il was not. 5 By Tin: Court. Lord Kenyon said that the case of King v. Wheatley,''' established the true boundary between frauds that were and tliose that were not indictable at common law. That case recpiircd such a fraud as would aff"ct the public ; such a deception that common prudence and caic were not suflicient to guard against, as the using of false weights and measures, or false tokens or where thei-e was a conspiracy to cheat. Thus in the case of Jones,'' who obtained money of A. i)retending to hiive a command from B. , whereas B. , did not send him ; Init as he camo with no false token, it was held not to be indictable. The offense was nothing more than telling a lie. So in the case of King v. Lam,^ the defendant got possession of certain lottery tickets the property of A. pretending that he wanted to purchase them, and he delivered to A., a fictitious order on a banker, knowing that he had no autliority to diiiw it, by means of which he got possession of the lottery tickets. On the urgumcnt in arrest of juilgment, it Avas admitted as this was a fraud upon a private individual, the prosecutor must show that the fraud was affected by means of a false token, as well as of a false pretense, and one of such n nature as that ordinary prudence could not guai-d against it. The counsel for the Crown contended that the false pretense was the alleged wish to purchase, and the false token was the order. But tiic court said that tliere was no false token ; that it would be ridiculous to call the check a false token, and that all depended upon the credit due to the defendant's assertion, and the judgment was arrested. 1 King V. Wheatley,2 Burr. IIM; Rex v. Voung, 3 T. R. lot ; (> Mod. 42 ; Say. H(i ; 1 Kast, 1S.5; 2 Str. 806; G L. R. 565; 2 Kast's C. L. fliJ.S34. - Hawk. P. C, ch. 71, p. I; King i\ Jones, 1 1.cach, Ifil. 3 DlU-'KXCKS. ' 4 Bla. Com. 157; 4 Com. Dig. 'trA; Jus- tices B. 32, 3:i; Comb. 16. * Queen v. Crisp, ti Mod. IT.'i. ^ Queen t'. Mackcrty, 2 Ld. Raym. 1179. 1 2 Burr. 1125. • 1 Salk. 37!). ' (! T. R. ol!5. -'0 — I" 3()(; lltAUD AND FALSK VKKTKNrtKS. In the present case we search in vain for the false token. There .va. ncthin.r beyond the defendant's false assertion tliat ho was ready to puy the ind-nnent. Tliere was not even the production of either note or n^ou.'V, and common prndence would have dictated the withholduig o the receipt until the money was paid and the note drawn. To support this indictment would be to overset established prmcirles. The iud"ment must, therefore, be arrested. ° Juclgment arrested. INDICTABLE FRAUDS-NKW YoKK STATUTE-FALSE PRETENSES. Ka\ni.v r. Pkople. [•.'•-• N. Y. 4U.] In the Court of Appeals of New Tnrk, ISGO. 1. under the Ac. of 1863,. no other frau,.. ..o ,.unish.mo. than Buci. H« are in.Uctatle at co>n.n..n la«-, wiU, U.e single c^copUon of u.ock ttu.au,n». ^^. , . ,TW„„„„i,vifil8L> representation, ossentiaUypromiBBory in its iiatmc, '■ r.X im'^r^'^r.rof ;:e;;:.r::a'nce. iB not i„.UctabIe unUer tUo statute oi ,aUe pretenses.- AVrit of error to the general term of the Supreme Court, m the first district, where a conviction of the plaintiff in error in the ^ew ^rk General Sessions upon an indictment for a fraud, had been affirmed. The indictment charged that the defendant obtained from one John Hock the sum of one hundred dollars, by fal.oly pretending that he would .ive him certain employment in the City of New York and the State of New Jersey; and averred that the defendant had no intention of em- ploying Hook or of paying him the stipulated wages. The court charged the jury that the prisoner was not guilty of the offense of obtaining money by false pretenses, but that if they be- lieved he had obtained the prosecutor's money by a gross cheat or fraud he mi-ht be convicted under the act of 1853. The prisoner's counsel excepred to the latter part of the charge, and the conviction having been affirmed by tiie Supreme Court the defendant sued out this writ. Brady, for the plaintiff in error. iied(mk^k,fovtheTco\^\e. CoMSTOCK C. J. The offense charged consisted in a false represen- tation made by the prisoner to Hock, that he could give to him a certain emplovment, and in a false and fraudulent promise that he would em- ploy him and pay him fifty dollars a month for his sei-vices Hock. believmcr the representation and relying on the promise deposited SlOO 1 ch. ];w. 2 2 Ilev. Slats. CiT RANNEY V. PKOl'LE. 307 token. There wa-; 10 was ready to puy 111 of either nolo or [ tlie withholding of Irawn. To sui^port cirles. udgmeid arrested. JALSE PRETENSES. ISGO. lau siirli iis are indlctatle ly pvomiBBory in its iialuic, under tlio statute of false me Court, in the first ror, in the New York had been affirmed, aiut'd from one John itending that he would York and the State of id no intention of em- ;s. r was not guilty of 's, but that if they he- a gross cheat or fraud Che prisoner's counsel onviction having been \ out this writ. od in a false reprcsen- l give to him a certain nise that he would em- ir his services. Hock, )romi3e deposited SlOO 5. CTT. as a security on his part for the faithful performance of the contract. The ;} the descriptive words are, '• other gross fraud or cheat at com- mon law." There is some reason for saying that these words inchule only such frauds and cheats as were indictable at common law; ami this construction is i)referal)lc to one which would indiscriminately con- vert into crime every fraudulent dealing or practice which might be a cause of action for damages in the civil courts. If we were to adopt that construction, then a fraudulent warranty in a horse trade would be a felony, and the offender might be punished In the State prison. The cheat, it is true, must be a "gross" one; but that term suggests no legal standard or test. One court and jury might think the fraudulent representation to be slight and venial, and another might consider it gross or criminal ; there would be no certainty or rule in the administration of the law. Even a mere suppression of the truth may be, in many circumstances, a very gross fraud, according to a popular acceptation of those terms, yet we can not suppose that the Legislature intended it should be indicted and punished as a crime. Great insecurity to the citizen would be the result of such a construc- tion, and we must, therefore, look for a milder one. If, besides the main purpose of the act, which was to punish and suppress mock auc- tions, we do not contine its operations to sucli other frauds as were indictable at common law, we certainly ought not, in the absence of a plain expression of the legislative will, to give it a broader scope than the courts have allowed to previous statutes, which punished as crimi- nal certain frauds under the name of false pretenses. If it may be thought an objection to this view, that the Legislature would not re-enact in substance what had already been enacted, the answer is that statutes are not unfrcquently passed containing such provisions. It is only too true that laws are often enacted without attending to the ex- isting rule on the subject to which they relate. In respect to the act of 18rj3, it may be further observed that the punishment provided is quite different from that prescribed in the previous statute of 1830. "NVe may, therefore, impute an intelligible purpose to the Legislature, with- out supposing that anything new was intended in the definition of the crime. Assuming, then, as we do, that false pretenses in former statutes or gross fraud or cheat, in the more recent act, mean essentially the i t 8TATK V. Sl'MNKU. 309 d ami this Stale, live of iiidicUihlo (■liiied by tlic l;i\v- [)()so, and so it ii;is rived iniarcprt'soii- scti, and altiioimli larsrc. In tlio net, d or cheat at coin- liese worda iuchidi! common law ; and [liscriminatoly coa- ! which might be a dulent warranty in uight be puniiihod ! a " gross" one; )no court and jury ht and venial, and )uld be no certainty uere suppression of ss fraud, according a not suppose that imished as a crime. )f such a construc- e. If, besides the suppress mock auc- her frauds aa were in the absence of a broader scope than punished as crinii- ises. If it may be islature would not I, the answer is that iuch provisions. It attending to the ex- respect to the act of nt provided is quite itute of 1830. "NVe le Legislature, with- the definition of the in former statutes uean essentially the same thing — or, certainly that there is no difference which is favorable to tiic indictment in this case — can the judgment bo sustained? We thinii it can not. Tiicre are numerous cases in the books of indict* mtuts inider the statutes against fraud by false pretenses, And they are not all agreed in principle or result, but I think there are none which sustain this indictment. Some of them seem to recpiire more, and others less of art or contrivance in tlio means of accomplishing tlie fraud ; but according to all of them there must be at least a direct and positive false assertion as to some existing matter by which the victim is induced to part witli his money or property. In this case the material thing was the promise of the accused to employ the person defrauded and to pay him for his services. There was a statement, it is true, that the prisoner had employment which he could ;;ivc to Hock, but this was obviously of no imi)ortanco without the con- tract wliich was made. Tlio false representation complained of was, therefore, essentially promissory in its nature, and tliis has never been held to be the foundation of a ci'iminal charge. Undoubtedly tlie ac- cused, in performance of his contract, could have taken Hock into his employment, even if he liad nothing for him to do at tlie time the con- tract was made, but tliis he did not do and doubtless never intended to do. In morals, the imposition was gross and detestable ; but in logic and law the offense consisted in making a false and delusive promise, witii no intention of performing it ; this is not indictable. The judg- ment should be reversed and the prisoner discharged. Ordered accordingly. FALSE PRETENSES— NOT INDICTABLE AS "OTHER FRAUDULENT, SWINDLING OR DECEITFUL PRACTICES." State r. Sumneu. [10 Vt. 587; 33 Am. Dec. 219. J In the Supreme Court of Vermont, 1S3S. A Person Obtaining Goods of Another liy false aiici fraudulent declarations roapecting liis estate and circumstances, is not indictublo. Information filed against the defendant by the State's attorney. The defendant, after having pleaded guilty, moved in arrest of judgment for the insuflSciency of the information. The other facts sufficiently ap- pear from the opinion. E. L. Ormsbee and M. Stroiuj, Jr., for the defendant. S. Foot, State Attorney, for the pro.sccution. ;u() KKAUP AM) lAI.SK I'KKTKNSKS. 7Jv Ihn Court, RoYOE, J. The infonnalion chargOH in sul.stmico 1ml tho r .s,.nn.U.nL, by cerluiu false an.l f rau.luh.nt dcoh.rat.ons, rosix.cUng l\s, ic una c.irou,n.lancos, ohtaincd tUo incpcrly of one Anthony with intent to cU-fran.l him of the san.-, and the.iucsuon is ^vhcth.l hucU 1 .tionn nuulo >vilh«udnntc..tanaoi>oratingsuc.c.^ h o .nso fur .Inch our statnlo provide,!. It .as never Hole.nn y dc .iaed that t;.o assertion of a bare falsehood occasiomng ^'^-T -- other and nuulc ^vith that view, fnrnished the grou..d even of a u i :^U n',ntil the ease of /^../e, v. Fre.nan.^ The early ^f^^^^^ United tho erinunal offense to tho u.o of false okens, but that of 30 Geor.ro II. extended it to false pretenses, un,l under th.. act mere false and fnuiduli'nt declarations were held to be sullicient. By the thirtieth section of our statute for the punishment of Ing crimes and misdemeanors, the offense i.uinesliou i. described in the Xwin.' terms: " That if any person shall by false tokens messages, ^ " or by other fraudulent, swindling or deceitful l>r-t,ces obta. or pro uro from a.,y person or persons, any nuuiey, goods or cha tels, etV As the offense charged upon the respondent is evidently not ;ithin the former or speeilic part of this cW^.tion, the ques ion arises upon the terms " other fraudulent, swindling or deceitf d i la - Ls." From the impossibility of anticipating every device which ar and wickedness might resort to, the statute has P^-^y "'^'l;'^ /^^^^^^^^ irencral w<.rds. And for this reason they are not to be rejected, though Lrt of a hi.ddy penal statute. It is the duty of the court to construe them In doin- this, it must be remembered that penal statutes should b list':;!; briefly. T^y are never to be carried beyoml the leUer for the purpose of effectuating tho supposed intent ; nor beyond the obvious spirit and intention, though the words may admit of amoreex- tended construction. Now, we find these «;^!'---"^.^";;; I^^^^ immediate cnm.ction with certain acts, which are described and ™ade punishable by the statute; and such acts constitute fraudulent swindling and deceitful practices within the statute Hence, we con sMer tlmt the words in question were added not for the purpose o e,d-u--in.v the definition of the offense from positive acts to mere declara tionsrbia from the dilllculty of extending the description to all othe acts or practices of a like nature, which might be resorted to as mean for effecting the same criminal object. Besides a well known d.sim tion between swindling practices and swindling pretenses or declan tions had been made and long settled under the English statutes, ai had the Legislature designed to abrogate that distinction, they woul doubtless have spoken in terms more clearly adapted to such purpose Judgment arrested. 1 ST. i;.r.i. IMAGE EVALUATION TEST TARGET (MT-3) ^^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4S03 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques ^^ iques ITALSE PRE RESENTi , To Convict tenses, it i signing of 1 raateriall)' 1 , Case in Jut thr disclini prosccutioi proved. Tl llnil tlie fal consider tli 1 3. While the elemunls o uot be ans^ Error to [department I Oyer and 'I I upon a ven I ing the slgi a mortgage The facti WiUimn. Benjanw Anduewi I indictment j with his pr l)y reason ( I solely by v action. Ir pretonsea < tlie defeml would not [shown by [direct inte [proof it m {proved, pi 1 Reported 2 People V, |M6. THEUAS80N V. PEOPLE. 311 ITALSE PRETENSES -PROSECUTOR MUST BE INFLUENCED BY REP- RESENTATION—NO INFERENCE OF THIS FROM OTHER FACTS. Thekasson V. People. [82 N. Y. 238.] 7*1 the Court of Appeals of Neio York, ISSO. 11 To Convict of Obtaining Money or a Signature to »n u ligation byFaUePra- " tenses il imist bo ghowu by tl.e proKocuti..!! that tlio .. t. ■ with tlio i)ro|perly or the signii.g'of tho inBtruincnt was by reason of the false p jtonses charged or that Ihey materially influenced the action of the party complaining. 12 Case In Judgment. On the trial of an Indictment for obtaining the signature of 7,. to ' the discharge of a mortgage by false pretenses, Z. was examined as a witness for tlia prosccuUon, but was not aslied whether she was induced to sign by tho representations proved. The prisoner's counsel askod the conrt to charge that although tlio Jury might «nil tlie false pretenses and the fraudulent intent as charged, yet they had no right to consider these on the question of influence, which the court refused. HeU, error. Is While the Falsity of tho Pretense and tho Fraudulent Intent arc necessary elements of llio crime, the question whether the prosecutrix was iullucnced by thorn cau not be answered by them. Error to the General Term of the Supreme Court in the first juclicial department, to review a judgment afllrming a judgment of the court of Oyer and Terminer in and for the tit y and county of New York entered upon a verdict convicting tlie plaintiff in error of the crime of procur- ing' the signature of one Sarah J. Zabrisliie to a satisfaction-piece of \ a mortgage held hy her, by means of false pretenses.^ The facts mateiial to the questions discussed appear in the opinion. WiUiam. A. Beorh, for plaintiff in error. Benjamin K. Phelps, District Attorney, for defendant in error. Andrews, J. In order to justify a conviction upon the trial of an indictment for false pretenses it must appear that the prosecutor parted I with his property or signed the written instrument, as the case may be, l)y reason of some of the pretenses laid in the indictment, or if not solely by reason of such pretenses, that they materially induenced his action. In the absence of evidence tliat the prosecutor relied upon the [pretenses charged, the essential averment in such an indictment, that jtlie defendant obtained the property or signature by means thereof, would not be supported.* It is not necessary that this fact should be [shown by direct proof. It is indeed competent to establish it by I direct interrogation of the prosecutor,3 but in the absence of direct |l)roof it may be inferred by the jury from the facts and circumstances Iprovcd, provided the inference could legitimately bo drawn there- iMii. 1 Reported below, 20 Hun, 55. '■i I'uoiile V. llaynes, 11 Wend. 557; U. /(f. 1 Voople V, Herrick, l:i Wend. 87. 312 FRAUD AND FALSE PRETENSES. from. If, for example, upon the trial of an indictment against a vendee for obtaining goods by false pretenses it should appear that the repre- sentation laid in the indictment was made when the goods were sold and was calculated to induce the sale, the jury might naturally infer that the representation was a materially operating and inducing motive thereto. The same would be true where the defendant was charged with obtaining the signature of the prosecutor to a written inptrument. Tlie other elements of the offense being shown, the jury might reason- ably find that a pretense calculated to influence the prosecutor did in fact influence him, where the act of signing the instrument charged to have been fraudulently obtained followed proximately the making of the representation. But it is certainly possible that in the cases sup- posed, the prosecutor might notwithstanding have acted independently of and without reliance upon the representation. It is quite conceiv- able that the prosecutor in the one case may have sold the goods and in the other h.ave signed the instrument for reasons wholly disconnected with the false pretense, paying no regard to the representation and placing no reliance thereon. This in most cases would be an unnatural inference; but if special facts appeared it would be for the jury to say, whether the representation was an efficient operating cause, in- fluencing the prosecutor's action, or whether he acted from other and wholly disconnected considerations. The prosecutrix in tins case was examined on the tri&l as a witness for the Teople, but was not asked wliether in signing the satisfaction- piece, she relied upon the statement of the defendant that a mortgage was not a good investment ; but the character of the representations proved and the circumstances under which the satisfaction-piece was executed, would have fully justified, although it can not be said to have required, the finding, that it was executed in reliance upon the representation, and that question was submitted to the jury. But we think the learned trial judge committed an error in charging the jury upon this question and in his ruling upon tlie request of the defendant's counsel in respect thereto. The judge, after explaining to the jury the otlier elements constituting the offense, correctly stated that the representation made should not only be false, and made with intent to clieat and defraud, but that it should be a materially control- ling and operating cause leading to the act of the pa;-ty who is deceived and that it was not necessary that the prosecutrix should have been asked the direct question whether she was influenced or induced to sion the satisfaction-piece by the representation proved, and that in the absence of such a direct question the fact might be found by the jury if the surrounding circumstances justified it. The judge then proceeded as follows : " When the party jitates that such a representation was made ^i^ THEBA880N V. PEOPLE. 313 nst a vendee it the repre- ere sold and ly infer that eing motive was charged inptniment. light reason* cutor did in ent charged the making le cases sup- depeudently lite conceiv- 3 goods and lisconnected ntatioa and m unnatural the jury to g cause, in- Q other and as a witness satisfaction- a mortgage resentations )n-piece was t be said to ce upon the in charging quest of the xplaining to rectly stated , made with ally control- » is deceived d have been need to sign that in the y the jury if )roeeeded as )Q was made and that he acted upon it and the object has been acomplished and the jury see as a result that he was cheated and defrauieJ, and they find evidence of an intent to cheat and defraud and that the representation made was false, from these and surrounding circumstances they would be justified in concluding that the party was induced to act upon such representation." On the conclusion of the charge the defendant's counsel stated that he understood the court to have charged that in determining the ques- tion whether the prosecutrix relied upon the alleged or proven false pie- tense or whether it exerted a material influence over her mind the jury were at liberty to consider, upon that question, the evidence showing the fraudulent f ntent of the defendant, and he thereupon asked the court to charge " that although the jury may find the false pretense to have been made, and although they may find the necessary fraudulent in- tent, that in determining the question whether the pretense exerted a ma- terial influence over the mind of Mrs. Zabriskie they have no right^o consider the question or the evidence as to the fraudulent intent or as to the false representation." The judge in response to this request said : "I charge that they have a right to consider all the evidence in the case bearing upon the subject directly or indirectly." The defend- ant's counsel excepted to the refusal of the court to charge as requested. We think the exception was well taken. The prosecutrix could not have been deceived by a representation which she at the time knew to be false, and it must be assumed in disposing of tlie exception (as was doubtless the truth), that she was then ignorant of the falsity of the pretense and of the fraudulent intent of the defendant. It is mani- festly impossible that the fact that the representation was false or that the defendant in making it intended to cheat and defraud, could have influenced the conduct of the prosecutrix. Such an assumption sup- poses knowledge on her part, which if it existed, would have entitled tlie defendant to an acquittal. The falsity of the alleged pretense and the fraudulent intent of the defendant were both elements in the crime, and the prosecution was bound to show that they existed in the case, but the question whether the prosecutrix was influenced by the repre- sentation was a distinct one, having no necessary connection with the others, and proof that the representation was false to the knowledge of the defendant reflected no light upon the point whether the prosecutrix acted upon it. The charge was susceptible of the construction placed upon it by the defendant's counsel, and justified his request to the court. The answer made by the court stated, what is undoubtedly the case, that all legitimate evidence bearing directly or indirectly upon a particular fact nay be considered by the jury in determining that fact, but it did not meet the point of the request that the particular facts al- 314 FRAUD AND FALSE rUETENSES. luded to were irrelevant to the inquiry whether the prosecutrix was deceived by the representation made. Tlie defendant was entitled to the explicit instruction of the court upon the point suggested. The subsequent statement of the defendant's counsel can not be con- strued as an abandonment of the exception. That simply called the at- tention of the court to the claim made by him, that in the absence of direct testimony by Mrs. Zabriskie that she was influenced by the repre- sentat'on, that fact could not be found by the jury from the other evi- dence. This claim was unfounded, but by making it, the defendant did not waive the exception to the refusal to charge, to which we have referred. For this error the judgment and conviction should be re- versed and it is unnecessary to consider the other questions the case. All concur, except Folgku, C. J., and Rapallo, J., not voting; Mil- ler, J. , concurring in result. Judgment reversed. FALSE PRETENSES -MONEY OBTAINED BY PARTNER FROM I?IRM BY WILLFUL MISREPRESENTATIONS. K. I'. Evans. [9 Cox, 238.] In the English Court of Criminal Appeal, 1S62. A Havinir Invented an Improved Laap, entered into a partnership deed wllh B. and C for carrying out and vending the subject of the invention. By a subsequent verbal agreement with his copartners he was to travel about to obtain orders for the lamps UDon a commission. On all orders received by him such --ommission ibesides his travel^ ing and personal expenses) was to be paid u him as soon as he received the orders, and to be payable out of the capital funds of th. irtnership before dividing any profits. By falsely representing to his copartners t . . ho had obtained orders upon which his commission would bo £12 lOs, he obtained from them that amount: fl^eW, that, as the subject-matter of the misrepresentation would come under consideration m the part nership accounts, such misrepresentation was not sufficient to sustain an indictment for false pretenses against A. Case reserved by the Recorder of Chester. The prisoner, Isaac Marie Evans, was tried before me at the Quarter Sessions for the city and borough of Chester, held on the 4th July, 1862, on an indictment charging him with having unlawfully obtained from David Williams and Henry Wadkin certain sums of money by falsely pretending to them that he had obtained an order from the Wynn Hall Colliery Company, near Ruabon, for the sale to them of one hundred patent lamps called " Miner's Lamps," with intent to defraud- It appeared in evidence that the prisoner having invented an im- proved lamp for the use of miners, on the 16th November, 1861, ^^m K. V. EVANS. 315 rosecutrix was was entitled to 'Pted. 3an not be con- ly called the at- tlie absence of d bj" the repre- 1 the other evi- the defendant which we have should be re- ions the case, ot voting ; MiL- nent reversed. FKOM VntM BY 862. hip deed with B. and f a subsequent verbal orders tor the lamps )n (besides his travel - :eived the orders, and idlng any profits. By rders upon which his nt: AeM, that, as the [deration in the part tain an indictment for le at the Quarter on the 4th July, lawfully obtained ims of money by n order from the lie to them of one intent to defraud- ; invented an im- November, 1861, David Williams, Henry Wadkin, and the prisoner, entered into part- iieisliip together, by a deed which, after reciting tiiat the prisoner claimed to be the inventor of an improved miner's lamp, and had ap- plied for letters patent granting to him the sole use, benefit, and advan- tage of t) said invention within tlie United Kingdom, and that the prisoner, Williams and Wadkins had agreed to become partners for the jmrpose of worlting the said patent, and bringing the said invention into use, and manufacturing and vending the said improved miner's lamp, upon the terms and under the stipulations thereinafter mentioned, wit- nessed that it was thereby agreed, and each of them the said parties did thereby for himself, etc., covenant with the others of them, etc., in manner following (that is to say, amongst other things) : — 1. That the said Isaac Mark Evans, David Williams, and Henry Wadkin shall be partners in the trade or business of working and car- rying out the said patent and bringing the said invention into use, and nianufactu.ing and vending the said " Improved Miner's Lamp," from the day of the date of these presents for the term of fourteen years. 2. That tlie firm or style of the said partnership sliall be Williams, Wadkin and Evans, and that the said trade or business shall be carried on ill such place of business as the said partners shall from time to time agree upon. 3. That the said I. M. Evans shall forthwith take all necessary and proper steps for obtaining the said letters patent, and for perfecting and completing the said invention. 4. That tlie expense of obtaining the said letters patent, and of all drawings and models, and other things whicli may be necessary for liringing the same and the said invention to perfection, shall be paid and borne by the said partners equally. 5. That the said letters patent, as soon as the same shall be obtained, shall be and become the property of the said partners in equal shares. ♦ 6. That the said I. M. Evans shall, when called upon by the said D. Williams and H. Wadkin so to do, and at the cost of the person or per- sons requiring the same, by a proper deed and assurance, or proper deeds and assurance^ well and effectually assign one equal and undi- vided third part or share of the said letters patent, and the rights and privileges thereby granted, to the said E. Williams, his executors, administrators, and assigns, and one other equal, undivided third part or share thereof unto the said H. Wadkin, his executors, administra- tors and assigns. 7. That the capital of the said partnership shall consist of the sum of ^300, and that the same sum of £.300 shall be advanced and lent to the said copartnership by the said D. Williams and II. Wadkin, in equal liiiWiiiiiii 316 FRAUD AND FALSE PRETENSES. shares, in such sums as may from time \fi tune be required for carry- ing on the said trade or business. 8. That the said sum of £300, together with interest thereon at the rate of five per cent per annum, from the time tlie money is advanced until the same is repaid, shall be repaid to the said D. Williams and H. Wadkin out of the first profits to arise from the said trade or business before any profits ure divided between the said copartners. 9. That the said sum of £300 is not to include the sums expended or incurred in obtaining the said letters patent, or of the drawings, models, and other things which maybe necessary for V inging the said invention to perfection, but that the sums so expended and paid by the parties hereto in the shares mentioned in the fourth paragraph of these pres- ents shall not be repaid to them, or any of them, out of the capital or profits of the said copartnership. 14. That the net profits, after the payment thereout of all costs and expenses, and after payment of the said sum of £300, shall be received by the partners equally. After the execution of the deed, Williams and Wadkin advanced the prisoner money to pay the expenses of going to London in order to ex- hibit the lamp, and of obtaining the patent. After he returned, he on several occasions obtained from them further advances of money until at length, in February, 18G2, they refused to give him any more money unless he agreed to go out as an agent to sell the lamps on commission. A verbal agreement was thereupon made between Williams, Wadkin, and the prisoner that the prisoner should travel about the country to obtain orders for the lamps upon the terms tliat Williams and Wadkin should pay him a commission of fifteen per cent on all orders received by him ; that is to say, 2s 6d on each lamp, ti . price of the lamp being 15s, besides his traveling and personal expenses, such commission to be paid to him as soon as he received the orders, and to be payable out of the capital funds of the partnership before dividing any profits. On the 14th of March, 18G2, the prisoner came to Williams and Wadkin and stated that he had got an order from the Wynn Hall Col- liery Company, near Ruabon, for one hundred lamps, to be made in a month, and paid for in a month after delivery. In the faith that this statement was true, Williams and Wadkin gave the prisoner several sums of money, amounting in all to the sum of £12 10s, the commission which would be due to him under the agreement above mentioned on the sale of one hundred lamps. No such order, nor any order, except for one specimen lamp, had in fact been given by the Wynn Hall Colliery Company to the prisoner. It was objected for the prisoner that the indictment could not be sus- tained, on the ground that the money obtained by him from Williams and ^* R. V. EVAN8. 817 luired for carry- it thereon at the )ney is advanced WilliaitiS and H. trade or business tiers. ums expended or irawings, models, he said invention id by the parties ^h of these pres- of the capital or of all costs and shall be received Ikin advanced the on in order to ex* e returned, he on es of money until any more money )3 on commission, filliaras, Wadkin, •ut the country to ams and Wadkin ill orders received of the lump being commission to be be pa,yable out of lUy profits. to Williams and '. Wynn Hall Col- s, to be made in a and Wadkin gave to the sum of £12 der the agreement imen lamp, had in to the prisoner, t could not be sus- f rom Williams and Wadkin was money in which he was interested as a partner, under the provisions of the deed of partnership; and further, that the Iqient to defraud was negatived by the fact that the money payable to tbo pris- oner for commission came out of the partnership funds. I reserved the questions for the consideration of the Court for Crown Cases Reserved, and left it to the jury to say whether the prisomr obtained tlie money by means of the false statement made by him with intent to defraud. The jury found the prisoner guilty, and I respited the judgment, ac'mitting the prisoner to bail. Tlie question upon which I respectfully request the decision of the court is, whether the prisoner was entitled to be acquitted on either of the grounds above stated. No counsel appeared on either side. Pollock, C. B. The facts in this case appear to be that the defend- ant entered into partnership with two other persons, and by a verbal agreement, made subsequently, tliey agreed to make him an agent for a particular purpose connected with the business of the partnership, as to which his commission, traveling, and personal expenses were to be paid out of the partnership funds before any division of the profits took place. The indictment was for obtaining money by false pretenses, in respect of charges for which there was no foundation. As, before any division of the profits took place, it was sp*:!cifically a2,Teed that such charges were to be paid out of the capital funds of the partnership, it was necessarily a matter of account between them, and such charges would, if there was a real foundation for them, come into the accounts and be deducted from the profits before any division was made. The defendant's misrepresentation (and it was nothing more) to his part- ners would be overhauled when the accounts were gone into, and there- fore we think that the defendant was not guilty of obtaining money by false pretenses. I, speaking for myself, and I beg to say that no other member of the court is responsible for this opinion, — entertain a con- fident opinion that the statute was never intended to meddle with the real business of commerce, unless the falseiiood really amounted to a piece of swindling ; but when it was a mere fraudulent statement made in the course of a commercial transaction, it was never intended to visit it with an indictment. I wish to express my own opinion on this point very strongly, because I think that a departure from the rule would make every knavish transaction in commercial matters the subject of indictment, which would be going far beyond what was intended by the Legislature when obtaining money by false pretenses was made punish- ishable by indictment. The rest of the court concurring. Conviction quashed. 318 FKAUU AND U'ALSE I'ltETENSES. MONEY — " FALSE , OR FALSE PRETENSES — OBTAINING checks " — confidence game Pierce v. People. BOGUS [81 111. 98.] In the Supreme Court of Illinois, 1876. 1. A Note or Order Given by* Defendant which U signed by hlmBelf does not come wtlhin the n.eaning „t iho words " false or bogus .hock," as u.od .., the Criminal Code, defining the conOdence pan.o, as It Is genuine. Any one taking either, does «o upon the faith of the defendant's signature alone. If they contain forged or flotitlous signatures or indorsements, a different question would be presented. a Where a Party After Having obtained money and credit gives his note for the sum due. iind afterwards n order for the sum he owed, It can not be said he obtained money or property by the use of the note or order. 3 The Exhibition of Letter Heade of a firm with which defendant is connected, business ■ cards, a draft, or copy of one, and the making of u note, payable at a particular bank, ami the drawing of an order for money, are means to inspire confidence in the party s abll ly to pay, precisely as declarations of IiIh credit and standing, and are, at most, but false representations of his solvency, but do not make out a case of confidence game. 4 The Laairuaire of the Statute does not expressly extend to oases of property or money obtained on the belief of the ability and disposition of the defendant to pay, but It con- templates a cransactlon in which the " means or device," Instead of being the cause of the cause, is the direct and proxii..ute cause of obtaining the money or property. Writ of error to the Circuit Court of St. Clair County ; the lion. William H. Snydku, Judge, presiding. Messrs. Koemer & Turner, for the plaintiff in error. Mr. Charles P, Knispel, States Attorney, for the People. Mr. Justice Scholkiki.d delivered the opinion of the couit. Tlie defendant was indicted and, on trial, convicted and sentenced to the penitentiaiy for one year for obtaining property of one Phillips, " by the confidence game." Pliilips was the proprietor of a hotel in East St. Louis, and on the ith of August, 1875, the defendant became a guest f his— informing his clerk that he wanted a room for a few days, and other accommodations — that he wanted bis meals at the res- taurant, s(> that he could take what he wanted and pay for it. He rep- resented himself as being of the firm of D. Pierce & Sons, who were merchants doing business on Broadway and Fifth Streets in St. Louis, Missouri, and had letter-heads and cards with him showing the firm name and place of business ; and the hotel clerk swears that, on this representation, and from having seen the letter-heads and cards, and observing that he had to write letters once in awhile, he gave him one of the best rooms in the house. After the defendant had remained at the hotel seven days, the defendant showed the hotel clerk what the lat- ter understood to be a draft on Taylor & Sons, of Newport, Kentucky, for $4,000, and informed him that he had funds in the haiids of Taylor ^^M FIERCE V. PEOPLE. 8id E ^ OR BOGUS imBClf does not come in the Criminal Code, ;lier, does ao upon the r flctitioua signatures Ilia note tor the sum lid he obtained inouey is connected, business a particular banit, lunl 10 in the party's ability are, at most, but false ifldence game. g of property or money iaiit to pay, but It con- of being tlie cause of ey or property, Dounty ; the lion. r. eople. le court. I and sentenced to y of one Phillips, etor of a hotel in defendant became a room for a few is meals at the res- Eiy for it. He rep- ! & Sons, who were treets in St. Louis, 1 showing the firm wears that, on this ids and cards, and e, be gave him one mt had remained at il clerk what the lat- Newport, Kentucky, the bauds of Taylor & Sons, which he bad ordered them to forward to St. Louis, and that tlie draft shown was for tlie funds. But the clerk says, what was shown to him as a draft afterwards turned out to be ])Ut a copy of a diaft. The defendant remained at the liotel, fjettiug his meals, drinks, etc., and a small amount of monrv from tlie clerk, to pay the barber for shaving him, and'a boy to gy. i.o the post-ofllcc for his letters, until his bill amounted to some $1«, wlieu the clerk demanded payment. The defendant giive his promissory note for $2."), payable at the bank of St. Louis, Missouri, one diiy after date, saying tliat he wanted to stay there a few days longer, and would make the note large enough to cover the additional charges. He also observed to the clerk, that he could give him the note, but tliat be bad a draft on Sherman & Co., of New York, who had failed, and be did not know whetlier it would be met, and that be had funds at the bank at which be made the note payable. The note was dispos' d of by the proprietor of the hotel, in St. Louis, for goods ; but was finally returned protested. The defendant bad, meanwhile, remained at the hotel, and when notified of the protest of his note, remarked " that it was stiange," and tliat •' there ought to be money there in the bank." He tiien gave an order on another bank for $50, upon whicli nothing was received ; and upon this failing, he gave an order on bis son William for $54. 15, which included his account and the costs of protesting his paper. This was carried to the place indicated as the business place of the defendant's firm, of which bia son was represented to be a member, and it was found that it was dosed, and that bis son was gone and could not be found. The de- fendant then gave the proprietor of the hotel an order on the Yeager Jlilling Company for seven barrels of flour, which was not honored, and after this he was arrested. There was a firm of D. Pierce & Sons, who bad been doing business on Broadway and Fifth Streets, in St. Louis, Missouri, at the place in- dicated by the defendant, as commission merchants ; and there is no reason to doubt but that the defendant was the senior member of that firm. When it ceased to do business does not appear any further than that it was closed when the draft was taken there which bad been drawn by the defendant on his son William. The firm had, also, had transactions with tue Yeager Milling Company, but that company gave as a reason for refusing to honor the draft for the seven barrels of flour, that D. Pierce & Sons owed them $350, and they bad taken their goods out of their store, and they would still be losers by at least $200. As to the genuineness of the draft on Taylor & Sons, of Newport, Kentucky, or the other matters represented by the defendant, there is no evidence, except that of defendant, which, if entitled to credit, ex- onerates him from falsehood in that respect. 320 FRAUIJ AND FALSK PRETENSES. The only question Is, do these facts inako a case under the ninety. elKhth section of tl.c criminal code, entitled, " Confldenc. Game? Timt the defendant acted fraudulently may be conceded; but evety fraud is not a " confidence game " within the meaning of the statute. The language of the statute is: " Every person who shall obtain, or at- tempt to rl)tain from any other person or persons, any money or prop- erty, Iw means of the use of any false or bogus checks, or by any other means or device commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten ^*The position that the note and orders given by the defendant, cauie within the meaning of the words " false or bogus checks," as used in this section, can not be niaintaineu. Had they contained forged or fie titious Indorsements, there would be reason for calling them false or bogus -, but they contained no indorsements, whatever, and it is not dis- puted the defendant's signature to them was genuine. Any one taking them, therefore, would necessarily do so upon the faith of the defend- ant's signature alone, and of however little value they were, this was solely because of the defendant's insolvency, and not because of any false or boy the proof of some intrinsic fact. In the former casv, the party who makes the instrument can not, in general, be convicted of forgery, but in the latter he may. In King v. Sterling,* the defendant was convicted of forging a will, although the supposed testator was still living, aud appeared aa a witness on the trial. Mr. J. Foster, in delivering the opinion of the jiulges, says that an instrument may be the subject of forgery, although, in fact, it should appear impossible for such an instrument to exisL,' provided the instrument purports on the face of it to be good and valid] as to the purposes for which it was intended to be made. See, also,' . Stevens, 16 Johns, i-ns. 20 Johns. 301. 110; ' 2 Rot. Stats. 677, sec. 53. = People i». Gcnung, U Wend. ■1 2 Leach, 483 (case 190). * 1 Leach. 117 (oaoo 67). 324 FRAUD AND FALSE PRETENSES. Rexx. Cogan,' and Case of James Mcintosh.^ In the case of Tliomas Wall 3 the invalidity of the instrument was apparent upon its face. The prisoner was convicted of forging a will of land, attested by only two wit- nesses • but the judsres on conference held the conviction wrong, bo a man cJn not be convicted of forging a note or bill which is apparently incomplete for want of a signature, or the name of '^P'^.^f •' .^'j^'^^^ the instrument forged is apparently void, there is little probability tha any one can be defrauded, but it is otherwise wliere the invalidity of the instrument depends on some collateral fact not appearing on its face. Tins seems to be the reason for the distinction which has been ""nthT defendant could not have been convicted of forgery had he affixed the name of his wife to this instrument without her consent 1 think he should not have been convicted of the offense of obtaining her signature to the instrument by a false pretense. As the indictment is insufficient, it is unnecessary to look into the various questions which arose on the trial. _ , Judgment reversed. FALSE PRETENSES -INDICTMENT -EXISTING AND FUTURE FACT. Commonwealth v. Stevenson. [127 Mass. 446.] In the Supreme Judicial Court of Massachusetts, 1879. , . r ^i„4.™-«t AllBBed that the defendant to induce M. to sign a lease to C. lalsely TuZ TZll^^^ulZTllZn J. or a representation o. . material f«,t; that ihe second was not ; and si.,U>U that the third was not. „ . T„Hi„tm««t CharBluB that the Defendant FaLely represented to A. that he ither persons, does not set out a false protease within the statute. Indictment on the General Statute8,Mn two counts. The first count charged that the defendant on June 8, 1877, at Boston, "with intent to cheat and defraud one Eliza D. Mayo, and with the view and intent to obtain the signature of said Mayo to a cer- tain written instrument and lease hereinafter described, and to induce 1 a Leach, 609 (case 197). I 2 East's P. O. W2. 866. « 2 East's P. 0. 953. ♦ Bex •. Patemar., Buss * B. 465; Rex V. Richards and Bex A Randall, lb. 193, 195. ' ch. 161, sec. M. rtrfl COMMONWFALTH V. STEVENSON. 325 case of Hiomas n its face. The by only two wit- in wrong. So a ch is apparently pa^ee.* Where probability that the invalidity of ippearing on its I which has been f forgery had he it her consent, I of obtaining her the indictment is questions which jment reversed. FUTUBE FACT. 'is, 1879. gn a lease to C, falsely I B. ; that C. was a man defendant pointed out tilon of a material (act; resented to A. that he moner drawn by him in ain bills due from A. to June 8, 1877, at lliza D. Mayo, and lid Mayo to a cer- bed, and to induce «z ft BandaU, /6. 198. tlie said Mayo to lease, demise, and let then and there, to one T. V. Conlin, under and according to the piovisions of said instru- ment, the dwelling-house belonging to said Mayo, situate and num- bered two on Dover Street in said Boston, did then and there, lUjlawfuUy, knowingly and designedly, falsely pretend and represent to said Mayo, that said T. F. Conlin, was then and there a liquor dealer, tlieii doing business as such dealer in Broad Street in said Boston, and tliat said Conlin was tlieu and there a man worth ten thousand dollars, and that a certain person whom the said Stevenson then and there pointed out and designated to said Mayo was then and there the said T. F. Conlin. And the said Stevenson then and there askeu and requested the said Mayo to then and there put and sign the name and signature of her, the said Mayo, to the said written instrument and lease. And the said Mayo, then and there believing the said false pre- tenses and representations, so made as aforesaid by the said Stevenson, and being deceived thereby, was induced, by reason of the false pre- tenses and representations, so made as aforesaid, to put and sign, and (lid then and there put and sign, the name and signature of her, the siiid Mayo, to the said written instrument and lease, the false making whereof would be punishable as forgery, and to deliver, and did then and tliere deliver to the said person so as aforesaid designated by the said Stev. "on to be the said T. F. Conlin, the said written instrument and lease, with the signature of the said Mayo, so as aforesaid obtained and affixed thereto. And the said Stevenson did tlien and there receive and obtain the said signature of said Mayo to the said written instru- ment and lease by means of the false pretenses and representations aforesaid, and with intent to cheat and defraud the said Mayo." The count also set forth the lease ; negatived the truth of the representa- tions ; and concluded in the usual manner. The second count charged that the defendant, on June 8, 1877, at Boston, " with intent to cheat and defraud, did then and there, unlaw- fully, knowingly and designedly, falsely pretend and represent to one Eliza D. Mayo, that he, said Stevenson, tlien and there had in his possession a check and order for the payment of money, for a large sum of money, to wit, tlie sum of thirteen hundred and forty-three dollars ; that said check was then and there drawn to the credit of her, said Mayo, by him, said Stevenson ; that said Stevenson thv,n intended to immediately pay with the proceeds o.f said clieck, for !,or, said Mayo, tertain bills then due, and to be paid from her, said Mayo, to wit " (set- ting forth the bills) ; that " said Stevenson then and there asked and requested said Mayo to sign, seal and deliver to him, said Stevenson, among other papers, a certain instrument, to wit, a deed of the tenor following " (setting it forth). " And the said Mayo, then and there 32(5 FRAUD AM) FALHK I'KKTENSES. believing the said false pretenses and representations so made as afore- said by°hiin, tlie said Stevenson, to l)e true, and being deceived thereby, was induced, by reason of the false pretens-s and representa- tions 80 made as aforesaid, to sign, seal and deliver, and did then and there sign, seal and deliver to the said Stevenson, said deed herein- before 8° t forth. And the sai.l Stevenson did then and there receive and obtain said signature of the said Mayo to said deed, by means of the false pretenses and representations aforesaid, and with intent to cluat and defraud." Tlie indictment then negatived the truth of the repiesentations ; and concluded in the usual manner. In the Superior Court, before the jury were impaneled, the defend- ant moved to quash the indictment for reasons which sufficiently appear in the opinion. Aldrich, J., overruled the motion. The defendant was then tried ; and at the trial offered in evidence for the purpose of affecting the credibility of Eliza D. Mayo as a wit- ness the record of a proceeding for divorce in the Supreme Judicial Court, in which she was found by the jury to have committed adultery with James M. llusc. The judge excluded the evidence. The jury returned a verdict of guilty on both counts; and the defendant alleged exceptions. C. B. Southard, for the defendant. C. R. Train, Attorney-General, for the Commonwealth. MouTON, J. The first question in this case arises upon the defend- ant's motion to quash. Tlie indictment contains two counts, setting forth different offenses. As to the first count we «re of opinion that the motion to quash was rightly overruled. A false pretense, within the statute, is a representation of a material fact, calculated to deceive, which is not true.i Th» first count alleges that, in order to induce Mrs. Mayo to sign a lease to Conlin, the de- fendant falsely represented that said ConUn " was then and there a liquor-dealer, then doing business as such dealer in Broad Street in said Boston, and that said Conlin was then a man worth ten thousand dollars, and that a certain person whom the said Stevenson then and there pointed out and designated to said Mayo was then and there the saidT. F. Conlin." The representation that Conlin was a man worth ten thousand dollars might have b"en intended and understood as the expression of an opinion or Judgment, and not as the representation of a f act.* As it is not aided by any other averments in the indictment, it is not as set out a false pretense within the statute. So the pointing out of a person as Conlin would not seem to amount to the representation of a material fact which was cal- 1 Com. f. Drew, 19 Pick. 179. J Morso r. Shaw, 124 Mass. 69; Homer ti. Perklna, 124 Mass. 4;U. COMMONWEALTH V. STEVENSON. 327 ) made as afore- bciiig deceived and ropreseiita- Liul did tlien and aid deed licreiu- nd there receive ed, hy means of i with intent to the truth of the eled, the defend- liich sufficiently »tion. Cered in evidence ). Mayo as a wit- Supreme Judicial ramitted adultery lence. The jury defendant alleged ealtb. upon the defend- ro counts, setting re of opinion that ,tion of a material first count alleges to Conlin, the de- then and there a n Broad Street in orth ten thousand tevenson then and then and there the n thousand dollars !Ssion of an opinion As it is not aided by 5ut a false pretense IS Conlin would not fact which was cal- , 124 Mass. S9; Homer v. ;U. Ciliated to deceive Mrs. Mayo and induce her to sign a lease to Conlin. I5iit it is no ground for quashing an indictment for obtaining money by false i)rctenses, that it contains some immaterial allegations, or that some of the pretenses charged may not be properly charged, if upon its face there is an offense stated with precision and formality, i A ma- jority of the court are of opinion that the representation that " Conlin was then and there a liquor dealer, then doing business as such dealer in Broad Street, in said Boston," is a false pretense within tiie statute; and, therefore, that the first count is sufHcicnt. It is the representa- tion of a fact calculated to deceive. It imports that Conlin was estab- lished in business in Boston, a fact which, if belioved, would naturally be influential in inducing Mrs. Mayo to make the lease to him. The objection tliat the false pretense is not alleged to be in writing can not prevail. The statute does «ot require that, in cases like this, the false pretense should be in writing.''^ As to the second count, we are all of opinion that it is insufficient. Tiu' only allegation in that count is that the defendant falsely repre- sented to Mrs. Mayo that he had then and there in his possession a check for the payment of money drawn by him in favor of Mrs. Mayo, from the proceeds of wiiich he intended to pay certain bills due from her to other persons. There is no allegation that he had or pretended to have money in the bank on which the check was drawn, or that he showed or offered the check to her, or that she had any control over it. And the only proper legal construction of all the allegations is that the defendant agreed to take his own money and pay the bills due to the several persons by Mrs. Mayo, if she would sign tiie deed. This was a promise to do something in the future with no representation of any ex- isting material fact.3 The mere representation that he had drawn a check, without stating that he had money in the bank, was iraraatcrial ; and if it could be treated as a representation that he had money in the bank the indictment is still fatally c'efective In not negativing that fact. For aught that appears, he may have had the money subject to such a draft. The only other exe jption is to the exclusion by the court of the rec- ord of the divorce proceedings in which Mrs. Mayo was a party, and in which the jury found that she had committed adultery. Such record did not show the conviction of the witness of any crime, which, under the statute, would be admissible to effect her credibility.'" The result is that the second count should be quashed, and, as to it, the cxcoptions are sustained ; but, as to the first count, the exceptions are overruled. 1 Com. V. Parmcntur, 121 Mmb. 354. 2 Gen. Stats., ch. Ifll, sect. 64; Com. v. Pirraeter, ubi tupra. ■1 Com. 1'. Drew, ubi supra. « Stnts. 1870, ch. 393, iec. 3. 328 FRAUD AND FALSE PKETENSES. FALSE PRETENSES — "VALUABLE SECURITY " — PROPERTY IN CHATTEL. R. u. Danoek. [Dears. & B. 307.] In the English Court for Crown Cases Reserved, 1857, The Prisoner wa» Convicted upon nn indictment founded upon section M of 7 and 8 George 1V.» for obtaining a valuable security by false pretenses. The facts were, that the prisoner falsely represented to the prosecutor that a third person was baling up for him a quantity of leather whicli was to come into his warehouse that afternoon, and the prosecutor, relying on sucli false statement, at the request of the prisoner, agreed to purchase the leather, and to accept a bill for the amount of the purchase-money. The prisoner shortly afterwards produced and handed to the prosecutor a bill duly stamped, signed by himself as drawer, addressed to the prosecutor, and made payable to the prisoner's own order; and the prosecutor accepted the bill and returned it to the pris- oner, who subsequently Indorsed and negotiated it, and appropriated the proceeds to his own use. Held, that the conviction could not bo supported, as the bill, whilst in the bands of the prosecutor, was of no value to him nor to any one else unless to the pris- oner ; and as the prosecutor had no property In the bill as a security, or even in the paper on which it was written. The following case was reserved and stated for the consideration and decision of the Court of Criminal Appeal by the Re< ^rder of Bristol. The prisoner, John Danger, was tried before m' at the Quarter Ses- sions of the Peace in and for the city and county of Bristol, held on the 7th day of April, in the year of our Lord one thousand eight hun- dred and fifty-seven, on an indictment under the statute 7 and 8 George rV.2 for obtaining a valuable security by false pretenses. The indict- ment contained two counts, a copy of which is annexed to this case.^ The false pretenses were proved as alleged in the indictment. It was also proved, that Richard Latham, the prosecutor, relying on such pre- tenses, agreed to become the purchaser of a quantity of leather, called butts, of and from the prisoner John Danger, at the price of one hun- dred and eighty-four pounds and sixteen sliillings ; that the prisoner then asked Richard Latham to accept a bill of exchange for the amount of the purchase-money; that Richard Latham agreed to do so; that, soon after, the prisoner produced a bill of exchange duly stamped, signed by himself as drawer under the name of John 7)cnger & Co., payable to the drawer's own order, and addri;^: > iiichard Latham, for one hundred and eighty-four po'jn>-"^, "noji shil- lings, four months after date, and handed the t;xf lo Richard Latham; that Richard Latham accepted the bill by \, -Jiiig his name across it, and made it payable at Messrs. Stuckey's Bank, Bristol, and then delivered the same so accepted to the prisoner ; that the prisoner 1 ch. 29. 8 cb. 29, see. 23. 3 marlced A. rt^t R. V. DANGER. 329 ROPERTY IN I, 1857. section M of 7 and 8 The facta were, that ion was baling up for lat afternoon, and the prisoner, agreed to irchase-money. The r a bill duly stamped, made payable to the itarned it to the prin- ated the proceeds to the bill, whilst in the le unless to the pris- r, or even in the paper onsideration and Jer of Bristol, the Quarter Ses- Bristol, held on usand eight hun- e 7 and 8 George jes. The indict- ced to this case.^ lictment. It was ■ing on such pro- of leather, called irice of one hun- that the prisoner re for the amount I to do so; that, e duly stamped, lu 7)cnger & Co., ,- o ii! chard is, ■ noji shil- at- ;,o Richard \, .ijiiig his name lank, Bristol, and that the prisoner 3 marked A. took possession of tlio bill, and afterwanls indorsed and discounted the same, and applied tlio proceeds to liis own use. At the close of the case for the prosecution, it was objected by the prisoner's counsel that there was no evidence that the prisoner had obtained from Richard Latham a valuable security within the meaning of the statute 7 and 8 George IV.,' so as to sustain either count of the indictment, on the ground that the evidence showed that the prisoner had obtained from Richard Latham either an acceptance only, or an instrument which was not an available security or of any value to Richard Latham. I refused, on this objection to direct an acquittal, but left the case to the jury, who found the prisoner guilty ; but I reserved the question for the opinion of the Court of Criminal Appeal, whether there was evi- dence that the prisoner obtained from Richard Latham a valuable secur- ity 80 as to sustain either count of the indictment. After the verdict it was objected, in arrest of judgment, that each count of the indict- ment was bad for not alleging tliat the valuable security obtained by l)y John Danger was the property of Richard Latham, and the case of Regina v. Lill,^ was cited. I also reserved that question, and I have to request the opinion of the Court of Criminal Appeal upon the above matters. I postponed the sentence, and admitted the prisoner to bail until the next Quarter Sessions for the said city and county of Bristol. John A. Kinglake, Recorder of the City and County of BristoL CrrY AND CotTNTT ^ The jurors for our Sovereign lady the Qaeen, OF BuiSTOL, > upon their oath present that before and at the TO wit: ^ time of the committing of the offense hereinafter named one Richard Latham was a currier, carrying on business at Red- cliff Street in the parish of Saint Mary Redcliff in the city and county of Bristol, and one George Jenkins, was a tanner, carrying on business at that part of tlie parish of Bedminster which lies within the city and count}' of Bristol, and that John Danger, late of the parish of Saint Nicholas in the city and county aforesaid, leather factor, on the 27th day of December, in the year of our Lord, 1856, being an evil-disposed person and contriving and intending unlawfully, fraudulently, know- ingly and designedly to cheat and defraud, then and there, to wit, on the day and year aforesaid at the parish last aforesaid, did ask the said Richard Latham if he the said Richard Latham would buy some of George Jenkins' (meaning the said George Jenkins) butts, whereupon the said Richard Latham then and there told the said John Danger that ch. 29, sec. 53. a Dears. C. f. 132. aso FRAUD AM) FAL8K PUETEN8ES. he the said Richard Latliara had been speaking to Mr. Jenkins (mean- ing tiie said George Jenliins) and he (meaning the said George Jenlvins) said ho iiad no l)iitts to sell, and ttie said Jolni Danger tliereupon unlawfully, knowingly and designedly did falsely pretend and say to tiie said Richard Latham: You (moaning the said Richard Latliam) don't know George Jenkins (meaning the said George Jonkins) as well as I do, for he (meaning the said George Jenkins) is now baling up three hundred butts for me (meaning himself, the said John Danger) to come into my warehouse (meaning the warehouse of the said John Danger) this afternoon, and that he, the said Rinhard Latham, should have them at the price of twenty-one pence per pound, and that the said Richard Latham then and there agreed to be me the purchaser of to wit, a certain part of the said butts of and from the said John Dan- ger, at that price, whereupon the said John Danger asked the said Richard Latham to accept a bill for £184 16s, and then and there pro- duced a bill of exchange drawn by him the said John Danger upon him the said Richard Latham for the said sum of £184 IGs, and the said John Danger then and there stated to the said Richard Latham that he, the said Richard I^atham, should have the worth of it (meaning the said bill of exchange for £184 IGs) in these butts (meaning the said butts which the said John Danger had as aforesaid unlawfully, knowingly and designedly falsely pretended and said that the said George Jenkins was baling up for him, the said John Danger, and which said butts were to come into his, the said John Danger's, warehouse that afternoon). By which, the said false pretense, he, the said John Danger, on the day and year aforesaid at the parish of Saint Nicholas, in the city and county aforesaid, did unlawfully obtain from the said Richard Latham a certain valuable security, to wit, the said bill of exchange which the said John Danger had so drawn upon the said Richard Latham as aforesaid and which the said Richard Latham then and there accepted for the said fium of £184 16s and of the value of £184 16s with intent to cheat and defraud. Whereas in truth and in fact the said George Jenkins was not, on the said 27th day of December, in the year of our Lord, 1856, in the possession of three hundred butts or any butts the property of the said John Danger, nor was the said George Jenkins on the 27th day of December, 1856, baling up three hundred butts or any butts for the said John Danger, against the form of the statute in such case made and provided and against the peace of our said lady, the Queen, her Crown and dignity. 2d Count. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present that the said John Danger on the day and year aforesaid, in the parish of Saint Nicholas, in the city and county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to the said Richard R. V. nANOER. 331 ■. Jenkins (mean- I George Jenkins) )aiigcr thereupon etcnJ and say to Ricliard Latliam) 3 Jtjniiins) ns well is now baling up I Jolin Danger) to of the said John i Latham, shouki and, and that tlie ! the purchaser of ic said John Dan- r asked tiie said en and there pro- Danger upon bim IGs, and the said i Latham that be, ^meaning the said ing the said butts (vfully, knowingly d George Jenkins icb said butts were B that afternoon), anger, on the day tie city and county I Latham a certain licb the said John I as aforesaid and epted for the said itent to cheat and e Jenkins was not, Lord, 1856, in the operty of the said the 27th day of any butts for the in such case made y, the Queen, her I aforesaid, do fur- ad year aforesaid, aforesaid, unlaw- the said Richard Latliam that one .George Jenkins 'had sold to and was then baling up for him the said John Danger, three hundred butts of leather, and which the said John Danger then and there unlawfully, knowingly and design- edly falsely pretended and stated to the said Richard Latham were to (■(line into his, llic said Jolin Danger's, wareiiouse on the afternoon of the s:ii(l day and that he the said John Danger could and would then sell lliu same or any part thereof to the said Richard Latham at a certain price, to wit, the prire of twenty-one pence p ^r pound. By means of wiiich said false pretenHcs the said John Danger did then and there uii lawfully obtain from the said Richard Latham a certain valuable secu- rity to wit a bill of exchange for the sum of £'1H4 Kjs and of the value of £181 168 of and from the said Riciiard Latham ns and for the sum to lie paid by him iH payment for certain of the said three hundred butts aforesaid, with intent then and there to cheat and defraud tiic said IJithard Latham of the same. Whereas in truth and in fact the said George Jenkins had not sold to the said John Danger, nor was the said George Jenkins then bailing up for him, the said John Danger, three hundred butts of leather or any butts of leather whatsoever, nor were the said three hundred butts to come into his the said John Danger's warehouse on the afternoon of the said day, nor could the said John Danger then sell the same or any part thereof to the said Richard Latham, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her Crown and dignity. This case was argued on 30th Ma}', 1857, before Lord Campbell, C. C, EuLE, J., Williams, Crowder, J., andBRAMWELL, B. //. T. Cole, appeared for the Crown, and C. G. Pridmux, for the prisoner. C. O. Pridcaux, for the prisoner. First, the indictment is bad in ar- rest of judgment. The second count is not distinguishable from those in Lill V. Queen in error ; ^ it will only be necessary, therefore, to con- sider the first, which is open to the same objection, and is, I contend, also bad, because it does not allege the valuable security to have been the property of the prosecutor. This defect is clearly fatal.^ Lord Campbell, C. J. There has been no subsequent statute altering the law. Prideaux. No. The case of LUl v. Queen was decided after the passing of the 14 and 15 yictoria,^ audit was held that the defect was not a formal one, and was not caused by that statute. Secondly. The evidence does not disclose any offense within section 53 of 7 and 8 George IV. ' First. I contend that upon the facts proved > Dears. 0. O. 182, «. c. 1 EI. A Bl. 653. - Keg. V. Martin 8 Ad. A E. 481 ; Reg r. Parker, ,1 Q. B. Bep. 392 ; LIU v. Queen in Error, Dears C. C. 553. » ch. 100. < ch. 29. 132; I. c.l El. A Bl. 332 FRAUD AND FALSE PRETENSES. the bill never was tlie property of the prosecutor, and never was In his possession ; ami secondly, I submit, that it was not a valuable security within the meaning of the statute. Krlk, J. The same question is raised upon the merits and upon the indictment, as the facts are correctly stated in the first count. Prideanx. Yes. The paper on which the bill was written was tlie property of the prisoner — the stamp was his — and no property was acquired by the prosecutor ])y reason of his writing his name as ac- ceptor. The bill was handed to the prosecutor merely for the purpose of his so writing his name, and when that was done the property and rigiit of possession were in the prisoner, and the prosecutor had no right to detain it. When the acceptance is complete, the bill becomes the prop- erty of the drawer, even if not so before, and if the acceptor improp- erly detains the bill in his hands after acceptance, the drawer may nevei'tlieless sue him on it and give him notice to produce it, or on his default give parol evidence Df it.* That case goes almost the whole length of supporting my position. In Johnson v. WincUej^ a promissory note delivered by defendant to plaintiff, payable to the plaintiff's order, was stolen from plaintiff by his clerk, who, after forging plaintiff's indorsement, obtained payment of the defendant's banker, and the banker handed the note to the defendant ; and the court held that the plaintiff was entitled to recover the amount at the hands of the defendant in an action of trover, notwithstanding six weeks had elapsed before the plaintiff discovered and gave the defend- ant notice of the loss of the note. I refer to this case mainly to call attention to the language of Bosanquet, J., who said: " This instru- ment on the face of it was marked as the property of the plaintiff." So in this case, the bill when accepted was marked as the property of the prisoner, and the prosecutor had no property therein. In Morrison & Oray v. Buchanan,^ by the negligence of a clerk of the drawer of a bill, it was delivered out by a banker after acceptance to a wrong person; and Littledale, J., held, that under those circum- stances the drawer could not maintain trover for the bill against the party who so delivered it out ; but it was not disputed that the bill was, after acceptance, the property of the drawer ; and, although in Evam V. Kymer* the property in a bill was held to be in the acceptor, the ground of the decision was that the bill had been deposited with the drawer to hold for the acceptor's use. Here the prosecutor never had such a possession of the bill as would have v^nabled him to maintain trespass. All the cases show that de facto 1 Smith v.MoClure, 5 East, 476. a 3 Binjt, N. C. 225. 3 6 C. & P. 18. f ',^^Tl»!tWS!-^ J'^,* iMl K. V. DANOKK. 833 nd never was in bis a valuable security lerits and upon the rst count. vuH written was tlic nd no property was igbis name as rc- y for the purpose of 1 property and rigiit itOT bad no right to I becomes the prop- le acceptor improp- e, the drawer may to produce it, or t case goes almost In Johnson v. to plaintiff, payable his clerk, who, after of the defendant's k'fendant; and the ;r the amount at the notwithstanding six nd gave the defend- } case mainly to call said: " Tliis instru- ty of the plaintiff." d as the property of lerein. igenco of a clerk of ker after acceptance under those circum- the bill against the ;ed that the bill was, , although in Evans in the acceptor, the 1 deposited with the of the bill as would es show that de facto possession is not sufficient. In Regina v. John Smith,^ the prisoner iiaviiig led the prosecutor to believe that he was about to pay him a debt due to him from a third person, took out of his pocket a piece of blank paper stamped with a six-i)cnny stamp and put it upon the table, and then took out some silver in bis band and mentioned the amount for wliieli the prosecutor was to give a receipt. The prosecutor wrote and sijyied a receipt for that sum on the stamped paper, and the i)ri9onor tlicii took it up and went out and never paid the money ; and the court held that the prisoner could not be fionvicted of larceny, because the prosecutor never had such a possession >.f the paper as would have en- abled bim to maintain trespass. It seePiS mpossible in principle to dis- tinguish that from the present case ; en*', the reasons given by Parke, B. , apply equally here. His Lordship said : ' ' The stamped paper never was in the prosecutor' 8 possession, and the prisoner can not be convicted of stealing it, unless the prosecutor had such a possession of it as would enal)le him to maintain trespass. It was merely handed over for bim to write upon it." Bkamwell, B. If the prosecutor, after he bad written the accept- ance, had discovered the fraud and refused to part with it, and the prisoner had snatched it way from him, could the prosecutor have maintained trespass? Prideaux. No, I apprehend he could not. Lord Campbell, C. J. Suppose the prosecutor, having discovered the fraud, had refused to deliver the acceptance to the prisoner, and tiie prisoner had brought detinue to recover it, would not the prosecutor have had a good defence ? Williams, J. Under such circumstances would not the prosecutor at all events, have had a right to retain the acceptance till he had erased his name from it ? Erle, J. Suppose the prosecutor, after having written the accept- ance, bad put the instrument away till the following day, and in the meantime received information of the fraud, which would have induced him to cancel it; but the drawer, during the interval, stole it? As at present advised, I think the drawer might be indicted for larceny. Prideaux. There are two cases referred to in Regina v. Johii Smith, vhich also appear in point. One is Rex v. Minter Hart,^ where the prosecutor was, by fraud, induced to write acceptances upon ten blank bill sumps provided by the prisoner, which were afterwards filled up by iiioi as bills for £500 each, and put into circulation ; and it was held that a charge of larceny against the prisoner for stealing the paper on which the stamps were, could not be sustained, because the prose- 1 2 Den. C. C. 449. S 6 q. A P. 106. 334 FRAUD AND FALSI', PKETRN8E8. cutor nover had oitlicr tlio property or tlie possession of papers so as lo make the tuking of tlicm l)v a prisoner n larceny. In tbt.t case, iis here, tliero hud been a de fmio possession by tlie prosecutor, l)iit iw. such possession as wouUl have enabled him to maintain trespass against the prisoner for taking the bills. Lord C.vMrHKLL, C. J. Could not the prosecutor in this case havu maintained trespass against a stranger who had taken the bill? , J*n'demt.e. I'ossjbly he might against a stranger; but not against the i»risoner. In Mrs. PJn'iioc's C'(.tf%' where the prosecutor was com- pelled by duress of hia person to sign a |)ronii88ory note previously pre- pared ]>y tiie defendant, who ijrotluced it for the puri)08e, and took it away as soon as it was signed, it was held that the case was not witliiu section .'5 of 2 George 11.,'^ because the instrument was of no value to the prosecutor, and l)ecau8e the note never was the property nor in the possession of the prosecutor. Thirdly. Tlio instrument was not a valuable security within the meaning of the statute. Some of tiio eases previously referred to are also important on this point. In Minter Hart's Case, it was decided that the stamps filled up, as before mentioned, were neither bills of exchange, orders for the payment of money, 'nor securities for money, anil in Mrs. Phipot's Case, the promissory note, which the prosecutor was compelled by duress to sign, was held to be of no value wlnle in tlie hands of tiie prosecutor. In order to make the instrument a valuable security within the meaning of the statute, it must be effectual as a security when ob- tained, in other words it must at thac time be of value to some person other than the prisoner. The bill was not a valuable security while in the hands of the prose- cutor, because the acceptance was not complete until delivery. This is settled by Cox v. Troy,^ where the defendant, having written his ac- ceptance with the intention of accepting a bill, afterwards cimnged his mind, and before communicating to the holder or delivering the bill back to him, obliterated his acceptance, and it was held that he was not bound as accjeptor. Lord Campbell, C. J. There must be eitlier a delivery or a com- munication to bind the acceptor. EuLE, J. Tlie animus accipiendi notified. Lord Campbell, C. J. Was not that done when the prosecutor, in the presence of the prisoner, wrote his name with the intention of ac- cepting the bill ? 1 2 Leach) C. C. 643; 2 Kast P. C. 599. a ch. 25. And see Rex v. Edwards, i> C. & P. HI. 3 5 b. & A. 474. Ml n. V. i)AX(fi;i{. 885 on of i)ai)cr9 so as lo y. In thr.t case, !i- e prostit'utor, but ik, itain trespass agaiutit or in this case Imvu ccn the bill? , ;er ; but not against prosecutor was coin- note previously pre. piu'[)ose, and took it ' case was not within t was of no value to ! property nor in the security within the so important on this the stamps filled up, ange, orders for the lul in Mrs. Phipo^'s )r was compelled by I in the hands of the luablc security within i a security when ob- value to some person e hands of the prose- itil delivery. This is uing written his ac- 'terwards cliangcd his or delivering the bill i held that he wa.s not a delivery or a corn- en the prosecutor, in h the intention of ac- IJk.vmwki.i., n. In the ordinary course of banking business, a l>ill is left lU till' itiiiik for acceptance for twi'uty-four hours ; but t' -e nuiny cDiisideratious may intervene which do not take \Aavv. iicrc, where the l)iirt()nor and the prosecutor are together in tiie presence of the |)ai)cr. I'l-ideuHX. The prisoner had all the time an absolute property in the bill; neither the indictment nor the evidence shows an unqualified iicc('ptan(!e until the delivery of the bill. The bill being of no value to the prosecutor was of no value to any person other than the prisoner at the time when it was obtained ; be- cause until indorsed it could not be of any value to any one excei)t the prisoner himself. In Miater Hart's Case, as here, there was no doubt a gross fraud had been committed ; but the court held that they must look at the docu- ment as it was when obtained by the prisoner, and must see whether at the time when obtained it was n "alual)le security. In Downe v. Rich- ariho)!,^ it was held that an accommodation bill is not issued until it is in the hands of some person who is entitled to treat it as a security availa- ble in law. CiiowuEn, J., referred to Stoeaaiyer v. The Southeastern li/yilway Company J Pri<1ea.nx. There C, being indebted to G., framed a document directed to himself ordering himself, three months after date, to " pay to my order " the amount. The document had the stamp proper for a bill of exchange of that amount and length of time, and was in all re- spects like a bill of exchange, except that there was no drawer's name. C. wrote on it his acceptance, and caused it to be forwarded, in a par- cel directed to G., by a common carrier, in order that G. might add his name as drawer; and, in an action against the carrier, it was held that the instrument was not at the time of its delivery to the carrier a l)ill, order, note, security for payment of money, nor writing of any value. The prisoner in this case, obtained no security of value to the prose- cutor. He drew his bill of <.xchange and delivered it to the prosecutor, and the prosecutor by acceptance and delivery promised to pay It ; and thus, according to the custom of merchants, it became the property of the prisoner if not so before. Everyttjing previously to the delivery was the prisoner's, except the promise to pay ; and a promise to pay is not the sut)ject of larceny. Before the statute 1 and 2 George, IV ,3 it was not necessary that the acceptance of an inland bill should be in writing; an acceptance by parol was sufficient at common law. S R. & A. fl74. ■ '. Kl. & Bl. ,->4'). ■1 ch. 7S, sec. 2. 336 FRAUD AND FALSE PRETEN8K8. Lord Campbell, C. J. A promise to paj' is something not material j it is something aerial ; but here you have tlie written acceptance. EiiLE, J. In every valuable instrument the value lies in the words apart from the ink with which they are written. Prideaux. Abstracting from tlie bill the promise to pay, all that was material was the ink and the paper, and they unquestionably belonged to the prisoner. BuAJiWELL, B. You say the chattel belonged to the prisoner, and that all he got was the evidence of the promise. Prideaux. And independent of that, the moment it was an accept- ance it became the property of the prisoner, according to the custom of merchants ; and that the only person to whom the bill could be of the slightest value being the prisoner himself, it was in fact of no value to him, because, by reason of his fraud, he could not have maintained an action upon it. I therefore contend, first, that the indictment is bad in arrest of judgment. Lord Campbell, C. J. The indictment gives a full, faithful and complete history of the whole transaction. Prideaux. It does. Secondly, I contend that the prosecutor had no sufficient property in or possession of the instrument ; and thirdly, that it was not a valuable security within the meaning of the statute. It was of no value while in the hands of the prosecutor ; when it got into the hands of the prisoner it was of no value, not being indorsed to any person, except to the prisoner himself ; and in fact it was of no value to him, because of tlie fraud. I submit, therefore, that both upon the in- dictment and upon the facts, I am entitled to your judgment. H. T. Cole, for the Crown. First, the prosecutor had a sufficient qualified prop*!rty in the bill at the time when it was obtained by the pris- oner. He had such a possession of it, as would have enabled him to maintain trespass. Tlie prisoner presented a piece of stamped paper to the prosecutor ; it was not a bill till accepted. Lord Campbell, C. J. It was an unaccepted bill. Cole. After signing it the prosecutor might, if he had chosen, have erased his acceptance. Lord Campbell, C. J. You say he had a right of possession for that purpose. If the prisoner had taken the bill from the prosecutor malo animo, with the intention of preventing him from erasing his acceptance, would that have been a larceny? Williams, J. It would be difficult to say so, if Regina v. Smith was well decided. Bramwbll, B. You argue that the prosecutor had a right of posses- ^^ KS. R. V. DANGER. 837 mething not material ; ten acceptance. ilue lies in the words se to pay, all that was questionably belonged to the prisoner, and lent it was an accept- rding to the custom of le bill could be of tlie in fact of no value to t have maintained an t is bad in arrest of I a full, faithful and the prosecutor had no ent ; and thirdly, that J of the statute. It jtor ; when it got into beina: indorsed to any t it was ot no value to that both upon the in- r judgment, utor had a sufficient i obtained by the pris- have enabled him to ece of stamped paper ill. ' he had chosen, have of possession for that I the prosecutor malo rasing his acceptance, , if Regina v. Smith had a right of posses- sion because he had a right of cancellation ; but they are not identical. You can not say that because he had right of cancellation, he bad a riglit of possession. Cole. Evans v. Kymer shows that if the prosecutor, after accepting the bill, had delivered it to the prisoner to hold for him, he might have maintained trover for it. S'"' ndly, the objection that the instrument was not a valuable secu- rity will not be maintained, if the court can see that in any way it can be so regarded, and, I contend, that it is quite suflicient, if the accep- tance was valuable to the prisoner ; and no doubt it was, for l)y indors- ing it away, he obtained money upon it. In Regina v. Bolton,^ it was lield that a railway ticket, entitling a passenger to travel on tlie line of railwaj', was a chattel of value ; although the ticket was not of value to the person from whom it Was obtained, but only to the person obtain- ing it. WiiJiAMS, J. It was decided that it was a " chattel." Cole. Section 5 of the statute gives the rule of interpretation which is, that " each of the several documents hereinbefore enumerated shall throiigliout this act be deemed for every purpose to be included under and denoted by the words ' valuable security.' " The documents be- fore enumerated include any " bill, note, warrant, order, or other recurity whatso'j\ er, for money or for the payment of money ; ' ' and I submit that the instrument in this case clearly comes within this defini- tion of a valuable security. Regina v. Smith,^ was not the case of a valuable security, but of a receipt. In Regina v. Oreenhalgh,^ an order upon the treasurer of a burial society, for payment of money to bearer, was obtained by the prisoner from the president by a false pretense that a death had occurred, and that order was held to be a val- uable security within section 63, as explained by section 5 of the statute ; although there the order was of no value to the person from ffhoni it was obtained. That decision, I submit, entirely cuts away tills branch of the argume'^* for the prisoner. With regard to the in- dictment, the whole facts appear upon it. Lord Campbell, C. J. If the offense be indictable, of which I give no opinion, I think the first count is sufficient. Cole. The rule of law as to what constitutes a complete acceptance, is thus laid down in Biles on Bills :* — " The liability of the acceptor, though irrevocable when complete, does not attach by merely writing his name, but upon the subsequent 1 1 Den. 0. C. 608. ■ 2 Den. C. C. 449. 3 Defences 3 Dears. C. C. 267. * 7th ed,, p. 167. 82 ■S 388 TRAUD AND FALSE PHETENSES. delivery of the bill or upon communication to some person interested in ilie bill, that it has been so accepted." Here the latter alternative is satisfied, and the acceptance was clearly complete before delivery, the prosecutor having written the acceptance in the presence of the prisoner, and thereby communicating it to the person interested, namely, to the prisoner ; and tlie bill was therefore a valuable security when in the hands of the |)rosecutor. I therefore contend, first, that the prosecutor had a sufficient quali- fied property in and possession of the bill to support tlie indictment. Secondly, that in order to make the instrument a valuable security within the meaning of the statute, it is sutficient if it be of value to the person obtaining it ; in other words, if j^ou obtain an acceptance from me, whicii is of value to you, you obtain a valuable security. Prideaux, in rei)ly. The result of the doctrine laid down in the passage cited from Byles on Bills ' is thus stated by the learned author : — " Hence it follows that if the drawer has written Lis name on the bill with the intention to accept, he is at liberty to cancel his acceptance at any time before the bill is delivered, or at least before the fact of acceptance is communicated to the holder." But, assuming that the acceptance was complete, as contended, the bill thereupon became the property of the prisoner, even if not so before. Regina v. Boulton ^ does not apply ; since, in that case, the decision was simply that a printed ticket of the railway company was a chattel within the meaning of the statute. In Regina v. Greenhalgh, the order was payable to bearer, and was therefore a valuable security to any person into whose hands it came ; but here the instrument was of no value to any one except to the pris- oner, although it might, after indorsement, become valuable to other persons. The question is, was it a valuable security to any person, other than the prisoner when obtained ?3 When a man delivers a bill of exchange to the drawee for the purpose of being accepted, the drawee holds it for that purpose alone, and i\m does not in any way change the propei'ty in the bill ; nor does it pre- vent the drawer, where there are no other parties to the bill, from de- manding it back if he chooses ; and if left at a bank for acceptance there is nothing to prevent him from demanding it, even within the twenty-four hours allowed for acceptance. Cur. adv. vult. 1 7th ed., p. 167. 2 1 Den. C. C. 608. 3 Bex V, Pooley., Rusb. & Ry. 12 ; Rex v. Clark, Ibid. 181 ; Hex v. Binglev, 5 0. A P 602; Rex r. Vyse, 1 Moo. 0. 0. 218; Reg. f Perry, 1 Den. C. C. 69. IW H a W*** ! * fe«'T*-«>^«a«>s '■i'^7'..' ■- ^^i PEOrLK V. BLANCIIARD. 339 person interested latter alternative before delivery, presence of the erson interested, valuable security a sufficient quali- ft tlie indictment, valuable security it be of value to Eiin an acceptance ble security, aid down in the 1 by the learned name on the bill ;el his acceptance jefore the fact of ssuming that the upon became the gina v. Boulton ^ as simply that a ithin the meaning bearer, and was 3 hands it came ; ccept to the pris- 'aUiable to other y to any person, e for the purpose le alone, and this nor does it pn- the bill, from de- ik for acceptance , even within the V. Binglev, 5 0. A P 90. 0. 0. 218; Reg. *- The judgment of the court was delivered on I8th June, 1857, by Lord Campbell, C. J. We are of opinion that the offense charged and proved in this case does not come within 7 and 8 George IV. ^ The "chattel, money, or valuable security," the obtaining of which by a false pretense may be made the subject of an indictment within this statute, must, we conceive, have been the property of some one other than the prisoner. Here there is great difficulty in saying that, as against the prisoner, the prosecutor had any property in the document as a security, or even in the paper on wliich the acceptance was written. In no one else could tiie property be l&id. We should not have given weight to the argument that, even in the prisoner's hands, it was not a valuable security by reason of the fraud, which would prevent him from enforcing it, but we apprehend that, to support the indictment, the document must have been a valuable security while in the hands of the prosecutor. While it was in the hands of the prosecutor it was of no value to him, nor to any one else unless to the prisoner. In obtain- ing it the prisoner was guilty of a gross fraud ; but we think not of a fraud contemplated by this act of Parliament. Judgment reversed. FALSE PRETENSES — FALSE STATEMENT AS TO INTENTION — future fact. People v. Blanchard. [«J0 N. Y. 314.] In the Court of Appeals of Neto York, 1882. ■ (Tpon the Trial of an Indictment for obtaining goods by means of false representa- tions, it is not necessary tbat the prosecution shoald prove all the false representations alleged in the indictment. Where the Bepreaentations set forth in the indictment are prored, the sense In which they were used and what was designed to be and was understood from them are ques- tions for the jurv. An Indictment for Falae Pretenaea may not be founded upon an assertion of an existing intention although it did not In fact exist; there must be a false representation as to an existing fact. • On the Trial of an Indictment for obtaining n number of cattle by false pretenses, it appeared that the vendor sold the cattle to the prisoner at BuiTnlo and received his check post-dated for the purchase price, upon his representation that he was buying and wanted the cattle for G. who lived at Utica ; that they were for G., who would remit the > ch. 21). sec. 53. 340 FRAUD AND FALSK PRETENSES. price in time to meet tlie check ; tlio prisoner had been in the habit of purchasing cattle to supply G. as a customer and of selling them to him and had general authority so to buy whenever cattle were low ; tw& days before the purchase G. had written to the pris- oner, stating that he wanted a choice lot of cattle and requesting him to send on a car load. The prisoner, however, instead of sending the cattle to G. shipped them to Albany, sold them at a reduced price and did not pay the check. Held, that a conviction was error; that while there might have been a fraud, there were no false pretenses,a8 the vendor was cheated not by any false statement of facts on the part of the vendee, but by reliance upon a promise not meant to be fulfilled, and a false statemeut as to intention. Appeal from judgment of the General Term of the Superior Court of Buffalo, entered upon an order made May 15, 1882, which affirmed a judgment entered upon a vei-dict convicting the defendant of the crime of obtaining property by false pretenses. The indittmeiit charged that defendant on the 10th day of Februarj', 1880, at the city of Buffalo, with the intent to cheat and defraud John Thompson, did unlawfully, knowingly and designedlj'-, falsely pretend and represent unto the said John Thompson that he, the said John H. . Blanohard, was agent for Otto Gulick, of Utica, and that Otto Gulick, of Utica, wanted him to buy for him and send him eighteen cattle, and that he had a contract with Otto Gulick, of Utica, for buying cattle for said Gulick, and that said Gulick had agreed to pay him one dollar a head for buying cattle foi- him ; and the said John Thompson then and there lielieving the false pretenses and representations so made as aforesaid by the said John H. Blanchard, and being deceived thereby was induced, by reason of the false pretenses and representations so made as aforesaid, to deliver, and did then and there deliver to tUo said John H. Blanchard eighteen cattle of the value of 81,157.07. The material facts appear in the opinion. Samuel Hand, for appellant. Tracey C. Becker, for respondent. Finch, J. The defendant was indicted for obtaining property under false pretenses. The representations alleged to be false were stated in the indictment to have been that the accused "was agent for Otto Gulick, of Utica, and that he wanted io buy eighteen cattle for Otto Gulick, of Utica ; and that Otto Gulick, of Utica, wanted him to buy for him and send him eighteen cattle ; and that he had a contract with Otto Gulick, of Utica, for buying cattle for said Gulick, and that said Gulick had agreed to pay him one dollar a head for buying cattle for him." Taking this accusation as a whole, and construing it in the or- dinary sense and acceptation of the language used, it charges a false representation or agency in tiie purchase of the cattle for Gulick. It begins with that dirtct assertion, and everything added is on its face, not only consistent with it but tends to strengthen and corroborate such averment. Representing himself to be Gulick' s agent he says *-.3F iiUJ I »li»|l ) |Jk l l ^^M J'EOPLE V. ULAN'CUAUD. 841 t of purchasing cattle eneral authority so to id written to the pris- him to send on a cor ipped them to Albany, that a conviction was false pretenses, as the i of the vendee, but by erne lit as to intention. Superior Court of which affirmed a dant of the crime Jay of Februarj', tnd defraud John Y, falsely pretend the said John H. . that Otto Gulick, [hteen cattle, and buying cattle for him one dollar a ompson then and lons so made as deceived thereby epresentations so sre deliver to the •f 81,157.07. ig property under .Ise were stated in is agent for Otto en cattle for Otto ;ed him to buy for A a contract with ck, and that said buying cattle for ruing it in the or- it charges a false ie for Gulick. It ed is on its face, and corroborate c's agent he says that ho wants to Duy eighteen cattle for him ; that is, he as Gulick's iii^ent, which he claims to be, desires to buy tiie property for his priiici- [Kil. He adds that Gulick wants him "to buy for him " the eigliteen cuttle ; that is, the principal desires the agent to make that particular purchase in hie behalf. The accused adds Anally that he has a contract witii Gulick for making such purchases by tlie terms of wlilcli he, the alit. It is imi)0ssi- l)le to misuntlerstand the tenor of tliese representations taken together. Tliey import an agency existing, action desired and intended under such aofcney, and a compensation of one dollar a head as the reward for tlie service rendered. If precisely the representations stated in tlie indict- ment had actually been made to the vendor of the cattle, he would have understood and been justified in undei-standing that he was selling his cattle to Gulick through Blanchard as his agent, and that the sole interest of the latter in the transaction was to perform his duty and earn his commission as agent. If they are to be thiis understood and taken as a whole, there was a total failui-e of proof, for it was conceded that Blanchard did not at all profess or pretend to be Gulick's agent, or to be buying for him as principal for a commission payable to the agent. The vendor sold to Blanchui.i with no riglits or recourse against Gu- lick, and took the former's individual cheek for his pay, so tliat tlie representations alleged in the indictment taken as a whole were un- proved in tlieir entire scope and meaning. But they were not so taken and construed. While the indictment must show what the false pretenses were, and state tliem with reason- able certainty and precision,' it is not necessary tha\ the prosecution should prove them all.' A conviction was had in the present case, founded upon a part only of the representations stated in the indict- ment, which was permissible, but those claimed to be established were taken out of and separated from tlieir context, and clothed with a now and different meaning, and this presents what there is of the first point argued on belialf of the appellant. Disregarding entirely the alleged claim of agency two statements were culled from the repre=enta- tions recited in the indictment and made the sole basis of the convic- tion. These are that Blanchard said "he wanted to buy eighteen cattle for Otto Gulick," and " that Otto Gulick wanted him to buy for him and send eighteen cattle; " and the meaning attached by the court and jury to these words, was that Blanchard represented that he wanted to buy in his own name and on his own responsibility for 1 Hex ti. Mason, 1 Leach C. C. 487 ; Reg. v. Ilenshaw, L A C. 444. : .State v. MUls, 17 Me. 211 ; Rex v. Hill, B. B. C. C. 190. 343 FRAUD AND FALSE PUETEN8E8. Otto Gulick as a customer of his, and that Giilick stood ready as such customer to make the purchase and take the property. It is now said that the accused was indicted for one thing and con- victed of another ; that he was charged with a representation of agency and convicted on a representation which imported tlie exact contrary ; that the final construction put upon the words selected out makes them inconsistent with and repugnant to the other representations alleged, and introduces contradiction into the indictment ; and that therefore tlie words relied on can not bear the new sense given to them, and must still be read in tlie light of their context. The argument in this direction is not without force. The evil it points out is that the accused may have been mislead ; ihat coming prepartid to meet an accusation that he falsely represented himself to be Gulick's agent and to be purchasing as such, he is suddenly confronted with a charge that he claimed to be buying for Gulick as a customer ready to take the property by purchase from the defendant as owner and vendor. It was held in King v. Stevens,'' that " every indictment must contain a complete description of such facts and circumstances as con- stitnte the crime without inconsistency or repugnanCy;" and Lord Ellenborougli said that if the language be clearly capable of different meanings it does not appear to clash with any rule of construction ap- plied even to criminal proceedings, to construe it in that sense in which the party framing tlie criminal charge must be understood to have used it if he intended that his charge should be consistenfwith itself." ■ We should be impressed with the force of this argument but for two considerations. The representations relied on were proved almost liter- ally as they stand in the indictment, and in such case it appears to be the rule that the sense in which they were used, the meaning they were intended to bear, and what was assigned to be and was understood from them, is a question for the jury.'^ And besides, we are unable to see how the question of variance was fairly raised. The representations proved were received without objection that they were not pleaded. The motion to direct a verdict for the defendant went upon no such distinct and definite ground, and none of the exceptions to the charge present the question. It is best, therefore, to consider the main ques- tion argued at the bar. Objections were taken which go to the founda- tion of the criminal accusation, and which raise the inquiry whether any false pretenses were established. Those recited in the indictment and proved upon the trial resolve themselves into two elements: first, the assertion as an existing fact of a present business relation between I 5 East, 244. « Uex V. Archer, 6 Cox, 618. ■riHMMMM BSBesMimasnwi BS. PEOPLE V. BLANCH ARD. 343 c stood ready as such perty. or one thing and con- )resentation of agencj' d the exact contrary ; lectod out makes thorn presentations alleged, it ; and that therefore ven to them, and must ce. The evil It points ihat coming prepartid himself to be Gulick's enly confronted with a IS a customer ready to jndant as owner and every indictment must circumstances as con- ugnanCy; " and Lord ly capable of different iile of construction ap- , in that sense in which iiderstood to have used tent 'with itself." I argument but for two ?re proved almost liter- i case it appears to be the meaning they were e and was understood sides, we are unable to , The representations dey were not pleaded. ,nt went upon no such tceptions to the charge consider the main qucs- vhich go to the founda- se the inquiry whether icited in the indictment ito two elements : first, isiness relation between :her, 6 Cox, SIS. IJlanchard and Gulick, and second, the expression of an intention to act upon and in accordance with such relation. The accused declared that he was buying the cattle for Gulick ; that he couldn't make a draft on him, for he wouldn't allow him to draw; that he wanted the cattle for Otto, because they would suit him ; that they were for Gulick, who would remit the price in time to meet the defendant's post-dated check. Tiiere is here clearly asserted an existing business arrangement between Blanchard and Gulick, calculated, if truly stated, to influence the pur- chaser. It imported that Gulick at that time desired to purchase of of Blanchard eighteen cattle, selected by the latter, and stood ready to take them and pay for them. That was a representation of an existing fact. It imported also that Blanchard was buying with reference to this fact, and with intent to resell to Gulick, and with the means thus obtained meet his post-dated check. Tiiat was a representation of an existing intention and promissory in its nature. By a false assertion of the existing business relation Thompson could be deceived ; by a false assertion of Blanchard's purpose and intention, ho could not be. As to tliat he was forced to rely upon the defendant's honesty and integrity and necessarily took that risk. It is now claimed that the representations of fact, the assertion of an existing business relation between Blanchard and Gulick, were not shown to be false, and were proved to be true. If the jury were not author- ized to conclude that Gulick's letter to Blanchard, dated February 9th, reached him on the morning of the 10th, before he arrived at the cattle yards iu East Buffalo, that contention was correct. In his letter o* February 8th Gulick told Blanchard that he wanted a choice lot of cattle, and requested him to send on a car load. He testified, also, that Blanchard had a general authority to buy for him, as a customer, whenever cattle were low ; and had made purchases for him under both general and special authorities for a long time and to a large amount ; and that while he had never forbidden drafts on himself, he had re- quested Blanchard not to draw, but to allow him to remit. Disregard- ing for the present the letter of the 9th, and the fact appears to be that whe!\ Blanchard bought these cattle Gulick did want them ; he did de. sire defendant to buy them for him as a customer ; he did stand ready to take them and pay for them, and desired to remit the price, and not be drawn upon for it. When, therefore, Blanchard made the represen- tation stated in the indictment that Gulick wanted him to buy for him eighteen head of cattle, he told the truth. The business relation alleged to exist did exist, and the facts concerning it were not misstated, unless, as we have before intimated, the jury were warranted in finding that the letter of the 9th reached Blanchard before his purchase on the 10th. 344 FRAUD AND FALSE PKETENSES. Tlic letter itself is open to tlae criticism that it does not countermand tlie Older of tlie day before. It shows that (iulici« still wants the load of cattle, still (lesircs Blanchard to buy them for him as a customer, but says : " I can not tonvcniontly use any cattle this week." " I prefer to have you wait until next week, when I hope to be ready." But giv- ing to tliis rather mild expression of a wish the full force- claimed for it by the prosecution, tlio question reniiiins wiietlier there was evidence from which tlie jury were entitled to infer its receipt before the purchase of the cattle. Gulick says he mailed it on the ilth, but can not tell at what hour of tlio day ; that his custom was to mail such letters at the close of business f,)r the day at about six or seven o'clock. We may therefore presume that this letter was so mailed. It was proven that the mail in which tlie letter would naturally go west left Utica at 1 : 20 the next morning and reached Buffalo at eight o'clock. A previous mail arriving at about midnight was regularly distributed i« the morn- ing, and the carriers for its free delivery left the office at eight o'clock. They left, therefore, and started on their routes just as the later mail arrived, and before it could be distributed. The carrier on Blanchard's route who left the post-otlice at eight o'clock in the morning can not be presumed to have had the letter in question. When the carrier again went over that loute we do not know. So far we can presume from the ordinary course of business tliat the letter was in the Buffalo office at eight o'clock, and must also presume that it remained there until the carrier who started out at eight o'clock had completed his route, re- turned to the office and started out again for a second delivery. How many such deliveries there are in a day at Buffalo, and at what hours we do not know. We iiave no facts on which to found a further pre- sumption, and as it is conceded that Blanchard was at the cattle yards making his purchases between nine and ten o'clock in the morning, and came two miles and a half in a cutter from his home, it is scarcely pos- sible that he could have had this letter before leaving. The facts, therefore, do not warrant such an inference. On the contrary, the nat- ural and just presumption to be drawn from them is that the letter did not reacl^ defendant until after his purchase. To this must be added in a criminal case, the presumption of innocence not to be overcome by a mere chance or possibility, and the further fact of defendant's oath that he did not find the letter when he returned home after the purchase. We are of opinion, therefore, that the representations of fact as to the business relations existing between Gulick and the accused, and the statement that Gulick wanted him to buy eighteen cattle for him, were proved to be true. But his further statement that he " wanted to buy eighteen cattle for itmwmwM gaaa ^ya PEOPLE V. ULANCHARO. 345 not countermand till wants the load la a customer, but Jck." "I prefer •eatly." But giv- )rot- claimed for it lere was evidence jfore the purchase )ut can not tell at luch letters at the I'cdock. We may t was proven that eft Utica at 1 : 20 ock. A previous itcd i« the morn- ! at eight o'clock. } as the later mail eron Blanchard's arning can not be the carrier again presume from the I Buffalo office at Sfl there until the ted his route, re- l delivery. How nd at what hours md a further pre- k the cattle yards the morning, and it is scarcely pos- ing. The facts, iontrary, the nat- lat the letter did must be added in )e overcome by a defendant's oath 'ter the purchase, of fact as to the accused, and the ;le for him, were ghteen cattle for Gulick;" that he was " buying them for Otto Oulick ;" and that with tiie proceeds of such sale, he would meet and pay his post-dated check, was shown to be false ; for he sent the cattle at once to Albany, sold thcra there at a reduced price, and never paid his check given for the purpose. This brings us to the final question of the nature of this representation. It declares an intention and involves a promise. It states a present purpose, and design to sell the cattle when bought to (Juliek, and a promise to apply the proceeds resulting from such sale, to tiie payment of the post-dated check. " I am buying for Gulick," "I want these cattle for Otto;" could mean only tiiat the defendant bought them with a then present intention of sending them t(» Gulick. It Mas a statement of the design, and notice of the accused, in making the purchase. It represented what was at the time in his mind, and constituted his intention and so far as it tended to affect or intliience tlie seller, it was essentially a promise and related to the future. It was as if be had saitl, after relating the truth, that Gulick wanted the cattle, and stood ready to take and pay for them, that he would ship tliein to Gulick, and on receiving the price appropriate it to the pay- ment of the check. So far as this intention and promise were con- cerned, the seller necessarily took the risk of its fulfillment. He had to rely alone upon the supposed honesty and integrity of the defend- ant, and he was cheated not b}' any false statement of facts, but by re- liance upon a promise and intention not meant to be fulfilled. If one sells property on credit, induced to do so by the purchiiscr's represen- tation that he has a debt due him from a responsible debtor which will be paid before the expiration of the credit, and which the purchaser will use to pay the seller, the latter consciously takes upon himself the risk of the promise, although the facts stated are true. The debt re- ferred to may exist and be paid in time, so that the purchaser has the very expected means of payment, but does not pay and never meant to. Here may have been a fraud, but certainly no false pretense. In the present case the vendor put his confidence in two things ; in the facts which made it possible for the buyer to get the means, and then appropriate them to discharge his debt. Such protection as the facts could give, the vendor got. The asserted means of procuring the money to meet the check in fact existed, but the promise to use and tben to pay, was broken, and the vendor suffered precisely at the point when he had to take the risk if he gave credit at alL We have found no case which holds that an indictment for false pretenses can be founded upon an assertion of an existing intention, although it did not in fact exist. Pollock, C. B., in Archer's Case,^ describes the present 1 Dears. C. C. 453. 346 rUAUD AND FALSE PRETENSES. case very nearly in bis statement tliat " if a man says : ' I want goods for a certain lioiise, and I mean to send them to that liousi' ; soil tlu'in to me,' that would not be a representation of an existing fact." Other authorities lead to the same conclusion.' The prosecutor relies somewhat in the case of Lesser v. People,' but there a fact was falsely represented that the aiaker of the post- dated check offered in payment, has a business, and the check was good. Here as we have seen the fa ts stated were true, and only tin- intention and promise were false, it is sought to give these the ap- pearance and force of a fact misrepresented by saying that Blanchard falsely asserted an existing stalm, a present relation ; or that he was then and there acting ui)on such business relation, whereas, in truth and in fact, he was not so acting. But tl»e intent with which he acted, is agidn the necessary test. If that was as he stated, there was iw falseliood anywhere ; if it was not, that became the sole and only un- truth, since whether he was acting upon the relation or outside of it, depended upon nothing at the moment of the purchase, except his then present intention. With either design in his mind, his action and con- duct up to the closing of the contract would have been the same, ^ith no external or tangible difference. By an existing status or relation, the prosecutor must necessarily mean one which is compounded of tin true facts and the false intention, and mingle the two in order to con- struct a representation of fact. But the falsity and the fraud are still in the intention alone, and a conviction can rest upon nothing else, k- cause every thing else was proved to be true. And this, we think, must become very evident when we consider upon what the vendor neces- sarily relied in giving credit. There were two risks apparent. Blan- chard miglit be unable to pay or unwilling to pay. He might fail to find a purchaser of the cattle, or sell to one who was irresponsible, tn d 80 fail to pay for want of means. Against this risk the seller guardeil himself by saying, "I want to know to whom the cattle are goinu'?" When told that it is Gulick who staisds ready to take them, the scljor was satisfied that the purchaser need not fail in payment for lack of ability to pay. But he took also another risk. He knew that tlie moment the sale was complete, Blanchard could sell to whom he pleased, and might with the money in his pocket refuse to pay. That was the risk of future action. It respected not an existing fact, but one yet to arise, and as to that he was compelled to trust, and did trust wholly to Blanchard's promise and his character as the sole guaranty 1 2 Whart. sec. 2118 ; West's Cnse, 1 D. 4 B. C. C. 87S ; Banner v. People, 22 N. Y. 417 ; Reg. t>. Bates, 3 Cox, C. C. 201, 203 ; Beg. v. Jennison, 9 Id. 158; Rex v. GoodhaU, Rusb. A Ry. 461; People n. Tompkins, 1 ParfcCr. | 238. 8 73 N. Y. 78, %iij"CJ- ^^m SES. 11. V. OAnriKTT. 847 n says : ' I want goods I tliat lidusi' ; soil tlu'in uxistiug fact." Other of Lesser v. People,' lie iuaker of the jjost- a, and the check wsj vcre true, ami only tlif it to give these the ap- saying that Blanchanl ilation ; or that he was ■tion, whereas, in truth at with which he acted, stated, tliere was iiu e the sole and only iin- elation or outside of it, ircbase, except his then ind, his action and coii- ive been the same, whh sting status or relation, li is compounded of tin the two in order to con- Y and the fraud are still t upon nothing else, he- ind this, we think, must what the A'endor neces- » risks apparent. Blan- pay. He might fail to was irresponsible, ;ti d i risk the seller guarded 1 the cattle are goinir?" to take them, the sollor 1 in payment for lack of I sk. He knew that tlie ould sell to whom he et refuse to pay. That lot an existing fact, but d to trust, and did trust iter as the sole guaranty lople p. Tompkins, 1 Park.Cr. | 8, of its fulfillment. The vendor as wo have said, was cheated precisely at that point; not bj' a false pretense, but Ity a broken and fraudulent promise. We are of tlio opinion, therefore, that the conviction of the dcfcndtint upon the facts developed on the trial, can not be sustiiined. The judgment of the General Term and of tlit! Criminal Term of the Superior Court of Buffalo, should be reversed and a now trial granted. All concur except Asukews, C. J., and Tuacy, J., not voting. Judgment reoemed FALSE PRETENSES — PRISONER MUST BE BENEFITED BY ACT. R. V. Gauuett. [Dears. C. C. 232.] In the English Court for Crown Cases Reserved, J.^5,?. I The Defendant was Indicted in England for a misdemeanor In attempting to obtaiit moneys from 1^. &Co., by fiiise pretences. Tlio defendant, iiad ii circular letter of credit i-'Tkod No» 41, from I). ^. & Co., of New York, for £210, with autliority to draw on L. & Co. In London, in favor of any of the lists of correspondents of the bank in different parts of the world, for all or such sums as he might require of the £120. The circul.ir letters of credit of D. S, & Co. were each numbered with distinctive nambers, and It na8 tht) practice of the correspondent on whom the draft was drawn, after giving cash on Huch draft, to Indorse the amount on the circular letter; and when the whole sum was advanced, the Inst person making such advance retain'^d the circular letter of credit. The defendant having procured from D. S. & Co., of New York, a circular letter of credit for £210, No. 41, came to England, and drew drafts in favor of the named cor- respondents there in ditfcront sums, in the whole less than £210, retaining the circular letter, the sums so advanced being Indorsed on the letter. He then went to St. Peters- burg, and there exhibited the letter of credit to W. & Co. of that place, a Arm mentioned in the list of correspondents, the letter hoving first been altered by him, by tho addition of the figure S to 210, so converting It into a letter of credit for £5,210. He obtained from tliat house several sums, and finally a sum of £1,200, and another of £2,500, on drafts for those amounts on L. & Co. W. ft Co. forwarded these drafts to their house in London, who prcseiitej the draft for £1,200 on L. A Co., and required payment of it. L. A Co. having been advised of the draft. So. 41, by D. S A Co., as a draft for £210 only, discovered the fraud and refused to pay it. The defendant being afterwards found in England was t.iken into custody and indicted, as before stated. Tim jury found tho prisoner guilty, and in reply to a question put by the learned baron as to whether, although the defciulunt's Immediate object was to cheat W. & Co. at St. Petersburg, by means of the forged letter of credit, he did not also mean that they or their correspondents, or tho iiKiorsecs from them should present the draft and obtain payment of it from L. & Co., and the jury further found that he did. Held, that it L. & Co. had paid one of the drafts the defendant could not in law have been found guilty of the statntoi-y misdemeanor; aiul, conseqaently, that he could not be found guilty of attempting to commit the com- mon-law misdemeanor. The prisoner was tried before me at the July Sessions at the Old I Bailey for a misdemeanor. The indictment contained several counts. I The seventh count stated, " that heretofore and before and at the time of the committing of the offense hereinafter mentioned. Sir Peter 348 KUAUU AM) KALSK !'IIKTENSE8. Laiirip, Knij^lit, and others curried on tho business of banlters at tlio parisli of St. Mildred, the Virgin, in London, and witliin tins jurisdic- tion, etc., and undiT the name or style of tlut Union Hank of London. " Tliat tlie said Sir Peter Laurie and olliera as sucli tianlters as afore- said luid been and were tl»e eorrespondents in London of Alexander Duncan and others wlio carried on business at New Yorii in the United States of Norlli America, under the style or firm of Duncan, Sherman & Co. *' Tliat the said ^Slessrs. Duncan, Sherman & Co. had been and were accustomed to give to audi persons as sliould apply to them for the same authority to dem.nnd from the said Sir Peter Laurie and ethers, as such bankers and correspondents as aforesaid, payment of divers sums of money for account a I on the behalf of the said Messrs. Dun- can, Sherman & Co. •' That the said Sir Peter Laurie and others, as such bankers and cor- respondents as aforesaid, had Iteen and were accustomed to pay to the persons so authorized as aforesaid, tlie sums of money demanded by them in i)ursuance of such authority, for the account and on the behalf of the said Messrs. Duncan, Slierman «& Co. "That tho prisoner Gabriel Sans Garrett, well knowing the premises and being an evil-disposed person, and devising and designing, etc., on the 8d March, 18.')3, at the parish, etc., witliin tlie jurisdiction, etc., did demand payment for the account and on the behalf of the said Messrs. Duncan, Sherman & Co., from the said Sir Peter Laurie and others, as such bankers and correspondents of the said Messrs. Dun- can, Slierman & C ).; as aforesaid of the sum of £1,200 and did then and there unlawfully and falsely pretend to the said Sir Peter Laurie and otliers that he the said Gabriel Sans Garrett had been and was then duly autho '.ed by the said Messrs. Duncan, Sherman & Co. for their account and on their behalf, the payment of the said sum of £1,200 from the said Sir Peter Laurie and others, as such bankers and corre- spondents of the said Messrs. Duncan, Sherman & Co. as aforesaid, with intent, etc., uiiia\^fully, etc., to obtain from the said Sir Peter Laurie and other diverse moneys to a large amount, to wit, £1,200 of the moneys and pr >w i-ty of the said Sir Pet^r Laurie and others, to cheat, and defraud, them of the same. " Whereas the said Gabriel Sans Garrett, had not at any time been, and was not then, or at any time duly or at all authorized by the said Messrs. Duncan, Sherman & Co. to demand for their account, or on their behalf or otherwise, from the said Sir Peter Laurie and others, as such bankers and correspondents of the said Messrs. Dun- can, Sherman & Co., as aforesaid or otherwise, the payment of the said sum of £1,200 or any part thereof, which said false pretense the pri8- : .M»-wfttf.ifctV>t^iaiM ftag a v/i^ ti^ai'MWMfcv." B. V. OAKKETT. 349 of bankers at tlie itliin tlio jiiriHilio- IJank of Lomlon. 1 hankern as nforc- ulon of AlexaiickT Vork In the United Duncan, Sherman lad been and were ly to tljem for the Laurie and ethers, payment of divers said Messrs. Dun- h bankers and cor- oraed to pay to the aney demanded by t and on the behalf jwing the premises designing, etc., on B jurisdiction, etc., beiialf of the said • Peter Laurie and ! said Messrs. Dun- 1,200 and did tlien iid Sir Peter Laurie I been and was then man & Co. for their said sum of £1,200 bankers and corre- fc Co. as aforesaid, the said Sir Peter It, to wit, £1,200 of aurie and others, to )t at any time been, authorized by the for their account, r Peter Laurie and 8 said Messrs. Dun- payment of the said se pretense the pris- oner at the time, etc., knew to be false. And so the Jury say, that the Gabriel Sans Garrett by means of the said false pretenses on the day, etc., at the parisli, etc., did attempt and endeavor unlawfully, etc., to obtain from llie said Sir Peter Laurie and others, such money as aforesaid, then being their property, and to cheat and defraud them thereof." The eighth count stated the pretense to have been made to Thomas Druitt, then being clerk to Sir Peter Laurie and others, and was in other respects the saiuu as the seventh. The fifteenth count charged, that on the same d.ay and year, he did unlawfully, etc., pretend to Sir I'eter Laurie and others, that he had been, and then was duly authori>!od by Alexander Duncan and others, then carrying on business in New York, in the United States of Amer- ica, under the style or firm of Afessrs. Duncan, Sherman & Co., to (leman be forged. As naight, supposing ilty of obtaining y passec* through tliat every time it jT by false pre- ey he would have e to the defendant i a cheque upon a t beyound his ac- isented but not to ! conviction, was nstitute an offense getting of money lother to part with ating is sufficient, if person." Sup- 7 a false pretense, ould it not be ob- !alse pretense, in- lefraud. 8 the word "get" eference to its use eny and false pre- the benefit of the lefraudfcd.' Here It is not necessary 3uld actually hand This case is dis* 18 £5 forged note. Wilsoa & Co., in , should present a . Thus Wilson & defendant himself, Den. C. C. 1S8. as the persons to whom the Union bank, with wliom he falsely assorts ho has credit, should pay the moucy. They are the persons to receive it. Lord Camp bell, C. J. AVhat were they to do with the money when received ? Huddleston. They were to apply it to his own use. An actual re- duction of t!he money into the possession of the defendant can not be necessary. WaveU's Case is distinguishable, the decision being, that no specific sum was obtained, but credit in account. Coleridge, J. How is the false pretense made out? He had the circular letter of credit in his possession. Tlie cheque imported only that he had funds. Pauke, B. Tlie check itself represented that it was authorized bj' the letter of credit. It referred to it by the figures 41. But that point is not reserved. Huddleston. If the bankers had paid the money, they ihight have sued defendant for money jiaid to his use. Their payment to Wilson & Co. would have been a good payment to him. Byles, iSerjeant, replied. The court then gave judgment, with argument upon the first two points as follows : — Lord Campbell, C. J. I am of opinion that the conviction can not be supported. The question is, wliether, supposing the Union Bank lionored the defendant's draft upon them, he could then have been in- dicted under this act of Parliament, for obtaining any chattel, money, or vahiable security. I am clearly of opinion he could not. I do not pro- ceed upon the ground that the offense was committed beyond the juris- diction of the court, for if a man employ a conscious or unconscious agent in this country, he may be amenable to the laws of England, al- though at the time he was living beyond the jurisdiction ; but I think tiiis would not have been an obtaining of money within the meaning of the act of Parliament, which contemplates the money being obtained according to the wish and for the advantage, or at all events, to gain some object of the party who makes the false pretense. Here it was not to gain any object, and it was not according to ims wish. He would derive no benefit from the cheque being honored. 1^'e had obtained his full object in St. Petersburg, and had the monej' in his pocket, and it would have been for the advantage of the defendant if the draft had been burnt or sent to the bottom of the sea. The statute was intended to meet a failure of justice arising from the distinction betweea larceny ami fraud. But with regard to larceny, wo must see whether there is not some advantage to be gained, not necessarily a pecuniary advan- tage, but some wish gratified by the taking and conversion, otherwise it 3 Defences. 38 854 FRAUD AND FALSK I'RETKNSES. would not be birceny. Then we are pressed by the lindins of the jury, but they nierelv meant to suy that tbc defendant foresaw that the cheque would be presented to the Union Bank, and not that he wished it. In one sense it may be said, that he meant it accoid- in.' to the maxim, that cveryl)ody must be piesun.ed to meau or" intend the natural conse.iuences of his act, but it is imposs.l.le to say that it was the real wish of the party when he drew the che.iu., that it should be presented and honore.l. A iiross fraud has been com- mitted, but not an ol)taining m..ney umler false pretenses withm the statute. . Paukk, B. The word "obtain" as used in the statute, seems to mean not so much a defrauding .)r depriving another of his property, as the obtaining some benelit to tlie party making the false pretense. In Wavell's Case, there was a false prt-tense, with the view of obtainmg a specified sum of monev, and it appears to have been decided upon the ground th'at no chattel or valuable secuiity was obtained by mean.* of that false pretense. T'lie difficulty I have had supposing it to be the law, that this is not a ease in which the party may be considered as having obtained some benelit, but I do not feel so strongly upon tins point as to compel me to differ in opinion from my lord. It is not shown that he would have obtained the money if the draft had been honored and the money paid. I think, therefore, this conviction fails. Coi-EKimiK, J. Upon the question of construction, the p<.int to be considered is, whether if the money had been obtained, this would be a case witliin the fifty-third section of the act. It is quite clear it can not be said the defendant actually obtained the money himself, nor do I think he obtained it by means of any agent. The obtaining must be either by the party's desire or intention, or for his benefit, but there is no foundation for saying that the money would have been obtained in this case either in one of these ways or the other. The defendant did not desire it, he could not have intended it, for he knew perfectly well that the payment was out of the question. The finding of the jury only means, that the defendant contem (dated it as aprobable thing, that Wilson & Co. would present the draft. Maii.k, J. I think all the defendant did with respect to the matter in hand was done at St. Petersburg, and no part of it in London. That which was done in London by Wilson & Co., is sought to be brought home to the defendant as an act of his, when it is clear he would desire that that very act should not be done. It Is quite clear the jury never intended to say (if they did it is quite contrary to the facts of the case). that he requested, desired or ordered or made Wilson & Co. his agents to present the draft, but they must have meant that he considered that would take place which would naturally take place. ■iiJIIH—l ^i^B FIIAUD AND r.VLSK PUKTENSES. 3') 5 \Q tinding of the hint foresiiw tliat Ilk, ami uot tliiit ineiuit it lu-coril- sumcil to imau t it is impossihle drew tlie chetiue, ukI has been ooni- jtenses within the statute, seems to of his property, as iilse pretense. In ew of obtaining a decided upf)n the lined by means of posing it to be the ])e considered as strongly upon tliis ny lord. It is not the draft liad been lis conviction fails. in, the point to be ?d, this would he a is quite clear it can ttey himself, nor do 2 obtaining must be benefit, but there is re been obtained in The defendant did knew perfectly well inding of the jury 19 aprobable thing, ^spect to the matter t in London. That ught to be brought lear he would desire clear the jury never e facts of the case), ion & Co. his agents t he considered that If a man uttered a forgeil note with intent to defraud tlie Bank of England, if the Viank pay the note, they woiihl l»c defrundetl, and he must be responsible for his act. The question theie (h-pends upon the manner or mode in which tiie bank jiarts with the nuuiey ami not upon who gets it. By flie cireuni^taiices under wliicii tho bank is elicated out of their money, they are defrauded. But wlu-tlier nio'iey is ob- tained or not by false pretenses does not depend upon the mode in which it is obtained, but upon the person and manner by whom and in wiiiili it is received. Mere the money wouhl have been ol)tained by some persons whom he foresaw would iiresiiit the draft. They did not mean to apply the money to his iiurposes, liut tlieir own. I am, there- fore, of opinion that the prisoner is not criminally responsible for what toi)k ))lace in London. He did not onler it to be done. It was no act of his. And for the prisoner's own act in St. Petersburg, he is not re- sponsible in London. I'l.ATT, B. The matter was complete as far as the defendant was concerned when the parties at St. Petersburg were deluded into giving him money upon the cheque. It can not be said that a party who pre- sents a cheque for his own benefit is the agent of another who receives no benefits whatever. The other members of the court concurred. Conviction quu/ihed. NOTES. § 441. Fraud to be Indictable at Common Law Must Injure Public — A mere private fraud was not indictable ut comniou law.' In R. v. Briinn,^ the defendant came to a mercer, and afllrmed that slie was a servant to the Count- ess of romfret, and was sent by her to fetch some silks for the queen, eiideav- oring thereby to defraud the mercer; whereas, in fact, she was no servant of the countess, and was not sent ujion tlie queen's account. After verdict for the Khig, it was moved in arrest of judgment, that there being no false tokens or any actual fraud committed, there was no offense indictable. Reeve, contra, cited a case from Veiitrls of an indictment for a conspiracy to chariie ii man with a bastard child, where there really was no child, so that the party could not suffer. The court said, there the conspiracy was the crime, and an indictment will He for that, though it be to do a lawful act. This is no more than telling a lie, and no custom being shown to maintain It, the judgment must be arrested. In B. v. Pinkney, tlie defendant was indicted for selling a ' R. V. Wheatly, 2 Burr. 1125 ; 1 W. HI. 273 HIckey, 2 Par*. 317 (1843) ; Nlven's Case, 6 (1761). And Bee liennett and Hoard's note City H. Kec. 79 (1820). to this caee, 1 B. A II. Ld. Cr. Cas. « ; Com. s 2 Str. 866. V. Woodrun, 4 Clarke, 362 (1832) ; Com v. ■MM 350 rUAUD AND FALSE PRETENSES. sack of corn at Rlppon market, which he falsely affirmed to contain a Winches- ZXZ:uU rZa et in facto ,lur,nur. '^^<^^^'<^^'^^ Z^T^^^Z auashed upon motion. / nd in the same case it was said, that if a shopkeeper who deals in cloth pretends ^,o sell ten yards of cloth, but Instead of ten ya de Ch onl. delivers only six. yet the buyer can not i"f '^^ ^ "^^f^^^^^^^^ onlv six because he might have measured it, and seen wlfbther it held out as 1 ouKh to do or not. In It. v. mcKolson, before Lord Raymond, the defendaut being ind4cted for selling six chaldrons of coal, which ought to cou ain thir y. six bushels e.ich and delivering six bushels short. Lord Raymond ordered him to be acm S The same decision was made in B. v. D««n«,« > and in B. v 0«ftor« ou vear afterwards, in the same court. Mr. Justice Ashton ti»o„ght Tt ids selling short measu;e instead of full measure, was worthy the at ten- 10. o the Leg slature, although It might not be indictable at common law unless cmr.'edo be bi false measure; and Wilmot. J., added: .'The reason w^w tlds "■'uot indlctabie, is, because it is in everybody's power to prevent Th 'sortonmpo U In, wh;re;s a false measure is a general i-PO^'tJon "pon he public which can not well be discovered." In B. v. ^'"»«"^»«'' »»»; «**• la^^w's charged with having delivered to Susan Farmer two hundred an . - ty7our gallons of strong beer, when he ought to have delivered two , V ired and eigl^tv-eigl.t gallons, as was agreed and paid for. It was moved to auasrthirinEmenl as this was a fraud of a private nature, for which an action ipon hecase for a deceit was the proper remedy, and here was no charge at th ndant sold by false measure. This was held a mere action <>«d«; cli ' th' hu.:.ctment was quashed.' So, it is not an Indictable cheat ohtc . "oods ou a promise to send the money for them by the servant who should brln.' them." And in Hartn^nn v. Co..nonv,ealik,^ it was held that o - iTulng a false credit otherwise than by false tokens, or the removal and secret- ^g of goods with intent to defraud creditors, are not indictable at commo law And this was held in Rex v. Lara,* where tl.e defendant, in payment lor iods pliased, fraudulently gave a check on a bank where he knew he ha «o funds Lord Kenyon said : " What the defendant did was immora and hishj: repreheuslble. but as he used no false token to accomplish his deceit, the judg- "t Tex ^'ZenUhl defendant was found guilty of .• knowingly exposing for sale and selling a gold chain, uuder the sterling alloy, as and for gold of the true standard weight " On motion in arrest of judgment. Lord Mansfl d la"l .. Th^que^ ion is. whether the exposing wrought gold to sale under e sJlndard is indictable It common law? It Is clearly an ^^^-'''^^^"^^'J^ cUne to think it is one of those frauds only which a man's own commo ilce ought o be sufficient to guard him against, and which therefore is no fnrt.7fahl but the party injured is left to his civil remedy." In B. v. IhiffitW hf defenlnTtas indl^^^^ for a cheat in delivering less -al than ^s pr- chased but the indictment was quashed. In Betrina v. Jon««,nhe defendan came t;> A pretending that he was sent by B. to receive £20, and he received it Whereas rcUdnlt'send him. Being indicted therefor, .he indictment .« 1 3 Burr. 1130. s 1 WllB. 301. • See, nl»o, Bex v. Ueed, 7 C. * P. 848. 4 Rex V. Goodhall. B. * K. O. O. 461. • BBarr.eO. • 6 T. R. 565. I 1 Cowp. 323. » Say. 146. • lS8lk.379;6Mod. lOB. ^ya FRAUD NOT INDICTABLE AT COMMON LAW. 357 contain a Winclies- the indictment was tliat if a slioplieepcr Instead of ten yards ct him fcr delivering •ther it held out as it mond, tlie defendaut ;ht to contain thirty, uymond ordered him imnage,^ and In li. v. stice Ashton thouglit as worthy the atten- ibie at common law added: «'The reason 's power to prevent eral Imposition upon '. Combrune,* the de- ner two hundred and > have delivered two Eor. It was moved to nature, for which an nd here was no charge a mere action of de- a. Indictable cheat, to a by the servant who ,» it was held that ob- he removal and secrct- indictabie at common ndaut, in payment lor lere he knew he had no is Immoral and hislily (h his deceit, the judg- [ «' knowinp;ly exposing , as and for gold of tiie ;ment, Lord Mansfleid gold to sale under the n imposition, but I in- a man's own common 1 which therefore is not dy." InB. V. I>i<^«Wi' ess coal than was pur- Y. Jones,* tiie defendant ire £20, and he received for, the indictment wu quashed, the court saying: "It is not Indictable unless he came with false tokens. We are not to indict one man for makiut; a fool of another. Let him bring his action." • In Bex V. Channel,^ an indictment was against the defendant for ♦• that he lieeplug a common grist-iiilll and boy employed by W. B. to grind three bushels of wheat, did vi ctarmh, iUicite take and detain forty-two pounds weight of the wliciit." Upon a demurrer, judgment was given for the defendant, there being no actual force laid, and tills a matter of a private nature, for which an action would lie. In Hex v. Haynes* it was held not Indictable for a miller, who received good barley at his mill to grind, to delivii- a mixture of oatmeal and bar- ley meal in return. The meal given in exchange in this case was in fact musiy and unwholesome, but as the indictment was Insulllcient in its allegations to convict upon that point alone, the judgment was reversed. Lord ElleuborougU said: "As to the point, tliat this is not an indictable offense, because it respects a matter transacted In the course of trade, and where no tokens were exhib- ited by which the party acquired any greater degree of credit, if the case had been tiiat this miller was owner of a soke mill, to which the inliabitants of the vicinage were bound to resort in order to got their corn ground, and that the miller's abusing the conlldence of tliis, his situation, had made it a color for practicing a fraud, this might have presented a different aspect; but as It now is, it does seem to be no more than the case of a common tradesman who is guilty of a fraud In a matter of trade or dealing, such as is adverted to in Jiex V. Wheatly, and the other cases, as not being indictable. These objections, therefore, and one is sufBcient, seem to be fatal." In Commonwealth v. Warren,* Warren was indicted for contriving and Intend- ing to deceive, cheat, and defraud one Adams, by falsely pretending and afflrm- ing to him that his name was Waterman, that be lived in Salem, and there kept a grocery store, and that he wished to purchase goods on credit, giving his own note as security therefor; and Adams, conlldlng In such false pretenses and afflrmatlons, sold him the goods, and took his note, which he subscribed with the name of Waterman. This was held no crime. Parsons, C. J., cald : " We sie here no conspiracy, for the defendant was alone in the fraud, and no false tokens to induce a credit; and as for false weights and measures, there is no pretense. We can not, therefore, consider tlie facts stated in the indictment (however injurious they were to Adams), as constituting a public indictable of- finse." It was held no crime, but only a private wrong, for the grantee of a died, lodged with a third person as an escrow fraudulently to obtain posses- sion of the deed from such a depositary.* In People v. Babcock,^ A., having a jiulgraent against B., the latter said he would settle It by paying money in part, and giving his note for tlie residue ; on wliich A. drew a receipt in full discharge of the judgment, and B. obtained tlie receipt without paying the money or giv- ing the note; upon which he was Indicted for having obtained the receipt "falsely, fraudulently, and deceitfully, and under false colors, acts and pre. texts," etc. It was held there was no common-law offense, no cheating by any false token, and nothing but a false assertion, which common prudence would have guarded against, and , therefore, that no Indictment would lie. In People Mod. lOB. 1 2 Ld. Raym. 1013. a i Sir. 793. » 4 M. & 8. 2U. 'I 6 Mass. 72. ^ Com. f. Ilearsey, 1 Mass. 137. ■! 7 Johns. 201. 35.S FUAUI) AND I'ALi^K I'IMCTEXSKS. V. Millfi;' where llic deft'iulant obtained possession of a promissory note by pre- teniiin^ tluit, he wislud to look iit It, and then carried It away, and rcfusid to deliver it to tlie owner; It was hehl th-it tliis was merely a private fraud, ami not pnnishable criminally, lu iSKUe v. WiUon,- it was hehl not an Indictable cheat to sell a girl as u slave who was not known to be free, and lae prlnciplf of the English diiisions was approved. Neither is it an indictable cheat to put a large stone int . one roll of butter, with Mii,.nt to defraud the buyer.' So a bare lie Is not indictable,* as obtainini: a quart of whisky by falsely pretending to be sent by iiuothor for it.* In Vomnwiiweiillh v. l!ukc;<^ the prisoner falsely represented to a lady that her husband hud just bein arrested and was about to be sent to prison, but for *+0 he could jjut l»l"> ^'"*^. " l'^^" **•"' '"^ "'"^''^ f-''*^'^' '''"' '^''^' money. In charging the jury Allison, J., said that in order to convict of false pretenses the re|)rt- sentation must be such as to cause the party deceived to believe the defendant responsible for the credit given. A mere naked lie, void of such representation of proi)erty responsibility was not sullleient. But by many statutes both in Kngland and the United States the fraudulent disposition of goods and obtaining goods by fraud or "false pretenses" is Indictable. § 441'. Fraud — Selling MortfiragedProperty — I'nder the Texas statute, the mortgage must be iu wrilln;: and the party injured must be the holder of tlie lien.' To convict of fraudulently disposing of mortgaged property, the mort- gage must be subsisting, valid, and uivjiaid at the time." A growing crop is uoi, " personal or movable property" within the Texas Code." § 4i;j,. Removing Goods with Intent to Defraud — Befuaal to Sur- render Not. —To constitute the offense of fraudulently removing goo7). 1th, 1 Brewst. 348 (18(i7). Iiuke, 37 Minu. 310 (1880). UKKACH OF rONTUACT — M.\TTEl{.«t OK OPINION. 359 , linage of residence of himself and family wliidi lie had communicated to others, tvca though the creditors did not hear of it.' ji 444. Removlnir Nuisance. — A mortgager who removes a building Miiiaied upon mortgaged premises which is so ruinous as to be a i)ul)lic nuisance, for tlie purpose of abating the nuisance does not thereby Incur the penalty of a vtatutc prohII)ltlng the removal of a building " with the intent to impair or ., -sen the value of the mortgage. "- ti 44:i. False Pretenses — Breach of Contract not Indictable.— This is laid diiwa in a numl)er of early cases. In /.'. v . nninluim,' there was an indictment for ;ii:it A. liorrowed £3 of the i>risoner, and pawned gold rings to secure the pay- ment; and at the day, A. tendered the money, but the prisoner refused to de- ;ivcr up the rings; l)ut this was considered only a breach of civil contract, and imt Indictable. In L'. v. Bradford,* a physician was iuilicted for not curing his patient In three weeks, as he liad promised to do, but the indictment was <|inished as being only a l)reacli of contract. And where the ju.stices had made ;iii or.ler that A. should pay his tailor i7 for work done, which, lie refusing to ilu, was indicted ; the indictment was subsequently quashed, for it was a matter ii.)t indictable.* In R. v. Xehvff* the defendant had borrowed £000, and prom- ised to send the lender flue cloth and gold dust as a pledge ; but In fact he .«ent i;o gold dust, but only some coarse cloth, worth little or nothing. The court >ui(l that was not a matter criminal, for It was the prosecutor's fault to repose Mich confidence in the defendant. 5 440. Puffins Ooods. — Opinion. — The mere puffing or exaggeration if the quality of goods Is not a false pretense.' The law does not extend to iiiiic "tricks of trade," as they are familiarly called, by wlilch a nuin puffs his Hares and deceives no one, as this Is an excellent piece of cloth, or this Is the bi St horse in the world," Or where a seller says that a lot Is of a certain value, I r is " nicely located," " or that certain spoons arc as good as a noted manufac- turfr's.w la a prosecution for false pretenses in the sale of a mortgage, if the prop- I rty is worth the mortgage It Is Immaterial that the prisoner represented It to be worth more." In Wallace v. State," S. had W.'s note for «150, and agreed with him If be would purchase land of N. he would credit his note for that amount, and W. imrcliased the land at J|130, l)ut represented to S. that N. had raised the price to $150, and S. agreed to take it at that price if W. could not get It for less. N. loiiveyed the land as S. directed, and S. gave up the note to W. ««S.," said the court, " knew the land as well as W. did. He got the title to the land for which he contracted and paid only the price he agreed to pay. He was deceived only as to the price W. bad paid for the property, but not as to the ownership, the title or the value of it. It was not, therefore, a false pretense in Its legal . Mlun. 271 (1872). ' 1 Salk. 379. ' 2 L. Raym. 360. ' II. t'. Brown, 3 Salk. 189. ' 1 Salk. 151. " It. V. Boed, -CAP. 848 (1837). » State V. Phlfer, es N. C. 325 (1871) ; State , Young, 76 N. C. 258 (1877). > People t'. JaoobB, 35 Mich. SB. i» B. V. Bryan, Dears. & B.«t5 (1857). II Keller t'. State, 61 Ind. 111. >!11 Lea, S43 (1883). mum.' 3(J0 TRAUD AMI FALSE I'UKTKNSKS. Ill II. V. A«e,' the prisoners, Osciir and Joseph Leo, were Inflicted for endtav. orlnK to obtain iiSs of Kdward Hye by fiilse pretenses. There was a sccoud count for a consplrucy to obtiiln money by divers false pretenses. The evidence showed that Joseph Lee had gone Into the shop of the prose. cutor, a pawnbroker, and offered an All)ert chain in pledge. He asked iiis for it, representin-; that It was gold; that he liad bo\iglit it in Oxford Streit, and had given £3 lOs. for It. It was tested and found to bo little better thau brass. There was a very small portion of gold, together with a little silver, the chain being of the value of li's. A policeman was sent for, but before he ar- rived an Inspector brought into the shop Oscar Lee, who had lieen waiting ouU side. lie said it is my brother; wo are dealers; you can do nothing with us: they are nine carat gold chains ; we bought them at l)el)enham & Storr's. F. JI. Lewis (for the defendants) , submitted that there was no case to go to the jury. The statements which were made by Oscar I.ee in the presence of his brother, after he was brought In by the inspector, can not bo taken into ac- count, as they ^,cre made, not for the purpose of obtaining money, but in order to induce the prosecutor not to give hi ii into custody. With respect to the representation made that the cliain was gold, that would not be a false pretense within the statute. In Jteginn v. linjan,^ it was held that a similar representa- tion would not support an indictment. There the defendant had falsely staled that certain forks wldch he offered in pledge were equal to Elklngton's (Elklng- ton's plate being an article of well known and recognized value in the trade), but the court held that such a misrepresentation was not within the act, It being With respect to ([uality only, and not as to the description of the thing Itself. Then the article is clearly of some value, and the best gold chains are not made of fine gold, they all have alloy mixed with the more valuable metal; and in this case the cliain contains some gold, although in a very small quantity. Sleigh (for the prosecution). The case is within the statute. The question for tlie jury will be whether this is a gold chain within the recognized meaning of that term. If the contention on the otlier side is correct, then the most minute fraction of gold introduced into a chain of brass would constitute the brass chain a gold one. In Begina v. Bryan the false statement was simply with regard to quality; here it is made with reference to the thing itself.' At all events there is evidence on the count for conspiracy. Lewis (in reply) The two cases cited were fully considered in Begina v. Bryan, and the same arguments were used. As to the count for conspiracy, that must fail, as the conspiracy is alleged to be by false pretenses to obtain, etc. Thk Common Serjeant. I think there is no evidence to go to the jury. It is the constant practice for the seller to exaggerate the value of his goods and for the buyer to depreciate it without coming within the charge of "false pretenses," as meant by the statute. If because a man represents an article to be equal in quality to something which it is not equal to, he is liable to be in- dicted, charges of this kind would be multiplied to an alarming extent. I think the prisoner must be acquitted. Not guiUy. 1 8 Cox, i233 (1869). 2 7 Cox's Cr. Cas. 812, s Reg. V. Roebuck, 7 Cox, 126; Reg. v. Sherwood, 7 Cox, 270. i^ilta and knocked down for £7. Baron (lid not bid for It. Before It was knocked down Levlne said he would warrant tlitm the best silver genuine electroplate, and lined with gold, and the cost price would be £20. When it was knocked down Wood said It was worth more than £7. Levlne went up and asked for Baron's name and address, which was given to him. He said to Baron, "The lot was knocked down to you." Baron said it was not. Previous to that. Wood had wanted to know whether it was knocked down to him, a"d I jvlne said, " No, it was knocked down to that gen- tleman," pointing to Baron. He said, " You need only pay a deposit." Baron Slid, " No, I will pay the full amount." Baron told Levlne several limes that he did not bid for them, and that they were of no use to him, but the latior said they were worth more money, and he would warrant them. Baron said if they were knocked down to him he would pay for thum, and eventually did so, on tlie representation of Levlne, that they were the best silver electroplate lined with gold. Baron afterwards bought a liqueur stand for 22s, on a similar repre- sentation, although he had never bid for it. While Baron was in the shop, no other money was paid to Levlne except what he paid. Charles Thomas Clements, an auctioneer's assistant, said he had known Levine all his life, and had been in his employment about tnree weeks previous tottie sale of these goods. Levlne carried on the business of an auctioneer at (3 Ludgate Hill. His sister used to be there and bid for small goods and pre- tend to buy them. Wood's duty was to hid for goods, and persuade people to buy them. Wood never used to pay for the i^ts he bought. Clement's duty was to run up the goods to a certain price, and th>>n if a stranger in the room bid a shilling or two more, to discontinue bidding. Henry Wright Atkins, an electrophte manufacturer, said that the tea and coffee service were of Britannia metal, covered with a transparent film of silver, it was, in fact, the very worst electroplate. The Hqtieur stand was of the same description. The wholesale price of the tea service would be 21 s or 223 at the outside. The witness' firm had made such goods, not for the shops, but to see If they could get a trade of that kind. The retail price of the service would be about 30s. The liqtimr stand would be very dear at 20s. The best electro- plate is plated on nickel silver. • Oppenheim, for Levine, submitted tliat this case was governed by the decision of the Court for Crown Cases Reserved, iu Begina v. Bnjan,^ where it was held 1 10 Cox. 374(1867). 2 7 Cox, C. C. 313. •5«)2 FIUI'I) AM) I'AI.SK I'UKTKNSKS. by ten of tlio jiulKfN (.Wllles iiiul Bniinwell dinaentieiUHi. h), I'lat roprosfuttttlniis *' thill curtain Mpdons wcro of the best «iuality, iinil ecimil to h'kintjton's A, tlmt tlie founilutlon WII8 of the best material, and tliat they Iiud ah niiich Hllver as Klklntston's A," tlioiijjh fiilsi', amounted to a mere miHreprecentutloa of thf <|iuility of a commodity, wldch was not tlie proper sulijectof an indictmont. In tids case tliere was not even nucIi a detlnlle standard of quality &h Elkin^tonN A mentioned, and therefore there was Icmh ground for holdiuj^; the offense in- dictable. Ilfnlf'i, for Wood, in support of the some objection, quoted ' Ion ot Bramwell H., at the Warwick Assizes, in Uegina v. llidgneaij lolhrr,^ defining the offense within these narrow limits, tliat If In selling coals by weight the Heller falsely represented the ciuantlty, the offense would be committed, wliereos, If he were selling for a lump sum, and made the same misrepresenta- tion the offense would not be committed. He also quotfd Hegitia v. Lee- where iu this court It was held that the reprcstation of a chain as gold whicli was a compound of brass, silver, and gold, was not a false pretense within the statute. He further submitted that tliere was no evidence of Wood's 'Glar- ing any pretense at all until after the bargain was concluded for £7, when he said the tea Sirvice was worth more money. As to conspiracy the count wa; bad upon the face of It, for not alleging by what means the prosecutor was to be cheated. Such a count in itii/dscrffv. Qiiei'ii,^ hud been held good upon a writ of error, but it hud never been held .so before verdict. Another objection was that there was no evidence of conspiracy, and laiitly, that If there was any que.silon of conspiracy. It could only be to obtain the prosecutor's money by representations which, on the authority of liegina v. Bnjan, were perfectly lawful. Metcalfe, for the prosecution, contended that if Begina v. Br overned the counts for false pretenses, it had no application to the charge piracy, as what was lawful for one person to do ml;;bt be unlawful for >,.. .o agree to do. The Common .Srkgeant. As for iustaiifp, hi.'.sing an actor. Metcalfe. Or buying goods ut an auction, and afterwards dividing them at a "knockout." Any person might buy at as low a price as he could, but he roust not agree with other persons not to bid against them. The Co.M.M()>j Skiukant, after consulting the Recorder, said: The counts for false pretenses alleged that the defendants falsely pretended that the goods were electroplated, and lined with gold, und the evidence proves that those pretenses were literally true. Those counts, therefore, fall, and it is only necessary to determine wliethcr this cr.se Is governed by Begina v. Bryan, for the purpose of seeing whether the counts for conspiracy can be maintained. It is most Important not to bring within the criminal law the ordinary enhanc- ing of value and quality by the seller of goods. There Is always a conflict of knowledge and skill between a buyer and seller, the one wishing to buy as ad- vantageously, and the other to sell as advantageously as he possibly can, and it would be very dangerous to extend the criminal law to such cases. At present the line Is flxed, and there must be a false representation of an existing fact, operating upon the mind of a buyer, and deceiving him in such a manner that he can not protect himself against it. The only means suggested 1 3 F. & F. 858. • « 8 Cox, c. c. %a. » 11 Q. U. 248. ««MIMi ia« SiXK&- Arfi t'lat roproseutiiUnii, L> h'kint(tot)'H A, tliut nl «h iiiucli HllvtT as ■preccntiitloa of tlu' i>t ui I indictment. In iiuUty aH ElldnKtonN >l(1iii;; the offense iii- luoted ' ion oJ gnoai/ tothi-r,' •lllng coals by welgiit ouitl l>i' commlttfd, HUtne mlsrcprcsentu- iiotfcl Regina v. Lf.f- chain UH ({oUi which Use pretense within I'lico of Wood's '^lar iiled for £7, wlitu lie liracy the count v/d.'. ic prosecutor was to u held good upon a . Another objection ihat if there was any •osecutor's money by •yan, were perfectly I V, Br charge ful foi ■overned piracy, .0 agree tor. is dividing them at a le could, but he roust ', said: The couDtii inded that the goods :e proves that those fail, and it is only Itegina v. Bryan, for I can be maintained, the ordinary eubanc- I always a conflict of fishing to buy as ad- 3 possibly can, and it li cases. representation of an :elving him in such a uly means suggested •1 u g. B. Hi. OPINIONS — VALITK OF IHMINEaS. 868 upon this evidence as the means by which the defendants agreed to obtain the prosecutor's money are means whlcli upon the authority of Ilryinn v. linjun are not unlawful. There is, therefore, no conspiracy and no case for the jury to consider. Nut guilty §447. Value of BiiBlness. -In R. v. WUliammn,^ the prisoner was Indicted fur obtalninu money from one S. by means <»f false pretenses, the false pretenses laid beliij;. (1) that tlie prisoner was then doing a good buHlness; (L') that he said that he had sold a good business for £;tO0; (I!) that it was necessary for his safely, If he engaged >S. a:- his Hs^istant, that he should have froinhiui a deposit of £60. There was a second indictment charging tliat the prisoner obtained money from one \V., by falsely pretending, (I) th -f he was then doing a business with returns of £100 a week; (li) that he had • nl a business for £300. . Lilhy, for the prosecution. OppenUeim, for the prisoner. On the tirst Indictment the prosecutor, S., who liad been engaged by the prUoner as assistant, was called to jirove the representations, and to show that upon the faith of the representation he entered into an engagement with the prisoner for a sniail salary and half profits, and also deposited £'10 as a security, ' whereas in truth the business was worthless, and the prisoner a bankrtipt. He stated tliat he had deposited the money in the belief that the prisoner "had a good business." BvLEs, J. (to the counsel for the prosecution). On which of the pretenses do you rely? It is like tlie case of a sale of a business, llh exaggerated repre sentations of its value, upon which, though fraudulent, an indictment will not lie. LiUey said he relied on the prisoner's representations that he was doing a good business, and that he had sold a business for £300. BvLES, J. The latter is too remote. Yon might as well go back to any for- mer transaction of which he had given a rei)resentation — that is too remote. As to the other, have you any case In whicit it has been held that on the sale of a business — the vendor saying it was a good busiuess — lie has been thus indicted? (No such case was cited. )2 This appears to be rather matter for an action for false representation than for a criminal prosecution. Lilley urged that here the prctcn,sc was more entirely false than in any pre- vious case, for the man was a bankrupt. Byles, J. There is no pretense laid that lie was not a bankrupt. The pre- tense laid Is that he had a good business. It is like the case of a sale of a busi- ness upon such a representation. No doubt if the business was worthless, there was a gross exaggeration, probably fraudulent; but Is it a case for an indictment for obtaining money by means of false pretenses? If so, an indict- ment would lie in every case of a false and fraudulent representation of the value of a business. Unless some authority to the contrary can be cited, I must rule against the prosecutor. No cas? being cited, Byles, J., directed the jury to acquit the prisoner, on the ground tii.-.t such a 1 11 Cos, 328 (1869). ' And, sec. Reg. v. Wataon, 20 L. J. 18, M. 0.. contra. J 364 FRAU1> AND FALSE PRETENSES. representation, although grossly fraudulent, was not the subject of .aiiual proceeding. Not guilty. No evidence was offered on the other indictment. § 448. False Warranty Not. — A false warranty of the soundness of a horse is not Indictable.' So selling a blind horse as a sound one.^ In State v. Holmes,^ the prisoner falsely represented that a horse in his pos- session was sound and healthy, knowing this to be not so, whereby he obtained a sum of money. This was he'd not false pretenses. "If such a falsehood were Indictable," Siiid the court "then instead of all the actions which have been brought for deceits and false warranties the defendants should have been Indicted for obtaining goods or property liy false pretenses." In B.y. Pratt,* the prisoner was indicted for falsely pretending that a certain mattress was stuffed with wool, whereas in truth and in fact it was stuffed with flock, by means of which said faLse pretense she did unlawfully obtain, etc., with intent, etc. Leigh, for the prosecution. It was proved on the pan of the prosecution that the prisoner contracted with the prosecutrix to make for her a mattress to be stuffed with best wool at an agreed price. The mattress was made and delivered by the prisoner, and paid for at the agreed price. Being found to be hard and knotty in parts, it was opened about two months afterwards, and tlien It vas discovered that, in- stead of being stuffed with wool as agreed, seventy pounds weight of a very inferior and different material called flock had been substituted. M.vRTix, B., said he felt much doubt whether this was anything more than a breach of conti-act or of warranty, for which there was a civil remedy. Leigh referred to the cases of Begina v. Goss and Begina v. liagg^ and the cases there cited, in which it had been held by the Court of Criminal Appeal that where a seller represented coal to be of a certain weight, when it was not so, and cheese to be of a certain quality by the maneuver of passing oft tasters as if extracted from the cheese offered for sale, whereas it was not, were in- dictable false pretenses. Martin, B., said thai on the authority of these cases he would send the case to the jury, but he had some doubt whether the present case was anything more than a breach of Avarranty, and if the prisoner was convicted he should reserve the point for the consideration of the Court of Criminal Appeal. Verdict, not guilty. In State v. Chuiin,^ it was held that selling a slave :vlth a covenant of title, the vendor knowing that he had no such title was not a criminal false pre- tense. In B. v. Codrington,^ the defendant was indicted for obtaining mone> by false pretenses. This indictment (which was extremely long) charged that the de- fendant obtained the sum of £29, 3s, by falsely pretending to a person named Varlow, that he was entitled to a reversionary Interest in one-seventh share of a sum of money left by his grandfather, whose name was Wlckes ; whereas in 1 R. V. Pywell, 1 Stark. 402 (18W). 2 state V. Delyon, 1 Bay, 363 (I'H). 3 82 N. C. «0Y(1880). 4 8CO.X, 334 (18liO), 8 Cox, 262. « 19 Mo. 233 (1853). ' 1 C. 4 r. m. C.M-'»i'*liM*^^^i' SES. the subject of .aiiual Not guilty. ttty of the soundness of a I a sound one.' I thut a horse in his pes- t so, whereby he obtained 3. "If such a falsehood II the actions which have endants should have been ;enses." pretending that a certiin nd in fact it was stuffed le did unlawfully obtiiin, t the prisoner contracted stuffed with best wool at ered by the prisoner, and rcl and knotty in parts, it t vas discovered that, in- pounds weight of a very substituted. kvas anything more than a as a civil remedy. 1 Begina v. liagg^ and the 3ourt of Criminal Appeal n weight, when it was not ver of passing oft tasters lereas it was not, were In- es he would send the case at case was anything more )nvicted he should reserve lal Appeul. Verdict, not guilty. ? 'vith a covenant of title, not a criminal false pre- r obtaining monej by false )ng) charged that the de- ending to a person named it in one-seventh share of ! was Wickes ; whereas in (1853). Hi. PRETENSE MUST BE FALSE. 365 fact he war, not entitled to any interest in any share, etc., negativing the pre- tenses. Plea, not guilty. It was opened that the defendant pretended that he was entitled to the re- versionary Interest mentioned in the indictment, and thereby induced Varlow, the prosecutor, to purchase it on the 22d of December, 1824, at the price of £29, 3s, the defendant having in fact sold all his inteiest in it to a person named Pick,' on the 18th of Septamber, 1824. To prove the pretense, a deed dated December 22, 1824, assigning the defend- ant's interest in his one-seventh share of the money to Varlow, was put in, and in this deed there was the usual covenant for title. Ludlow, objected, that this deed was no evidence of any false pretense, for if it was, every breach of every covenant would be indictable. LiTTLEDALK, J. Certainly a covenant in a deed can not be taken to be a false pretense. The prosecutor was then called, and he proved that the defendant asked him to purchase a seventh share of some money that he would be entitled to under his grandfather's will on the death of one of his relatives, and tliat he agreed to purchase it, and got a deed of assignment executed to him, and he there- upon paid the defendant the purchase-money. To prove the falsehood of the pretense, the previous assignment by the defendant to Pick was put in. Ludlov -objected, that the prosecutor did not advance the money in conse- qnence .. ...3 verbal pretense used by the defendant, but took the covenant as security. Wnat passed between the parties by parol was afterwards embodied in the deed ; it was a mere breach of covenant. Palmer, contra. This indictment charges that the defendant obtained the money by pretending that he was entitled to this reversionary interest This pretense we prove to be false; and yet It is contended that because he reiterated that pretense in a deed it becomes no offense. Ltidlow, in reply. It is not everything which is untruly stated at the time of a bargain which is an indictable false pretense. If A. B. sold a horse, and war- ranted him Ave years old, and it were proved to his knowledge he was but four he might be Indicted for swindling; or, to come nearer this case, if a man sold apiece of land as one hundred acres, without saving "be the same more or less," and in fact the land was only ninety-nine acres and a half, he might be transported; this is really only a breach of covenant. LiTTi.EDALE, J. The doctrine contended for on the part of the prosecution would make every breach of warranty or false assertion at the time of a bargain a transportable offense. Here the party bought the property, and took as his security a covenant that the vendor had a good title. If he now finds that the vendor has not a good title, he must resort to the covenant. This is only a ground for a civil action. Verdict, not guilty. § 449. Pretense Mtwt be False. — It is indispensably necessary that the pretense be false.^ § 460. False Pretense Tumlngr out True. held no crime is committed.^ 1 -In this uase it has been 1 Tyler v. State, 2 Humph. 298 (1840), 2 Re Snyder, 17 Kas. 842; Keller v. State, 61 Ind. Ill ; Scott ». People, 62 Barb. 63 (1878). 366 FRAUD AM) FALSK PKETKNSE8. § 4S1 . Prisoner 'Must Know that Pretense Is False. must know the preteUHe to be false. • -The prisoner § 462. Representation must be Relied on. — The prosecutor must have relied on tlie false representation. 2 In Commonwealth v. Drew,^ tlie prisoner having opened an account with a banli and drawn a check under a (ietitious name, subsequently drew a check when he had no money on deposit, presented it himself and was paid. He was held not guilty of false pretenses. Morto.n, J., delivering the following opinion: "These indictments are founded upon tiie statute of 1815.« The first section provides • that all persons who knowingly and designedly, by false pretense or pretenses, shall obtain from any person or persons, money, goods, wares, mer- chandise or other things, with Intent to cheat or defraud any person or persons of the same, shall, on conviction,' be punished, etc., as therein specided. This section, which is a copy of statute iiO George II. ,* Is revised and combined with some provisions In relation to other similar offenses in the Revised Statutes.* "To constitute the offense described in the statute and set forth in these in- dictments lour things must concur, and four distinct averments must be proved : — "1. There must be an intent to defraud. "2. There must l)c an actual fraud committed. "3. False pretenses must be used for the purpose of perpetrating the fraud; and "4. .The fraud must be accomplished by means of the false pretences made use of for the purpose, viz., they must be the cause which Induced the owner to part with his property. " It is very obvious that three of the four ingredients of the crime exist in the present case. The fraudulent Intent, the actual pcrpretation of the fraud, and tlie fact that some of the pretenses used were the means by which it was ac- complished, are established by the jury. And although the prisoner's counsel has objected to the suflleieucyof the evidence, yet we see no reason to question the correctness of their decision. It only remains for us to inquire, whether the artitices and deceptions practiced by the defendant and by means of which he obtained the money, are the false pretenses contemplated by the statute. The pretenses described in the indictments and alleged and shown to be false, are : — " 1. That the defendant assumed the name of Charles Adams. " 2. That he pretended that he wished to open un honest and fair account with the Hancock Bank and to deposit and draw for money In the usual manner and ordinary course of business. "3. That he pretended that the checks were good, and that he had in deposit the amount for which they were drawn. " The first Is clearly a false pretense within the meaning of the statute. And had the money been obtained by means of the assumption of this fictitious name, there could be no doubt of the legal guilt of the defendant. The eminent 1 Maranda v. State, 44 Tex. 442 (18TU) ; Hirech v. State, 1 Tex. (App.) 378 (1876) : K. r. Burrows, 11 Cox, 358 (ISdB). 2 People t'. TompkiiiN, I Park. C. C. 224 (1851); Jones V. State, sdlnil. 47:1; Tliernsi-un I). People, 88 N. Y. 238 (1880) ; Fay v. Com., 28 Gratt. 012. » uV'-'^. 17!) (18;}-). * ch. 136. '' ch. 24, sec. 1. « ch. 126, sec. »2. " *- IMCPUESKNTATION MUST «E ItKMED ON. 3H7 ■The prisoner cutor must have I account with a ew aclieck when (1. He was held lowing opinion: riie first section 'alse pretense or jfls, wares, mer- •rson or persons specitied. This 1 combined with sed Statutes.* Drth in these in- mcnts must be ating the fraud ; ;ences made use ed the owner to 'imc exist in the the fraud, and ifhich it was ac- souer's counsel son to question iiquirc, whether means of which the statute, d shown to be ir account with nal manner and liad in deposit e statute. And f this fictitious . The eminent ) ; Fay v. Com., 28 lawyer who fllled the office of Mayor of Now Yorl< wlicn the adjudication rc- ftired to by the defendant's counsel wms made, says, the false i)retenses must he the sole inducement which cuised the owner to part with his property.' 'I'lils point is doubtless stated too strongly; and it would l)e more correct to say, that Mie iiretenscs, either willi or without the co-operation of other causes, had a decisive influence upon the niinci of the owner, so that without their weight, he would not Inive parted with liis properly. 2 But in this case the iis- sunied name, so far from being the sole or decisive inducement, is clearly shown to iiave had no influence whatever. Tlie l)anl< otlicers did not confound t he defendant witli Charles Adams, and it does not api>ear that the defendant iiuew tlmttlierc was any other person by that name. lie never eiaimed any credit on aeeount of ids name, and tlie coincidence might liave bedn accidental. At any rate it had no Influence upon the credit of either, nor any effect upon their ac- counts or the payment of their checks. " 'J. The opening and keeping an account with the, Hancock Bank might liave been, and doubtless was, a part of a cunning stratagem, l)y wliich the defendant intended to practice a fraud tipon that bank. But the business was done and the account kept in tiie usual numner. The defendant made his deposits and drew his checks like other customers of the bank. He made no representation (if the course he intended to pursue and gave no assurance of integrity and fair dealing. And we can see nothing in tiie course of this business, constituting it a false pretense, which would not involve the account of any depositor, who overdrew in the same category. "3. The pretense, if any sucli there were, that tlie check was good, or that the defendant had funds in the bank for winch he iiad a right to draw was false. He had no such funds. Did the defendant make any such i)retense? He made no statement or declaration to the oflicers of the i)arik. He merely drew and presented his cliecks and they were paid. This was done in the usual manner. If then he made any pretense, it must result from the acts themselves. What is a false pretense within the meaning of the statute? It m.-iy be defined to be a repre- sentation of some fact or circumstance calculated to mislead, which is not true. To give It a criminal character there must be a scienter and a fraudulent Intent. .\lthough the language of the statute is very broad, and in a loose and general sense, would extend, to every misrepresentation, however absurd or irrational or however easily detected; yet we think of the true principles of construction render some restriction indispensable to its proper application to the principles of criminal law and to the advantageous execution of the statute. We lio not mean to say tiiat it is limited to cases against which ordinary skill and diligence can not guard ; for one of its principal objects is to protect the weak and cred- ulous from the wiles and stratagems of tiie artful and cuuning; but there must be some limit, and it would seem to be unreasonable to extend it to those who, having the means in their own hands, neglect to protect tliemselves. It may lie difficult to draw a preci.sc line of discrimination applicable to every possible contingency, and we tliink it safer to leave it to be fixed in each case as it may occur.' " It is not the policy of the law to punish criminally mere private wrongs. And the statute may not regard naked lies as false pretences. It requires some ' reople V. Conger, 1 Wlieel. Cr. Cas. 448 ; People r. Dnitoii, 2 tb. Itll. 2 People V. Haynes, U Wend. .UT. • 2 East's C. P. H28; Voung r. King, 3 T. R. 9H. 3()8 FRAUD AND FALSK PKETENSES. artifice, some deceptive contrivance, which will be likely to mislead a person or throw him off his guard. He may be weak and confiding and his very imbecility and credulity should receive all practical protection; But it would be inexpe- dlent and unwise to regard every private fraud as a legal crime. It would be better for society to leave them to civil remedies.^ "The pretense must relate to past events. Any representation or assurance in relation to a future transaction, may be a promise or covenant or warranty, but can not amount to a statutory false pretense. Tliey afford an opportunity for Inquiring into their truth, and there is a remedy for their breach, but it is not by a criminal prosecution.* The only case,' which has been supposed to con- flict with the doctrine, clearly supports it. The false pretense alleged was, that a bet had been made upon a race which was to be run. The contingency which was to decide the bet was future. But the making of the bet was past. The representation which turned out to be false was, not that a race would be run, but that a bet had been made. The false pretense, therefore. In this case related to an event already completed and certain, and not to one which was thereafter to happen and consequently uncertain, and the decision was per- fectly consistent with the doctrine and law here laid down. "A falf 9 pretense, being a misrepresentation, may be made in any of the ways in which Ideas may be communicated from one person to another. It is true that the eminent jurist before referred to in the cases cited held that It could be made only by verbal communications, either written or oral. If this be correct, no acts or gestures, however significant or Impressive, could come within tlie statute. And brutes, though capable of conveying their ideas and intentions iu the most clear and forcible manner, could hardly be brought within its prohibi- tion. Can it make any difference in law or conscience, whether a false repre- sentation be made by words or by the expressive motions of the dumb? Each is a language. Words are but the signs of ideas. And if the ideas are con- veyed, the channel of communication or the garb in which they are clothed Is but of secondary Importance, and we feel bound to dissent from this part of these decisions. In this we are supported by the English cases.* " The representation is inferred from the act, and the pretense may be made by Implication as well as by verbal declaration. In the case at bar the defendant presented his own checks 4«i a bank with which he had an account. What did this imply? Not necessarily that he had funds there. Overdrafts are too fre- quent to be classed with false pretenses. A check, like an order on an individ- ual. Is a mere request to pay. And the most that can be inferred from passing it Is, that It win be paid when presented, or In other words that the drawer has in the hands of the drawee either funds or credit. If a drawer passes a check to a third person, the language of the act is, tiiat It is good and will be duly honored. And in such case, if he knew that he had neither funds nor credit, It would probably be holden a false pretense. •« In the case of Stuyvesant,' it was decided that the drawing and passing a check was not a false pretense. But In Bex v. Jackson,* it was ruled that the drawing and passing a check on a banker with whom the drawer had no ac- 1 Bote. Or. Et. (2d. ed.)419; Goodball's Case, R, A R. 461. 3 Stuyvetant's Case, 4 City Hall Rec. 1B6 ; Rose. onCr. Ev. (23 ed.) 4«; Bex. r. Ood- rlDgton, 1 C. A P. 661. • Toung V. King, 3 T. R. 98. • Rex V. Story, R. * R. 81; Bex v.Freetli. lb. 127. <> 4 City Hall Rec. 150, • S Camp. 370. ^^m REPRESENTATION MUST BE RELIED ON. 300 (lead a person or s very imbecility rvould be inexpe- ae. It would be nor assurance in or warranty, but I opportunity for ach, but it ia not supposed to con- nse alleged was, The contingency tlie bet was past, a race would be 'ore, in this case one which was lecision was per< a any ol the ways other. It is true d that it could be [f this be correct, . come within the and intentions iu vithin its prohibi- ther a false repre- the dumb? Each the ideas are con- iey are clothed is it from this part lases.* se may be made by bar the defendant count. What did drafts are too f re- der on an Individ* rred from passing at the drawer has 'cr passes a check 1 and will be duly iinds nor credit, it ing and passing a It was ruled that drawer had no ac- '. R. 98. R. 81; Rex v.Freetli. count and which he knew would not be paid, was a false pretense within the statute. This doctrine appears to be approved by all the text-writers, and we are disposed to adopt it.* " lint to bring these cases within the statute, it must be shown that the drawer and uttercr knew that the check would notice paid, and in the cases cited It appeared that that he had no account with the banker. In these respects the case at bar is very distinguishable from the cases cited. If the checks in question had been passed to a third person, it could not be said that the de- fentliiut knew that they would not be paid. On tlie contrary, he had au open account with the bunk, and although he knew tliure was nothing due to him, yet he might suppose that they would be paid. And the fact that he presented them himself, shows that he did not know that they would be refused. " The defendant presented tlie checks himself at the counter of the bank. They were reque"-ts to pay the amount named in them, couched in the appropriate and only language known there ; and addressed to the person whose peculiar province and iluty it was to know whether they ought to be paid or not. He compiled with the requests, and charged the sums paid, to the defendant, and thus created a contract between the parties. Upon this contract the bank must rely for redress. " Th. jasc lacks the elements of the English decisions. And we think it would be an unwise and dangerous construction of the statute to extend it to transac- tions like this. This case comes pretty near the line which divides private frauds from indictable offenses ; and at flrst we were in doubt on which bide it would fall. But, upon a careful examination, we are well satisfied that it can not properly be brought within the statute. •' Verdict set aside and new trial granted." In People v. McAllister,^ the pretense charged was that the prisoner owned a house and lot in a certain locality, and was building an addition to it, and wished to buy the articles for use in the building. "The information," said Campbell, J., "does not show, and the testimony throws no more light, how •this pretense operated as a fraud, or what good the truth of the statement said to have been made would have done the complaining witness. It was entirely compatible with the averment that respondent may have owned other property, or that the house might be a homestead, and in no way subject to legal process, or incumbered to its value. It does not appear that respondent was given to understand that the question asked him about his building was put for the pur- pose of ascertaining whether it was safe to trust him. He made no representa- tions at all when he asked for credit for this small bill until an inquiry was made, and the only question asked him was the single one whether he was building. This contained no intimation that he was expected to give informa- tion concerning the ownership or value of property, or that his credit would depend upon his answer. There can be no offense under the statute, unless the party knows, or has reason to believe, that his representations are relied on as the grounds of credit. And there is nothing in the testimony indicating this; neither does the information point out how any fraud could result from such statements standing alone and unexplained. " On the trial the claim was that the seller of the goods expected to have a mechanic's lien. But he asked and he obtained no information whatever that 1 Rose. Cr. Ev. (2d ed.) 419. 3 Defencks. ■i 40 Mich. 12 (1882). 84 ■'tot'ttsitti iSiiPfe-;-siSw i:i.>B cn> tinctly that Lpondent had just such property a« he claimed to have, and th. . " otiiuTto indicate that thl trifling di«erence in location -^e;- ^ ^^^J^^' ;; made any difference In the honesty of the transaction. The couit, ere. . TmUting^any testimony under the' infomation and '" ^^-'^'/^^rd " There was nothing which had any le«al force to prove '^if^^^''^^^'^^^^.^^^ In Woodburu v. State,^ the false statement made a ground of the prosecution wi as to thfpr soner's place of residence. He was convicted and appealed r; false pcte„«e." said Bk.ckk,.,.. C. J., " to be Indictable, must be calcula^.-.! to d celve and defraud. As of an actionable ^-^^^^^rTrllZrTL^^ material fact on which the party to whom it is made has the right to n ly , not The m ; expreL7orof an opinion, and not of facts open to his present observu- tfonandTn reference to which. If he observed, he could obtain correct ".^w^ irr Wither the prosecutor could have avoided imposition ""om tie fa so prftensrHe l,ad exercised ordinary prudence and discretion to detect it. falsTtris not a material Inquiry. As a general rule. If the pretense is no of 1 lefabsurd or irrational, or if he had not at the very time it was made and Tcted on tlte means at hand of detecting its falsehood. If he was really Impo ed on his want of prudence Is not a defence.* If the residence of the accused at rDartirrr locality was a material fact in the transaction between him and the nrosecutor • If. with the Intent to defraud the prosecutor, the prisoner «. s ep- ?e3eTthe loci ty of his residence, and by means of the "'^-^^P-^-^^ ' ' SZied he sewing machine, the misrepresentation being a controlling in .cc^ men wltl th^^ V^otocniov to part with his property. It Is not a defence 1 U if Tetlcutor Jad U.en the precaution to inquire at the P^; i-Ur -m^^^^^^^^ ooiild have found it was not the residence of the "' r, ana wouia noi, uu been declUd and defrauded. The prosecutor h.c ..Ut to rely on the re pro. se'mlo?, and there was no obligation or duty to ^ne P'i--; ^ ^"p ^t fe its truth or whether he was dealing fairly and honestly. The ^^Ise pretense m^,«t not only be however, of a material factbut It must have been, not the sole, Tt excluswe or decisive cause, a controlling Inducement with the prosecutor Lr the r^sfer of the money or property. Other considerations may m ngle with tlSe prepense. hav.Jg an Influence upon the mind and conduct <>f he Prosecutor; yet If In the absence of the false pretense he would not have nirted with m property, the offense is complete.* But If without the false Sri lie would' have J;rted with his property -if that is -t an opera iv, moving cause of the transfer-lf he did rely and act upon It. there ma, be 'rrvt;""rvider:r^^^^^ If It Is not a positive afllrmatlon. that the misrepresentation of the locality o his residence imputed to the accused had no influence with him In causing or J^ducTng M™ o part with the sewing machine, the Instructions given te Sry seem to us erroneous. If to this phase of t.e case they can be regarded o^. d"^ctinTthe attention and consideration of the jury It is only by the con ruc- Inwrncrcounsei. accustomed to a close exanlnation of legal propositions wouirplace upoft tU. As a general rule. If aHrmatlve charges assert correct ■■> People V. llaynes, 11 Wend. 657; 28 Am. ncc. 530. * 2 WUart. Ev., sees. 2120-23. l«0Ala.B15a881). s 2 Whart. Cr. L., sec. 2128. ^^m INTENT MUST BE FELONIOUS. a7i would be ol any , appears very cU>- to have, and tluix- ide, or could huvi- he court, erred in ig any conviction, me alleged." )f the prosecution ;ted and appealed, must be calculatud ion It roust be of a ! right to rely ; not Is present observa- »in correct knowl- ;lon from the lal.^e atlon to detect its retense Is not of it. e it was made and was really Impo.sed 3 of the accused at stween him and the le prisoner inlsrep- I misrepresentation controlling induce lot a defence that If rtlcular locality, he and would not have rely on the repro- oner to inquire into The false pretense e been, not the sole, with the prosecutor iratious may mingle 1 and conduct of the he would not have if without the false is not an operative, on it, there may be ;ly to the conclusion, on of the locality of h him in causing or jtructlons given the sy can be regarded as jnlyby the construc- f legal propositions, tiarges assert correct 98,11 Wend. 657; 28 Am. ics. 2120-23. legal propositions, their generality, obscurity or ambiguity must be obviated l)y a request for more specific instructions. But If the imniediate, direct tendency nf such instructions is to mLsIead the jury, diverting their attcniion from material evidence and from the consideration of controlling hniuirics, or creating tlie impression that they are authorized to exclude evidence they ought to conshlir, such instructions are erroneous and must operate a reversal of a judgment they have induced. " These instructions, omitting all proper reference to the evidence of the pros- ecutor, tending to show that he was not influenced in parting with tlie machine by the representation of the accused, that his residence was at a i)articular locality, in effect excluding that evidence from the consideration of the jury, had an immediate tendency to mislead them. It was tlie duty of the court to in- ■nstruct the jury that if the misrepresentation was not an inducing controlling motive with the prosecutor to part with the machine, there should not he a conviction of the accused upon either of the counts for false pretenses.' It is not necessary to pass upon the other exceptions as this view will probably be decisive of the case on another trial." § 463. Falae Pretenses — Intent Must be to Deprive Owner of Property. — It is essential not only that the pretense was false and the property obtained thereby, but also that the prisoner at tlie time intended to defraud.^ In B. V. Kilham,' the prisoner, by falsely pretending to be a livery man, and that he was sent by another person to hire a horse for him, for a drive, obtained the horse. He returned it the same evening, but did not pay for the hire. This was held not the obtaining of a chattel by false pretenses with Intent to defraud. In People v. Oetchell,\ the defendant was iiulicted for false pretenses in procuring the indorsement by the prosecutor of a promissory note by the false- hood that a similar former note was destroyed. On the trial, after proof of the facts charged, the defendant offered to show in defuucc that he was a partner of the prosecutor; that the latter was bound by agreement to Indorse for him to amount larger than the two notes, but had refused to do so, and that the money obtained in the notes was used in the business for their joint benctlt. The exciusior of this evidence was held error on appeal. " Tlie indictment," said Martin, C. J., " charges that on the 11th of December, 1858, he by means of false pretenses, obtained the indorsement of Strong to a note of one hundred and fifty dollars made by himself. The statute under which the indictment was found, provides that 'every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instru- ment, the making whereof would be punishable as forgery, or obtain from any person, any money, personal property or valuable thing, shall be punished,' etc.* "The object of the defence in this case in offering the rejected evidence, was to show that there was no intent to cheat or defraud ; the untruth of the pre- tense being admitted. A falsehood does not necessarily imply an intent to de- 1 Com. V. Davidson, 1 Cash. 33. 2 O'Connor v. State, 30 Ala. i (18.57) ; Brown v. People, IB Hun, 535 (1879) ; Stale v. Norton, 7S Mo. ISO (1884) ; People v. Kaker, 96 N. Y. 340 (1884) ; Fay t?. Com., 28 Uratt. 912. ' 11 Cox, .561(1870). * 6 Mich. 490 (1850). ' 2 Comp. L., sec. 6783. t)^,.: ,5-^ 372 FlSAl'D AM) FALSE I'RETENSES. fraud, for It mny l)c uttered to secure a right, and however much and severely It may be reprobated In ctliUs, the law does not assume to punish mere delin- fluencies as such. To defraud, is to deprive another of a right of property, or money, and tills may be accomplished by falsehood, by withholdlna; the right, or property, or by force, lu the present case the prosecutor insista that he was defrauded, because he was Induced to indorse a note by the false repre- sentation of the defendant, that a prior note for the same amount, Indorsed by liim was defective, and had been destroyed; that ho was thereby Induced to lend his name for double the amount he otherwise would. The simple fact of procuring by falsehood the indorsement, was not an offense within the statute; it must have been procured with the Intent to defraud, and when an intent Is made the gist of an offense, that Intent must be shown by such evidence as, uncon- tradicted, will fairly authorize it lo be presumed beyond a reasonble doubt. It is true that a man is presumed to intend the natural consequences of his acts, but under the statute, it Is not the consequence, but the Intention, which fixes the crime. There are no natural consequences, strictly speaking to this act. It is in Itself an indifferent act, as the consequences will depend upon wliat he .Iocs with the paper, and this will depend upon his will, in other words, his intent. It was, tnerefore, necessary for the prosecutor to siiow something more than the application, the falsehood, and the Indorsement, before he could aslc a conviction; he should have shown those facts which, in the absence of all other proof, would warrant the jury in finding an intent to defraud; unless such intent Is fairly lo be Inferred from the circumstances attending the act "itself If the fact of negotiating both notes would justify such a finding, yet the presumption thus raised might be repelled by the defendant by exhibiting in evidence such a state of facts as would show that fraud was not designed, or could not have resulted. This he attempted to do by showing the relations of himself and Strong, the obligation of Strong to indorse his paper, his refusal to do so, notwithstanding his contract, the necessity f or t he money for their joint benefit, and the appropriation of the avails of the note lu their business, and according to the terms of their agreement. All this was refused, and the evi- dence offered for that purpose ruled out. " We think this evidence would legitimately tend to disprove the presumption of an intent to defraud, and should have l)een allowed to go to the jury to nable them to determine quo animo the Indorsement was procured. •'These considerations render an examination of the other errors assigned unnecessary. A new trial should be granted. Chkistiancv and Ca.mpbkli., JJ., concurred. Manning, J. When by false pretenses, the signature of a person is obtained to a written instrument, where the signing of the name by a third person to auch Instrument would be punishable as forgery, the law implies an intent to cheat or defraud, and nothing more need be shown to warrant a conviction. But the fraudulent Intent Implied from the act Itself, is not conclusive on the party. He may show there was in fact no Intention to defraud. The Recorder seems to have erred in supposing the implication of law was conciusive, and not prima facie evidence only of the criminal intent. In this I think he erred. , . , ^ j Nexo trial orderea. ^^m PROPERTY MUST HR OBTAINED. 373 luch and severely UDisb mere delin- It of property, or olding; the right, )r iDflistu that be y the false repre- ount, Indorsed by ereby Induced to ?he simple fact of Ithin the statute; when an intent is vldence as, uncon- inble doubt. It is lences of his acts, ntiun, which fixes aking to tills net. tend upon what he I other words, his I show something It, before he could the absence of all o defraud; unless attending the act such a flndinjr, yet idant by exhibiting was not designed, (Wing the relations i paper, his refusal louey for their joint their business, and ifused, and the evi- ve the presumption go to the jury to ocured. her errors assigned I person Is obtained )y a third person to implies an intent to ,rrant a conviction. ot conclusive on the aud. jlication of law was inal Intent. In this I New trial ordered. § 454. Money or Property Must be Obtained. — In Regina v. Crogbi/,* the prisoner having entered into an agreement to act as captain of a certain vessel belonging to the prosecutor, upon receiving two-thirds of the net prollts of tl)*! vessel delivered in a bill for repairs to a larger amount than he had actually paid, and was allowed the amount In the settlement of accounis. Mailk, J., directed an acquittal, saying: " How can It l)e said that the prisoner obtained any money by this false pretense. I have no doubt at oil about the pretense or the falsity of it; but my difllculty is, that he obtained no money by it, but only credit on actount; it is only a mere payment of the (amount over- charged). It is lilie WaveVs CaseV^ So obtaining by false representations, a note from a minor, is not false pre- tences, as tlie minor is not bound by law to pay it to any one.' In lieginit v. Martin,* the indictment charged that the prisoner by falsely pre- tcndm;^tooncCloke, thathe was authorized by F., obtained from the said Cloke, corlain hop-poles, the property of, and with intent to defraud, the said Cloke. Tlie prisoner hearing that one F., who lived at M., wanted hoj).poles, went to hhn and agreed to sell him a number at Kis !id per hundred, to be deluered at M. Station. He then went to Cloke who had hop-poles, and said he was commissioned by F. to buy them, promising that F. would send a cheque for the price. A cheque was sent; it did noi appear by whom. Cloke sent the poles to tlie stal ion (with his own team) consigned to F. The hill was made out to F., wlio paid the carriage and got the i)oles. Then the prisoner got the money for him. llouprll for tlic prisoner. The piisoner, never got the poles. He pretended to sell, or sold goods he had not. Cloke ratified the contract between F. and the prisoner; and if the prisoner was indictable at all, it was for obtaining money from F., not goods from Cloke. WiGiiTMAN', J., , so held and directed an acquittal. An indictment for obtaining by false pretenses, the signature of [a person to a deed of land, must show that the prosecutor owned or had an interest iu the property or that the deed contained covenants on which he would be liable in an action.' Obtaining credit on account from a party's own banker by drawing a bill without authority on another person is not within the .statute, although the banker pays money for him in consequence thereof to an extent he would not otherwise have done.* § 455. Obtaininer Satisfaction of Debt — " Money or Property " must be Obtained. — In Jamison v. State' the defendant owing one Thompson and Thomp- son being indebted to one Mattingly in the same amount and having the money to pay him, by false pretenses induced Mattingly to satisfy Thomp- son's claim against defendant by giving Thompson credit for the amount and taking from the defendant a worthless mortgage to secure it — no money pass- ing between the parties. This was held not Indictable as false pretenses. "The money," said the court, "must have been actually and not merely im- pliedly or constructively obtained, and must have come into the defendant's 1 1 Cox, 10 (1843). 2 1 SIoo. 224. » Com. t'. Lancaster, Thatch. Or. Cae. 420 (1835). * F. & F. 501 (1869). • Dord t'. People, 9 Barb. 671 (1851). « R. r. Wavell, 1 Moody 224 (1829). : 37 Ark. 445 (1881). 874 FUAUU ANU FALSE PKETENSES. possession." Aud so as to obulnlng consent to enter a juUgment by false represeiitiitlons.' § 45.1 Representations made Subwxiuently.-Tlierefore a false repre- Hfiitiitlon made after the property Is obtained Is not a "false pretense." § 457. Obtaining Charitable Donation.. - This, though obtained by false representallous, has been held not within the statute.' ^ 458 Property must be^ Obtained by Means of Pretenao. — In B. v. B>-'ook8,* the Indictment charged that the prisoner by falsely pretendlna to C. & Co., that he was sent by one W. for nine gallons of ale, obtained the property of C. & Co., with Intent to defraud them. The prisoner, wiio was a carrier, and dealt with the prosecutor, who was a brewer, went to him and said, " 1 want a cask of XX ale; I will call on ray way back " Then ho came again and said, " Is my beer ready?" C. said, •' Yes, and the prisoner took It up, saying, " It is for W.," which It was not. Denman objected that the prisoner did not obtain the ale by means of the alleged false pretense; the order originally given was for himself, and not until he had got possession of the ale did he say anything of W.; and it might be that even then, C. thought that the prisoner intended to sell to W. WKiiiTMAN, J., was of that oplnlou, and directed that the prisoner should be acquitted. . , * . 1 In E V mimeiv tiie prisoner was convicted of obtaining a mare by falsely pretending that he was the servant of A. It appeared that the prisoner so pre- tended at ttrst, but when the prosecutor confounded A. with B., the prisoner availed himself of the mistake to obtain the mare which the prosecutor parted with in the belief that the prisoner was tiie servant of B. It was held that the conviction was wrong. i 459 Pretense Must be Made with Design ot Obtalnlngf Property.— In "uowder v. Slate,' the defendant was charged with having defrauded the clerk of the Colored Baptist Church out of money by pretending that he was a Baptist minister in good standing. In reversing the case the Supreme Court 8.,vs- "The false pretense must be made with the design to obtain the monev • * * The evidence for the State satisfies us that the pretenses re- lied on, whether they were true or false, were not made with any design to ob- tain the monev or even to procure an employment as pastor of the church. The accused did not .cek the place. Tlie congregation or their representatives, the deacons as the proof shows, sought him, and invited him to become their nistor He stated his terms, and left them to reflect upon the 8ul)ject and to write 'o him their eonclusions. No doubt he had represented himself to be a minister, and if they had not believed him to be one, they would not have called him Whether he was so or not, we do not undertake to decide. But so far as Ihe proof shows he did not take any steps or use any means to Induce the prosecutor to employ liim." 1 Com. V. Harking, 128 Mass. 79. 2 Stuyvesant'8 Case, 4 (Mty Hall Roc. 156 (1818) ; People f. Haines, U Wond. 54(! {isjfl). 3 People f. Clough, 17 Wend. 351 (1837). * 1 F. &F. ."MK (18.W). 6 I.. AC. 477 (1804). « 41 Miss. 670 (1867). PRETENSE MUST BE OF EXISTING FACT. 375 juUgmeat by falae § 4(iO. Owner Must Intend to Part Wltb his Property. — The owner tutiHt iiiteail to part with Ills property In the goods.' refore a false repre- j pretense." « ,hoiigh obtained by •retense. — In B. v. pretendiuii to C. & ined the property of )8ecutor, who was a will call on ray way r?"C. said, "Yea," . It was not. ile by means of the imself , and not until v.; and it might be uU to W. prisoner should be ng a mare by falsely t the prisoner so pre- vith B., the prisoner he prosecutor parted It was held that the italnlner Property.— iiviug defrauded the ending that he was a e the Supreme Court leslgn to obtain the that the pretenses re- ith any design to ob- 3astor of the church, their representatives, him to become their on the subject and to ented himself to be a would not have called ;o decide. But so far ' means to Induce the 18.19). M). 867). § 401. Prisoner must bave Received Property. received by a third person will not do.' Proof that it was § 4(>2. Object of Pretense Must be as Charged. — In R. v. Stone," the inilictment charged that the prisoner being a member of a building society, ob- tained from the society the sum of £30 by means of a false pretense that he had completed two houses which he hu0 (1881) ; State i'. Vickery, 19 Tex. 363 (1857) ; White v. .state. 11 Tex. 769(1854). 2 Willis V. People, 19 Hun, 84 (1879). M F. * F. 311 (1858). < Dillingham v. State, 5 Ohio St. 280 (1856) ; Johnson v. State, 41 Tex. 65 (1874) ; Keller v. .state, 51 Ind. Ill ; State v. Evers, 49 Mo. S42 (1W2) ; Colly v. State, 55 Ala. 84 (1876) ; R. v. Rertles, 13 V. C. C. P. 607; 11. r. Gemmell,2« V C. Q. B. 313; K. r. Uenshaw, L. & C. 444 (1864) ; Com. v. Moore, 99 Pa. St. f 70 (1882) ; Allen V. State, 16 Tex. (App.) 150 (1884). i State V. Magee, 11 Ind. 154 (1838). ' Ryan v . State, 45 Ga. 128 (1872). ' Banncy v. People, 22 N. Y. 413 (1860), > People V. Miller, 14 Johns. 371 (1817). » Burrow v. State, 2 Ark. U.J (1851). 10 Mckenzie v. State, 11 Aik. 5!U (1851). n R. r. Lee, U & C. 809 (18(«). 12 Stuyvesant'a Case, 4 City Hall Uec. 156 (1S08). 1^: Canter r. State, 7 Lea, 35U (1881). 37t) FRAUD AM) FALSK IMIETKNSES. would deliver tlicm ut A.'s house, uiul H. dellvvrud thcni, but A. would nut pay hliii, tliLs wa8 held not swindling. > Ir. Jl. V. Gomllidll,'' the prosecutor, Thomas Perks, wns a butcher at Wolver- lianiptoi), and on the 17lli of AugUHl, Ih.m, (iii> prisoner came to hiM shop to purchaHO thno HJiuip and two lejr.s of veal; on being told by the prosecutor that ho would not trust him, ho promlsc R. &R. 4l!l (1831). 3 11 Cox, 647 (1870). rt^M IMtKTENSR MUST HR OF EXISTIN(f FACT. 377 A. would not pay utcher at Wolver- lu to hiM Hliop to by the prosecutor le would send the would reudt the ut on the 18th of f the proHucutor'8 lot {{Ivo it him, lie jure! " and wrote liter, and it would 9 dellver<;d to the 1 one. If you will M, G." i opinion, that at not part with the Lhe money, to ob- lied for the meat, eturn the money ; that the prisoner assizes. this case. They n pretense within ture conduct, and jury arising from rranted sound, to y on a Thursday, t of the prisoner »r, however, paid rned it to him on c prisoner had no turday, or on any ss, proved that he prisoner had told Jd asked T' fnr M \i ^' a him, uiat had bought .1 the followin lack to the pro summ'-ns against at t! prisonei's house on the previous Monday. At the close of the evidence prisoner's counsel contended that the prisoner ought to bo aei|ultted, tlrst, because, the prosecutor liuvlug broken the contract, the charge of false pretense could not be main- tdliicd ; secondly, because there was no false pretense of an existing fact, m the prisoner did not allege he had funds at the bank at the time he drew the clit'ckj thirdly, because upon B.'s evidence the prisoner liad reasonable cause to believe that the check would be paid on Saturday. The court overruled the oi»jectlons, and directeti the jury that If they bu- lieved that the prisoner knew he had no funds at the bank, at the time he gave the check, and that the prosecutor had parted with the mare upon the belief that tlio check was a good and valid one, they must llnd tin- prisoner guilty. The jury thereupon found the prisoner guilty. Held, that the direction to the jury was wrong, and that the ease ought not to have been left to them, and that tiie conviction ought to be quashed. Ill People V. Jiicharda,* an indictment for conspiracy charged that defendant had falsely pretended that one F. was about to prosecute A. for an attempt to commit a rape on his infant daughter, and that by the testimony of the girl he would bo sent to prison whereby he was Induced to convey to them property, etc. It was held, that the charges were not of existing facts but of things which a third person had threatened to do — upon which no Indictment for false pretenses could be predicated. lu CummomoeaUh v. Stevenson,^ the defendant falsely represented to A. that he had then in his possession a check for the payment of money drawn by him in favor of A. from the proceeds of which lie intended to pay certain l)ills due from A. to certain persons. "This," said the court, "was a promise to do something in the future witli no representation of any existing, material fact." § 4()4. False Representation of Bxlatlner Fact Essential — Assertion of Existing Intention Insufficient. — In People v. lilanchard,^ the prisoner was convicted of obtaining a number of cattle by false pretenses. The facts wuie as follows: The vendor sold the cattle to the prisoner at Buffalo, New York, and received his check postdated for the purchase price, upon his representation that he was buying and wanted the cattle for G. who lived at Ulica, and who would remit the funds in time to meet the check. The prisoner had been in tlie habit of purchasing cattle to supply G. as a customer and of selling them to him and had general authority so to buy whenever cattle were low; ten days before the purchase, G. had written to the prisoner stating that he wanted a choice lot of cattle and requesting him to send a car load. The prisoner, however, instead of sending the cattle to G. shipped them to Albany, .sold them at a;reduced price anddid not pay tlie check. Onappeal the conviction was held error; because while there might have been a fraud there was lo false pretenses as the vendor was cheated not by any false statement of facts on which he relied, but by reliance on a promise not meant to be fuilfllled and a false statement of intention. In a. V, JohnatvH,* it was held that obtaining money from a woman under the false pretense that the prisoner intended to marry her and wanted the money to pay for a wedding suit he had purchased was not within the statute. I I Mich. 21(! (1849). ■ 127 Mass. 446 (1879). 3 90 N. Y. 314 (1882). * 2 Moody, :i25 (1842). iSWiiiHl'-' 378 FRAUD AND FALSE PUETENSE8. On the trial it was proved tliat the prisoner paid his addresses to one Hannah G. Hutchinson and tlmt the banns were regularly published in church with his sanction on the 23d and 30th January, and 6th February. It was further proved that after the first publication of the banns, the prisoner met the said H. G. Hutchinson at a draper's shop by appointment, in order that he might there buy a suit of clothes for the wedding; that he accordingly bought c suit of clothes for £4, and asked her for £4 to enable him to pay for them That she accord- ingly gave him £4 for that purpose. It was further proved, that on the 3(t of February, the prisoner told the eald H G Hutchinson, that he had asl^ed his n^aster to lend him a cart to go to New. castle, to get the furniture for them to put into a liouse for which they were in treaty, and in which they proposed to live after the marriage, and that his mas- ter had agreed to lend him the cart; accordingly on the next day, the pris- oner applied to the said H. G. Hutchinson for the money to enable him to purchase the furniture. The said H. G. Hutchinson, after some discussion as to the amount required at last gave him sevemeen sovereigns and a £5 note to enable him to get the furniture, which the prisoner said he would procure on the next day (Uie •(>). On the next day, he told the saidH. G. Hutchinson that his master could not let him have the cart till the following Monday (the 7th), and on that same day, the 4th, the prisoner and the said H. G. Hutchinson went together to the landlady of the house for which they had been in treaty, and finally agreed to hire it, and paid Id by way of earnest; no application had ever been, in fact, made for the cart. On the next day, the 5tli, the prisoner went off and soon afterwards was apprehended in Scotland, having spent the whole of the money. . The jury found tl prisoner guilty on both counts, but the learnad judge entertained great doubt whetlier the evide.ice warranted a conviction on the first count, as the house was not hired until after the prisoner had got the money; and, as to the second count, he doubted whether tlie pretense stated v,as one on which a conviction could tal;e place, and the learned judge, there- fore, respited tlie judpnent till the foUowing assizes, in order to have the advice of the judges A both points. The prisoner entered into a recognizance with two sureties, to appear at the next assizes to receive judgment. This case was considered at a meeting of the judges in Easter Term, 184^ and they held the conviction wrong. §465. Remotenesa of Pretense. — The pretense must not be too remote .1 A pretense to i -arlsh officer, as an excuse for not working, that the party liL no clothes whei. be really has, tliough it induces the officer to give hlra clothes, is not obtaining money by false pretenses.* InB. v. linjan,^ the prisoner was indicted for having, on the 7th of January, at Sunderland, by falsely pretending that he was a member of the naval reserve, and entitled to receive 30s for a quarter's payment next day, obtaineil from Arthur Calvert, of Sunderland, board and lodgings, at 14s per week, and 6d in money. Tlie prisoner pleaded not guilty. It appeared from the opening staf-ment of the counsel for the prosecution that the prisoner went to a 'odg- 1 B. V. Carpenter, 11 Cox, COO (1870) ; B. r. Gprdnor, Dearb. & B. 40 (1856) ; Morgan v. State, 12 Ark. 131 (1883). 2 B. V. Wnkeling, B. & B. 604 (1823) 3 2F. 4 F. 867(1861). ES. REMOTENESS OF PRETENSE. 379 Ircsses to one Hannah G. shed in church with his J. It was further proved soner met the said H. G. r that he might there buy • bought c suit of clothes them That she accord- the prisoner told the eaid I him a cart to go to New. }e for which they were In irriage, and that his mas- i the next day, the pris- money to enable him to , after some discussion as verelgns and a £5 note to said he would procure on he saidH. G. Hutchinson lie following Monday (the ihe said H. G. Hutchinson h they had been in treaty, E earnest; no application D day, the 5th, the prisoner Gotland, having spent the is, but the learnad judge anted a conviction on the the prisoner had got the iether the pretense stated J the learned judge, there- [zes, in order to have the i sureties, to appear at the Iges in Easter Term, 1842, ctense must not be too u for not working, that the luces the officer to give him ing, on the 7th of January, a member of the naval layment next day, obtaineil ;lngs, at Us per week, and appeared from the opening le prhoner went to a lodg- kcling, R. & R. SOI (1823) 667 (ISCl). iiig-house in Sunderland, kept by the prosecutor, Arthur Calvert, and there represented that he was a member of the naval reservt-, and was entitled next d.iy to receive 80s for a quarter's payment. Believing this representation, the prosecutor agreed to let him have board and lodgings for a week for 14s. The prisoner then said he was short of cash, and asked the prosecutor to lend him (id which he did. The prisoner remained some days at the prosecutor's, and it was then discovered that he was not a member of the naval reserve, nor eutitled to receive any pay as such, and that he had no means of paying for his board and lodgings. Hill, J. How do you distinguish this case from Regina v. Oardner. Meynell, for the prosecution. In this case money was obtained by reason of the false pretense, in addition to board and lodgings. Hill, J. I can not distinguish this case from Regina v. Gardner. (To the jury.) You will return a verdict of not guilty, because although the prisoner obtained money or goods from the prosecutor, he did it by means of a contract, and h j obtained the contract only by means of the false pretenses. It is too remote to say that he obtained the goods or money by the false pretenses. The point is decided and I am bound by that decision. The prisoner was then found not guilty, and ordered to be discharg' '. In B. V. Larner,^ it appeared that on the 23d day of August, a swinnning handi- cap took place at the Surrey County Baths. Entries were to be made previously to Alfred Endin, ^sq., and competitors to be handicapped by qualifled persons. A competitor's ticket was issued by Mr. Endin to each accepted entry. The length of the course was one hundred yards, and there being a good many en- tries tlie race was swum in heats. A programme was printed and circulated, containing, amongst other matters, the names of the competitors, and arrangement of the various heats, and on that programme appeared the name of W. Larner, to whom a start of twenty seconds had been assigned. Some few days before the issuing the programme, Mr Endiu received the fol- lowing letter; — Nelson Club, 90 Deax Street, i Oxford Street, August 19, 1880. > Sir: I enclose entrance fee for another entry for your 100 yards handicap. W. Larner (Middleton Swimming and Athletic Club) In club races receives twenty-five seconds from scratch — I remain, sir, yours, respectfully. H. Gbekn, Hon. Sec. Another letter of the same kind had been received by Mr. Endin entering one Binns for the same race. The leti '•s were received in the usual course through the post-office. The two entries < I Larner and BInna were accepted, and tlie entrance fee of 2s 6d each paid. Mr. Endin stated that he knew nothing about Larner or his accomplishments as a swimmer; that he received his entry in con- sequence of the representations contained in the letter, and that the start of twenty seconds was apportioned to him for the like reason. He further stated that he handed Larner a competitor's ticket; that Larner swam in the com- petition, and after being second in his own heat won the final easily. It was believed that Lamer could have won the race from a scratch. For the prisoner it was objected that the false pretenses were too remote, that if he obtained anything thereby it was the competitor's ticket and not the cup ; 1 U Cox, 498 (1380). '"-"^mmmm^mm iisvmw^^-^ i^ii!»llHjPy*l'f"iJ'IJ.'l 380 FRAUD AND FALSE PRETENSES. that the cap was obtained by his own bodily activity ; and that the case fell within Beg. v. Gardner,^ in which case the prisoner had at first obtained lodg- ings only by a false representation, and after he had occupied the lodgings for a week he obtaltied board; and it was- ueld that the false pretenses were ex- hausted by the contract of 1 'dgi^j-, the obtaining board not having apparently been in contemplation when the false pretense was made. For the prosecution it was urged that the false pretense was a continuing one, that the winning of the cup was clearly in the contemplation of the i)ris- oner when he entered for the race, and that the judgment of WiUes, J., in Reg. V. Gardner, citing Keg. v. Ahbott and Reg. v. Burgess, was an authority the other way. They also cited Beg. v. Martin.^ Held by the Common Serjeant, after conferring with Stephen, J., In the Old Court, that the objection must prevail as the false pretenses were too remote. The prisoner was afterwards tried, for uttering the letter knowing it to be forged, and convicted. In B. V. Woodmnn,'' the Indictment charged one Gregory with having obtained £30 from prosecutor Woodman on tlie false pretense that he the said Gregory tlien wauted the loan of £30 to enable him to take a public house at Melksham; by means of which said false pretense the said Gregory did then unlawfully and fraudulently obtain the said sum from the said Samuel Woodman with Intent to defraud. Whereas the said Gregory was not then going to take a public house at Melksham * * * as he the said Gregory well knew. And whereas the said Gregory did not then want a loan of £30 or any money to enable him to take the suld house. At the close of the prosecutor's evidence — Meli.ok, J. It .seems tome that the real motive and inducement was this; the prisoner says, "I am going to take a public house; if you will let --.e have £30 I will do so." The Inducement for all was, " I shall be able to re- turn you the £30 while I carry on business at Melksham." It was, therefore, the expectation of being paid out of the prollts of the business at Melksham. The old rule Is, there must be a false representation of that being alleged to be a fact which Is not a fact. BaveiiJiill, for the prosecution, suggested that here the existing fact was the Intention of prisoner. Mellor, J. How can you define a man's mind? It is a mere promissory false pretense. Bavenhill proposed to show that prisoner was not able, at the time of making the pretense, to take a public house. Mkllok, J. That is too far a field. In criminal matters we must take the immediate result. This is one of those cases in which the prosecutor was too credulous. [After having conferred with Denman, J., the learned judge con- tinued] : My brother Denman is clear that there is not enough evidence to leave to the jury of any existing false pretense. We both think that, :iad the whole circumstances been known earlier, something might have been made of a statement by the prisoner that he had £30 at home and that he could then take the house. § 466. Direct Promise Must be Proved. —In B. v. Masterson,* the pris- oner wrote to two different traders, enclosing to each a half of the same $5 1 1 Dears. & B. C. 0. 40 ; 7 Cox, C. C. 136. >L.R. ICC. 0.56; 10 Cox, U. C. 333. 3 U Cox, 179(1879). • 2 Cox, 100 (18i6). PRETENSE MUST BE PUO\ ED. 381 hat tbe case fell 8t obtained lodg- l;he lodsiings for a jtenses were ex- laviDg apparently was a continuing ation of the i)rifi- SViUes, J., in Reg. athorlty the other EN, J., In the Old were too remote, knowing It to be h having obtained ! the said Gregory use at Melksham ; en unlawfully and lan with intent to ike a public house And whereas the to enable him to ucement was this : f you will let "ie lall be able to re- was, therefore, the t Melksham. The ng alleged to be a isting fact was the mere promissory the time of making we must take the jrosecutor was too earned judge con- lough evidence to :.hink that, :iad the ive been made of a he could then take Patterson,* the prls- ,lf of the same 95 note, and requested goods to be forwarded to him, which was accordingly done. The court held that an indictment would not lie as the prisoner had not re- ceived the goods under a false pretense, though such might be iwiplied from each half of the uote being sent to a different person on the same day; but there was no direct promi e in either of the letters which had been sent to the traders that the other lial* would be forwarded to him. § 4C7. Pretense Must be Proved — Inference of Pretense from Con- duct. — In R. V. Partridge,^ the London and Brighton Railway Company were in tiie habit of advancin;; small sums of money to persons sending goods to be carried by their railway on the faith of receiving such suras from the consignee on the delivery of the goods to him. The defendant went to the principal rail- way station, and gave to a clerk there a card, on which was written, " Cxse to Brighton, lis iid to pay," at the same time requesting that the case might be sent for to a certain tavern, and forwarded to its destination. The wird was, in the ordinary course of business, sent to the goods station of the company with the message left by the defendant, and the manager there directed a car- man to fetch tlie case from the tavern and to pay the Us 9d. This was done. The case was sent to Brighton, but the address written upon it was found to be a llctitious one, and, on opening the case, it was found to contain nothing but brickbats and other rubbish. It was held that these facts did not support an allegation of a false pretense that the box contained certain valuable articles. Lilleii (for the defendant) contended that on this state of facts the defendant could not be convicted. Tliere was no '-.Ise pretense within the statute. The pretense in the indictment was, that the box contained valuable property, but no such statement was made by the defendant, nor could it be inferred, from anything that he had said or done. Again, the pretense, if any, was not made to the person advancing the money. Neither of the clei'ts at the dif- ferent stations saw the case at all. The second clerk who directed the carman to pay the money did not even see the defendant; he saw nothing but the card, itud what was written upon It certainly did not amount to the pretense alleged. Robinson (for the prosecutor) submitted that the pretense stated in the in- tlictment was not made by the defendant in so many words ; but that was Im- material. It was sufficient if the defendant, from his conduct, fraudulently led the prosecutor or his agent to believe in a particular state of facts, although he did not assert their existence. That was established by the well known case of R. v. Barnard,^ where tl"> defendant, who was not a member of the university, went into a tradesman' ,^hop at Oxford in a cap and gown, and ob- tained goods from him; this was held to be a false pretense that he was a mem- ber of the university although he did not say so. Lilley. In that case the defendant did represent in terms that he was a member of the university. Robinson (on referring to the case) admitted that was so, but in the judg- ment that was unnoticed, and it was expressly stated by the learned judge that, even without such a declaration the pretense would have been made out, and in all the text-books the decision was so treated. Story^a Case ^ was also in 1 Cox, 183(1853). » 7 0. ft P. 784. 3 R. ft R. 81. l^-i^i'-- 382 FKAUD AND FALSE PRETENSES. point. The circumstance ol the person advancing the money not having seen the box, was immaterial. It was proved that the company only advance.1 money under such circumstances upon property tlmt was of value, and it would be a question for the jury, whether tlie defendant was not aware of that practice, and whether by his conduct he did not seeic to represent :o them that the box contained valuable articles. The clerk at the principal station received his directions from tlie prisoner himself, who must have intended him to be- lieve what alone would procure the advance of lis 'Jd, and although this clerii did not himself pay tlie money, he did it through his agent, for he gave instruc- tions to the clerk at the goods station, who gave orders to the.carman advanc- ing the money. So tlmt In contemplation of law it was the first clerk who paid the amount, and it was paid on the false representation of the prisoner. The case was similar to tliose of the presentation of a false cheque, where nothin-^' was said about its validity, but where on its production cliange was given for it on the faith of its being good. There were several cases showing that the merely uttering such an instrument was equivalent to a statement that the cheque was a valid one.' The Common Skrjbant (after consulting Jervis, C. J., and Colkuidgb, J. who were In the adjoining court). I am of opmion, and the learned judges whom I have consulted agree with me, that the evidence does not sup- port the indictment. This is not like the case suggested of presenting a false cheque, because there the check was shown by the defendant to the person paying the money, and he immediately acted upon it. Nor is it like that of the pretended collegian, for there the cap and gown were seen upon the person. In the present case, the person from whom the money was obtained, never saw the box at all. Moreover, I do not think that the pretense alleged In the in- dictment can be inferred from what the defendant Is proved to have do-e. The merely representing that there would be lis 9d to pay does not necessarily involve the assertion that the box was of value, because the money might l)e payable on the box reaching its destination, although tlie box itself was of no value whatever. Then if it is said that the prisoner meant the clerk to infer that the Us 9d would be paid at Brighton, which he knew to be untrue, this is a pretense with regard to something future, and, therefore, not within the statute. „ . ... . Not guilty. § 407a. Protection Afforded only to HoneBty— Property Blven to Induce Compromise of Alleged Crime. — In McCord v. People,* the prisoner repre- sented tliat he had a warrant against M. and thereby induced him to give him a watch and diamoni? ring. It was held on appeal that as the property was parted with to induce an otficer to violate his duties, the indictment could not be sus- tained. " If the prosecutor," said the court, " parted with his property upon the representations set forth In the Indictment, it must have been for some un- lawful purpose, a purpose not warranted by law. There was no legitimate purpose to be attained by delivering the goods to the accused, upon the state- ments made and alleged as an Inducement to the act. What action by the plain- tiff in error was promised or expected In return for the property given is not disclosed. But whatever It .vas It was necessarily Inconsistent with his duties 1 Jackson's Case.S Camp. 370; Freetly's Cat)e,liu8B. ARy. 127. 2 40 N. Y. 470(1871). CRIMINAL INTENT ESSENTIAL. 383 jney not having seen puny only advanced as of value, and it as not aware of thut present :o them thut sipal station received ! intended lilm to be- id although this clerk , for he gave Instruc- 9 tlie.carman advanc- e first clerk who paid >f the prisoner. The teque, where nothin-j; cliange was given for ases showing that the El statement that the ., and CoLRRiDOE, J. lid the learned judges lence does not sup- 1 of presenting a false iendant to the person ir is it like that of the seen upon the person. s obtained, never saw inse alleged in the iu- proved to have done, y does not necessarily !e the money might l)e 3 box itself was of uo eant the clerk to infer V to be untrue, this is efore, not within the Not guilty. lerty slven to Induce ,* the prisoner repri- ced him to give him a iC property was parted nent could not be sus- 1th his property upon ive been for some un- ire was no legitimatu sused, upon the state- lat action by the plain- property given Is not sistent with his duties 871). as an otilcer, having a criminal warrant for the arrest of the prosecutor, which was the character he assumed. The false representation of the accused was that lie was a oflicer and had a criminal warrant for the prosecutor. There was no pretense of any agency for, or connection with any person, or of any authority to do any act, save such as his duty as such pretended officer demanded. The prosecutor parted with his property as an induce- ment to a supposed officer to violate the law and his duties; and If in attempting to do this he had been defrauded, the law will not punish his confederate, although such confederate may have been instrumental in inducing the commission of the offense. Neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other in their dishonest practices. The de- sign of the law is to protect those who for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who, for unworthy or illegal pur- poses, part with their goods.^ The judgment of the Supreme Court and of the Sessions must be reversed, and judgment for the defendant." § 408. Merely Obtainine One*B Own, Not. — False representations to induce a man to pay a debt are not criminal. > As where a constable by means of false representations collected the amount of a judgment from a person against wlioni it had been rendered.' In R. v. Williams,* A. owed B. a debt of which B. could not get payment. C, a servant of B., went to A.'s wife and obti'-ied two sacks of malt, saying that B. had bought them of A. C. knew this to bo false, but took the sacks to B. to enable him to pay his debt. It was held that C. was not guilty of false pre- tenses. «' It is not sufHclent," said Coleridgk, J., «• that the person knowingly stated that which was false, and thereby obtained the malt; you must be satis- lied that tlie prisoner at the time intended to defraud A." In State v. Hurat,^ It was held that a person who by means of false pretenses induces another to pay a debt already due, is not guilty of obtaining money under false pretenses, with intent to defraud ; and so when the prisoner, by means of false pretenses, obtained $138, of which $144 was due from the pros- ecutor to the prisoner, the prisoner is not guilty o'i obtaining the whole $158 by means of false pretenses within the statute, but only the 814 excess over what he was bound to pay. " This," said the court, " involves the question whether a person can be indicted for procuring money by false pretenses, who, by false pretenses has induced another to pay him a debt already due. Bishop, in ills Criminal Law,* states the law to be, that an Indictment in such a case will not lie. The oldest decision on this question, which I And is a case decided in 183G, by Colekidge, J., In the case of li. v. Williams.^ The prosecutor owed the prisoner's master a sum of money which he would not pay; the pris- oner, to secure hismarterthe means of paying, himself went to the prosecutor's wife and falsely pretended that his master had bought of her husband two • People V. Williams, 4 Hill, 9 ; People v. ^tcifion, 4 Barb. 161. ' People V. Thomas, 3 Hill, 1C!> (1842) ; Com. V. McDuffy, 126 Mass. 467 (1879). " Com. f. Thompaon, 2 Clark (Pa.) 33 as«:)). * 70. 4 P. (1836). s 11 W. Va. 84. ' vol. 2, sec. 442 (3d ed.) 7 7 C. * P. 354. 884 FKAl 1) AND FALSE PRETENSES. sacks of malt and had sent him to fetch them away, and she thereupon gave them to him, and he carried them to his master. Judge Coleridge cliarged the jury, ' tliat If Ihey were satisfied that the prisoner did not Intend to defraud the prosecutor, but only to put it in his master's power to compel him to pay a just debt, It will be your duty to find hiin not guilty. It is not su Jlcient that tlie prisoner knowingly stated what was false, and thereby obtained the malt. You must be satisfied that the prisoner Intended at tlie tlm-, to defraud tlie prosecutor.' The case of Commonwealth v. TJiompson,^ it is said In the case of Communwealth v. Henry,^ to have been a case In which the prisoner, by falsely pretending he had a warrant of arrest against the prosecutor, procured the pay- ment of au honest debt. It was held that he was not liable to be Indicted for procuring money by false pretenses. This case Is cited approvingly in the case of Commonwealth y.llem-y, and the court adds: 'A false representation by which a man is cheated into the performance of a duty. Is not within the stat- ute.' In the case of People v. Thomas," the court in rendering Its decision uses precisely the same language as was used by the Supreme Court of Pennsylvania, in the case of Commonwealth v. Henry, thougli an exar;>lnatlon of the case shows that the decision of this principle was not involved in the case before the court. These are the only decisions or dicta to which I have been referred, or which I have found bearing on the subject directly. Other cases have been relied on In wliich the question discussed was the criminal intent or absence of such intent In common-law ofEenses ; but they seem to me to throw but little light upon the subject. Tlie true question involved is, what is the proper construction of the twenty-third section of chapter U5 of tlie code of West Virginia? Its language Is : 'If a person obtain by any false pretenses from any person, with intent to defraud money, etc., he shall be deemed guilty of larceny.' The words, false pretenees, used in this statute are very comprehensive, yet the courts, lookine*'" the purposes of the legislature, have often held that every false representation or statement ought not to be held a false pretense, and have put a limited meaning on these broad words which they have attempted to define with such accuracy as the nature of the case would permit. In the same spirit, I think, the words, ' with intent to defraud,' should be interpreted. It is doubtless immoral for a person by false pretenses to obtain the payment of a just debt. The end sought may be just, but such end will not, by a correct code of morals, justify the use of improper means; but the law does not, in many instances, attempt the enforcement of good morals, and the question is, whether the use of false pretenses, to obtain a claim justly due, is within the true meaning of this criminal statute a fraud. To so construe this statute, would, in my judg- ment, consign to the penitentiary as thieves many persons who can not be classed with common thieves, without breaking down all our ideas of distinc- tion in degrees of immorality. I think, therefore, that within the true meaning of this statute, a man can not be held guilty of procuring money by false pre- tenses, with Intent to defraud, who has merely collected a debt justly due him, though in making the collection he has used false pretenses. The authorities I have cited, though not entitled to much weight in themselves, sustain this view; and I have seen no authority which sustains the contrary view." I Reported in 3 Pa. Law Jour., and com- ^ 2i Pa. St. 256. mented on in Lejvis' U. S. Cr. L. 197. ' 3 Hill, ll!9. ORDINARY PRUDENCE ESSENTIAL. 385 she thereupon gave Coleridge charged ot intend to defraud ;ompel him to pay a s not su Ilcient that obtained the malt. :iin<. to defraud the said in the case of prisoner, by falselj- r, procured the pay- e to be indicted for rovingly in tlie case B representation by not within the stat- ing its decision uses urt of Pennsylvania, )n of the case shows ise before the court, referred, or which I ive been relied on in lence of such intent little light upon the construction of the ;inin? Its langui'ge rson, with intent to ' The words, false lie courts, lookine t.^ false representation have put a limited to define with such same spirit, I think, d. It Is doubtless tnent of a just debt, rect code of morals, , in many instances, is, whether the use the true meaning of , would, in my judg- ns who can not be >ur ideas of distinc- liin the true meaning money by false pre- lebt justly due him, I. The authorities I iselves, sustain this trary view." § 4(11). Person Deceived Must Have Used Ordinary Prudence. — It is settled that ordinary prudence and common caution are recjulred of the prose- cutor.* Ill Lcobalil V. State," the court doubted whether a representation made by one that he is the owner of an extensive maiuifacturing establishment in a city In another State, '.s .such a pretense as would induce a person of ordinary caution to loan tlie person ten dollars. " It was not the intention of the statute to convert every fraud which might fall within llie cognizance of a court of equity into a criminal ofEense, and to protect every individual from the consequences of his own credulity, impru- dence or folly, I)ut it was designed to exiend no f urtlier than to embrace such representations as were accompanied with circumstances fitted to deceive a person of common sagacity and exercising ordinary caution." '■' In People V. Babcock,* the prisoner by false pretenses got from one of the firm of B.& I), a release of a judgment against him on the promise that he would pay part of it and give his note for the Iwilance. It was held that this was not ludlctable. •' There was nothing," said the court, " beyond the defendant's false as.scrtion that he was ready to pay the judgment. There was not even the pro- duction of cither note orinouey and common prudence would have dictated the withholding of the receipt until the money was paid and the note drawn." In Slaie wDellnrt,^ ih*i defendant purchased goods falsely representing that he had in his odice a certain quantity of property liable to his debt. " If," said tlie court "the only foundation for his credit was the existence of the property of the defendant in his office as alleged, common prudence and cau- tioii upon the part of the prosecutor should have required him to re-sort to other Information as to this fact. The defendant's conduct, if as alleged, was higiily reprehensible, but we tiiinli it is not a case of felony under the statute." Ill People v. Williams,'' the conviction of the defendant was reversed on ap- peal. He had been convicted for obtaining by false pretenses the signature of one Van Guilder to a deed of lands. At tlie trial the defendant's counsel re- quested the court to charge that tlie pretenses laid in the Indictment were not sueli as could be made the subject of a criminal prosecution, but the court re- fused and held the contrary, the other facts appear from the opinion. Ihj the Court. It Is Impossible to sustain this indictment without extending the statute to every false pretense, howe\er absurd or irrational on the face of it. T!ie charge is of falsely representing to Van Guilder that he was about being proceeded against for u debt due from him, and that by means of the represen- tation, his signature was obtained to a deed of lands. How such a result was made to follow from means apparently so inadequate, wc are left to conjecture; Looiilng to the case made by the indictment Van Guilder's only ground of com- plaint would seem to be, that in attempting to defraud another, he had himself been defrauded. But whatever the fact is in this particular there can be no doubt that an exercise of common prudence and caution on his part would have eiialjled him to avoid being imposed upon by the pretenses alleged ; audit so the case is not within the statute.^ New trial ordered. 1 Com. nllaughey,.'? Mote. 22;l (1800); Com. « OBaxt. 222 (1873). V. tirudv, 1.3 nusli, 288. o 4 inn, g (1843,, 2:i3ImI.484 (1870). 7 sco Goodlisll'a Case, Buss. 4ny.461,- nunow V. State, 12 Ark. K, (1S51). llosc. Cr. Ev. 862. ' 7 Johns. 201 ; 5 Am. Dec. 256 (1810). 3 Dekkncks. 35 wm» 386 FKAUl) AND FALSK I'lMrrKN.SKS. in People v Stetson,^ th« defendant represented to the prosecutor that ho J. rZ abl and had a warrant against hi.n issued by a justice o the peac. Tor the erlme of rape, hut if he would «ive him his watch ho would s ttlc . Tli8 was held not to be punishable. '• It Is," said Mavnauu, V. J., a >v U ItUed m^ tional rule that the false pretenses in order to sustain an ndiet- meat mTs be such that, li true, they would naturally, and uccor.ling to the Zalormtlonof motives upon the minds of persons of ordinary prudence, "X^^^^^^ -»^^-. - '" «^'-- T''' ^n^e^Tsr;;;;;! 'dt c'tiyTn- lefrauded must be such as the apparent exl-eucy of the case would ^'Irectiy n ucTan honest and ordinarily prudent person to do, if the P'-ctenses we e true Annlvhi" this rule to the case In hand, it will, I think, ai.pear that the fals.. nrcten e" even f believed to be true, could not by any course of reasoning, have fnduc^l aS Pe o. o do what the prosecutor did. No n.an could suppose tha ':e::XZ::::^ discharge from a warnu.t for J^'-y '^y ^'^^^^^^^^^^^^^^^^^^ goods to the omcer holding the warrant. The pretense i''"^^' '''*•;; ^J^^f J warrant and pretending it to be true; there is no allegation that the accu^ea Tsert rtha^^^^^^^ had authority to settle it by receiving money or goods, he Tfl" ed to do 80. and the prosecutor accepted his proposal, and delivered h- IT it w«s the offer to settle the warrant which naturally produced the Sfandnorthesuppoed warrant. The conduct of the accused was in the h^hit degree immoal and reprehensible, but there seems to be no law to Srh mTnder this IndicUnent. lie may be indictable for forging the pro- Jended warrant, if in truth he had such an one as the indictment seems to sup- pose." Sbldbn, J., concurred. judgment for defendant. C470 Passing counterfeit Money. -Passing counterfeit bank-notes m navment of goods is not obtaining money by false pretenses.^ ,,„„„* .^ In -si^e V .i;/mV'the prisoner sold to the prosecutor a pair of shoes fo SI ii ani reclv^I «l-0,and paid him the ten cents change in counterfeit mon y t wafheld that'he was not guilty ot obtaining the ten cents by false nretenses «'The money of the prosecutor," said the court, " wa« "ot obta ned by any fnvudulent representation or practice by which he was induced to part with it." 8 471 __ passing Bant-note of Banlcrupt Banlc. - In B. v. Spencer* the nrlner was indicted for false pretenses in passing, in payment for meat pui- Sase I by h -ra t^^^^^ -te the note of a bank that had stopped payment The pier knew tLt the bank had stopped payment, but o.,e of the partn CZl-n not Ly\hat tke prisoner was guilty of afraud in pa.ssingit aw S 472 — V-»t not False Pretenses - mustratione. - Selling a promis- sory no^e which has been paid as a due one Is not ^^^^^^^^H ScTp law.' nor is inducing one to sign a deed on pretense that it Is a mere receipt. 1 4 Barb. 1.51(1818). 2 Cheek v. Slate, 1 Coldw. 172 (laW); Bobcrts f. State, 3 Head, 501 (1839). 8 84 N.C. 741(1881). * 3C.& P. 420(1828). i> Middleton v. State, Dudl. 275 (1838). « Slate V. Justice, 2 Dev. 200 (1829). CONSTRUCTION OF PARTICULAR OKFKNSKS. H87 irosccutor Unit ho isllcc of the peauu 10 would settle It. Rij, 1". J., " a will ) sustain an liulkt- acconling to tliu jrdtniiry prudence, done by the person would directly in- rcteiiai's were true, pear that the lalsf I of reasoninsJ!, have could suppose that lellverlng money or exliiliiting a forged n that the accused loney or goods; he 1, and delivered his iirally produced the accused was in the 1118 to be no law to or forging the prc- tmeut seems to sup- nent for defendant. erfelt bank-notes in s.» a pair of shoes for langc in counterfeit le ten cents by false i, «' was not obtained kvas induced to part I B. V. Spencer,* the lyment for meat pur- ,d stopped payment. It one of the partners d Gasklek, J., "the note may ultimately din passing it away." i. — Selling a promis- )reten9es at common , it is a mere receipt.* S8). tiite, Dudl. 275 (1838). !,2Dev.200(1829). Obtaining goo'is on a forged order for their delivery Is not false pretenses in Kngland,' nor is ii nien- fraudulent overcharge for work, done.- A surveyor of higliways, having authority to order gravel for roads, ordering gravel which he applies to his own use, is not guilty of olitaiuliig It by false pretenses.'' § *7i5. Partnership Affairs — Statute Not Applicable to.' — In R. v. l-Jvans,:- I'oi.i.ocK, C. H., said: " In this case the defendant was tried ai, the t'liester Sessions on an indictment which clmrLted him wiih obtaining luon.y under fal.se pretenses. The facts are that the .lefemlant entered into partner- sld|) with two other persons, "iid afterward.«, i)y a verbal agreement, it was arranged that he should become the agent of IIr partnership for a particular purpose, that his traveling and other expenses as such a-ent should be lirst paid out of the capital funds of the partner.ship. He was indicted for obtaining money by maliing charges again>t those funds for which there was no founda- tion. Now, inasmuch as before there could be any division of prollts, those (■.\|)enses would h.ave to be jiaid out of the capital fund, those chariies would be matter of nccount between the parties. If there was a real foundation for these ilmrges, they would come into the account, and be deducted from the nrollts of the partnership, The act of the defendant .vas no more than a misiepsenta- tion, wlileh would be overhauled when the accounts were gone into. It was not an obtaining of money by false pretenses within the meaning of the statute. "Si)eaking for myself only, I may add that in my opinion the statute a-ain.st obtaining money by false pretenses was never intended to meddle with the real business of commerce. It was not to control comnvrcial proceedings, unles.s where there was re;\lly and truly a piece of swindling, nor to apply to frauds committed In the course of a commercial transaction. In my opinion— and I am giving tliis as my opinion only, and not that of the courts — it would be very rai.schievous to make every knavish transaction the subject of an indiet- '"'-'"'• Conviction quashed.'" § 474. "False Token or Writing" — Pulse Use of Oenuino Writ- ing.— A false use of a genuine writing is not the use of a " false token or writing" within the Indiana statute. Thus where A. under a letter of author- ity sold B.'s corn and afterwards by the use of the same letter sold the same corn to another purchaser, this was held not within the statute." § 475. "False Writing." — To constitute a "false writing" within the statute the document must be one false in fact but purporting to be signed oy some person, and to be his act, and so framed as to have more weight and influence in effecting fraud than a mere naked assertion of the par'iy Therefore a document in the form of a bond, but having no signature attached to it, is not " a false writing." ' § 47fi. « Fraudulent.Swlndllng or Deceitful Practices."— In Vermont, in 1838, under a statute punishing the obtaining of money, goods or chattels by 1 R. V. Evans, 5 O. 4 P. liSS (1833). - n. V. Oales, 6 Cox, 540 (1855), K I'. Richardson, 1 F. & F. 488 (1859). ^ See U. t'. Watson, Dears, ft B. 348 (1857) ; Ii. t'. Kvans, 9 Cox, 238 (18(i2). ' L. AC. 256 (1862). Shaffer v. .State, 82 Ind. 223 (1882). " People V. Gates, 13 Wend. 311 (1835). ;i88 rnAUl) AND lALSE PltKTKXSES. falHo tokciiB, messugps, h-tters or by " otli.r frau(Uileut, swindling or deceitful practices," it was held tliat to olitaiii floiHls hy a fal,-*e and frauduleut declara- tion as to cue's state and circumstances was uot Indictable.' J 477. "Money." — Ol)taining a certlflcate of deposit o( a bank is not obtaining " a sum of money." - § 478. "Money. Goods or other Property." — Obtaining an Indorse- ment npon a promissory note by false prcten.ses is not obtaining " money, goods or other property." ^ § 479. False Pretenaes- " Valuable Security."— An unstamped order for the payment of money which ought to be stamped to be legal is not a ♦' valuable security " ' To support a conviction for obtaining a valuable security " by a false pretense," the security must be the property of, and of value to some one oihcr than the prisoner.' § 480 " Written Instrument •'— Must work Prejudice to th# Property of .ome one. - If the instrument be one that could not prejudice any one as to his estate It U not a "written instrument" within the statute as to obtaining signatures to such documents by false pretenses. So It was held in People v. Galloway,'' thata deed of land by a wife conveying real estate belonging to her In her own rlf;ht, executed by her with her husband fltthe solicitation of the husband, under the pretense that it was a deed of lauds Inlonglng to him, but not acknowledged l)y her as required by law, is not wlthm the statute. , I 481 . swindling and Theft under Texas Code. — In Pitts v. State,'' the distinction between theft and swindling is tlius pointed out by Ector, P. J.: "The appellant, J. B. I'ltts, was indicted, tried, and convicted by the District Court of McLennan County for the theft of a bay gelding, the property of one J Robinson The evidence, as shown by tlie statement of facts Is substantially as follows: J. B. Nixon, on December !», 1870, took up on his place. In McLen- nan County, a certain black gelding, which he estrayed. After having complied with the requirements of the statute In regard to advertising said estray Nixon loaned the estray gelding to appellant, to be worked by appellant on his (Nixon's-) farm, until the time came for Nixon to sell said animal. In April or May 1877, Pitts disappeared from the neighborhood, carrying with him the black gelding. He went to the store of one J. Robinson, a witness for the State, In the city of Waco, McLennan County, and proposed to trade him the 1 state V. Sumiior, 10 VI. 587; .S3 Am. Dec. 219 (1838). 2 Com. f. Howe, l.fS Mass. 250 (1882) ; as to the construction of " money, goorls and merchandise," and "effects," see Schlcsin- ger «. Slate. 11 Ohio f1S (lS8;i) ; ChllUers v. State, 1« Tex. (App.) .W5 (1884) ; Baker v. State, 14 Tex. (App.) 332 (I8s:!). « 12 Tox. (App.) UO (1882). »»SvO^, :i!io rUAUl) AND I"AI>i; I'lJKTKNHKH. tluMT,. T„.v i.layocl a«uln, unlU SkugRs won Ufty cents' worth of cl«u.« of i fculant. ■ I tol I .h.fen.lani I wouUI liko for Mm to pay up for 1..,,,, before *j ;;« Ino... 1.0 n..na,Ue.. that i n..... not ho ahu-n.o... ^'-\»; '^ , -^^J^; topayfor-thon.. an.l that ho was Roinj; i^ cont.nno the Ran.o """l>'^ ''f fj vhS ho ha.l la his po..kol, an.l that ho NVonUl pay fur thorn before he loft the 00 Defen.lanl Jt f.on> n.o .Ix.y clears, worth live cents aplocc. Whou 1 o 1 "d until ho lo.t »:. ho .,ult the pune. 1 thon .loM.an.U-a .ny rnoney Ih- f..n,hint Hil.l ho (ll.l not have it, l)Ut wouhl go homo and {lot U. Ho went off, > d 1 . c^u hack that ovcnlng. I sent No.l. llond,ry to hln. ,o «et ho on y 11 at ovonln.. but did not «ot it. I .lied an aflldavlt aga nst hlu. that c e^v-' Co.H.o;an.lno.i. '« D.fondant an,. Ska,,.HWorc «>•;'>"'« '^Z "Bame od color tho cifiars ; the undorstandin^ was that the loser would pay fo the n. fi:r:tood t,.tt while defendant an,. «Ua«.H were thronco,l a pros-cution against him. Ho .11.1 not tender me the rnoney Pa t ,? vd be..n throwing die in n.y room before defendant came In I , „,' know that .lofondant did not have «:! on his person; never examined He r ,o tl 1 abit of having money, - though this is the lirst time I saw him to in w him Ho has not been about n,o since. The place where the dofendan^ obtlo he cigars from n.e was in D..nlon County, Texas. He has never pal Ifor lieci-'ars. The cigars wore my property." Jan.es Oldham, a Staters u L 1 ,'>ath savs. "I was p.-osent on the 18th day of February, In the : m of M . it. v?;her; defo..da.,t an.. .John Skaggs wore throwing dlco for ZZZ' Ska.'.swontheciga,soffof .lefcdant. Skaggs won twenty- ve c nt'lvo th of cigars of dofe..da..t. Defendant paid for them. They contin- ued tirgne until Skaggs won twenty-tlvo cents' worth o cigars again or de enJant. Defendant paid for them. They continued tho gamo unt.l Ska-gvo. fifty cents' worth of cigars off of defendant; when Mr Howry fold dof ant 1.0 w,...ld have to pay up. I ■ndant remarked that Howry .0 d not bo uneasy, that he (defendant) had the money to pay for to l.ars He di.l not say that ho had the money on his person, or where. I r r' jt^pma WHJ Ii g l WmW I LU' WI 1 t-T»«S£*;ia.v^.. , ' •- INSUI'FICIKNT KVIUKNCr, Ol" SWINDI-INd. 3J)1 WOltll of ClKUlB of up for tliL'ni, hufoff lit he had the money iiino until he U>st 8;i m before he left the is apiece. When ho ilinl my money. I)i'- ;et It. Ho went off; )ry to him to ^et the ^It iigulnst him thiit re playing at a game ■ would pay for them, •owing dice, that the the clgiirs; that w:is witness satil that he lat he was expecting he relied upon de- ay him before ho left lot liave let him have e next morulng ami hius about being too pay for them then; I ender me the money, ndant came In. I do lever examined. Ho Irst time I saw him to I where the defendant 8. He has never paid nes Oldham, a State's ; of February, In the ■ere throwing dice for :ag!;s won twenty-flve r them. They contln- •orth of cigars again nned the game until ant; when Mr. Howry remarked that Howry oncy to pay for the lis person, or where. , It miutht have been lid go home and get tl»e money and would r him say where he had it." John Skaggs, in- ,y who threw dice with in Mr. Howry's room. ;ies, and when defend- i while until defendant l stick to mje he miglit 1 $3 worth of clgurs off icket or anywhere else. til' illcl not limit the game lo *,'!. The game was not limited to any amount. I licii'd all lliat was said; was present all tiie time 1111 defendant left the room. .\fier I liiid won some clpirs off of d'-fcudant, Mr. Howry wanted him to settle up fur what lie had got. Deiendant told him not to be uneasy; that he would pay for the cigars. When defi ndant quit the game he said ho would go home iiiul got the money, and return and pay for them." Cross-examined. " I did not toll Mr. Howry I would be a good State's witness, last week; norany other time that I would be a good State's witness." J. II. Howry, re-exumlned. "I.ust week or two Jolin Skaggs told me he would bo a good Slate's witness; I (lid not have hini sulipo-naed, because I thought he was busy in the game and iiii;ilit not romonil)er what was said. I had James Oldiiam subpuMiaed for me." If the witnesses for tlie defendant told the truth, then there wtis no offense conmiitled by the defendant. The conviction of defendant must have been u|M)n the evidence of Howry alone, and the evidence of the two witnesses for ilofondant utterly disregarded. Was the evidence of tlie prosecutor Howry sullloicnt to sustain the verdict? The defendant had met and completely orushod the case made by the prosecution, and tl^^it, too by two witnesses. Not only 80, but the witness Howry del!i)crately swears to facts about which tluio could not have been a mistake, facts reaciiiug the vital point In the case, iiiid which, If true, repelled all Inference of guilt of tlie offense charged. This witiioss, however, was very suddenly impressed with the fact that he (as he says himself) had "got him.self in a tangle and had told It wrong." What pro- duced this tangle? Why had he told It wrong? Was the subject one in regard to which tangles and mistakes would prol)ably and possibly occur? This wlt- III ss knew the moving cause wliich Induced him to part with his property. Mdst evidently, if he looked to the defendant for his i)ay, he could not have i'o. 11 mistaken about It. This was not only a very badly " tangled " witness, hut rasli in tlie extreme. Hear him on the pecuniary condition of the defend- Mnt! He says: " He was not in the habit of having money, — though this was the llrst time I saw hirn to know him. He has not been around me since." Willie It is true that the jury itre the judges of the credibility of the witnesses iiud llie weight to be given to their testimony, still the defendant's guilt should at least be made reasonably to appear; and In passing upon this question, to "it, the guilt of defendant, the spirit, manner, contradictions, etc., of the wit- ness should be looked to. If not, the jury, having the right to disregard the testimony of defendant's witnesses utterly, the defendant would be placed be- yond ail i)owcr of defence. We are not satislled with this conviction. The judge below should have granted the motion for a new trial. Tliere is another view In which we desire to present this case. The dc- fendunt returned next morning and proposed to pay for the cigars. At the time he acquired them did he Intend to defraud and cheat the prosecutor? We e;in not present this question and reasoning upon the same in a better light (nay not as clear) than that in which it Is expounded by Judge Anderson In Vy v. CoiiimonweaUh,^ a case we think quite analogous to the one before us. The facts of that case are tliose : " The only proof of any false pretense in this ease, or that the prisoner made any statement that was not strictly true, is that 1 e said he was the owner of the lots. It appears from the certificate of facts tliut the prisoner had an interview with Bowdeu, the owner of two lots of land, 1 2SGrntt. (Va.) ni2. " ■vMiyW.V«i^k#Kii^.-p&l- "^ FKAUD AND FALSE inETENSES. 392 si elling b-..n he o.acd ^^-^Jl'^V.^^^'^of «15 each; that a few days :gre;d to pay the balance In --^^^^^^^^ ^n and comrleted the contract of niter the sale to Randolph he went to Bowa ^^ ^^^^ ^^^^^^ j^^ j^^^ ;";:hLe .Uh him, paymg him In c^ ^^ ."'^I'tL for the deferred payment, received from Kaudolph, and «^'^'^"""" " , ^^^^ getting out the terms of the and entering Into articles of ^^-'^'^j;;^; " each of the lots for two hun- Lle and purchase, i"^--f ^^^ "^ j ^e doUa- on the price he ^vas to pav fo drcd dollars, an advance of one h""^'"-^*" ,y ,vas paid, to co vey the S m, and requesting him, ^vhcn t^e P-^^^;«« J^,,^ „pi,ioa thatunles ots ;espcctlvely to the vendee ^h^c^nt to defraud the buyer, the case I the selling was by false J- -; ;- J rfrandulent intent must have existed not within the statute. It ^o»«'^'';;' , ^ .^hich the money was obtained. ..d to Ml.g to ao so 1« """»;"" "";"„"„„ ,„ the above reasoB.lorr, "-r r r:o"^;: r^s-nraju o. ,eco,u. ..a ». ..>, .-.. Ibe judgment of conviction is a nuUlty. ^^^^^,,a and remanded. c two lots of lanil together separately, and that alter- iKlolph, a colored man, for paid him $50 in cash, and ^«l5cach-, that a lew days comrlctcd the contract of loney or the amount he had lor the deferred payments, setting out the terms ol the ■ach ol the lots lor two hun- , the price he was to pav lor ney was paid, to CO vey the rtherof opinion that unless ciraud the buyer, the case Is lent intent must have existed -h the money was obtained, readily applied to the case at ,uld have granted a new trial, r which the judgraont will be to the above reasons lor re- of record, and on this ground Beversed and remanded. n. V. rOOLE. Pakt III. LARCENY. 393 LARCENY — TAKING OF PROPERTY ESSENTIAL. R. V. POOLK. [Dears. & B. 345.] In the Engluh Court for Crown Cases Reserved, 1857. 1. To Conatitute Larceny, tlioro must bo an intention on the part of tlio prisoner to appropriate the property to ills own use. 2. Case in Judgment. — Tw: orlovo flnishers took a qnnntlty of finished gloves ont of a store room, and laid them on their tables, with intent frauduli^nlly to obtain payment for them as ("ir so many gloves linished by them. HtM, that they were not guilty of the larceny u gloves. The following case was reserved ami stated by Bramwixl, B., ai the Slimmer Assizes, ISoT. Tiie defendants were convicted before me at the AssL'ces for tlie city of Worcester of steding from their master. The master was a glove maker ; the defendants were in his employ as glove finishers. When they had done any work, the practice was to take the finished gloves to an upper room and lay them on a table, in order tliat the workmen might be paid accor<\ing to the number finished. Tlie defendants broke open a store-room on the premises of the master, I took a quantity of finished gloves out, au'l laid ttiera on the table in tiie [ upper room, also part of the same premises, with inU'nt fraudulently to obtain payment for them as for so many gloves finL-^hed by them. Tiie gloves were never off the master's premises. Doui)ting the sufficiency of this evidence, I reserved the point, and orders ■ i,iie prisoners to be 1 bailed on finding sureties.' G. Bramweix. Tliis case was argued on November 21, 1857, before Cockburn, C. jj., Erle, J., WiLUAMS, J., Cuompton, J., and Ciiamnei.i,, B. E. V. Richards appeared for the Crown ; no counsel appeared for the [prisoners. E. V. Richards, for tl>e Crown. This case was tried bef««?<» Br \>r- IwKLL, B., and tlie case of Jicfjina v. Hoikomnii^' being '-aM oh beliaif of Ithe prisoner, his lordship considered tliMt the decision in ' nnane:itly to deprive tlie owner of the property, but it seems to be a dangerous doctrine tliat an intention to return will excuse the t:iking. Here the intenion wna to return tlie gloves to the owner, but subject to a lion for the work intended to be done upon tliem. CocKuiiiN, C. J. Not so. There is no lien. Ckomi'ton, J. If the prisoner had obtained a lien, the case might have been different ; but the offense intended seems to be that of ub- taininsf nuuu y by false pretenses. EiM.E, J. It is important that offenses should lie accurately defined, and R>'gi)h' v. HoUoimy h&s deftm-d the animm fnrandi, to mean an intemion to vest the property in (he thief by wrong, and consequently to divest tlie veal owner. ' 1 t»«n. (). V. ;!81. > 1 M 3 Inst. cap. 47. 2 2 East. P. C, ch. in, 800. 98. 3 By Stat. 11 and 13 Vict., ch. 78, sec. 4, itlB enactod, " that the satd justices and barons, when a cast) has been reserved tor their opinion shall have power, it they think fit, to cause the case or certiflcato to be sent back for amendment, and thereupon the same shall be amended accordiagly, and Judgment shall be deliTere(' after it shall have been amended." 398 LARCENY. the conviction, lie said tliat if this case could be considered open upon the authorities, tlu-rc seemed great reason to hold tliat it was a larceny, but that as tlie court had so lately determined that the intention of the taicer must be to deprive the owner wholly of his property, the convic- tion could not be supported. Pakke, B. Wc are bound to say that this is no larceny. The books do not give a full definition of that crime ;i East's Pleas of the Crown defines it with perhaps more accuracy than other writers to be "the wrongful or fraudulent taking and carrying away by any person of tiie mere personal goods of another from any place with a felonious intent to convort them to his (the taker's) own use, and make them his property without the consent of the owner. But this definition needs some addi- tion ; the taking should be not only wrongful and fraudulent, but should a' so be " without any color of right." All the cases show that if the intention were not to take the entire dominion over the property that is no larceny. R. v. Phillips, and Strong;^ is the earliest case on the sub- ject, and there are others to the same effect. Then there is the case of R. v. Webb,^ which is precisely the same as the present case. There- fore the essential element of larceny is here wanting, viz., the intention to deprive the owner wholly of his property. Aldkrson, B., and Coleridge, J., concurred. CoLTMAN, J. It is safer to be guided by the cases than by the defini- tions given by text-writers. If on looking tlu-ough all tlie cases on tlie subject, it seems to have been considered that a taking, though wrong- ful, for a. mere temporaiy purpose, does not amount to larceny, we must be governed by such authority, even though some old definitions would soem to warrant a different judgment. It is difficult to frame definitions so as to be absolutely correct; they are constantly amended and explainer! by the cases. LARCENY — CAPTION AND ASPORTATION ESSENTIAL. Edmonds v. State- [70 Ala. S.] In the Supreme Court of Alabama, 1881. 1. Caption and Asportation Ewential to Larceny - To oonBtitute larceny the posbab- Bion of the thing must pass Irinn the owner. Th.T.;fore, whore K. with corn coaxed a hojr twenty yards, and then struck, it witli iin ax, wlwn the hog squealeJ and E. ran away and left it : Held, that E. was not guilty of larcenj. 1 cii. 16, sec. 2. * East's' P. C, ch. W, vcc. 98. 3 1 Moo. C. C. 431. .. .. i m.i ii i i ii i M i KDMOND8 V. STATE. 399 ered open upon t was a larceny, intention of the rty, the convic- ny. The books as of the Crown ters to be " the y person of tlie lonions intent to era his property lecds some acldi- lent, but should 5how that if the property that is case on the sub- re is the case of it case. There- z. , the intention an by the defini- tlic cases on the , though wrong- t to larceny, we le old definitions lifficult to frame »tautly amended BNTIAL. I. te larceny the poBsfiB- ;. with corn coaxed a saleJ and E. ran away 3 iMoo. C. C.431. Appeai- from KusscH County. SoMERviLLK, J. The indictment in this case charges the defendant with the larceny of a bog, which, under the statute, is made a felony, without reference to the value of the animal stolen.^ The only evidence in the case showing any caption or asportation of tlie animal was the testimony of an accomplice, one Wadworth who, made the following statement : th.at shortly after dark, on the 18th of February last, w'itncss met defendant near the liorse lot, on the planta- tion of one Ili:^e3 ; that the two went together to witness' house, where the latter procured an axe, and they then returned to the lot. Witness then got some corn, and, after giving defendant the axe, by dropping some corn on the ground, " toled" the hog to the distance of about twenty yards ; the defendant then struck the hog with the axe, and the hog squealed, wliereupon, imfnediately, botli the witness and defendant ran away, leaving the hog where it was. Upon this state of facts the court charged the jury tiiat, if they be- lieved the evidence, it was sufficient to show such a taking and carrying away of the propertj', if done feloniously, as was necessary to make out the offense of larceny. Wq think the court erred in giving this charge, though the question presented is not free from some degree of difficulty and doubt. The usual definition of larceny is, "the felonious taking and carrying away of tlie personal goods of another." - It is defined in Roscoe's Criminal Evidence as, " the wrongful taking possession of the goods of an- other, with intent to deprive the owner of the property in them." ^ It is a well settled rule, liable to some few exceptions, perhaps, that every larceny necessarily involves a trespnss, and that there can he no trespass unless there is an actual or constructive taking of possession, and this possession must be entire and absolute.'' There must not only be such a caption as to constitute possession of, or domination over the property, for an appreciable moment of time, but also an asportation, or carrying away, which may be accom- I'lisbed by any removal of the property, or goods, from the orig- inal status, such as would constitute a complete severance from the possession of the owner. ^ It has been frequently held, that to chase and shoot an animal, with felonious intent, without removing it after being shot, would not be such a caption and asportation as to consum- mate the offense of larceny." So it has been decided that the mere upsetting of a barrel of turpentine, though done with felonious intent, 1 Code 1870, se.5. 4368. - 4 l!la. Com. 229. '■'' hi. «22. ' HohfDo's Cr. Ev. 023,624; 3 Qreenl. on Ev .^ec. 134. 1 Greenl. on Ev., sec. 154 ; Roscoe's Cr. Ev. 64.'5. « Wolf V. State, 41 Ala. 412; State v, Seagler, 1 Rich. (8.C.)30;2 Bish.Cr. L.,sec. 797. 400 LAUCEXY. floes nut complete the offense, for the same reason.* The books arc full of cases presenting similar illustrations. On the contrarj', it is equally well settled, that where a person takes an animal into an inclosure, with intent to steal it, and is arprehended before he can get it out, he is guilty of larceny. ^ In Wisdom's Case,'^ it was said, orgiut'ndo, by Mr. Justice Goldthwaite: "If one entice a horse, hog or other animal, by placing food in such a situation us to operate on the volition of the animal, and he assumes the donsmion over it, and has it once under his control, tiie deed is complete ; but if we suppose him detected before he has the animal under his control, yet after he has operated on its volition, the offense would not be con- summated." This principle is, no donbt, a correct one, but the true difficulty lies in its proper application. It is clear, for example, if one should thus entice an animal from the possession, actual or constructive, of the owner, and " tole " it into his own inclosure, closing agate behind him, the custody or dominion acquired over the animal might be re- garded as so complete as to constitute larceny.'' It is equally manifest that if one should, in like manner, entice an animal, even for a consid- erable distance, and it should, from indocility or other reason, follow him so far off as not to come virtually into his custody, the crime would be incomplete. The controlling principle in such cases would seem to be, that the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete. His proximity to the intended booty must be such as to enable him to assert this dominion by taking actual control or custody by manucaption, if he so wills. If he abandons the enterprise, however, before being placed in this attitude, he is not guilty of the offense of larceny, though he maj'^ be convicted of an at- tempt to commit it.^ It would seem there can be no asportation within the legal acceptation of the word without a previously acquired domin- ion. The facts of this case, taken alone, do not constitute larceny. It is not a reasonable inference from them, that there was such a complete caption and asportation as to consummate the offense. The judgment of the circuit court is reversed, and the cause is re- manded. 1 State V. Jones, U5 N. C. i 3 Inst. lOU. » 8 Port. 607, 519, 395. * a Blab. Or. L. see. 806. » Wolf t>. State, 41 Ala. 412. - ' < n i i iii m ommijiimiiMMIili i UM fttiiiKiitl^ tmmmm B. V. OAUl>N£R. 401 I The books arc ere a person takes lul is arprehended 1 Wisdom's Cuse,'^ ' ' If one entice a a situation us to aaes the donsmion 3 complete ; but if aider his control, would not be con- one, but the true )r example, if one lal or constructive, )siug a gate behind imal might be re- is equally manifest even for a consid- ther reason, follow y, the crime would 3m to be, that the lat the dominion of the intended booty )n by taking actual If he abandons attitude, he is not jonvicted of an at- asportation within ly acquired domiu- tute larceny. It is as such a complete e. knd the cause is re- »c. 806. 1 Ala. as. LARCENY— INSUFFICIENT TAKING. K. V. GAUDNEft. [L. &C. 243.] In the English Court fur Crotm Cases Reserved, 1862. A. Found a Oheok, and belnir TTnable to read showed It to G. who told him it was only an old check; that ho wished to show it to a fiiond. G. kept the chock on different excuses, in the hopes of getting the reward which might be offered for it. Iltlil, that this constituted no " taking" from A. such as would amount to larceny. The following case was stated by the Deputy Assistant Judge of the Middlesex Sessions. At the Middlesex Adjourned Sessions, holden on the 25th of August, 1862, Edward Gardner was tried before me on an indictment charging him in the first count with stealing one banker's check and valuable security for tlie payment of £82 lOs., and of the valuo of £82 19s, and one piece of stamped paper of the property of James Goldsmith, In the second count the property was stated to be the property of Thomas Boucher. It appeared from the evidence of ITiomas Boucher, a lad of four- teen, that he found the check iii question ; that, having met the pris- oner, Gardner, in whose service he had formerly been, he showed it to him; that the prisoner (Thomas Boucher being unable to read) told him that it was only an old check of the Royal British Bank, and that he wished to show it to a friend, and so kept the cheek. It was also proved that Boucher, very shortly, on the same day, went to prisoner's shop, and asked for the check ; that the prisoner from time to time made various excuses for not giving up the check ; and that Boucher never again saw the check. It also appeared that the prisoner had an interview with Goldsmith, in which he said that he knew the check was Goldsmith's, asked what re- ward was offered, and, upon being told five shillings, said he would rathor light his pipe with it than take five shillings. The check has never been received either by Goldsmith or Boucher ; though there was some evidence (not satisfactory) by prise ner's brother of its having been enclosed in an envelope and put under the door of Goldsmith's shop. The jury found, " that the prisoner took the check from Thomas Boucher in the hopes of getting the reward ; and, if that is larceny, we find hira guilty." 1 thereupon directed the verdict of guilty to be entered, and reserved for the opinion of the court, whether upon the above finding, the pris- oner was properly convicted. 3 l>i;i.K?>iK3. j>e ^*-*»' 402 LARCENY. This case was argued on the 15th November, 18G2, before Pollock, C. B., WioiiTMAN, J., Williams, J., Ciiannkll, B., anil Mkllou, J. J Best (Bedey with him), for the prisoner. The facts in this case ... not amoiuit to larceny. The jury have fuunil that the prisoner kept tl.e check in the hope of getting a reward. There was, therefore, no felom- ous intent on his part. In Rerjiua v. York^ the prisoner had found a watch; and the jury brought in a verdict of "not guilty of steahug the watch, but guilty of keeping possession of it in the liope of reward from the time he first had the watch. ' ' Upon argument it was held that that finding amounted to an acquittal. (He was then stopped. ) Kemp, for tlic Crown. It may be admitted tlmt it is not larceny tor the finder of a lost chattel to Iceep it in the hope of getting any rewar.l that may be offered for it. Here, however, the boy, Boucher, was tl.e finder, and had by law a right to the possession of the chattel against all the world except the right owner. Pollock C B. Armory v. Ddamirie;' is the foundation of that doctrine. In this case any one who could read would know to wliom the check belonged. , „ , , .,., Kemp. The case states that the boy could not read. He showed the check to the prisoner, who refused to give it back to him. Pollock C B. A check is not a chattel, and is not the subject of larceny at common law. In Rex v. Aslett,'^ the prisoner was indicted for embezzling exchequer's bills, an.l it was held that the indictment was not proved, because they had not been signed by a person legally authorized to do so. He was afterwards tried upon a second indict- ment," one count of which, founded upon the 15 George II., ^ describe. the property as - effects," ami was held to have been rightly convicted on that count. There was also a count describing them as pieces of paper; but no reliance was placed on that. How is this prisoner in- dicted in this case ? Kemp. He is charged with stealing a piece of stamped paper. Pollock, C. B. Then it was not a piece of paper, but a check. Cur. adv. vult. The judgment of the court vyas delivered, on the 22d of ^ovember, Po'llock C B. We are of opinion that the facts stated do not show any felonious taking. The mere withholding of the check under the circumstances of this case did not amount to such a taking as is re- quired to constitute the offense of larceny. ^^^^.^^.^^ ^^^^^^^^^^ 1 1 Den. C. C. 335; 3 Cox Or. Cas. 181. s 1 strange, 604; »• c. 1 Smith Ld.Cas. (4th ed.), 256. 3 2 Leach, C.C. 954. 4 2 Leach, C. C. !)58; Rnss. & R. 07. ' ch. 13, sec. 12. i**^iS>» are Pollock, C KLLOU, J. 1 in this case do lisoner kept tlie efci-e, no fcloni- ner had found a lilty of stealing hope of reward it was held that jtoppcd.) I not larceny foi- ling any reward loucher, was tlie I chattel against indation of that I know to wliom He showed the im. ot the subject of ner was indicted t the indictment ' a person legally a second indict- ee 11.,^ described rightly convicted liem as pieces of this prisoner in- iped paper, but a check. 2d of November, tated do not show check under the I a taking as is re- viction quashed. 1. 8; Rnss. &R. fi7. w afee v. state. 403 larceny — taking essential. McAfee v. State. [U Tex. (App.) (J(i8.] In the Court of Appeals of Te.vn.'^, ISS,'}. . ▲ Neoesawy Element of Theft Is tlio frauiUilont inking of properly from the posses- sion of the owner, or soiiio one hohlliig p.)g»es«lo„ for lihii. A tiikiiiR by llio party accused Is essential to his guilt of theft, nnd no other subsecpient connection with the stolen properly, whether in good or in bad faith, will of itself constjluto theft; wheiefr)ru it was error to charge, In substance, that the Jury was authorized to convict if they believe that when he purchasted the alleged stolen property from another, the defendant know that the person from whom ho purchased had no title to the property, and no right lO 8011 itt . PosBeaslon of Property Beoently Stolen may bo relied upon by the State to connect the defendant with the taking, but this p.)s8ession maybe acoountcl for by purchase whether In good or bad faith. And a purchase in bad faith, though it would subject tlio accused to prosecution for knowingly receiving stolen property, is matter defensive to a prosecution for theft of the property thus purchased with knowledge that the seller had stolen it. Tried below before the Appeal from the District Court of Navarro. Hon. L. D. Bradley. The indictment charged the appellant and John Bassett with the tlicft of a cow, the property of II. Ilailcy, in Navarro County, on the twenty- fifth day of October, 1882. Upon his separate trial tlie appellant was convicted, and was awarded a term of two years in the penitentiary. Hiram Hailey testified, for the State, that on October 25, 1882, he was going from Corsicana home in iiis two-hor^e wagon, his father and brother following a short distance beliind in another wagon. About three miles out from town, the witness met the defendant and John Bassett driving three head of cattle, including the animal in question. The witness saw tliem before they saw him. WIk'h defendant and Bas- sett saw the witness they stopped, and permitted the cattle to leave the road and go to a tank which lay toward the witness. The defendant started off to a branch as though to water his horse. The witness called Bassett and asked Lira what he an'ng^ ^ . , ,,a^.u to llio place „os8 told the part.cs that *' «•> J^^.^^ ^ ' J,, ^ for her delivery .here they got her Basset ^^^ '^ ' J "'^^^^^ J ,, ,,„,i ^,, accept next day, but the -tness reph d to -^^^^^^^^^ ^,,^ „,,^,,, ,, .^and him as security. Presentl.v Sam. "''^^ '^ ' ^^j^.^i^ut and Bas- good f..r U. anin.1, -"^J^;;;-- ^^^ piu^ by, and take sett said \^->';^-:^^j; \^f J;: X^ .^tnds and they were to meet, her next day to ^J""" ' . .f , .^ ,„„,.„i„g, uut defendant and Bassett The parties me at I^««^« ' "^^^^ "^^ ^, ^^ ,„« ,,,t a small boy was at Z ;:r^l"::i;;tu:S ;:.:.. ..ht before, .. that nusUey turned her out that night. ^^^^^^ ^j^^ut The witness •-V^-^'^^i^,^^^^^^^ {[ ,,out four months be- eighteen months before and "" '^^^'''^^ » aswalluwfork and under- fore this time. Her color w r h ma k a ^^^ ^^^^ ^^^^^^ bit in the left and a crop ««^ ;»'*; ^f '' f ^ ^^ ,h, jown stroke or stem 7 and f. connected, by g.vi.ig he c ml ^^ '^ ^^ "^^^^^^ i,i„. she of a 7, making 7(„ and that brand on h «- ^^ ^^/^^ ,.,^^ ,,, -«^o"7--t;;:i\::rnt 'hTX pls^ftho house of «. few Stock owned by the witness n i ^^ b,a...l belonged, "e «■"* 'f,^, „:„ t„.„ „„clc,bto in the right ear. never seen tl,o cow since lie saw the «'^'.'^""» ' , j, ( lie wa« Frank Ilailey, tUe bvotber ot *« ^7;™' " '"/" Ot on October within, brother when *«y "«' "'° ''"'™; I' "^"o" b^i!e u,sWfi..l .,.5, ,«e2. with the cow and two o h„ a^^^^^^ ::s:"t:iS\rt;the':::' --.-- -- -■"^•"^' state related the o. nccs at ^^= ^ ^^ ^^.^^^ .^^ ^^^^.^.^„ with tho cow, as tiiey .> -.e ulateu ly ^,^g that, after the meeting of the purt.es at '.-.quire LeetcU a, IMAGE EVALUATION TEST TARGET (MT-3) ere7cTi;ins testified, for the defence, that on the twelfth day of OetoTer 1882, he met a man on the road between Grice's and Black s, ^fo a ked if Hancock was at home. He was driving a pale red cow in Mr! Nrwman's mark, but unbranded. The witness asked him his name nna he said W^iUiams. Witness passed the cow first. She turnea : oum dig the conversation, and thereby enabled witness to see Tat she was .lot branded on either side. McAfee's was distant a short piece, and was between Grice's and Hancock's. Witness had never seen *he man Williams before. ^^m M AFEE ?'. STATE. 407 with no brand Williams, X ASSETT, X McAfee." Mrs. McAfee's red cow, in tlie eetiona to Han- w, and that she ant, who, in the her. Williams when the bill of ivrote it, though 3 the bill of sale ition to the mat- the bill of sale. He saw the cow ;e. The witness vas not branded, her cases. The on the 12th or o have been lost, in. The witness it McAfee's when ! saw the defend- ht the cow. The t was unbranded. Williams on the him several times ere Williams lived lie twelfth day of •ice's and Black's, a pale red cow in sked him his name first. She turned led witness to see (vas distant a short rVitneas had never Henry Swink testified, for the defence, that he had seen the cow two or tliree times, the last time about three miles from Corsicana, on the Pursely Road. She was grazing with other cattle. This was in the fall of 1882. She was a pale red cow, in Mrs. Newman's mark, and was not branded. The witness first saw this animal, when she was a year or two old, on Tchuacana Creek. She was then in the same mark. He next saw her on Alligator Creek, near Hailcy's. The cow was near a pasture wlien witness last saw her. Fred Black testified that in November, 1882, his brother Sam told him to get twenty-five dollars from Mr. Jones and take it to K. H. Ilailcy ; which the witness did. Tom Bljick testified, for the defence, that in the fall of 1882 he saw the cow in question bctweeu Pecan and Cedar Creeks. As he could see no brand, lie roped and threw her down and examined for brands. Slie was not branded. J. P. Hailey, in rebuttal, tastified that he had a bill of sale on his books, dated February 14, 1883, signed by W. A. Hancock. The wit- ness was not present when it was executed. He did not know whether or not it was correct, as he had never seen the cow. The witness' report, showing age, marks and brands of cattle bought and killed from January 1 to May 17, was made out by Mr. Killebrew, not pres- ent on this trial. Killebrew made it out from witness' books and bills of sales, but witness could not say that it was correct in all particulai-8. The report contains the following entry : — "One cow, four years old (the Newman mark), branded seventy- six (connected), bill of sale by W. A. Hancock." Hiram Hailey, recalled, disputed several matters testified to by the witnesses for the defence. Tiie motion for a new trial was overruled. William Croft, for the appellant. J. H. Burts, Assistant Attr ruey-Gcneral, for the State. Hurt, J. Nabe McAfee was charged with the tlieft of a cow, the property of H. Hailey. Hailey swore that liis name was Hiram, but it appeared from the evidence that the initials of his given name are K. H., making K. H. Hailey. Counsel for defendant urged l)elow, and here insists, that this was a fatal vaiiance. To allege H. an • one week on ^klajer's laborer, long the road into )uter shop (where een there ; that he not have gone in it Walker was cm- of Mr. Crosskill' 8 •y to borrow tools, t he wanted it for ovember at Wake- November, stated lad given it to him rone into the West fence, telling them id. It was proved »n to whom he sold 3n stolen from Mr. ' take what Morrod ce against Walker, for a man who had herefore not fair to prisoner. il, and that Morrod 3und Walker guilty Mr Dearsly, on behalf of Walker, objected that there was no evidence whatever to^go to a jury of Walker having stolen the brass, and re- quested the chairman to reserve a case for the consideration of the Court of Criminal Ai>peal, and the case was therefore reserved upon ti>is point. 1 * ♦ The jury was probably partly influenced in their finding by the facts which it was omitted to prove distinctly by the prosecution, but which were nevertheless apparent in the case, that Walker and his wife and her brother Morrod, lived in one house together, and that Walker had ,,ft Beverley op the 9th of November, and also by the general demeanor of the prisoners. It is also impossible that they should not give some weight to what Morrod had said at different times as against Walkei, believing as they did that he had sold the metal innocently, and was speaking the truth for himself. ^ ^^ Stuicklakd, Chairman. This case was argued on the 28th of January, 1854, before Jekvis, C J., MaULE, J. , WiGHTMAN, J. , WiLLIAMS, J. , Sud Pl.ATT, B. Dearsly, for the prisoner. This conviction is wrong. There is not a particle of evidence to be left to the jury. Maule, J. Not a scintilla. Jervis C. J. This conviction must be quashed. ' Conviction quashed. LARCENY -OWNER INTENDING TO PART WITH PROPERTY BY FRAUD. Kellogg v. State. [26 Ohio St. 16.] In the Supreme Court of Ohio, 1875. wh-,- ♦!,. 0«nar Intends to Part with his property there U no larceny. Thus where a of the crime ol larceny. • Error to the Court of Common Pleas of Hamilton County. At the June term, 1875, of the court below, the plaintiff in error was convicted of the crime of larceny, and sentenced to the penitentiary for a term of years. , . . .v „4.u «* Tlie testimony offered on the trial showed that, m the month of 412 I.AUCENY. April preceding, tlie prisoner liad ol>tainetl $2H0 in bftnii-bills, from the pr<»si'cn(inj? witness*, under tlic following cireiinistunces : — The witness and the prisoner l>nd first met and formed a casual ac- quaintance as passcnj^ers on a train of cars passing from St. Louis to Cincinnati. After tlieir arrival at Cincinnati tliey ngaiu met at tim railroad depot, where the prosecuting witness was about to take another train for his home in Madison County, when the following occurrences took place, as detailed by the witness : The defendant asked me if I was going to take that train ; I said yes. lie said he thought he would go on that train too. Then a man came up to us ami said to the de- fendant, " If you want to go on that trai i, you had better get your bag- gage and pay your freight bill." The defendant then said, " Confound these fellows, they won't pay me any premium on my gold, and I have no other money to pay this freight bill, and I don't want to give them two hundred and eiglity dollars in gold and get no premium." He then said to me, "Will you let me have $280 in currency, and I will give you this gold to hold as secuiity until I can go to the bank and draw some money which I have there, and I will then i»ay you $280 back." He further said, "I must get my freight out to-night, and they won't let me have it till I pay the bill, which is $280." I then tolil him I would let him have the two hundred and eighty dollars to pay his freight bill ; which I did, and he gave me fourteen pieces of what he said were gold, and which I took for twenty-dollar gold pieces, and I gave him $280 in paper money. He started off, and I examined them and found that they were not twenty-dollar gold pieces, nor were they gold at all. • ♦ • I followed him but did not overtake him or see him any more until he was arrested. On cross-examination the prosecuting witness testified as follows : " I delivered my money to him voluntarily. He used no force or violence to obtain it from me. I never expected to get the same money again. He said he would go to the bank and draw some money, and come back and pay me what he borrowed and get the gold." The commission of the crime charged in the indictment was not otherwise proved than as above stated. The court was requested by the defendant to charge that, "if the jury found, from the evidence in the case, that the defendant fraudu- ently and wrongfully induced Denton, the prosecuting witness, to part with the money mentioned in the indictment ; and if they also found that the prosecuting w\^ness was fraudulently induced to, and in fact did part with the possession and property in the money described in the in- dictment," the defendant could not be convicted of the offense of larceny as charged in the indictment. The record shows that " tha in- struction in that form the court refused to give," but did give the same with the following explanation : *' That the word property, as used, does ^^ KELLOOO I'. STATE. 418 bank-bills, from thu iit'L's : — I foriiu'cl a casual ac- ng from St. Louis to «y ngain met at tiif ibout to take another bUowing occurrences L'ndant asked me if I he thought he would IS and said to the de- l better get your bag- hen said, "Confound my gold, and I have n't want to give them ; no premium." He I currency, and I will ji go to the bank and ill then pay you $280 rht out to-night, acd ich is $280." I then . and eighty dollars to me fourteen pieces of ity-dollar gold pieces, id off, and I examined gold pieces, nor were d not overtake him cr cross-examination the ered my money to him obtain it from me. I [e said he would go to k and pay me what he ' the crime charged in above stated. I charge that, "if the the defendant fraudu- cuting witness, to part and if they also found iced to, and in fact did ley described in the in- ted of the offense of d shows that " tha in- ' but did give the same property, as used, does not mean the mere money — it means the proprietary right of owner- ship in the money. So that, while the manual possession of the money may be in one person, the legal technical property may still be in an- other, and a bailment or possession of goods and chattels obtained by a trick or fraud does not transfer the property to the person practicing the trick or fraud. If you find, therefore, that the mere possession of the money with the owner's consent was fraudulently obtained by the defendant with Intent to steal it from the owner, it Is larceny." C. //. Blackburn, for plaintiff in error. The testimony shows that Kellogg obtained the money from Denton without force or violence ; that Denton delivered the money to him voluntarily, and did not expect to get the same money again. This being so, there was no trespass, and could be no larceny.' MoIlvaise, C. J. On the trial below, the jury was proi>erly in- structed that the defendant could not be convicted of larceny. If he ob- tained the possession of the money alleged to have been stolen from the prosecuting witness with his consent. If It was further found that, at the time of the transfer of the possession, the right of property in the money also passed from the prosecuting witn 's to the defendant, al- tiiough the witness was Induced, through the fraud of defendant, to part with the possession and the property In the money. And there was no error In the further Instruction: "If you find, therefore, that tlie mere possession of the moiiej , with the owner's consent, was fraudu- lently obtained by the defendant, with Intent to steal It from the owner, it is larceny." Tliis last instruction, however, was the predicate of a proposition which had been given in explanation of the first instruction, to wit, " while the manual possession of money may be in one person, the legal technical property may still be in another ; and a bailment, or posses- sion of goods and chattels obtained by a trick or fraud, does not trans- fer the property to the pei*son practicing the trick or fraud." Whether this, as an abstract proposition of law, be true or false, it was certainly misleading In the case as it was made In the evidence. The jury could not well have understood it otherwise than as a declaration by the court tliat the transaction, as detailed by the prosecuting witness, amounted to a mere contract of bailment, which left the right of property remain- ing in the prosecuting witness. Now, if the common law at all recognizes a class of bailments, corre- sponding to the mutuHm of the civil law — to wit, where a loan Is made 1 2 Ri3h. Cr. L., »0C8. 812, 813, 818, and auiluiiliics cited; 2 Wliart. Cr. I-., sees. 1833, W.I; Eimls V. State, 3 Iowa, 67; Welch t;. People, 17 111. 3!»; Wilson ». State, 1 Port. lis ; 15 8erg. & R. 03. Nor docs it vliange tlie rule when the consent is obtained by fraud. 2 Bish. Cr. L., sec. 811; Rex v. Summers, 3 Salk. 194;2 E. P. C.688; 1.5 Serg. & U. »3; Cary v. HotalHng, 1 HiU CN. Y.), 311. 414 LAHCENY. • nr other thing that may be valucl by number, vci-l.t, of --«y' -;,;;;. t^^^^^^^^^^ only in kind of eci«al value or „ua... or measure, which is lo oc i^ ....«„„,.tv in such bailments remains \u tay- it is not true that the right of P-»- > ^J^^^^^^^^ passes with 11. the»>ailor; but on the other hand, "'^^^^^^'^^ clses the fraud of U>e possession and rests -^U ^he bor^^^^^^^ u -^- ^^ ^^^ ^^^^^ ,^^,.., borrower no more prevents the passing o .chaser of gou.ls upon delivery, than does f'--\«» ^P^'^'J; ,', ^ableat the election tL contractin either ^^ ;;^'tl^:ZZ.. , seems to be thatl of the lender or seller. 1 he bate, o i ^ ^^^^^ ^^^.^ ^^^^^ such a loan is not a regular bailment at common and results in a debt erly under the innominate contract, do nt faeces, anu | and not in a trust. ^^^^^ ^^„,^^,i to prove a I Tlie testimony before the jury in t defendant whereby loan of money from the prosecut mg v^-J ^^ ^ ;^„,„^, ,, ^.^e pay- the borrower became '-^^^^f J^^.^ ^r witness was, thai he vol- „,cnt in other money. ^'^"^ ;^;'' ^^^fendant and never expected to untarily delivered «- ^^^ ^^ JJ ;^t^^^^ ,,duced to make the loan get the same money aga m It is t ue ^^^^^^^^^ ^^ ^^^^^^ ^ through the fraud •'"•If'^f.f^e defendant, but it was the crime oJ crime was thus -^'^^^^^^^^ . t'nses and n^t a larceny. To consti- obtaining money under alse 1>'-J«J«« voluntarily parts with the pos- tute larceny in a case where t»^«j;";;^^^^^^^^^ are essential. 1. The session .f his property, two «*^«'- f;"^^*; ^^";.„" ,„„,t expect and in- owner at the time of parting with f^J^^^^^^^ ,.,^ , disposed of tend that the ^^:^r^ ^•^::^jLon taking the pes- under his direction for h.s beneflt / ^, j,!, properly sessionmust at the time mt^^^^^^ .^^^„,, to transfer, no. ia the thing delivei^d f^^J^^^^^ the property, although indued rer^ryTe f;iraUt^^^^^ pretenses of the taker, the taki. another person, but the goods «' »^'°;^«*:- „^ ^^ubt the ver- Had the law been thus stated to the u.y there ir no ^^_^^^^^^ diet would have been not gmlty, ^j^^ ^^^'^^^^^^^^^ proceedi, Judgment reversed and cause remanded for iia may be lawfully had in the premises. wIh, White! Rex and Gii^mohe. JJ. concurred. ^iM n. V. DKKUINO. 41.') (I by number, wcii,'lit, if e(iual value or (luaii- h bailments remains in roperty piisnea witli tlit cases the fraud of tlie tie to tUo thing loaiunl a purchaser of gootU. voidable at the election Ycver, seems to be tlial law but falls more prop- ,, and results in a debt clow tended to prove a ) the defendant whereby lI assumed to make pay- witness was, that he vol- and never expected to I nducedtomaketheloani defendant. No doubt a but it was the crime of ,ta larceny. To con3ti-[ arily parts with the pos- ) are essential. 1. ThcJ lion must expect and in- ed to him or disposed oti le pei-son taking the pos-f the owner of his properlyl r intends to transfer, notl roperty, although induccll ;8 of the taker, the takinjl r- . I t taker and he can not btl simple reason that at thel I carry away the goods oil there is no doubt the verl charged in the indictmeuJ or such farther proceedinjl )ncurred. LARCENY — INTENT TO STEAL MUST BE FOUND BY JURY R. V. Deerino. [11 Cox, 298.] ' In the English Court of Criminal Appeal, 1869. Money w«« Olven to the Prisoner Jor the purpogo of paying turiipiko tolls at two gates on his Journey. Twelve days adcnvardg, on being asked If ho had paid the toll at ont of the gates, the prisoner said he had not -that he had gone by a parish road which only crossed the road at that gate, and so no toll was payable there, and that ho had spent the motioy on beer for hlmsoll and his mates. The prisoner having been convkrted of lar- ceny of the money, but It not appearing on a case reserved that the question of felonious intention had been distinctly loft to the Jury, this court quashed the conviction. Case reserved at Quarter Sessions for tlie opinion of this court . The prisoner was tried at the adjourned Quarter Sessions foi f he county of Kent, held on the 4th of March, 18G9, on an indictment for L-tealing Gs, the money of Henry Simmons, his master. The following facts must be taken to have been proved : - The prisoner .r.i a wagoner in the employment of tlie prosecu'^r. On the 13th of February last the prosecutor's bailiff sent out f-ur teams 01 horses with wagons, one of them being in charge of the pris- ouer. The prisoner and the other persons in charge were ordered to go with the teams to a place called Snodland to fetch coal. For the journey which these teams were to take they should have I gone through two turnpike gates called the Loyal Oak and Snodland gate, and before starting the said bailiff delivered to the prisoner money to the amofiint of 8s 8d for tlie purpose of paying the tolls at the I said gates in respect of all the teams. On the 25th of February last, the bailiff asked the prisoner if he had I paid the tolls at the Snodland gate. The prisoner said he had not. Tlic said bailiff asked him why he had not paid the said tolls, and the prisoner replied that by the road they went no toll was payable, and that he had spent the money amounting to 5s on beer for himself and the other wagoners and mates. The prisoner stated that the teams had gone by a parish road which only crossed the turnpike road at the gate, I and thus no toll was payable. The jury convicted the prisoner ; but, having some doubt whether I these facts prove a larceny on the part of the prisoner, the court re- served the point for the opinion of the court for the consideration of [Crown Cases Reserved, and admitted the prisoner to bail to appear and I receive judgment when called upon. 416 LARCENY. The question for thf -consideration of tlie court is, whether under the above facts the prisoner could properly be convicted of larceny. J HN G. Talbot, Chairman. No counsel appeared for the prisoner. Barrow, for the prosecution. The conviction was right. The law is thus laid down in 2 Russell on Crimes. * " The clear maxim of the com- mon law establislied by a variety of cases, is, that where a party has only the bare charge or custody of tlie goods of another, the legal pos- session remains in the owner ; and the party nay be guilty of trespass and larceny in fraudulently converting the same to his own use. And this rule appears to hold universally in the case of servants whose pos- session of their master's goods by their delivery or permission, is the possession of the master himself. ' ' In this case the prisoner had only a bare cliarge of the money to pay tiie turnpike gates with, and the pos- session remained in the master. No doubt, if a master gives his servant money for his second-class railway fare, and also for refreshments, and the servant was to go tiiird-class and not return the difference to his master, that might not be larceny, as the money was given to the servant's own use. [Cockbuun, C. J. Suppose the master gives the servant money for his railway fare, and he walks and saves the money and spends it?] That is not this case. If the master gives the money to a sei'vant to pay a bill with, and the servant does not pay the bill, and appropriates the money to his own use, that is larceny. Here the toll is imposed on tlie wagons and horses, and the master was liable for it. For the journey these teams were to take, the case stiites that they should have gone througli two turnpike gates. In 2 Russell on Crimes - it is said: " The correct distinction in cases of this kind appears to be that if the owner parts with the custody only, and not with the posses- sion, and the prisoner converts the chattel to his own use, it is larceny, although he had no felonious intent at the time he received it ; but if tlie owner parts, not only witli the custody, but also with the possession of the chattel, and the prisoner converts it to his own use, it will not be larceny, unless the prisoner had a felonious intent at the time he received the chattel. A servant going off with money given to him by his master to carry to another, and applying to his own use, has been holden guilty of larceny. » » » Where on an indictment for stealing a shilling, It appeared that the prisoner, who was the servant of the prosecutor, wais ordered by him to go for twelve hundred weight of coals, and that the prisoner received from the daughter of tho prosecutor 63 which she had received from her father to give to the prisoner to pay for the coals, and the prisoner, instead of getting twelve hundred weight of coals, got only nine hundred weight, the price of which was 3s 3d, and gave 4$ |). 38S. I>. 3i).1. ^^M R. V. DEEBING. 417 is, whether under the id of larceny. ?ALBOT, Chairman. as right. The law is ar maxim of the com- lat where a party has iiother, the legal pos- be guilty of trespass his own use. And 1 servants whose pos- or permission, is the he prisoner had only es with, and the pos- ister gives his servant so for refreshments, turn the difference to iiey was given to the the master gives the and saves the money ister gives the money '.oes not pay the bill, 8 larceny. Here the master was liable for case sti;tes that they 2 Russell on Crimes '^ is Icind appears to be not with the posses- »wn use, it is larceny, lie received it ; but if with the possession ivn use, it will not be t the time he received to him by his master been holden guilty of stealing a shilling, it the prosecutor, wais >f coals, and that the tor Cs which she had to pay for the coals, 1 weight of coals, got »s 3s 3d, and gave 4s to pay for the coals and received 9d in change, and on his return gave the prosecutor's daughter Is and made a false statement as to the quantity of coals he had bought, and appropriated the remaining shilling to his own use, Patteson, J., held that the prisoner was guilty of larceny of that shilling. 1 So where the prisoner was indicted for stealing a sov- ereign, the property of the prosecutor, his master, who had engaged liim to take a canal boat on a voyage, and had paid £5 for his wages in advance, and for the keep of the towing horse, and had given him a sei)arate sum of three sovereigns to pay the tonnage dues on tiie canal. The prisoner took the boat about sixteen miles, and paid tonnage dues amounting to rather less than £2, but appropriated the remaining sov- ereign to his own use. It was urged that the relation of master and servant did not exist. Patteson, J. Taking that to be so, it does not appear to me to be material in tiiis case. The prosecutor distinctly swears that he gave this man three sovereigns to pay the torn: -ge dues, and it appears that he has made away with one of the sovereigns. To constitute a larceny in this case there is no occasion to show that the relation of master and servant existed. If I give a man money to apply to a particular purpose, and he appropriates it to another purpose he is guilty of larceny. If a man were to employ another to go somewhere with his horse for a certain price, that other is for that purpose his ser- vant, but if in addition to this he gives him a distinct and separate sum of money to be disbursed in a particular way, and if instead of so disburs- ing it he appropriate it to his own use, that is felony.^ [M. Smith, J. Where is tlie evidence of the felonious intent here?] The jury must be taken to have found the prisoner's intent. The only question reserved, is whether the prisoner could properly be convicted of felony. [CocK- BiRx, C. J. The facts are stated, and the prisoner may have thought tiiat by going another road he could save tlie toll, and that it would make no difference to his master, which way he went, and that he was entitled to spend what he so saved in beer. That no doubt was very wrong, but did it make him guilty of larceny? M. Smith, J. He spent the money openly among the other men. BuAMwrcr-L B. The mere spending the money, unless done with a thievish mind or fraudulent intent, was not larceny.] CocKBURN, C.J. We think that the right question was not left to the jury in this case; if it had been, in all probability, the prisoner would have been acquitted. We come to this conclusion on the specie^ facts in the case. Bramwell, B. It is not to be assumed that the court has answered tlie question submitted in the negative, but we infer from this case that the proper question was not left to the jury. Conviction quashed. > Reg. V. Beaman, R. & M. 433. 3 Defexcks. 2 Reg. V. tiood, C. AM. 582. 418 LAKCENV. LARCENY . INTENT TO STEAL ESSENTIAL OFFICER. TAKING GOODS FROM Commonwealth v. Greene. [Ill Masa. 392.] In the Supreme Judicial Court of Massachusetts, 1873. On* la not Guilty of Stealin» Oooda from an attaching officer, if ho, being owner, intended at tlio time to leave and did leave with the officer goods enougb to satiify tlie claim ot the attaching creditor. MouTON, J. The indictment charges the larceny of certain goods alleged to be tiio property of Ephraim W. Farr. It appeared at the trial that the defendant was the general owner of the goods ; that they had been Rttaclied by Farr, who is a constable of the city of Boston, upon a writ duly sued out of the Superior Court by a creditor of the defendant ; and that while Ihey were under attachment the defendant took and carried them away. There is no doubt an attaching officer has a special property in the goods attached, so that he may maintain trespass or trover if they are taken from him ; and so that, if tliey are stolen from him, the property in them may properly be alleged to be iu him.' And if the general owner, unlawfully and without the consent of the officer, takes and carries away the goods, the question whether he can be convicted of larceny depends upon the intent with which he does the act. If his intent is to charge tlie officer with the value of die goods taken, the taking is larceny. Mr. East says: " If A. bails goods to B., and afterwards aiiimo fiirundi steal them from him with design probably to charge him with the vaUie, or if A. send his servant with money ; and afterwards waylay and rob him, with intent to charge tlie hundred, in either case the felony is complete." ^ An attaching creditor acquires by the attachment a qualified right to so much of the property attached as is necessary to satisfy his debt ; and if the general owner takes and carries tlie whole or a part of tlie prop- erty, with the intent to defraud him of this security, we think it would be larceny. But if his design is merely to prevent other creditors from attaching the goods, and he has no intent to defraud the officer or the attacliing creditor, the act, though unlawful, would not be larceny. The case at bar seems to Jiaye been tried upon this view of the law. The only question was as to the intent with which the defendant took the goods. He was a witness in his own behalf, and was permitted to 1 Gen. Stats., cli. 172, sec. 12; Bond v. PadeKord, l:! Mass. 3'.W; Ilrowiiell i'. Man- oheeter, 1 Piclt. 233. 2 2 East's P. C. fiM ; 1 Hale's P. C. 61m ; 4 nia. Com. 231; Palmer v. People, 10 Weml. 165. JOHNSON V, STATK. 419 G GOODS FROM ',ts, 1873. r, if ho, being owner, enouKh to autliify the of certain goods [t appeared at the goods ; that they 16 city of Boston, r a creditor of the lent tlie defendant n attaching otDcer t he may maintain JO that, if tliey are be alleged to be iu loiit the consent of iiestion whether he with which he does I the value of ihe " If A. bails goods m him with design id his servant witli itent to charge the El qualified right to satisfy his debt ; • a part of tlie prop- , we think it would ther creditors from d the officer or the lot be larceny, lis view of the law. the defendant tools d was permitted to ►4; 1 Hale'sP. C. 61i;4 iier V. People, 10 Weml. testify that he took them for the purpose of protecting himself against other creditors, and not for the purpose of defrauding the officer. But he offered also to testify that " his intention was to leave and that he did leave, five or six hunured dollars worth of the goods in the store, enough to satisfy the suit already commenced," which testimony was excluded by tlic court. The defendant in a criminal case may be a witness and may testify directly to his motives and intent ; but he also has the rigiit to prove, by his own or other testimony, any competent facts which tend to sliow bis intent. The fact, jf proved, that the defendant purposely left in the store enough of the goods to satisfy the debt of the attaching creditor, would tend to explain and qualify the transaction of which it was a part, and to show that his purpose was not to defraud the officer or creditor.' It would tend to corroborate his statement as to the intent with which he took the goods. The weight of the testimony was for the jury to consider, but we think it was competent and should have been admitted. Exceptions sustained. LARCENY — FELONIOUS INTENT NECESSARY. JoHxsoN V. State. [36 Tex. 375.] In the Supreme Court of Texas, 1871. To Conatltute liaroeny, there must be a felonious intent to deprive the owner perma* iiently of his property. Appeal from Hays. Tried before Hon. J. P. Richards. The opinion of the court sufficiently states the case. Walker, J. The appellant has been twice tried upon an indictment charging him with feloniously stealing a roan gelding, the property of some unknown person. He has been twice convicted and each time sen- tenced to five years in the penitentiary. Tiie evidence establiblif s the fact that the horse alleged to have been stolen had been running upon the range in Hays County for a number of years, during which timo people were in the habit of catching him iind riding him for temporary pur[)oses. 1 Com. I'. Rowe, 10,5 Mats. 690. ''M»IH»SM«IMaMillMnM mtssm 420 LARCENY. About the latter part of February, 1872, «-;^f "^-*'^;:^^^^^^^^ with th.ee others, »ere hunting beeves near a Pl«; « «^1«^ joLson rt in Hnv9 Ccuntv, where the horse was seen grazing, 'when Johnson re l"r th:u:^;ouUl catch the horse ana ride hi™ awhile ; th. he ha^ as much ri-ht to ride him as other people ; whereupon, Jun Carson, one "f The pi;.;, roped the horse for the defendant, and he mounted and "j^uirwas then in the employ of Henry Bittick; Bittick was a butler "ving in San Marcos, and the beeves which they were hunting Tm^Vo-l- remarks were made between Bittick and John- at the timeTe horse was taken up, Bittick telling Johnson that he had bette time the norse . ^ ^ j^^^ the penitentiary ; and Johnson '^'r ":%! t waf u gr at waj to the penitentiary, and that it would raS;r.l:rn'™ m ^ys county to send him to the peniten- tiarv for taking up and riding the old stray pony. But it appeal from the evidence that Jo^-^ -^'^ «'« ^7/ Bit' Marcos and then turned him into a lot; afterwards he to d B ttick Ma. cos, and tnc ^^ ^^^^^ ^^^.^^ ^^^^ admonished ;r thlt^t^^^^ trouble. \o Which he replied, we have traded ^T".:::rr;rr:Ser^at Emest had theroanhor. in iisprsession for some time, and that the defendant subsequently "ad 1 o«tle horse which he got from Ernest to a third party, giving Ifd liars boot money, and afterwards sold the horse he got o. the se^-ond trade for thirty dollars, to the same man. Clay Ernest. iu a recent English case, Mr. Baron Parke defined the term '• felc nious " to be an ^ct where there is no color of right or excuse for it Tlarcely the taking must be with a felonious intent to depnve the owner, not temporarily, but permanently of his property. Tt I?e time of the trial the old pony was back on the range, run- ning a' C' In order to determine whether the ^e^ef a°t « guiUy of farceny or not, we must look to the quo «nmo of the taking. H fourdlt have iitonded to deprive the owner of ^^^^HX^^^ owner of the horse was known to be in existence. The '"^^s^^ad run Jor years at large upon tbe range without an owner, and d.«event pe sons Id used him at pleasure. To make the ««^«« «°« f;'^'-*'^"^;,' Zst be shown that, at the time of taking, Johnson had formed the "e'ii^s trention. 'This the evidence does not show; if the taking the horse had been felonious, Carson, who roped the ammal for tbe 1 In neg. f. HoUoway. 2 C. A K. 042. ^^H AVK8TON V. UNITKU STATICS. 421 ant, in company led Pitt's Pond, lien Johnson re- lile ; thut he had Jim Carson, one he mounted and defendant, and Bittick and Baker, wlio were also present, wiere all par- ticipes criminis, but the evidence leads to no such legal conclusion. The verdict of the jury ia unsupported by and contrary to law. The judgment of the District Court is therefore reversed and the cause dismissed. Reversed and dismissed. k -, Bittick was a hey were hunting id Johnson at the liat he had better ry ; and Johnson and that it would im to the peniten- e the pony to San Is he told Bittick again admonished ;d, we have traded lad the roan horse idant subsequently third party, giving orse he got o; . the ly Ernest, sd the term " felo- t or excuse for it.' ent to deprive the jperty. on the range, run- defendant is guilty of the taking. He f his property. No The horse had run r, and different per- se one of larceny, it ion had formed the show ; if the taking the animal for the LARCENY— ANIMUS FURANDI MUST BE PROVED. Weston v. United States. [5 Cranch, C. C. 492.] In the United States Circuit Court, District of Columbia, 1838. It Is Error in the Jadve to Instruct the Jury that certain facts constitute larceny, unless tlio animut /Urandi be expressly stated as one o( those facts; and unless the fact be also stated that the goods were taken without the consent of the owner. Error from the Criminal Court of the District of Columbia. The prisoner was indicted for stealing twenty-six silver coins of the value of fifty cents each, sixteen silver coins of the value of twenty- five cents each, and nine silver coins of the value of one dollar each, of the goods and chattels of one Sophia Brasey. Upon the trial the attorney for the United States, prayed the follow- ing instruction, namely : — "If the prisoner is believed, by the jury, to have come into the witness' house and found her counting money ; and that he then con- ceived the intention to obtain the money under a fraudulent and false pretense of changing it for her into gold, meaning at the time to appro • priate it to himself under this pretense ; and that, having falsely stated himself to be a clerk in the post-offlce, of the name of Wilson, he thereupon, in pursuance of his said intention, talked and acted, in re- lation of the said money, so as to induce the witness to believe that he liad the gold about him, and would then give her the gold for the money ; and thereupon the witness being so induced to believe that the prisoner was about tc give her gold, in exchange for her money, al- lowed him to take the money from the table and put it in his pocket ; and that n.fter he had so taken it up and put it into his pocket, he said he would go and bring her the gold, and was permitted by her to go away with it, upon his promise to return and bring her the gold ; tlien the taking up and pocketing the money, under the circumstances of 422 LARCKNY the case above stated, if belicvea by the jury to be true, with the in- tent and in t' not show that the ner. jury that the case ive inserted a condi- itthe defendant took rhe finding of facts 1 sufllcient finding to i de novo awarded. -LOST BANK-NOTE. iserved, 1849. reasonably supposed by Wm )elleylng at the time that the !ox, 453. 2. T. Found a Bank-Mote on the Highway and took It Intending tn appropriate it to his own use. The note had no murk on It to Identify the owner, nor did he then know him. T.*nftcrwardH and when he hud discovered who the owner was, changed the note, and appropriated the money. Jltlil, that T. was not guilty of larceny. The prisoner was tried before Parke, B., at the Summer Assizes for Huntingdon, 1845, for stealing a bank-note. He found the note, whicli Lnd been accidentally dropped on the high road. There was no name or mark on it, indicating, w'o was the owner, nor were there any circumstances attending the finding which would enable him to discover to wliom tlie note belonged when lie picked it up ; nor had he any reason to believe that the owner knew where to find it again. The prisoner meant to appropriate it to Ills own use, when lie picked it up. The day after, and before he had disposed of it, he was informed that the prosecutor was the owner, and had dropped it accidentally ; he then changed it, and appropriated the money taken to his own use. The jury found that he had reason to believe, and did believe, it to be the prosecutor's property, before he thus changed the note. The learned Baron directed a verdict of guilty, intimating that he should reserve the case for further consideration. Upon conferring with 3Iaule, J., the learned Baron was of opinion that the original tak- ing was not felonious, and that in the susequent disposal of it, there was no taking, and he therefore declined to pass sentence, and ordered the prisoner to be discharged, on entering into his own recognizance to ap- pear when called upon. On the 30th of April, A. D. 1849, the following judgment was read by Parke, B. A case was reserved by Parke, B. , at the last Huntingdon assizes. It was not argued by counsel, but the judges who attending the sitting of the court after Michaelmas Term, 1848, namely, the L. C. Bakon, Pattkson, J., RoLFE, B., Cresswell, J., Williams, J., Coltman, J., and Pakke, B. , gave it much consideration on account of its importance, and the frequency of the occurrence of cases in some degree similar, in the administration of the criminal law, and the somewhat obscure state of the authorities upon it. (The learned Baron here stated the case. ) In order to constitute the crime of larceny, there must be a taking of the chattel of another «ntmo furandi, and against the will of the owner. This is not the full definition of larceny, but so much only of it as necessary to be referred to for the present purpose ; by the terra animo furandi is to be understood, the intention to take, not a partial and tem- porary, but an entire dominion over the chattel, without a color of riglit. As tlie rule of law founded on justice and reason is, that actus non facit reum nisi mens sit rea, the guilt of the accused must depend "'-'v".^>?;an ; y *'*^ 4-20 LAUCENY on tl.c circnm«tancc8 as they appear to him, and the cnmc of lac t,> can not l.e comnntted, unless the goods taken appear o have an o>>n. . and the party taking must know or believe that the taking is agamst the ""uhe'ldi^rtime it was held, that chattels, which^ere apparently .•it..Mt any owner, " nulUu sin bouisr could not be the Bubject of lui- '^Stamford, one of the oldest authorities on criminal law who was a Judge n the reign of Phillip and Mary, says- "Treasurer trove w;ecks of the seaf waif or stray, taken and carried away is notfelonj-^ .. Quia ilomiuus rerum ..oh apparet, idea cujus sunt mcertumest. 1 or th^ he quotas Fit/. Abr. Coron. ;^ these passages are taken from 22 As- 8i=,es, 22 EdwardIII.,='and mentioned only " treasure trove, "wreck and " waif,"a..d Fitz. says, the punishment for taking such, is not the Ls of life or limb. The passage in 3 Institutes ^ goes beyond tU-s ; Lord Coke mentions three circumstances as mt.enal in larceny First, the taking must be felonious, which he explains ; second y it I;:! be an act.fal taking, which he also explains ; and tb-1 y, 't^^^ not by trover or finding ; " he then proceeds as follows : If one lo e hisgLsand another find them, though he convert them, .m*mo /.<• a ,rto his own use, it is not larceny, for the first takuig is lawfu So, if one find treasure trove, or waif or stray (here wreck is omitted and stray introduced), and converts them ut supra, it is no larceny, both in respect of the finding, and that " dorainus ren.mnon appart. The only authority is that given before mentioned, 22 Assizes,^ 22 ""no'v! treasure trove and waif seem to be subject to a different con- struction from goods lost. Treasure trove is properly money supposed to have been hidden by some owner since deceased the se^'^et of the deposit having perished, and, therefore, belongs to the Crown ; as to waif he original owner loses his right to the property by neglecting to pursue ^ the thief. The very circumstances under which these are assumed to b'; teen taken and converted show that they could not ^e taken J^^^^ any one, there being no owner. Wreck and stray are not exactly o Lsam^ footing as treasure trove and waif; wreck is not properlj' so eld if the real owner is known, and it is not forfeited untU after a ^^Thrwlnl'^-^estray " is used in the books in different senses, as may be seen in Com. Dig., Waife, F, where it is used in the sense o cattle forfeited after being m a manor one year and one day without 1 bk. l.ch. 16. S i);>. 1S7. 265. 3 1). 99. « p. 108. e p. 09. ^tm H. V. THUKBOKN. 427 crime of larceny ) liiivc an owiui. ing is against the , were apparently he bubject of lar- lal law who was a Treasurer trove, ay is not felony." ertum est." For aken from 22 As- trove," "wreck" ig such, is not the roes beyond this; erlal in larceny, lins ; secondly, it nd thirdly, " it is '8: "If one lose ; them, animofnr- t taking is lawful. 1 wreck is omitted it is no larceny, mm non apparet." I, 22 Assizes,^ 22 to a different con- iy money supposed , the secret of the 1 Crown ; as to waif, leglecting to pursue ese are assumed to I not be taken from are not exactly on c is not properly so •feited until after a •ent senses, as may led in the sense of ind one day without challenge, after being proclaimed, whore the property vests in the Crown, or its grantee of estrays ; and also of cattle straying in the manor, before they are so forfeited. IJlackstone,' defines estrays to be "such valuable animals as arc found wandering in any manor or lord- shii), and no man knoweth the owner of them, in which case the law pivos them to the sovereign." In the passage in Stamford no doubt the word is used, not exclusively in the former sense, but jienernlly as to all stray cattle, not seized by the lord. Now treasure trove ami waif properly so-called, are clearly botia vacantia, vnUim in honix, and but for the prerogative would be- long to the first fluder absolutely. " Cum igmtnr tlwmurus in nnllim bonis sit, et avdquittis de jur* nahirali esset inventoris, nunc de jure gentium efflMur ipniua domini regis." '^ Wreck and stray in the sense we ascribe to those words arc not in the same situation, for the right of the owner is not forfeited until the end of a year and a day; but Lord Coke in Constable's Case,^ treats wreck also as nvllius in bonis and estrays animalia vagantia, he terms vacantia, because none claims the prop- erty. Wreck and estray, however, before seizure, closely resemble goods lost, of which the owner has not the actual possession, and afford an analogy to which Lord Coke refers in the passage above cited. AVhether Lord Coke means what the language at first-sight imparts, that under no circumstances could the taking of the goods really lost and found, be guilty of larceny, is not clear ; but the passage is a com- plete and satisfactory authority, that a pcson who finds goods which are lost may convert them animo furandi, under some circumstances 80 as not to be guilty. The two reasons assigned by him are, that the person taking has a right in respect of the finding, and also that they are apparently without an owner, dominus rerum non apparet, an owner, or the owner docs not appear. The first of these reasons has led to the opinion that the real meaning of Lork Coke was not that every finder of lost goods, who takes animo furandi, is not guilty of felony, but that if one finds, and innocently takes possession meaning to keep for the real owner, and afterwards changes his mind and converts to his own use he is not a felon, on the principle that Lord Coke had previously laid down, viz. : that, "the intent to steal must be when the thing stolen cometh to his possession, for if he hath the possession of it once lawfully, though he hath animum furandi afterwards, and carryeth it away afterwards, it is no larceny," and Lord Coke also cites Granville, " Furtum non est ubi initium habet detentionia per dominium rei." 1 vol. 2, p. 561, Stephen's ed. s IJracton Coron. L. 3, ch. 3, p. 120. s 5 Rep. 168 A. 428 LAHCENY. It iH enid, therefore, that the case of flnding is nn instance of this, beginning witli lawful title, which consequently can not become a felony by subsequent conversion ; but if it be originally taken not for the true owner, but with intent to appropriate it to his own use, it is a felony, and of this opinion the commissioners for the atucndmcnt of the crimi- nal law appear to have been, as stated in their llrst report. TIjIs opinion appears to us not to be well founded, for Lord Colte puts the case of lust goods on the same footing as wuif and treasure trove, which are really bona vacdntia goods without an owner, and with respect to which, wo apprehend that a jicrsoD would not be guilty of larceny, though he took originally Ortimo/Km«d», that is, with the in- tent not to take a partial or temporary possession, but to usurp the entire dominion over tlicm, and tlie previous observations have refer- ence to cases in which the original possession of the chattel stolen is with the consent of or l)y contract of tiie owner. But any doubt on this question is removed by wliat is said by Lord Hale: * " If A. find tlie purse of B. in the highway and take and carry it away, and hath all the circumstances that may prove it to be done animo furandi, as denying or secreting it, yet it is not felony. The like in taking of a wreck or treasure trove," '■' "or a waif or stray." Lord Hale clearly considers that if lost goods are taken originally animo furandi, in the sense above mentioned, the taker is not a felon ; and when it is considered tliat by the common law, larceny to the value of above twelve pence was pun- ishable by death, and that the quality of the act in taking animo furandi goods from the possession of the owner, ('iffers greatly from that of taking them when no longer in his possession, and quasi derelict, in its injurious effect on the interests of society (the true ground for the pun- isliment of crimes), it is not surprising that such ^\ rule should be es- tablished, and it is founded in strict justice; for the cases of abstrac- tion of lost property being of rare occurrence, when compared with the frequent violations of property in the possession of an owner, there was no need of so severe a sanction, and the civil remedy might be deemed amply sufficient. Hawkins,^ says: " Our law, which punishes all theft with death, if the thing stolen be above the value of twelve pence, and with corporal punishment if under, rather chooses to deal with them (e.flr. cases of finding, and of appropriating by bailees), as civil tlian criminal offenses, perhaps for this reason, in the cases of goods lost, because the party is not much aggrieved where nothing is taken, but what he had lost before." It can not indeed be doubted that if at this day the punishment of death was assigned to larceny and usually car- ried into effect, the appropriation of lost goods would never have been 1 1 p. 0. 606. 8Citing2t,As8. 99. 3 bk. 1, cli. 10, sec. 3, Curwood's ed. mm R. V. TlIUItUOItN. 429 istancn of this, ccomo a felony lot for the true , it is a felony, :)t of tlie critni- t. for Lord Coke f and treasure tvnur, and witli ot be guilty of is, witli tlie in- ut to usurp the ns have vcfer- lattel stolen is f doubt on this ' If A. find the ind hatli all the idi, as denying f of a wreck or early considers lie sense above sidered that by pence was pun- animo furandi y from that of i derelict, in its nd for the pun- B should be es- ises of abstrac- ipared with the vner, there was ight be deemed uiisbes all thefl .Ive pence, and deal with them , as civil than I of goods lost, ^ is taken, but d that if at tliis ad usually ear- ever have been urwood's ed. held to oonstituto that offense, and it is ccitnin that the alteration of punishment can not alter the definition of tlio offense. To prevent, liowcvcr, the taidng of goods from being larceny, it is essential that they should be pre uraably lost, that is, tiiat they sliould be taken in such a place and under Hueh circuuistanc<'s, us tluit the owner would bo reasonably presumed l)y tlie taker, to have abandoned them, or at least not to know wlicre to find tliem. Therefore, if a liorso is found feeding ou an open common or on tlie side of a public road, or a watch found apparently hidden in a haystack, the taking of these would bo larceny, because the taker had no right to presume that the owner did not know wliere to find them ; and consequently had no right to treat them as lost goods. In the present case there is no doubt that the bank-note was lost, the owner did not know where to find it, the prisoner reason- ably believed it to be lost, he had no reason to know to whom it be- longed, and, therefore, though he took it with the intent not of taking a partial or temporary, but the entire dominion over it, the act of taking (lid not in our opinion constitute the crime of larceny. Whether the subsequent appropriation of it to his own use by changing it, with the knowledge at that time that it belonged to the p^'osccutor, does amount to that crime, will be afterwards considered. It appears, however, that goods which do fall within the category of lost goods, and which the taker justly believes to have been lost, may be taken and converted so as to constitute the crime of larceny, when tlie party finding may be presumed to know the owner of th«!m, or there is any mark upon them, presumably known by him, by which the owner can be ascertained. Whether this is a qualification introduced in modern times or which always existed, we need not determine. It may liave proceeded on the construction of the reason of the old rule. Quia dominua, rerum non apparet ideo aijus sunt incertum eat, and the rule is held not to apply when it is certain who is the owner ; but the autliorities are many and we believe this qualification has been gener- ally adopted in practice, and we must therefore consider it to be the established law. There are many reported cases on this subject. Some where the owner of goods may Be presumed to be known from the circumstances under which they are found ; amongst these are included the cases of articles left in hackney coaches by passengers, which tlie coachman appropriates to his own use, or a pocket-book found in a coat sent to a tailor to be repaired, and abstracted and opened by him. In these cases the appropriation has been held to be larceny. Perhaps these cases might be classed amongst those in which the taker is not justified in concluding that the goods were lost, because there is little doubt he must have believed that the owner would know where to find 430 LARCENY. them again, and he had no pretense to consider them abandoned or derelict. Some cases appear to have been decided, on the ground of bailment determined by breaking bulk, which would constitute a tres- pass, us Wi/ne's Cane,^ but it seems dilflcult to apply that doctrine which belongs to bailment, -^-hcn a special property is acquired by con- tract, to any case of goods merely lost and found, where n special prop- erty is acquired by finding. The ai)propriution of goods by the finder has also been held to be larceny where tlie owner could be found out by some mark on them, as in the case of lost notes, checks or bills, with the owner's name upon them. This subject was considered in the case of Merry v. Oreen,^ in which the Court of Exchequer acted upon the authority of these decisions ; and in the argument iu that case difficulties were suggested, whether the crime of larceny could be committed in the case of a marked article, a check for instance, with the name of the owner on it, where a person originally took it up, intending to look at it and see who was the owner, and then as soon as he knew whose it was, took it, animo furaniH; as in order to constitute a larceny, the taking must be a trespass, and it was asked when in such a case the trespass was committed? In answer to that inquiry the dictum attributed to me in the report was used ; tb:it in such a case the trespass must be taken to have been committed, ndt when he took it up to look at it, and see whose it was, but afterwards, when he appropriated it to his own use, animo furandi. It is quite a mistake to suppose, as Mr. Greaves has done,^ that meant to lay down the proposition in the general terms contained in tlu extract from the report of the case in 7 Meeson and.Welsby, whid taken alone, seems to be applicable to every case of finding unmarkec as well as marked property. It was meant to apply to the latte only. Tiie result of tliese authorities is, that the rule of law on this subjec seems to be, that if a man finds goods that have been actually lost, are reasonably supposed by him to have been lost, and appropriat them, with intent to take the entire dominion over them, really belie ing when he takes them, that the cwner can not be found, it is not la; cony. But if he takes them with the like intent, thougli lost, reasonably supposed to be lost, but reasonably believing that the own( can be found, it ia larceny. In applying this rule, as indeed in the application of all fixed rule 1 Leach, 0. C. 460. S 7. H. & W. 623. 3 vol. 2, ch. 14. K, V. TH III! HORN. 431 Acr them abandoned or •ideil, on the ground of vould constitute a trcs- to apply that doctrine icrty is acquired hy con- nd, where ;i special prop- as also been held to be y some mark on them, as I the owner's name upon 'rferry v. Oreen,^ in which ority of these decisions ; were suggested, whether I case of a marked article, ■ner on it, where a person id see who was the owner, ok it, animo funindi; as mst be a trespass, and it IS committed? In answer the report was used ; th:it have been committed, not ►se it was, but afterwards, furandi. Jreaves has done,^ that I sral terms contained in the :eeson and. Welsby, which case of finding unmarked, nt to apply to the latter rule of law on this subject have been actually lost, or een lost, and appropriates n over them, really believ- not be found, it is not lar- ie intent, though lost, or jly believing that the owner plication of all fixed rules, questions of some nicety may arise, but it will generally be ascertained whether the person accused had reasonable belief that the owner could be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. In some cases it would be apparent, in others ap- pear only after ex. ..nation. It would probably be presumed that the taker would examine the chattel as an honest man ought to do, at the time of taking it, and if he (lid not restore it to the owner, the jury might conclude that he took it, when he took complete possession of it, animo furandi. The mere tak- ing it up to look at it, would not be a taking possession of the chattel. To api-'y these rules to the present case; the first taking did not amount to larceny, because the note was really lost, and there was no mark on it, or other circumstance to indicate then who was the owner or that he might be fo and, nor any evidence to rebut the presumption that would arise from the finding of the note as proved, that he be- lieved the owner could not be found, and therefore the original taking was not felonious ; and if the prisoner had changed the note or other- wise disposed of it, before notice of the title of the real owner, he clearly wouhl not have been punishable ; but after the prisoner was in possession of the note, the owuer became known to him, and he then appropriated it, animo furandi, and the point to be decided is, whether that was a felony. Upon this question we have felt considerable doubt. If he had taken the chattel innocently, and afterwards, appropriated it without knowledge of the ownershi[», it would not have been larceny, nor wotdd it, if he had done so, knowing who was the owner, for he had the lawful possession in both cases, and the conversion would not have been a trespass in either. But here the original taking was not inno- cent in one sense, and the question is, does that make a difference? Wo think not ; it was dispunishable as • have already decided, and though the possession was accompanied by a dishonest intent, it was still a lawful possession, and good against aCU but the real owner, and the sub- seiiuent conversion was not, therefore, a trespass in this case, more than the otliers, and consequently no larceny. We therefore think that the conviction was wrong. 2, cb. 14. 432 LARCENY. LARCENY — FELONIOUS INTENT AT TIME OF FINDING — FINDER MUST HAVE IMMEDIATE MEANS OF FINDING OWNER. R. V. CHniSTOPHER. [Bell, C. C. 27.] In the English Court Jor Crown Cases Eeserved, 1858. To Eatablish a Charge of Larceny Bgainst the Under of a lost article two trtlngs must b« shown, (1) that at the time ol Uio flnUlng, the Under had the felonious InU-nt to api>ro priaie the thing to his own use, (2) that nt the time of finding he had reasonable grounds for believing that the owner might be discovered. The case as stated by the magistrate was as follows : "It appeared from the evidence that the prosecutrix left her master's house between eleven and twelve o'clock in the morning of the 13th October to go to Dorches- ter (a distance of about a mile), having in her possession a purse of green leather (commonly called a port-monnaie), containing within it another smaller purse, about the size of a half crown, in which there were three sovereigns and two half sovereigns. ' ' In the public path between Stinsf ord House and the first meadow, as she supposes, she dropped the purse; but thinking she might have left it on her table, she went on and returned home about one. Finding out her loss she went in the afternoon to Dorchester, and had the property cried by the public crier, —describing it as a green leather purse and a smaller one inside, and that they contained three sovereigns and one half sovereign and a half crown, or £3 12s 6d. (This was an error, as it really contained, as she found afterwards, two half sovereigns instead of only one, £4 2s 6d. ) About four o'clock the prisoner is at the Bull's Head public house with a man named Upshall whom he treats to beer, and paid for it with a sovereign which he took out of a purse. Whilst they were sitting at the table together in the tap, the crier came by and cried something. Tlie landlady, Mary Jane Russell went to the door to hear ; Upshall asked her what it was cried. Landlady, from the passage said, ' Some money lost, £3 12s 6d.' Prisoner was taken up eventually at twelve o'clock at night at another public house, and the two purses with six half sovereigns, two shillings and six pence in silver and some pence found on him. The constable said : ' These things were lost.* Prisoner said: 'Well, I know I did pick them up.' Constable said: 'There was more money than this.' Prisoner said: 'I know I've done wrong.' " On the part of the prisoner, it was contended that at the time he took the purse (which was admitted) he had no felonious intent; that there was no name or special mark on the purse or the money, and that the ^im K. V. CHRISTOPHER. 488 i"INDINQ — FINDER !fG OWNER. rved, 1858. rtlcle two trtlngs must b« ilonious intt'Ot to ap|)ro- 3 had rea8on»ble grounda : "It appeared from )use between eleven )er to go to Dorches- ossession a pui'se of containing within it own, in which there [ the first meadow, as she might have left it t one. Finding out nd had the property en leather purse and irereigns and one half 3 was an error, as it if sovereigns instead soner is at the Bull's )m he treats to beer, of a purse. Whilst le crier came by and sell went to the door Landlady, from the risoner was taken up )ublic house, and the lid six pence in silver mid: ^ These things did pick them up.' his.' Prisoner said: subsequent appropriation did not amount to larceny ; that, though civilly, he was not criminally liable, and the cases of Regina v. Mole,^ T/tur- hom's Caae,^ and Regina v. Lathin,^ were cited. In summing up, I told the jury that a felonious intent was held to be a necessary ingre- dient in every larceny, but that intention was to be judged of by such acts subsequent as well as immediate ; that if they thought the conver- sion of the money to his own use without inquiry was proved, and that there was though no name or mark on the purse yet such peculiarity in it as containing a second smaller one, as to warrant some inquiry and above all, if they were satisfied that the prisoner when sitting in the public house, heard the words of the landlady, which Upshall said he heard, and then did not take measures to make restitution, that I thought they might infer felonious intention, and find him guilty. " The jury returned a verdict of guilty on the count for stealing. A previous conviction was then proved and the prisoner was sentenced six calendar months hard labor. " On application of counsel for the prisoner, a case was granted, and execution of the judgment respited till the decision of the court above was known. I respectfully submit the question, whether the above facts warranted in point of law, the finding of the jury in this case. "Chables Pobchek, " Deputy Chairman of the Quarter Sessions. This case was argued on the 22d of November, 1858, before Pollock, C. B., WiGHTMAN, J., WiLUAMS, J., ClIANMELL, B., and HiLL, J. Stock, appeared for the Crown, and Ffooks, for the prisoner. Ffooks, for the prisoner. The facts in this case are identical with those in Regina v. Tlmrborn,* and the object of the court below in re- senlng it, seems to have been to procure a review of that decision. Pollock, C. B. The question for us is, whether there was any evi- dence to go to the jury, that at the moment when the prisoner took up the purse he intended feloniously to appropriate it. Ffooks. There was not any whatever. The purse was lying on a public footpath, and had evidently been lost. There was no name on it, and nothing about it or its contents to indicate the ownership. The circumstance that the purse contained a smaller one, can not of course, alter the character of the first taking, although certainly it might have facilitated the discovery of the person who had lost it. This very case is put by Lord Hale,* and mentioned in Regina v. Thur- lat at the time he took us intent ; that there I money, and that the > 1 Oar. A K. 417. < 1 Den. C. 0. 392. 3 This appears to be an error, and prob- a Drfbncrs. ably the case referred to waa Reg. v. Pre** ton, 2 Den. C. 0.353. « 1 Oen. C. U. 387. > llale'8 P. C. 506. 28 434 LAIICKSV. born 1 " If I find the purse of B. in the highway, and take and carry t away, and hath all L circumstances that may prove ^t to be don. aniJfurandi. as denying or secreting it, yet xt is not f e ony But Reainav. Thurborn does not stand alone ; it has been frequen ly recoj- Sl Td acted npon. In Begina v. Preston,^ Lord Campbell strongly Tar.'^: rri t ^ina .. m^, also, it is acted upon. The observations of Lord Campbell, in Regina v. Preston are very impor- tant, as they show what the direction to the jury ought to be. Ffooks. The direction of the chairman here was to the effect hat BuWquent conduct might convert an innocent taking into a felomou. appropriation. That was clearly wrong. The learned counsel was stopped by the court. ^ Stock for the Crowrt. The present case is distinguishable from the cases cied. In Regina v. Preston, the jury did not say that there was atlonirus intention at the time of finding, and in that case the re- coVder had misdirected the jury in telling them to consider at what "me he prisoner first resolved to appropriate the not« to his own use , and that if they arrived at the conclusion that the prisoner either knew "e owner, or reasonably believed that the owner could be found when he first resolved to appropriate the note, then he was guilty of larcenj a^d the court held that direction was wrong, because it was consistent with an honest possession on the part of the prisoner. The fact, in this case differ from those in Reginay. Thurhom an the jury here substantially find, that the P^^oner, though be,»eving^ the time of finding that the owner could be found, did intend felon- iouslv to appropriate the purse and its contents to his own use. wfLUXMs, J. You have this difficulty to grapple : that there is no evidence of that, except the subsequent conduct of the prisoner. tol I submit that the nature of the property found, one purse within another, and the place where it was found, on a 'ootpath near » market town, Afford reason for believing that the owner could be found. POLLOCK C. B. If you examine all and each of the facts, they are J^sLnt \.;h the innocence of the prisoner. Is there any evident from which the jury ought reasonably t^ have found a verd-ct of gudtj . Channell, B. In Regina v. Dixon.* in which Regxna v. nurftom, w.« referred to, it was held that, if a man find lost prope,.y«id keep it, and at the time of finding it have no means - no immediate m^^, of discovering the owner, he is not guilty of larceny because he rf^er- wards has means of finding him, and nevertheless retains the property to his own use. 1 1 Den. C. C. 893. 1 S Den. C. O. 3BS. 3 Dean. O. C. SW. « Dears. O. C. 680. ^^ R. V. CHRISTOPHER. 435 ,', and take and carry y prove it to be doni' is not felony." But een frequently reco<;- •rd Campbell strongly it is acted upon. The eston, are very impor- ought to be. was to the effect that making into a felonious stinguishable from the not say that there was id in that case the re- n to consider at what te note to his own use; te prisoner either knew r could be found when 1 was guilty of larceny ; icause it was consistent oner. egina v. Thurbom, and ler, though believing at ound, did intend felon- to his own use. apple: that there is no ; of the prisoner, (perty found, one purse id, on a footpath near » e owner could be found, sh of the facts, they are Is there any evidence lund a verd'ct of guilty? ih Begina v. Thurborn, \ lost property and keep I I — no immediate means, weeny because he after- iless retains the property j j.o.sao. J.C.S80. Pollock, C. B. I am of opinion that this conviction can not be sus- tained. Wo are bound by the authoritj' of liegina v. Thurborn. It is necessary to bring home to tlie prisoner a felonious intention at the time of finding. WiGHTMAN, J. The decision in Regina v. Tliwbom has been rec- ojriiized in several subsequent decisions. We can not overrule that case and are bound by it. Williams, J. Though considering myself bound by the authority of Regina v. Thurborn, and agreeing as I do with the decision in that case, I must confess I have never been able to agree with some of the principles there laid down. Here the direction to the jury was, I think, calculated to mislead them and to induce them to suppose that although the prisoner had no felonious intent at the time of finding, yet if he subsequently had such intent he was guilty of larceny ; but that is not Uie law. ' The evidence here shows, according to my view of it, that the pris- oner found the purse and took possession of it as a finder, and that the wiciced intention of appropriating it came upon him afterwards. I therefore think this conviction can not be sustained. Channell, B. I think that the case of Regina v. Tlmrborn was rightly decided ; and I think that the cases of Regina v. Preston and Begina v. Dixon, which followed, laid down a reasonable rule and one consistent with the decision in Regina v. Thurborn. The question is, was there a felonious intent at the time when the prisoner first took possession of the purse? I am by no means ^ vc- pared to say that evidence of what subsequently occurred was not ad- missible to prove a felonious intention at the time of finding, but the question of intent at that time was not put to the jury. The chairman told the jury that a felonious intent was held to be a necessary ingre- dient in every larceny, but that intention was to be judged of by acts subsequent as well as immediate ; and that, if they were satisfied that the prisoner when sitting in the public house heard the words of the I landlady, and then did not take measures to make restitution, they might infer a felonious intention. Now, it is quite consistent with that direction that the jury should find the prisoner guilty, although they were of opinion that the felonious intent did not arise until subsequently to the finding. I therefore think that the conviction can not be sus- I tained. Hill, J. Two things must be made out in order to establish a charge I of larceny against the finders of a lost article. First, it must be shown that, at the time of finding, ho had the felonious intent to appropriate the thing to his own use ; and this is founded on the rule iaid down by Lord Coke, and referred to and acted upon in Regina v. Thurborn, -a fclliiViri5fiO>.ftsJiGW»/i xt 43(5 LAKCENY, The other incrrcdient necessary is that, at the time of finding, he had reasonable ground for beheving that the owner might be discovered, and that reasonable belief may be the result of a previous knowledge or may arise from the nature of the chattel found, or from tl><3re being some name or mark upon it ; but it is not sufficient that the finder may tbinkthat by taking pains the owner may be found, —there must be the immediate means of finding him. In this case the evidence fads m both these particulars, and therefore the conviction can not be sus- ^'*'"®'** Conviction quashed. LARCENY -FINDER -INTENT FORMED SUBSEQUENTLY. R. V. Preston. [1 Den. & P. 351.] In the English Court for Crown Cases Reserved, 1851. Where a Banknote Is lost. anJ is found by a person who appropriates it to hi. own use ftri"*harT*Murj nre no to be directed to consider at what time the P'"""""; «'" S iltin to. is .ossession.re.olved to appropriate It to his own «»«. ^»'7^^«'^" » the time ho took possession of it he knew, or had the means <.f knowing, '^h" "'« "JJ was Vnd ook possession of It with Intent to steal it; for if his original possession of was'au fnnoccnt one. no subsequent change of his .nlnd. or resolution to appropriate it to his own use. would amount to larceny. The prisoner, Michael Preston, was tried before M. D. Hill, Esq., Recorder of Birmingham, at the last Michaelmas Sessions for that bor- ou'^h, upon an indictment which charged him in the first count with stelling; and in the second, with feloniously receiving a £50 note of the Bank of England. . ^. . u It was proved that the prosecutor, Mr. Collis, of Birmingham, re- ceived the note in question with others on Saturday, the 18th of Octo- ber from Mr. Lidsam, who, before he handed it to the prosecutor wrote on the back of it the words " Mr. Collis." It was further proved that Collis was a very unusual name in Birmingham, and almost, if not quite confined to the family of the prosecutor, the well known master manu- About four o'clock the same afternoon the prosecutor accidentally dropped the notes in one of the public streets in Birmingham, and im- mediately gave information of his loss to the police, and also caused hand-bills, offering a reward for their recovery, to be printed and cir- culated about the town. r..i>.'--i;«!«^'- R. V. PRESTON. 437 of finding, he had ght be discovered, rious knowledge or r from there being that the finder may - there must be the e evidence fails in 1 can not be sus- nviction quashed. 3EQUENTLY. rved, 1851. sprlates It to hU own use, ; time the prisoner, after own UBO, but whether at ! knowing, who the owner 9 original possession of it jsolution to appropriate it e M. D. Hill, Esq., Sessions for that bor- the first count with ing a £50 note of the , of Birmingham, re- ly, the 18th of Octo- the prosecutor wrote s further proved that \ almost, if not quite known master manu- ■osecutor accidentally Birmingham, and im- jlice, and also caused bo be printed and cir- On Monday, the 20th, about three o'clock in the afternoon, tlie pris- oner, who had been living in Birmingham fourteen years, and keeping a sliop there, went to one of the police stations, and inquired of a polite" man if there was not a reward publicly offered for some notes that had been lost, and whetiier their numbers were known, stating tiiat he was as likely as any person to have them offered to him, and if he heard any thing of them he would let the police know. He also inciuiicd if the policeman could give any description of the person who was supposed to have found them, and the policeman gave him a written description of such person, who was described therein as a tall man. Afterwards, between three and four o'clock the same afternoon, tlie prisoner went to tiie shop of Mr. Bickley, in iiirmingham, and after inquiring if he (Bickley) had heard of the loss of a £50 note, stated that he, the pris- oner, thought that he knew parties that had found one, and then asked Bickley whether the finders would be justified in appropriating it to their own use ; to which Bickley replied that they would not. At four o'clock on the same afternoon the prisoner changed the note, and was later in the same evening found in possession of a considerable quantity of gold, with regard to which he gave several false and incon- sistent accounts. He was then taken into custody, and on the following day (October 21), stated to a constable that when he was alone iu his house on Siin- thiy, a tall man whom he did not know came in, and offered him a £50 note, for which he, the prisoner gave him fifty sovereigns. The police officers had previously told the prisoner, that they were in possession of information that one Tay, who was known to the pris- oner, had found the note ; but Tay was not called, nor was any evidence given as to the part (if any) which he took in the transaction. Upon these facts the learned recorder directed the jury, that the im- portant question for them to consider, was at what time the prisoner first resolved to appropriate the note to his own use ; if they arrived at the conclusion, that the prisoner either knew the owner, or reasonably believed that the owner could be found at the time, when he first re- solved to appropriate it to his own use, that is to exercise complete dominion over it, then he was guilty of larceny; if on the other hand, he had formed the resolution of approprijiting it to his own use, before he knew the owner, or had a reasonable belief that the owner could be found, then he was not guilty of larceny. He also told the jury that there was no evidence of any other person having possession of the note after it was lost, except the prisoner ; but that even though the prisoner might not be the original finder, still if he were the first person who acted dishonestly with regard to it, and if he began to act dislion- estly by forming the resolution to keep it for his own use, after he knew e time when the tak- n, in Regina v. Thur- found, that when the andi, but had not the i there held, that un- mua furandi, and the ner was, he was not 3und by the jury that (vho the owner was or tiat he had originally t even if the prisoner irst person who acted juilty of larceny, r that he was not the Lord Campbell, C. J. The first part of the recorder's direction is consistent with this, that the prisoner may have received the property honestly, and have kept it for some time for tlie right owner, and after- wards have yielded to temptation, and appropriated it to himself. Aldebson, B. When the finder first takes it into his possession, — in order to constitute larceny — there must be an intention of " taking '* it the moment he knows what it is. Platt, B. Tliere must, at that moment be a felonious taking. Lord Campbell, C. J. If the original possession was a lawfui pos- session, then there was no asportavit. If the prisoner, when he took tlie notes originally into his possession, had not the means of knowing who the owner was, and had not then the animus furandi, when was the "taking?" O'Brien cited R. v. Leigh,^ R. v. Muckloiv.^ Bittlestone, for the Crown. The direction of the recorder is supported by the judgment of the court in Regina v. Thurbom. Lord Campbell, C. J'. Do you contend that if the prisoner once had tiie property honestly in his possession, he would be guilty of larceny by afterwards appropriating it to his own use? Bittlestone. The question can not be governed by the intention of the finder at the very moment he takes the thing into his possession There must be time to examine it. Lord Campbell, C. J. Assume that he has full time .for examination, and has examined it. The recorder tells the jury to consider at what time the prisoner fir§t resolved to appropriate it to his own use, and that if when be resolved to appropriate it to himself he bad the means of knowing who the owner was, he was guilty of larceny, al- though he may have before then received it bono anima. When was the taking? Alderson, B. The direction of the recorder does not exclude the sup- position that the prisoner might have got the notes honestly, kept them for three or four days, and then resolved to appropriate them to bis own use. Bittlestone. I should submit that as long as the prisoner's possession of the property was an innocent one, his possession was that of the owner. If a person find a bank-note marked, so that it may be trnced to the owner, the possession of the finder is the possession of the owner, so long as the finder deals honestly with the property. But as soon as the finder resolves to convert it to his own use he alters the possession, and then can only be said, for the first time, to take the note for the pur- pose of exercising dominion over it. 1 a East's p. C. 694. a 1 Mo. C. C. 160. m w ^ i mu m wrm'^ 440 LARCENY. Aldebson, B. There is no proof here that the prisoner couUl reail any marks which may have been on the note. Bittlestone. But there is evidence that ho took them and showod them to other persons who could read. He went about making inquiries whether ho could safely keep them for himself or not. Lord Campbell, C. J. That might have been strong evidence for tlie jury that the prisoner originally took the property animo furandi, and with the means of knowing who the owner was. Bittlestone. Parke, B., lays it down In Regina v. nurbom, that the mere taking up of a note to look at it is not a taking possession of tiie chattel. The taking is when the finder takes it intending to exercise complete dominion over it. Lord CampbellC. J. Your position is that the finder, while he holds the property honestly, holds it for the right owner, and that when lie resolves to appropriate it to his own use there is a new taking, and that he then takes it animo furandi? Bittlestone. It is laid down in Blackstone's Commentaries,* that al- though the finder of a chattel has a good title to it against all the rest of the world, he has no property or right of possession in a chattel wliich has been lost, adverse to the owner. The finder has a mere cus- tody of it for tlie owner ; and when he resolves to appropriate it animo furandi adversely to the owner, it is submitted that it is larceny. Martin, B. Suppose a man takes an article, — an umbrella for in- stance, — by mistake, and three or four days afterwards discovers who the owner is, by the name which is upon it, and yet resolves to keep it as his own property, would that be larceny. Bittleitone. I should say so ; but this is the case of a fifty pound note. In Wynn's Case,'' it was held that if a hackney coachman con- vert to his own use a parcel left by a passenger in his coach by mistake it is felony if he knew the owner, or if he took him up or set him down at any particular place where he might have inquired for him. Aldebson, B. This differs from a case of bailment, where the tor- tious breaking bulk determines the bailment. According to the direc- tion of the Recorder, the notes might have passed through a dozen innocent hands before they came to the prisoner, who may have got them innocently, and yet the prisoner, he rules, was guilty of larceny. . Lord Campbell, C. J. I am of opinion that this conviction can not be supported. Larceny necessarily supposes a taking animo furandi. The rule, as to taking is somewhat technical, but it is not likely to be departed from, In the case before us the direction to the jury is con- sistent with an honest possession on the part of the prisoner. The re- 1 IBla. Com. (ed. Chltty) 296; Armory r. Delamerle, Strange, SOS. 2 1 Leach, C.C. 413. riita R. V. KNIOIIT. 441 risoner couUl rend I and showod thorn making inquiries ig evidence for the %imo furandi, and nurbom, that tlie [ possession of tlie lending to exercise der, wliile he holds and that when lie w talcing, and that nentaries,^ that al- against all the rest ession in a chattel er has a mere ens- ppropriate it animo it is larcen}'. in umbrella for in- 'ards discovers who , resolves to keep it ise of a fifty pound cney coachman con- is coach by mistake him up or set him nquired for him. lent, where the tor- nrding to the direc- jd through a dozen who may have got IS guilty of larceny. conviction can not ting animo furandi. t is not likely to be 1 to the jury is con- ) prisoner. The re- 3. 413. corder says that the question for tliem to consider was, at what time the prisoner first resolved to appropriate the note to his own use. What, then, was the taking? It is supposed to be a thought which passed through the prisoner's own mind ; but I do not think tliat can amount to a taking, when nothing was in fact done, and when it may be, that the prisoner was lying in bed at a distance from the article. There is no taking animo furandi in this case ; consequently, there is no larceny. It is unnecessary for us now to enter further into the question, after the elaborate judgment of my Brother Parke, on the subject of larceny in Regina v. Thurborn. Alderson, B. If there must be both a taking and the animus furandi to constitute a larceny, the difficulty is, how the changing a man's mind, ex post facto, can render an honest taking larceny. According to the summing up of tlie Recorder to the jury, if a man gets a note honestly, keeps it for a week, with an intention of restoring it to the owner, and then changes his mind and resolves to appropriate it to his own use, it may be, as the Lord Chief Justice remarks, while he is in bed, that converts a lawful taking into a dishonest one. To uphold such a doctrine would be to refine in such a way as to destroy the simplicity of the 'criminal law. Talfouro, J. A mere movement of the mind can not amount in law to a taking. Platt, B. The case where there has been a bailment stands on a different principle, that of breaking bulk, but to constitute larceny in every other case, something must be taken, animo furandi and invito domino. Martin, B. It is of great importance that the rules of the criminal law should be plain and intelligible ; and considering that the prisoner may originnlly have become innocently possessed of the note, I do not think that this can be held to be a case of larceny. LABCENT— LOST BANK-NOTE— FINDBB. R. V. Knight. [12 Cox, 162.] In the English Court for Croum Cases Reserved, 1871. I hiaoner Beoelved from his Wife a £10 Bank of England note, which she had tonnd, and passed it away. The note was indorsed "K. May" only, and tlie prisoner, when asked to put his name and address on it, by the person to whom he passed it, wrote on it a false name and address. When charged at the police station, the prisoner said he knew nothing about tlie note. The jury were directed that, if they were satisfied that the prisoner oould, within u reasonable time, have found the owner, and if, instead of 442 LAUCENY. waiting, the prUoner Immodlktely converted the note to bit own n»e, Intending to deprive the owner of It, It would be larceny. The prlnoner w«» convicted. Beld, dial the Jury ouKht to hAve been aitked whether the prisoner, at the time ho received the nute, believed the owner could bo (ound; and that the conviction wai wrong. Ooao reserved for the opinion of this court. At the general quarter session of the peace, boldcn by adjournment, nt St. Mary, Newlngton, in and for tlie county of Surrey, on Wednes- day, the 2«th July, 1871, WilMam George Green Knight, was tried and convicted on an indictment, cliarging him In the first count with feloni- ously stealing £10 in money, of the property of John Willlmot Morgan ; and In the second count, nrlth feloniously receiving the same money, well knowing It to have been stolen, upon the following evidence : — Ricliard Adye Bailey, clerk in the Bank of England, having been sworn, produced a canceled note of such ba_.iC for £10, paid 81st May, 1871, No. 30,483, dated 22d March, 1871, indorsed E. May; E. Ran. dall, 8 Cowland Terrace, Wandsworth Road ; G. Hollyman, 346 Wands- worth Road. John Willlmot Morgan, on his oath stated as follows : " I am traveler and collector. On the 26th of May last, I received a £10 note at Dept- ford, between one and half past one o'clock. Indorsed E. May. I put It in my left-hand waistcoat pocket. I went to South Bermondscy station, a quarter of a mile from where I received the note, and thence to Loughborough Park station. I called upon a customer in the Brix- ton Road. I walked from there to Clapham. I got there about three o'clock. It was the Oaks day. I walked along tlie Clapham Road. I put the note in my waistcoat pocket with my watch. I did not take out the note after. I missed it when I arrived at the office, Arthur Street, London bridge. I went from Clapham station to the Borough Road station. I went the same night to Scotland Yard and gave infor- mation to the police. Wuju at Clapham, I went down High Street to Muswell's, the butcher. I came up Acre Lane. I left Clapham at four o'clock by train." George Hollyman, on his oath steted: *' I am a clothier, carrying on business at 345 Wandsworth Road, (hi the 26th of May last, the pris- oner came to me between seven and eight o'clock in the evening ; I knew hira by sight. I did not kno w !iis name. He purchased a waist- coat, two pairs of drawers, and other things, together of the value of 12s 9d. He tendered a Bank of England note for £10. The note pro- duced by the witness Bailey is the one. I asked prisoner to indorse it, which he did, " E. Randall," as on the note produced, I put my initials under his name and gave him change. The articles produced by wi^ ness Tucker are of the same description as those I sold to prisoner. I will swear they are the same. mamm wem ^m R. V. KMOflT. 443 vn uie, Intending to ionvioted. H*l p. 603. * 1 Hawk, ch. 33: Kel. 24 ; Dal. 3. I ijmisiSfmitKiiiumvimieiai^seimsiismiit''"- ^^m proprietor; and izzlement of the f those articles, ! of the opinion runk coiitaioing t act of his, in • the contents of this doctrine is ! intent to steal ' the party ; for le hath animum . * Again Lord I,* to be that if B convert them the first taking la or stray, and t of the finding ne doctrine will s,* In 2 East's ne finds a purse felony althougli actually prove :ing it. ny must charge niously carried le taking is not ray the goods. ^ e highway, and sry one but the I bona fide and be deemed to iversion by de- It to the use of !st ought to be ubsequent con- ous intention, and carriages, the person ap- in specific pur- 24 ; DiU. 3. PEOPLE V. ANDERSON. 447 pose, and then has gone off with them and converted them to his ov.n use. On a slight examination the cases will be found to be very dis- similar ; in the latter case, there must have been an original felonious intention, and unless this case be fairly deduced from all the facts in the case, it is to felony. Where that original felonious intention ex- ists, although the person having it has obtained the consent of the pro- prietor to let him have the possession for one purpose, he intended to get it for another and far different purpose, and he, therefore, never had the possession for this different and fraudulent purpose, and may be fairly said to have acquired possession feloniously. It is not 80 with regard to a person coming fairly into the possession by finding. No fraud is practiced on any one in first acquiring the pos- session. It, therefore, never can be a question with a jury, how far forth a person who found a chattel intended to find it for the purpose of stealing it. The very nature of the case excludes a premeditated or already formed intention to steal. That depends as matter of fact upon a variety of circumstances, such as the value, the facility of con- cealment, etc., which are matters of after consideration. Hence we do not find a single case in the reports of criminal trials, or in the treatises on criminal law, in which it has ever been intimated that a person actually finding a chattel has been held to have stolen it, from the circumstances of denial, concealment or appropriation ; nor from the happening of any of those facts which in reference to the taking of chattels ordinarily shows a felonious intention. It is true that there are cases in which though the party apparently had the possession of the chattel, yet the taking has been adjudged felonious. The case of a guest at a tavern or of a gentleman's butler who have taken the things committed to their use or care are mentioned in the books as illustrative of the prin- ciple that the mere naked possession for a special purpose will not pro- tect the party, if he take it away feloniously. So if a bailee of a bale or trunk of goods, break the bale or trunk and take and carry away a part of the goods with intent to steal them, it is larceny ; but if he carry them to a different place than the one agreed upon, and convert the whole to his use, it is not larceny. East* observes that this dit - tinction seems to stand more upon positive law, not now to be ques- tioned, than upon sound reasoning:, and he adopts Lord Hale's reason- ing, that the privity of contract is determined by the act of breaking the package, which makes him a trespasser, and that then it makes no difference whether he takes all or part only of the goods after the pack- age is broken. There can be no analogy between this case and that of the carrier who breaks the package or opens a trunk, animo furandi, » 2 C. L. «95. 448 LARCENY. because the finder of goods has them not in virtue of any contract, and violates none, in opening a bale or trunk. Tlie court believe that it would by an innovation on the criminal law to consider this as a case of larceny ; and they therefore direct tlie prisoner to be discharged. Thompson, C. J., dissented. Prisoner discharged. larceny — finder. State v. Dean. [49 Iowa, 73; 31 Am. Rep. 143.] In the Supreme Court of Iowa, 1878. One who Finds Ijoat goods which have no marks or indications of ownership and who does not Icnow the owner is not bound to exercise diligence to ascertain the owner and is not guilty of larceny in retaining the goods. Conviction of larceny. The opinion states the facts. Pollock & Shields, for appellant. J. F. McJunkin, Attorney-General, for the State. Adams, J. The evidence shows that in July, 1876, a great flood occurred in the Catfish Creek at the village of Rockdale in the county of Dubuque, whereby nearly the whol« village was swept away and destroyed. Two stocks of merchandise were swept away and the goods swept to a great distance. A part of these goods as well as arti- cles of household furniture, etc., were gathered up by different persons immediately after the flood and carried to different houses in the neigb borhood. The defendant found on the banks of the Catfish, about three-fourths of a mile below Rockdale, some papers belonging to one Horn, also a lady's muff, a piece of flannel, a piece of muslin, and a coat, and took the same to his house. They were at the time very much soiled by wet and dirt, and his wife washed them and hung them out to dry on a clothes-line, by the side of public street, where they were found. The evidence shows that the defendant had previously been making inquiry as to where Horn could be found, with the ostensible purpose of restoring to him the papers. There was no evidence tending to show that the defendant knew who owned the other property, and as to a part of it the ownership does not seem to have been ascertained yet. The defendant asked the court to give an Instruction in these words: If you find from the evidence that said goods were lost ; that the same MHWM IHM WSMMMMI MMWH any contract, and )n the criminal law lierefore direct the 'aoner discharged. 9. 8 of ownership and who ascertain the owner and ■«liSa 1876, a great flood 3kdale in the county as swept away and ept away and the oods as well as arti- by different persons houses in the neigh- the Catfish, about rs belonging to one ce of muslin, and a ; the time very much I and hung them out set, where they were lad previously been , with the ostensible no evidence tending ler property, and as ve been ascertained ction in these words: lost; that the same STATE v. DEAN. 449 were found by the defendant ; that at the time he found the same he did not know who owned them ; that there were no marks upon or about the goods showing to whom they belonged, so that defendant could identify the owner at once, even th«ugh the defendant could afterwards liuve discovered the owner by honest diligence, then you must acquit the defendant. The court refused to give this instruction and in- structedthe jury as follows: Lost goods may be the subject of lar- ceny and should receive the same protection from the civil and criminal law as goods in any other situation. Where the finder knows or has tlie immediate means of knowing who was the owner, and instead of returning the goods, converts them to his own use, such conversion will constitute larceny. Reasonable diligence in discovering the owner should be shown by the party finding. The intention of a party com- mitting a larceny at first may not be felonious, but if the property is wrongfully used or converted, it is larceny. In giving these instruc- tions and in refusing to instruct as asked, we think tliat the court erred. Tiie statute upon the subject is in these words : " If any person come by finding to the possr ssion of any personal property of which he knows the owner, and unlawfully appropriates the same or any part thereof to his own use he is guilty of larceny." i The crime, if committed, must consist in the origin.nl taking. It c.-xn not consist in a subsequent lack «f diligence in attempting to find tlie owner, nor in a subsequent con- version. The statute does, indeed, provide a penalty for converting lost goods. It provides a penalty of twenty dollars. In addition" the owner may recover for any damage which he may sustain. » The stat- ute also provides what steps the finder of lost goods should take, and iiow he may be compensated-^ But where the original taking is lawful, as where the finder is ignorant of the owner, the omission to take the steps pointed out by the statute, and the conversion, do not constitute larceny. This is not only the plain meaning of the statute, but it ia the doctrine of the decisions. It is stated in Bishop's Criminal Law,< in these words: "A man knowing the owner of goods can not lawfully pick them up without returning them to him, but a man not knowing the owner can. The doctrine, therefore, is that if when one takes goods into his hands he sees about them any marks, or otherwise learns any facts by which he knows who the owner is, yet with felonious intent, appropriates them to his own use, he is guilty of larceny, otherwise not." In People v. CogrdcW,5 the defendant was indicted for larceny of a lost pocket-book and money contained therein. He made no effort to find > see. 8907 of the Code. « Cude, .^c. 16«. ' "'•>de, sec*. UM, 1515, 1516, and 1318. 'J Defkncrs. * Tol. S, iee.883 (5th ed.). » 1 Hill, M. 29 MHBiMl 450 LAUCENY. the owner, and converted the property to his own use. The court held fhltZas a n.ere ca.e of trover, and not larceny. Tl. -^ ^;; r-- held in People v. Anderson,^ State v. Conway,' Wnght v. Sate The rule that the use of property by the.flnder without reasonable d.hgen Zn bis part to find the owner would constitute larceny, would o ft n be opp ssive. Scarcely any effort, short of a success m one, might be deemed by juries sufficient. In the meantime the finder must care or t properV. -^ if, through his negligence, It is lost, he becomes hable *"Th! rX here held is in harmony with that held by this court In State V. Trood,Mn which substantially the same principle was involved. In Lt^cas; the defendant had innocently come into the rf^-^ «'; guitar, and afterward sold it, with the design of "^P W'»*'°«J^« P/"" ceeds-i it was held not to be larceny. The same doctrine was held m Abro^m. '■ ■ -r.U,^ and Wilson v. People." « ^^^ LAECBisr. Sm .UENT CONVERSION OF HIRED PROPEBTT. Hill v. State. [67 Wis. 877] In the Supreme CouH of Wisconsin, 1883. not guilty of Iwrceny. Ebrob to the Municipal Court of MUwaukee County. For plaintiff in error, A. C. Brazee. For defendant in error, H. W. Chyno^eth, Assistant Attorney-Gen- ^''obton J The information, was for the larceny of a horse, the ^Z^yoi Silas Barber, the keeper of a livery stable in the city of ""Tttfendant Lawrence, on the 10th day of September, at five o'clock in the afternoon, hired a horse with a top ^"88^*0^8?*°' ;i^e called Honeyakers, about three miles *-- ^a^ket, tobe - ?rned about nine or ten o'clock that evening. The defendant"^ wr^keninto f.e buggy before leaving Waukesha, and a short di. I U Johns. 394; t.e. 3 18 Mo. 321. 3 S Terg. IM. i Am. Deo. 481. < 46 Iowa, 118. » 6 Ilnn, 491. •SON. T. 489. i-4«B*«».*«!<» ifeiia HILL V. STATE. 451 . The court held lie same doctrine is At V. State.^ The asonable diligence ceny, v'ould often isful one, might be iider must care for , he becomes liable r this court in State was involved. In the possession of a iropriating the pro- ioctrine was held in Beveraed. lED PROPBBTY. 1883. loordlng to his agresnent. ntuse. J7eM,Uimthewu mty. istant Attorney-Gen- jny of a horse, the stable in the city of f September, at five bop buggy to go to a I Waukesha, to be re- The defendant Hill sha, and a short dis- tance from that place on the road to the city of Milwaukee the buggy was turned over, and the top torn off and left, and they drove on to- gether to 3Iilwaukee that night. The next day Hill was at Oak Creek, in Milwaukee County, on the road to Racine, with the horse and a part of the harness, and tried to sell the horse tiiere, and was arrested, and Lawrence was arrested in Milwaukee. They both prevaricated as to tlieir names, residence, and destination. The Municipal Court of the county of Milwaukee refused the following instruction asked on behalf of defendants: "That if the defendants, at the time said horse was liired, had no intent to steal it, the subsequent appropriation of the same to their own use is a mere conversion, and is not larceny." And the court gave the following instruction, which was excepted to on be- half of the defendants: " If you believe their statements against Bar- ber's and his man's that was in the stable at the time, that they hired tlie horse for an indefinite purpose and agreed to be back before ten o'clock at night, and that they afterwards went to Milwaukee and formed a design to sell the horse after that time at any time before they were caught, you will be justified in finding that they had that intention at the time they took the horse." The instruction refused substantially expressed the law and ought to liave been given, and the instruction given was clearly erroneous, be- cause against the law so expressed. It may at one time have been considered the law of larceny, that although the hiring and taking in the first place might have been bona fide, yet if the time for which the hiring was made had expired and the property is afterwards converted, it is larceny. But such has not for a long time been considered the law, and it is now stated correctly as fol- lows: That " when the horse was delivered on a hire or loan, and such delivery was obtained bona fide, no subsequent wrongful conver- sion pending the contract would amount to a felony." ^ "When the possession was obtained bona fide the mere fact of the subsequent exist- ence of the animus furandi does not make the offense larceny. " » • ' The exception to this rule has no application to this case. If one hires a horse and sells it before a journey is performed or sells it after, be- fore it is returned, he commits no larceny in a ease where the felonious intent came upon him subsequently to receiving it into his possession." 3 This statement of the law should be qualified by saying if he hires the horse in the first place with a bona fide intention of returning it, accord- 1 ing to the contracts of hire, the circumstances of the conversion of the property subsequently, and of not even entering upon the performance > 2 Russ. Cr. (9th ed.) 337. 2 2 Whart. Cr. L., sec. 1860. 3 3 BUhCr. L.,8ec.8M. 4')2 LARCENY, of the contract of hire, but taking the property elsewhere, and of other matters evincing it, may be evidence of an intention to convert tlu property at the time of the hiring. But a subsequent conversion of the property merely may not be sufHcient evidence of such an original in- tent. In a case very sim'Iur to tliis in its facts, of liegina v, Broo/i.'*.' it is hel^ R. V. ROBINSON. 455 NOR ARE THE7 -ved, 1859. ij •• obattalt " wtthln th* )f Liverpool : — the owner of two Samuel Robinson, the prosecutor to lely pretending that 9 pretense the pros- rpool, and the pris- nt to dcfrand, and Iters, useful for the )ecember, 1858, the » seven years' penal On behalf of the itted for the consid- the Exchequer, viz., ning of the said sec- ghtly convicted. , under the sentence ERT Henderson, ecorder of Liverpool. r, 1859, before Lord Ea, J., and Watson, e prisoner. si" within the mean- >uld be committed of 1 any of the movable ne cases be doubted ed amongst movable hen he says "to take :irenarobe, 267. (iogges of any kind, apes, parots, singing birds, or such like, though they be in the house, is no felonie;" and Dnlton adds:* "No, not by taking a blood-liound or mastiff, althougli there is good use of them and that a man may be said to have a property in them, so us an action nf trespass lieth for taking them." And by statute it is not to this day made larceny to steal a dog, but it is a misdemeanor only." And by section 31 of the very same statute under which the prisoner has been convicted, the stealing of a dog is made punishable by flno only, and by a three months' imprisonment in default ; and, yet, if tlie intention of the Legislature were, that section 53 L' "'>uld be applicable to dogs, the obtaining a dog by false pretenses would involve, as in this case, seven years' penal servitude. But this section is apnlicable solely to the obtaining of such articles by false pretenses as might be eitlier, at com- mon law or by previous statute, the sulijcct- matter of an indictment for larceny, if the facts were such as would support it. The preamble to the section says : "Whereas, a failure of justice frequently arises from the subtle distinction between larceny and fraud, for remedy, " etc. ; And the clause concludes with this proviao, " Provided, that if upon the trial of any person indicted for su~h misdemeanor, it sliall be proved that he obtained the property in question in such a way, as to amaunt in law to larceny, he shall not by reason thereof, be entitled to be ac- quitted of such misdemeanor, and no such indictment shall be remova- lile by certiorari, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." From this it is clear that the Legislature throughout, looks at the prob- aliility and actually provides for the objection being raised that the facts amount to larceny. The present dog stealing act,^ by section 1 repeals the provisions of 7 and 8 George, IV. ;* so far as it relates to dog stealing and by section 2 enacts that to steal a dog shall be a misdemeanor, for which the offender shall be liable on summary conviction to imprisonment and hard labor not exceeding six months ; and the same statute enacts that a second offense shall be an indictable misdemeanor. Brett, for the Crown. It can not be disputed that for some purposes dogs are chattels. They are chattels which pass to the executor, and for which trover will lie ; ^ but it is said they are not chattels within this section, because they are not the subject of larceny at common law. The statute relating to false pretenses was passed to provide a remedy in cases of cheating. The reason which is assigned why dogs should not be the 1 Cenntry Jutice, 37S. > 10 Geo. III. ch. 18; 7 ft 8 G«o. TV., ob. 89, >ec. 31 ; 8 and 9 Vict, cb. 47. '849 vie. ch. 47. * ch. 29. * Williams on Executors, Com. Dig. Action Sur. Trover; Ireland v. Iliggins, Cro. Etiz. 125; Wright v.Rainscot, 1 Wm. Saund. 88 ; The Case of Swans, 7 Rep. 16. iimsimmmmimti 466 LAnCENY. \ ■ subject of larceny at common law ia, not that they were not always con- sidered to be chattels, but bccauHU " they are of so base a nature that a man shall not die for them; " but death never was the punisiiment for cheating ; and, therefore, the reason why dog stealing should not be a larceny does not apply. Words sulHoiently largo to include this offense arc introduced into 38 Henry VIII., > 30 George II., ^ and also into the statute now under consideration. Lord Campbell, C. J. It is clear that dog stealing was not felony at common law ; the reason why it was not is immaterial. Brett. Assuming that dogs are not the subject of larceny, they may well be within the section in question. They are within the words of the section, and there is no reason why the words should not have their full effect. Lord Campbell, C. J. It is admitted that dog stealing ia not larceny at common law, and a speciflo punishment of a milder character has been enacted by the latter statute, which makes the offense a misde' meanor. That being so, it would be monstrous to say that obtain- ing a dog by false pretenses comes within the statute 7 an»g^;* ^J^^™^^ time they are particular species of property raUone aoh-ov rather the 1 Blades V. Hlggi, 7 L. T. (N. 8.) 798, 834. » 1 Hale's P. 0. 810, and Lee v. Klsdon, 7 Taunt. 191, were cited. 460 LARCENY. owner of the soil has the right of taking and killing them, and as soon as he has exercised that right tliey become the absolute property of the owner of the soil. That point was decided in Bladen v. Higgs,^ as to rabbits, and in Lonsdale v. Eigg,^ as to grouse. In this case the rab- bit buying been killed on land the property of the Crown, and left dead on the same ground, would, therefore, in the ordinary course of thiugs become the property of the Crown. But before a person can te cou- victed of larceny of a thing not the subject of larceny ittits original state, as e.g., of a thing attached to the soil, there must not only be a severance of the thing from the soil, but a felonious taking of it also after such severance. Such is the doctrine as applied to stealing trees and fruits therefrom, lead from buildings, fixtures and minerals. But if the act of taking is continuous with the act of severance, it is not lar- ceny. The case of larceny of animals /eree natural stands on the same principle. Where game is killed and falls on another's land, it becomes the property of tlie owner of the land, but the mere fact that it has fallen on the land of another does not render a person taking it up guilty of larceny, for there must be a severance between the act of killing and the act of taking the game away. In the present case we must take it tliat the prisoner was one of the poachers, or connected with them. Under these circumstances we might come to the conclusion th.it it was a continuous act, and that tlie poachers netted, killed, packed up, and attempted to carry away the rabbits in one continuous act, and there- fore that the prisoner ought not to have been convicted cf larceny. Martin, B. I am of the same opinion. It is clear that if a person kills rabbits, and at the same time carries them away, he is not guilty of larceny. Then, when he kills rabbits and goes and hides them, and comes back to carry them away, can it be said that is larceny ? A pas- sage from Hale's Pleas of the Crown, ^ " If a man comes to steal trees, or the lead off a church or house, and sever it, and after about an hour's time or so, come and fetch it away, it is a felony, because the act is not continuated, but interpolated, and in that interval the property lodgeth in the right owner as a chattel, and so it was argued by the Court of King's Bencli,* upon an indictment for stealing the lead off Westminster Al)bey " — was relied on by the prosecution. There is also a dictum of Gibbs C. J., to the same effect in Lee v. Riadon.^ I am not insensi- ble to the effect of those dicta but here we must take it as a fact that the poachers had no intention to abandon possession of the rabbits, but put them in the ditch for convenience <;ake ; and I concur in thinking that the true law is that, when the poachers go back for the purpose of I mtpra. < 2« L. J. 196, Ex. 1 p. SIO. « 9 Oor. 1. ' 7 Taunt. 191. ■ta«M R. V. TOWNLEY. 461 id as goon jrtyof the |9'.9«.' as to le the rah- left dead of thiugs in te con- Its original |pnly be a of it also iling trees 'als. But is not lar- > the same it becomes has fallen ) guilty of dlling and ust take it i^itb them. ilMt it was 'J up, and Eind there- cony. f a person not guilty them, and ? A pas- teal trees, an hour's act is not y lodgeth Court of istminster a dictum t insensi- fact that »bit8, but thinking irpose of taking them away, in continuation of the original intention, it does not amount to larceny. BuAsiWELL, B. Our decision does not appear to me to be contrary to what Lord Hale and Gibbs, C. J., have said in the passages referred to. If a man having killed rabbits on the land of another, gets rid of them because he is interrupted, and then goes away and afterwards comes back to remove the rabbits, that is a larceny ; and so, if on being pursued he throws tliem away ; and it is diflicult to perceive any distinction wliere the owner of a chattel attached to the freehold finds it on his land severed, and the person who severed it having abandoned it afterwards comes and takes it away. I*^ is in those cases so left as to be in the jiossession of tlie true owner, and the act is not, as Lord Hale expresses it, continuated. In this case, however, the rabbits were left by the poachers as trespassers in a place of deposit, tliough it liappenod to be on the land uf the owner ; and it is just the same as if they bad been taken and left at a public house, or upon the land of a neighbor. If tliey had been left on the land of a neighbor, or at a public house could it have been said to be larceny ? Clearly not ; and if not, why is it larceny because the poachers left them in a place of deposit on the owner's own land? It seems to me that the case is not witliin the dicta of Lord Hale and Gibbs, C. J., but that here the act was continuous, and that there was an asportation by the poachers to a place of deposit, where they remained not in the owner's possession. Byles, J. I can not say that I have not entertained a doubt in this case; but upon the whole I think that this was not larceny. The wrongful taking of the rabbits was never abandoned by the poachers, for some of the rabbits were in their bags. It could hardly be said that if a poacher dropped a rabbit and afterwards picked it up that could be converted into larceny, yet that would follow if the conviction were upheld. Blackburn, J. I am of the same opinion. Larceny has always been defined as the taking and carrying away of the goods and chattels of another person ; and it was very early settled where the thing taken was not a chattel, as where a tree was cut down and carried away, tliat was not larcen}', because the tree was not taken as a chattel out of the owner's possession, and because the severance of the tree was accom- panied by the taking of it away. The same law applied to fruit, fix- tures, minerals, and the like things, and statutes have been passed to make stealing in such cases larceny. Though in the House of Lords, in Modes v. Higgs, it was decided that rabbits killed upon land became the property of the owner of the land, it was expressly said that it did not follow that every poacher is guilty of larceny, because as Lord Cranwcll said: " Wild animals, whilst living, though they are, according 462 LARCENY. to Lord Holt, the property of the owner of the soil on which they are living, are not his personal chattels so as to be the subject of larceny. They partake, while living, of the quality of the soil, and are, like growing fruit, considered as part of the realty. If a man enters my orchard and fills a wheel barrow with apples, which he has gathered from my trees, he is not guilty of larceny, though he has certainly possessed himself of my property, and the same principle is applicable to wild animals." The principle is as old as 11 Year Book,i where it is reported that a forester who had cut down and carried away trees, could not be arraigned for larceny, though it was a breach of trust, but it was said it would have been a different thing if the lord of the forest had cut down the trees and the forester had carried them away, then that would have been larceny. So that, in the case of wild animals, if the act of killing and reducing the animals into possession is all one and continuous, the offense is not larceny. The jury have found in this case that the prisoner knew all about the killing of the rabbits, and that thwy were lying in the ditch. It is clear, that, during the three hours they were lying there, no one had any physical possession of them, and that they were^still left on the owner's soil ; but I do not see that that makes any difference. Then there is the statement from Hale's Pleas of the Crown,3 where it is said that larceny can not be committed of things that adhere to the freehold as trees, or lead of a house, or the likc'yet that the Court of King's Bench decided that, where a man sev- ered lead from Westminster Abbey, and after about an hour's time came and fetched it away, it was felony, because the act is not continu- ous but interpolated ; and Lord Hale refers to Dalton.3 And Gibbs, C. J., expressed the same view very clearly in Lee v. Risdon. Now, if that is to be understood as my Brother Bbamwell explained, I have no fault to find with it, but if it is i;o be said that the mere fact that the chattel having been left for a time on the land of the owner has thereby remained the owner's property, and that the person coming to take it away can be convicted of larceny, I can not agree with it as at present advised. If we are to follow the view taken by my Brother Bramwell of these authorities, they do not apply here, for no one could suppose that the poachers ever parted with the possession of the rabbits. I agree that, in point of principle, it can not make any difference that the rabbits were left an hour or so in a place of deposit on the owner's land. The passage from Lord Hale may be understood in the way my Brother Bbamwell has interpreted it, and if so the facts do not bring this case within it. ^ • . j Conviction quashed. 1 par. ss. 'p.SlO. 3 cb. 108, p. 166. ^rfM R. V. FETCH. 463 LARCENY -WILD ANIMALS -POSSESSION. R. V. Fetch. [14 Cox, 116.1 /n the English Court of Criminal Appeal, 1878. trapped, to the head "'"^P"' J'^^'Jj'^XanS ll«^ed them In a bag with intention of and took them to another part of "•" J""';' '"" ^^ „ oba appropriatmgthem to hU own "»«• «^'''«'» »™/ '^eand nicked them and put them „?rherabblt.o«tofthebagdurmgthepr,^onerBa^^^^^^^^^ ^,^ into the bag. HI. reason for nicking t"^™ T'" *""!"" ^,^, that the act of the keeper to make the prisoner guilty of stealing Ihem. This was a case reserved for the opinion of this court by B. B. ihis was a CH» o p M P the chairman of the Second Court n1 the West Suffolk Quarter Sessions. Jt, ZZi^ Dhuleep Sing, of «y.one de.<. r.bbi.., .h. proper,, nf his master. There was also a count for receiving. °'t rp^oner was employed by the Maharajah to trap rabb^ upon a part of his estate, and it was the duty of the prisoner forthwith to take dailv the rabbits so trapped to the head keeper. On the morning of the' 9th day of February, about haW-past deven^ an underkeeper named Howlett, also employed by the Maharajah was ut on his beat in the parish of North Stowe, where he obs^-^^^^^^ prisoner go three or four times from the places where his rabbit traps we set ?o a spot near a furze bush on his beat. On examining this Ta n the day, he found sixty.one dead rabbits in a bag hidden in a hde in th ear'tk near a furze bush. Howlett took twenty of the rab- ; ts out of the bag and marked them by cutting a sma ^^--^^^^ throat. He then placed them in the bag, and covered it up in he ho^ in the ground as before. In cross-examination Howlett said that his reason for marking the rabbits was that he might know them again. E^ly on the following Sunday morning the prisoner was seen by How"tt, and a police constable, who ^ad been watching t«^ take the rabbits from the hole in the ground and put them m h s cart and he was driving the cart away along the road in a ^^f;'l^^'^'^ to the head keeper's house where he should have deposited them, when he was stopped and taken into custody by the police. Counsel for the prisoner contended that there was no evidence to go 84 and 85 Vict., ch. 96, sec. 69. iv:,Z5^5S«S*!SapaESaii;SV4*4feS^-'^VJi*r4^ 464 LARCENY. to the jury of the larceny charged in the indictment, and referred to Rtf'jiiKi V. T'lWiiley.^ Tlie court, however, held that there was evidence to go to the jury of larceny, and that the present case was distinguishable from that of Jte'jina v. Toicnlen, in consequence of the continuity of the possession having been broken by Hewlett, the servant of the Maharajah, h^ hav- ing taken twenty of the rabbits out of the bag and marked them as de- scribed. Tlie court agreed with the contention of counsel for the prisoner that there was no evidence of any intention on the part of the prisoner to abandon possession of the rabbits and this point was not left to the jurv. The court left the case generally to the jury, who found the prisoner guilty of the larceny cliarged, and the prisoner was sentenced to three months' imprisonment with hard labor ; execution of tlie judgment was respited until the decision of this court. The court reserved for the opinion of this court the question whether upon these facts the prisoner was properly convicted of the larceny charged. Kinosford (Mdlden with him). The conviction was wrong. There was no larceny here. " Theft may be committed by taking and carry- ing away witiiout the consent of the owner (even if he knows and af- fords facilities for the commission of the offense) of any thing which is not in possession of the thief at the time when the offense is comn '* whether it is in the possession of any other person or not. * • - ii the thing taken and carried away is for the first time rendered capable of being stolen by the act of taking and carrying away, and if the tak- ing and carrying away are one continuous act, such taking and carry- ing away is not theft, except in the cases provided for in articles 826, 327. It seems that the taking and carrying away are deemed continu- ous if the intention to carry away after a reasonable time exists at the time of taking." * In this case the rabbits were always in the prisoner's possession and never in that of the master, and that being so, Regina v. Totonley is an authority that the prisoner is not guilty of larceny. The continuity of the possession of the rabbits was not broken by the act of Howlett going and nicking the rabbits. This was done for the purpose of identifying them, not for reducing them into the posses- sion of the master. [Field, J. And with the intention that the pris- ' oner should have possession of them.] The distinction taken by the chairman is not consistent with the facts. The judgment of Black- burn, J., in Regina v. Townley, was referred to, and also the case of Regina v. Read.'^ 1 L. E. 1 O. C. R. 815: 12 Cox. C. C. 69. • sir J. r. Stephen's Dig. Cr.L., art. 296. 14 Cox, C. X: ; L. n. S Q. B. Dlv. 181. ^^m R. V. FETCH. 465 No couni^el appeared for the prosecution. CocKBUKK, C. J. Thl8 conviction must be quashed. The case is really governed by that of Begina v. TounUey, wliere the law on the subject is fully stated in the judgment of Blackburn, J. At common law to constitute larceny it was necessary that there should be a taking and carrying away of the chattel, and among the instances put in the old books are those of growing trees, and lead fixed to a building, which constitute part of the freehold, where a severance was necessary to turn tliem into chattels, and unless there was an interval between the one act of turning them into chattels, and the other act of taking them a^ay, during which there was a change in the possession from the person who severed them from that of the owner, the final act of carrying them away by the person who severed them did not form the subject-matter of larceny. So, in the present case, although property in wild animals, as decided in Bladea v. Higgs,^ becomes that of the owner by being killed on his land, it does not follow that, when a man without right goes upon the land and kills wild animals they be- '' ;„:,a»^a5»»sx; 466 LARCENY. the prisoner was broken by the act of the keeper in going to the trap and nicking the rabbits. It appears to me that tliere is no foundation for any distinction between this case and Regina v. Townley. HdddlestoW; B. I am of the same opinion. There was no intention on the part of the prisoner to abandon his possession of the rabbits./ I agree that the act of the keeper in nicking the rabbits was not for the purpose of reducing them into the possession of the master, but for identifying them. I do not agree in the distinction of this case from Regina y. Townley, drawn by the chairman of the Court of Quarter Ses- sions. There was no evidence from which it might have been inferred that the rabbits had been reduced into the possession of the master. LiMDLBT. J. I am of the same opinion. ConvMion quaahea. LARCENY — PROSECUTOR MUST HAVE POSSESSION OF AND PROPERTY IN GOODS. R. V. Smith. [1 Den. & P. 447.] In the English Court for Crown Cases Reserved, 1852. The Prisoner took out of his Pocket a piece of blank paper properly aMmped with » •ixpenny BUmp, haring led the proiecntor to believe that he waa about to pay him the ■am of £4 llB IJd due to him from one P. The prosecutor wrote upon the paper a receipt for the money; whereupon the prlioner took up the receipt, and left the prosecutor without paying him; and the Jury found that he took it with Intent to defraud. ffM^ that the prisoner could not be conylcted of larceny, the prosecutor never having ha4 such a possession of the paper ai' would have enabled him to mainuin trespass. At the Ephiphany Quarter Sessions held by adjournment at Swansea, in the county of Glamorgan, on the 9th January, 1852, the prisoner, John Smith, was indicted before H. A. Brccb, Esq., and other justices of the same county, for having, on the 3d December, 1851, " one piece of paper stamped with a certain stamp denoting payment of a duty to our sovereign lady, the Queen, of sixpence of the property, etc., of Thomas Henderson, feloniously stolen," etc. The prosecutor, Thomas Henderson, had been timekeeper and general clerk to Isaac Powell, a railway contractor, whose [employment he left in November, 1861. The prosecutor applied frequently, and without success, to Powell for payment of wages due to him. On the 8d December, 1851, prosecutor went to a public house where he saw Powell and the prisoner, who was a ganger (or foreman) in the employ of Powell. Prosecutor asked Powell if he was going to settle with him. R. V. SMITH. 467 Powell answered, " Yes," and said that he would send the prisoner up to his house to his (Powell's) wife for the money. Powell then left the house and prisoner followed him. In about two minutes prisoner re- turned, and beckoned the prosecutor to come to him into the front par- lor. Prosecutor went there. They were alone, and made up between them the balance of wages due to prosecutor, which they fixed at £4, lis, iVsd. Prisoner then took out of his pocket a sixpenny stamp, and put it on the table. Prosecutor took the stamp and pulled it towards himself, and asked the prisoner whether he (prosecutor) should write a receipt for the full sum of £10, 168, or for the balance. Prisoner said, "for the balance." While prosecutor was writing ho observed the prisoner pull out a fist full of silver, and turn it over in his hand. When prosecutor had written out the receipt, prisoner took it up and went out of the room. Prosecutor followed him and said, " Smith, you have not given me the money." Prisoner said: ♦' It's all right." Prosecutor repeatedly asked prisoner for the money, but in vain. On the evening of the same day prosecutor met Powell and the prisoner together, and asked Powell if he had given prisoner any money for him. Powell said : " No ; but my wife has." Prosecutor said he had not had the receipt. "Well," answered Powell, "he (the prisoner) would not have the receipt if you (the prosecutor) had not had the money." The learned chairman told the jury, after much doubt, that if they believed the evidence, the stamped receipt was the property and was In possession of the prosecutor at and after the time of his writing the receipt ; and that if they believed the prosecutor's statement, and should be of opinion that the prisoner took the receipt out of such possession with a fraudulent intent, they might convict him of larceny. The jury returned a verdict of guilty, and the prisoner was sentenced to imprisonment for four calendar months, with hard labor. The counsel for the prisoner raised the following objections : — 1st. That there was not such a property and possession in the prose- cutor as to support the charge laid in the indictment. 2d. That there was no evidence of a felonious taking. The chairman thereupon reserved the case for the consideration of the judges, and begged their opinion thereon. On the 24th April, A. D. 1852, this case was considered by Pollock, C. B., Parke, B., Erle, J., Talfoubd, J., and Crompton, J. Terry^ for the Crown, read the case and cited Rex. v. Phipoe.^ There the prosecutor was compelled by duress to sign a promissory note which had been previously prepared by the defendant, who produced it I 2Li?acb,C. C.673. • :.mmmigss^^mm^^^^'^^'^^'^^^'^^^ 468 LAIICENY. and withdrew it again as soon as it was signed, and a great difference of opinion existed among the judges as to wliether there wa» a larceny or not. , Pakke, B. The stamped paper never was in the prosecutor s posses- sion, and the prisoner can not be convicted of stealing it unless the prosecutor had such a possession of it as would enable him to mamtain trespass. It was merely handed over for him to write upon it. Terry. But it is found that it was obtained from the prosecutor by the prisoner with an Intent to defraud. Pakke, B. It is like the case of Rex v. Hart^ where the prisoner was indicted for stealing an imperfect bill of exchange. There the prisoner produced from his pocket ten blank stamps, and the prosecutor wrote on each of them the words " payable at Messrs. Praed & Co., 189 Fleet Street, London." Nothing was written on the stamps at that time but these words; and the prisoner took the stamps away. The prosecutor saw him again several days afterwards, when he said that tlie prosecutor had omitted to sign his name; and he again produced tlie ten pieces of paper; the prosecutor signed them and wrote " ac- cepted " on each of them, and gave them to the prisoner again. He said he would send the money in a few days by the mail, but it was never sent. Littledale, J., observed, in giving judgment: " If a per- son, by false representation, obtains tlie possession of the property of another, intending to convert it to his own use, this is felony ; but the property must have been previously in the possession of the person from whom it is charged to have been stolen. Now, I think that these papers, in the state in which they were, were the property of the pris- oner. He took them from his pocket, and the prosecutor never had them except for the puri>ose of writing upon them; they were never out of the prisoner's sight; the prosecutor writes upon them as he in- tended, and the prisoner immediately has them again. I think that the prisoner can not be convicted as having committed a trespass in the taking, as they were never out of his possession at all.'* In the same way here, the prosecutor never had the possession of the stamped paper. Terry. In the case of Rex v. Hart, the articles alleged to have been stolen were imperfect bills of exchange. Here the case is some- what different : a receipt for a sum of £4, 10s, 1 V^d - a debt due to the prosecutor, is obtained ix, without the consent of the witness. Witness was permitted, over objection, to state that he had at home a deed conveying to him the land on which the bouse was situated, to- gether with the house and improvements. The deed was not lost but could be had. Cross-examined, the witness stated that he had no trouble tracking the wagon. When he and Daniel Greorge arrived at defendant's bouse, defendant invited them into the house, and in going they had to pass near the lumber. Witness asked him why he did not come to see him before taking the lumber. Defendant replied : "I had no business to come and see you. I bought from Taylor MoNair and paid for it a long time ago, and I will take my property wherever I find it." The witness heard that Taylor McXair claimed the lumber before he, wit- ness, bought the house, but did not know it. Taylor McNair lived in this house when witness flrst knew him, three or four years ago. Daniel Greorge forbade both the defendant and Taylor taking the lumber off. Witness could not say that the wagon tracks were or were not plain. He denied that on February 21, 1883, he stated that the wagon tracks were very plain ; or that he stated he knew that Taylar McNair set up a claim to the lumber ; or that he stated he found a pack of shingles on the road from the dismantled house to the defendat's house. Here the defendant showed the witness a written document, which he acknowledged he signed as his statemeat. It reads as f< lows : — " I had never lived in the bouse I bought. I knew that Taylor Mc Nair set up a claim to the lumber. Old man Daniel George had for- bade Taylor McNair and the defendant both from taking the lumber. m'nair v. state. 471 Tavlor McNair lived In the house in question about four years ago. It ..llaoon be four yonrs since Taylor McNair lived in said house. iMjuglit, at the time of buying the house, three hundred acres. Daniel (Jcorge gave mo the balance of the land, which makes about six hun- ,l,ed acres. Th« wagon trades were very plain from where the lumber ,vft9 taken to Mr. McNalr's. I found on the route a small pack of «l,ln«les about two or three hundred yards from the house wh^re they were taken. The defendant lives about one mile from the place on an ''' ThTdefendant made no effort to conceal the lumber. It was lying out in the front yard where any one could see it. Daniel George, for the Slate, testified, over objection, to his convey- .nee of the land on which the house stood to Watson, and corroborated Watson as to the discovery of the lumber at the defendant's house and the conversation that ensued between Watson and the defendant. ^ross-examined, he testified that about seven years ago Taylor Mc- Nair contracted with him for the land on which the house stood. Tavlor McNair furnished the lumber and built the house in controversy. Taylor McNair lived In that house about three years. He contracted in the same manner with witness for other land, and improved a farm on it cultivating it for the three years he occupied the house in question. About a year after he moved off he sold the fence Improvements to a son of the witness, and on two separate occasions tried to sell the lum- ber in the house to the witness. That was the same lumber which defendant is now charged with stealing. Witness dechned to buy, and told Taylor McNair, that he, witness, thought he was en- titled to something for the use of the land. Taylor McNair had never at any time, or in any manner, conveyed the lumber or the house to the witness. A year or two ago defendant told the witness that he had bought the lumber from Taylor, and witness forbade him taking it. Defendant made no effort to conceal the lumber after he took it. John McNair testified, for the defence, that Taylor McNair partty built the house in question out of the lumber charged to be stolen by defendant. Taylor bought and paid for the lumber himself. Witness paid Taylor fifteen dollars for the defendant as part of the purchase- Lney for the lumber in the house. Witness went with defendant to gP* tho lumber. They went in the day time, and made considerable noise in tearing it from the frame of the house. J. Dickson testified that he lent the defendant his wagon for the avowr purpose of hauling this lumber home, and that the defendant used it for that purpose. The motion for new trial, setting up some eighteen or twenty grounds, was overruled, and this appeal prosecuted. li!»*V*»*5J, 472 LABCKNY. J. D. Guinn, for the appellant. J. H. Burts, Assistant Attorney-General, for the State. Hurt, J. This is a conviction for the theft of lumber, the appellant being fined twenty-five dollars and imprisoned in the county jail one day. A bill of exceptions was reserved to the following charges : — Third charge. " Possession of the person unlawfully deprived of property is constituted, in all cases, were the persons so d '.-privcd of possession is at the time of taking unlawfully entitled to the possession thereof as against the true owner." " 5. The intent in all criminal cases is judged from the act." •* 7. If you believe from the evidence that the property taken, as charged, was not the property of the person as charged, beyond t rea- sonable doubt, you will acquit the defendant." "9. If stolen property is traced to the rec'-nt possession of the de- fendant, \'i must show that he came lawfully by it, or the law considers him the thief." "11. If the jury find that the property alleged to have been stolen was the property of the defendant, and that he had exercised actual con- trol, care and mangement over the same, prior to the alleged taking, you will find the defendant L>ot guilty." " 12. If you have any reasonable doubt as to the guilt or Snocence of the defendant, you will give him the benefit of the doubt, and acquit him." The third subdivision of thti charge is abstractly correct, and if there was evidence in this case tending to show that the prosecutor was en- titled to th'3 possession of the lumber, utt against the defendant, the owner, it would have been a proper charge. This, however, was not the case ; hence the charge was calculated to injure defendant. Fifth charge, to wit: " The intent in all criminal cases is judged of from the act." What act? The taking? The intent is judged of by all the circumstances attending, remotely or irr^n)ediatel}% the taking — the facts relevant. "7. If 3'ou believe from the evidence that the property taken, as charged, was not the property of the person, as charged, beyond a rea- sonable doubt, you will acquit the defendant." By this the jury are required to believe, beyond a reasonable doubt, that the property was not the property of th« prosecutor. The rule is clearly and emphati- cally the converse of this, requiring the jury to believe, beyond a rea- sonable doubt, that the property was that of the prosecutor. "9. If stolen property is traced to the recent possession of the defendant, he a ust show that be came lawfully by it, or the law con- siders him the thief '' Upon this predicate, the law does not so con- m'naik v. state. 473 r, the appellant 20unty jail one rges: — lly deprived of so d-'prived of > the possession le act." )erty taken, as , beyond i rea- ssion of the de- le law considers lave been stolen 3ised actual con- i alleged taking, iiilt or 'inocence oubt, and acquit -ect, and if there osecutor was en- e defendant, the lowever, was not ifendant. ises is judged of is judged of by ily, the taking — operty taken, as id, beyond a rea- this the jury are the property was rly and emphati- e, beyond a rea- cutor. )088C8sion of the t, or the law con- ' does not so con- «ider him • recent possession of stolen property alone, has, we believe, never ieen^eld ei^cient to sustain a conviction. Recent possession une/plJned when the circumstances demanded explanation, has been "rKeTd we think justly) sufficient. This applies to cases m which there is no evidence Lept the corpusdelicti, recent possession a de- !, nd for explanation, and a failure to explain. If there be other ev- we eTther for or against defendant, it may or may not be sufficien , ferenkSfalwa^s on\e nature and weight of the evidence. Though ie defendant may bo in recent possession of stolen property, he is not W dt show L possession, lawful in the strict sense of that word, in a Kreat many cases his acquisition of the proi^rty may not be law- ^1 yftmply sufficient U> rebut the conclusion sought to be drawn i"^ his possession by the prosecutor. He, in acquiring possess.on^ Tarhave been a mere trespasser. Some one else may have p aced him Tn possession wrongfully and unlawfully. This is merely an Castration of Cwrs and mfans by which the possession of the property, though L en,r4 be lawfully acquired, without a fraudulent or thievish intent. .' 1 If the jury find that the property alleged to have been sto en was the property of the defendant, and that he had exercised actual lolol cLr and management over the same prior to the alleged alg, you will find the defendant not guilty." This, ^PO" /e^";^ of h£ case, was a charge of the greatest importance Its effect, the vidence tending strongly to prove, if it did not conclusively P'ove «iat lefendant was the just and legal owner of the P^^^' ^^^^^^^^^^^ to cut him off from this defence, unless he could show that he had ex ercised actual control, care and management over the property prior o the taking. We will not discuss this charge, it being beyond the reach of criSm. Law, justice and the rights of the citizen, are terribly maltreated by the principle therein contained. What shall we say of the twelfth, which is as foUows : « J^^^^^^ reasonable doubt as to the guilt or innocence of .f «Jf "^^"i;^;^,^ will irive him the benefit of that doubt and acquit him. Notwith TtanSng, tlat the eleventh charge deprived defendant of a just and compleS defence to the accusation against hi. , still we can not comprehend how it were possible for the jury not ' .acquit the defend- anr?f they observed the instructions of his honor below conUmed m this twelfth charge. By it they are instructed to -<^^-^'^^J^^^^ any reasonable doubt of defendant's guilt or innocence If they do"bt gu It, they must acquit; and if they doubt innocence, t^^^X »««* ^"'^^ Was there no doubt of either? The jury, by their verd.c. say they believe him guilty; hence of necessity, they must hav« doubted his in- nocIncelS if so, under this charge they should have acquitted him. Tb?rongrthe be ief of guilt, the greater the doubt of innocence. ^gggg^^ggl^t^^^i^-^ I'/JXT^-vJi^l-^jr-F" *-3^^K5:^^^rf?^ 474 LARCENY. In every prosecution, guilt la the affirmative proposition, and must be established beyond a reasonable doubt. Jurors are not required to believe defendant's innocence in order to acquit. They are not called upon to pass upon the defendant's innocence, but tb.y are called upon to determine whether or not the State has proven beyond a reasohable doubt, the affirmative proposition, to wit, the guilt of the defendant. The next question presented is the sufficiency of the evidence to sup- port t le verdict. We are of the opinion that this verdict is not only un- supported by any evidence, but it is very clearly and unquestionably against the evidence ; and to permit it to stand would be a monstrous outrage. Not only so ; its sanction by this court would tend to degrade and bring into contempt the solemn proceedings of the courts of this coimtry. It should be the pride and greatest effort of the courts of the country to protect the property, character, liberty and life, especially of the innocent, law-abiding and virtuous citizens. By this verdict and judg- ment, this citizen has not only been deprived of his property and liberty but his character and that of his family stand blasted forever. The brand of a thief has been indelibly stamped upon him, not only without law and without evidence, but directly in the face of the evidence. Shall this court permit such verdicts, with all their dire consequences, to stand? By no means ; for we are vested with the power to reverse judgments upon the ground of the insufficiency of the evidence. For the errors noted in the charge, and because the verdict is not supported by the evidence, the judgment is reversed and the cause re- manded. LARCENY -STEALING COFFIN - CRITERION OF VALUE IN LARCENY State v. Doepke. [68 Mo. 208.] In the Supreme Court ofMiaaouri, 1878. 1. It !• not lAToeny. at Oommon law, to steal a dead bodr; o/««r*» to a ooffln in which a body la interred. 3 Whan the Value of the Article Stolen i» material In a prosecution for larceny, tti value U to be fixed by iti market price, and not by what it is worth to iU owner, or tor the particular purpose for which it is used. It Is to be regarded as worth ]ttst what it would fetch in the open market. Hekrt, J. It is conceded by counsel for appellant, and fully estab- lished by the authorities, that a coffin in which the remains of a human STATE V. DOEPKE. 475 ^,„, ,e.e interred w« . »*;',^°Vn7Jl ^7:0^.0. co:: contended, however, «»'■ -<«' °°'. ";''' i'„\7„, ,U common law M being from the grave % J^^^^ J^^^^ °' j"^e such remains, knowing grave clothes. ^ ^ j^g i^ce of Tf WAS not larceny common law, to take a aeaa uoujr xi« ^ the remains of the dead. .. .u ■t,r«ro«t^dr:- ,«.!*«.«.. .or .n «-»«'--• •i;;,- i:;'rSr. SC>^^>.lg pr;«rtbed . punUUmeat .or 1 Wag-BtaU. WW, SOI. ei^jM^.- iXi^'f^vi iSJSSSKtW*^^^'^^''**''***''^ 476 LARCENY. Steal a coffin. We, therefore, conclude that, notwithstanding the enact- ment of those sections, a coffin in which the remains of a human being are interred is still a subject of larceny in this State. It Is insisted that the indictment is defective in failing to negative the exceptions contained in section fourteen. This question has been other- wise determined by repeated decisions of this court, and recently in Stmte V. O' Gorman.^ The coffin was alleged, in the indictment, to be the property of one Makel, a son-in-law of the accused, and it is contended that when he had the body interred he parted with all the property he had in the coffin, and that, therefore, the conviction of defendant can not be sustained. Roscoe, in his work on Criminal Evidence, says: "A shroud stolen from the corpse must be laid to be the property of the executor, or of whoever else buried the deceased." ^ All these authorities it is true, speak only of shrouds and ornaments buried with the dead, but the principle upon which these may be alleged to be the property of the executor, or of the person who buried the deceased, will certainly sustain an allegation that the coffin is the property of the person who buried the deceased. The court, for the State, instructed the jury that if they found that the coffin was of less value than ten dollars, and that defendant stole it, they should convict him of petit larceny. By another instruction they were told that in order to convict defendant of grand larceny they should find the coffin to have been of the value of ten dollars or more, and that it was sufficient if they found it to have been of that value to the owner, and that it was not required that it should be of that value to third persons, or that it would command that price in the open market. This latter instruction was erroneous. The authorities cited to support the doctrine it announced give it no countenance. InSGreenleaf 's Evidence,^ the author says: "Nor is it necessary to prove the value of the goods stolen, except in prosecuting under statutes which made the value mateinal either in constituting the offense or in awarding the punishment. " But the goods must be shown to be of some value at least to the owner, such as reissuable bankers' notes, or other notes, completely executed, but not delivered or put into circulation, though to third persons they might be worthless," It is clear that in the latter clause he was siieaking of other prosecutions than those under statutes which make the value material, either in conbtituting the offense or award- ing the punishment. By the English law, as it stood when this country was settled, lar- I 68 Mo. 179. 1 p. 604 (6th Am. ed.) ; 1 Chitty Cr. L. (Sth Ain.ed.)«4;lHawk. P. C. wood Black ., 4th vol., 235. ' p. 140, sec. 1S3. 144, 148; SharB- ' "* *■ t H MH»*HiJ l lWW I » STATE V. DOEPKE. 477 He; tor when the •"'"«'''«"'•*"• '"'""^„;"hi.h.r.= SoLord ., the time Lord Cok. -rote, t «« 5^ •:tUr„aWy valued, for ,h. coke,. .ay,= ''™« *"^ '"^^tr^^^^^'Ho^lueof 20d, and „„„„e of attver, .t *« »*f.,tr" 'ThosWuteof We,lm>a.«rl.,. Z^ tXT:l^t TJl. hy WMCU the d.a.i.c«o„ he^ixt „ade graod laroeny.' ^^^ '' '^^^utl , be ofleni of larceny it i. adjudged caaea, that '"''^'^V^^,^^ „ the owner, however ,„mcient if the thing atolen be »' TfJ" „b„„,„„„a relate to a^all, .Ithongh to third I''"""^^ r°'^Jf^*%°lr the statute «!V.n and e«" G^J^ 'll' '° „ 4M„e,ion ia made by atatute betweentUat to grand larceny, ^"f" " °'^ ,.,„e „, the gooda stolen the remarks and P'*'"7'-''''"t :^Jr^ld,.holoonclasively that the „t East and Lord C»ke.«W'«'J^ •„,„„, the redm, :rtisr:.rrasnhrrr.crrt.inedu.dctern^ngwh.th.r a.„ve iustrucUona be -J^^^llll^cor -^J vatn^ »' «v. dollars, forstealing .«;«« r,jjg^f the .n.nn»c« ^ ^^^^^ „„,y because, forsooth bemg » P ^ ^^ ^^ ,^ ,„ ^4 or wife, or other lovea one, uc f nersons than another its value, although of no ^-'^l';';^^';J^^^:Zr^eptio^^ ssle ring of the same kind which «°«]^^^f^P7;:;tir^^^^^^^^ were told in for five dollars. The criterion of value ^ 7";;' ^^^j f ^ . general that instruction they might ^jo^^^i.-^r^^^ that pfoper^ rule, in c'vil proceedings, and wnen ^^ ^rder to constitute the .tolen shall be of the value of *«« ^°»*^''^^ .^ ^ y^ t,Wen in its theft thereof f - ^TI' ^fJer C U-o-o^ acceptation, and ISl n: :l^J'^r 1^ Z other mode for ascertaining the 1 BUh. Or. L. Tol. 1. "ec. 679. « of West I., oh. 15. .1 J Ea»t'« P. C. 7J6. t Inst. 18B. ' See, also, BU. Com., vol. 4, p. S»7. • ch. IS. T oh. », sec. 3. • Sharswooa's Black., toI. 4, p.«30. gjs^^ijssftiagasgjaa^s^ ■■■■BaBMi 478 LARCENY. Talue of stolen property in a criminal prosecution than that which pre- vails generally in civil proceedings. It is not the fancy estimate of value placed upon the property by the owner which is to determine whether the theft is grand or petit larceny, but its actual value, as that value is usually ascertained in other proceedings. If one sue another for conversion of personal property, he recovers not what the property was worth to him, but its value in the market ; and it would be strange enough if, when the statute declares that no one shall be adjudged guilty of grand larceny, unless the goods stolen were of the value of ten dollars, a criterion of value should be adopted which would authorize a conviction for that offense, when the goods stolen are worthless to third persons, and of no market value, but pos- sess a value which can only be measured by fancy or sentiment — a measure of value as uncertain and variable as the whims and caprices of the owner of the goods, or the witnesses he may introduce to prove tueir value. We can not substitute this for the stable and certain measure furnished by the price which such goods command in the market. In some civil oases we are aware, the jury are allowed to consider pretium affectionis, in estimating the value of property, but the reason for the departure from the general rule in those cases does not apply in a prosecution for stealing such property. The purpose of the prosecu- tion is to punish the thief, not to compensate the owner of the property for his loss. The judgment of the Court of Appeals is reversed, and cause re- manded. All concur. Reversed. larceny — lucri causa essential. People v. Woodward. [31 Hnn, 67.J In the Supreme Court of New TorJc, 1883. 1. To Oonstitnto Inong other cases. Commonwec,Uh v Leach,^ CpUy^Smith,^ Loomisv. Edgartan.* The conclusion is sustained by '1tt« a serious matter for the defendant whether he should be con- victed of grand larceny upon facts which he claimed co«»d °nly con- stitute maUcions mischief. He had the right to have «^e ^-t^««t^; pointed out to the jury. He requested it, but it was no done Thu he court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been con- victed of a felony, while the facts and the charge were equally applica- ble to a misdemeanor. The learned county judge very properly and fully recognized the serious importance of this question when he stayed the execution of the sentence pending an appeal. There are various other questions presented, but it is unnecessary to consider them, since, upon the point already discussed, a new trial must be granted. The judgment and conviction are reversed, and a new 1 rial is granted. BocKES, J., concurred. Learned, P. J., dissenting. LARCENY -JOINT OWNERSHIP OF PROPERTY. Bell, v. State. [7Tex. (App.) "^j.] In the Court of Appeals of Texas, 1879. , T 4— n.^.. «*P«.iMirty. -The Code provides that, " If the person aoensed of theft be '• 'p^\wr"ffhf^7^ thI?rk.ngdlnotcomewU^ ?he person from whom It was taken be wholly entitled to '»•« '•^"^'•"'^.V.ndlorf did iWdr«PPUc«ble to a renter or cropper on shares, wbose contract '^«'hh'» »•"*'«''?«?. nrontltle the latter to the exclusire possession ol the crop, and who. without the land- lord's consent, took part of the crop before it was divided. 1 sec. 1784. * 1 Mass. 59. » 5 Cow. 1S». « 19 Wend. 420. ^^^vaumm> n mm fm » * DELIi V. STATE. 481 m sup- corn. Setd, that the taking WM not theft. APPEAL from the County Court of Gregg. Tried below before the Hon J F. W1THEB8POON, County Judge. WHITE J. Appellant was tried and convicted under an information chrrlg'him wi h'the theft of one bushel of corn, worth seventy cents andTs punishment was assessed at a fine of $10, together with impns. . nnment in the county jail for one month. . ^ »„ m flcts of the case are that an agreement was entered into between BeU the t>pellant. and one Tankersley, by which Bell was to become !r iter orTopper upon land owned by Tankersley, each party to have one half of tul produce raised, when it was gathered, and the crop to oe bound for ad^vances made by Tankersley to Bell. Before the corn crop was gathered, Bell went into the field and pulled a bushel of ears, and sold it for seventy-five cents. On the trial, defendant's counsel asked the court to instruct the juj .. that if defendant Bell was tenant on Tankersley^s and, and had m^e a crop upon said land, and before a settlement Bell went into the field and Lk a bushel of corn, he is not guilty of theft; and you will so find " This instruction was refused by the court. Our statute governing the case reads; "If the person accused of theft be part owner of the property, the taking does not come withm hfd finition of theft, unless the person from whom it is taken be Illy entitled to the possession at the time." ^ Again, - h--no^ statute which provides that " the taking must ^^ ^^^^^YJ^^'^ the property came into the possession of the ^^^-l^l^'^^^,}'^^l by lawful means, the subsequent appropriation of it is not theft etc. Under the facts as applied to the law quoted, it is plain that defend- ant's liability depends solely upon *»»« q'^^^*^^" •" I,** '^^^.^'l'^; " t; at the time he took the com, Tankersley was '^hoUy entiUed to the possession of it. If he was, then defendant was guilty of theft ; if he 'arnot, then defendant is not so guilty. The article of agreement for rent under which the parties were operating does not confer the r.ght such possession upon Tankersley. Nor is such possession, or the rlltt to such possess^, conferred by the act of 1874, giv ng a pre- fe°rence lien to landlords upon crops for advances made to renters It seems that in North Carolina they have a statute which not oidy .ives the landlord a " lien," but declares that the «' possession sh^ he deemed to be in him. And in that State, where the lessee after gathering a crop and putting it in the crib, converted a iK,rtioa thereof 1 Paac. Dig., art. 2389. sPa«c.Dlg.,art.23»». 3 Defences. » Uev. Stats., art. 310;. 31 M^Mi 482 LARCENY. to his own use by feeding it to his own stoclc without the consent of the landlord, it was held an indictable offense.' In Illinois the law is, that where land is leased for a share of the crops raised, to be divided after gathering, the title to the whole wiU be that of the tenant until the division and delivery.' And so in Arkan- sas: "The mere ownership of land confers no right to the possession and disposal of the crop raised on it by tenants." ^ . In the absence of any statute, or of any stipulation in the contract of rent, giving the right to the possession wholly or exclusively to the land- lord, we are of opinion that the landlord and tenant occupy the relation to the crop and each other, under such a contract as the one in evidence, of tenants In common, or joint owners, and the rules applicable to such relationship must govern in determining their rights. •• With regard to such relationship, the law seems to be well settled that, V if the property was the joint property of the parties, it is clear that one of the joint owners or tenants in common could not be guilty of larceny by taking it and disposing of the whole of it to his own use ; and that such taking and disposing of it would be merely the subject of a civil remeey, unless he took it out of the hands of a bailee with whom it was left for safe custody, or the Uke, and the effect of such taking would be to charge the bailee.* , Such being the law, we are of opinion that the court erred in refusing to give the special instruction asked by defendant's counsel; and for this error the judgment is reversed, and the cause remanded for a new *''"• Reversed and remanded. LARCENY -ONB IN LAWFUL POSSESSION OF GOODS. R. V. Pratt. [Dears. 860.] In the English Court for Crovm Caxea Reserved, 1854. Ob. In I^awftU PoMSMlon of Oood. cn not be oonylortd of their Uroeny. The pritoner ^"•JSg^^Sr»^^ed to truBte.. for the benefit of hi. ereditor. »•»•»«- P«», ^*on w« S^n under the -.ignment. but the V^i'Of.J^'^^xaj^Mo^'i^^^^^ good. hlm.elf . and whUe In .uoh powesslon he remoyed the goode. intending to deprive 1 Vamer v. Spencer, 72 N. O. S81. ■ Sargent v. Courier, 66 111. S4S. * Bobinsonv. Kruae,90 Ark. 676. * Swaaner*. Swanner. 80 Ala. 66; Went worth V. PorUmouth B. Co., S5 N. H. 6*0. • S Wat. Arch. PI. 168; 1 Hale'. P. C 618; BexK. Bramley, 1 Bu... * B. 478; Bex v.WUkerMU,! Bu... * B. 470; Splvey v. State, 86 Ala. 00; Long v. BUte, 27 Ala. 32; Klrksey v. Pike. SO AU. 206. ii l i l' i -fHT ir H i l l T""™""'"" Ai* B. V. PRATT. 483 th. creditor, of them. The Jury found the priioner guilty of Uraeny. and «ound that the goodrwere not In the custody of the prl«,ncr «. th. .gent of the tru.tee.. il.W. that the conrlctlon wai wrong. The following case was stated by the Recorder of the Borough of Birmingham : — . , ^ t The prisoner, David Pratt, was tried before me at the last Januwy sessions for the borough of Birmingham, upon a charge of having felo- niously stolen, taken, and carried away, on the 18th day of May, in the sixteenth year of our sovereign lady the Queen, one die lathe, the goods of Edward Barker and another ; and on the 19th day of May in the same year, ten lathes, the property of the said Edward Barker and another, the goods and chattels of the prosecutors, and was found guilty. . . , The prisoner was a thimble maker and manufacturer, carrying on his business in two mills, one a thimble mill and the other a rolling mill in the borough of Birmingham, and before the occurrences hereinafter mentioned, he was the owner and proprietor of the property mentioned in the indictment. . , On the 14th of May, 1853, the prisoner, being m pecumary difficul- ties, arranged with the prosecutors, Edward Barker and William Wayte, creditors of the prisoner, and with Mr. CoUis, an attorney at law, who acted on their behalf, to execute an assignment to trustees for the ben- eflt of bis creditors ; and on the 18th of May a deed of assignment was executed by him, whereby the prisoner assigned to the prosecutors as trustees, for the purposes therein mentioned, certain property by the de- scription following: — ., ^ u — «- "All and every the engines, lathes, roUs, boilers, furnaces, horses, carts, machinery, tools, and implements of trade, the stock in trade, goods, wares, merchandise, household furniture, fixtures, plate, hnen, china, books of account, debts, sum and sums of money, and all securi- ties for money, vouchers, and other documents and writings, and all other thepersonal estate and effects, whatever and wheresoever,save and except leasehold estates of the said David Pratt, in possession, reversion, remain, der or expectancy, and together with full and free possession, right and title of entry, in and to all every of the mills, works, messuages, or tenements and premises wherein the said several effects and premises then were, to have and to hold the said engines and other the premises unto the said Edward Barker and William Wayte, their executors, administrators, and assigns, absolutely." The deed was executed by the prisoner in the presence of, and was attested by, James Bous, who was a clerk of Mr. CoUis', and who was not an attorney or solicitor. ^ xi. • On the 19th of May the said deed was again executed by the prisoner !lCSJ^*'''iif'~*'f*' .5.;;j-,:r™-r^a«H,rcOTr!P3«w^e?5r!3n^^ 484 LARCENY. in the presence of the said Mr. CoUU, «n(l In all respects, In conformity llth the provisions of the sixty-elghth section of the bankrupt law con. Tolulation act, 1849, ^Ith the view of preventing the deed from operat- liiR as an act of bankruptcy. „„♦.„« The deed had been duly stamped on its first execution, but no stamp ^as affixed on Its second execution, which o™'«f »/.';» ™jf\'*; ground of an objection to Its receipt In evidence. I «d™'"«;^ "' ^;j: ever, subject to the opinion of this honorable court, which I directed should be taken If It became necessary. At the time of the flr.t interview with Mr. Collls on the 14th of May the prisoner said he had stopped work altogether; but on the 16th It wL arranged between him and Mr. Collls that the rolhng business should be allowed to go on to complete some unfinished work. Mr. Collls then told him to keep an account of the wages of the men employed on the rolling work, and to bring It to the trustees. This the prisoner dui on the 19th of May, when the wages were paid by the trustees, and the rolUng business finally stopped. In the nights of Monday the 16th of May, and of eveiy other day during that week, the prisoner removed property conveyed by th« ?«« ' including the articles mentioned in the indictment, from the thimble and rolling mills (some of the hea>ier machines being taken to pieces for the purpose of removal), and hid them In the cellar and other parts of the house of one of the workmen. Some time afterwards, and after the sale by the trustees of the remainder of the property, a Mr. Walker, who had been a large purchaser at the sale, recommenced the business at the thimble and rolling mills, and the prisoner acted as his manager when the property, which formed the subject of the indictment, was by the prisoner's direction brought back at intervals to the mills. No manual possession of the property was taken by the prosecutors prior to Its removal from and back to the mills, but the prisoner re- malned In possession after the execution of the deed in the same man- ner as before. I asked the jury three questions : — .**».„ 1. Did the prisoner remove the property after the execution of the deed of assignment? -i u - 2. Did he so act with Intent fraudulently to deprive the parties bene- ficially entitled under the deed of the goods? 3. Was he at the time of such removal in the care and custody ol such goods as the agent of the trustees under the deed ? I put these three questions to the jury separately, and they answered them separately as follows: — 1. He did remove the property after the execution of the assign- ment. t,maxi^mmmm mM > » - ^'«»'^ ' ^'** ^ R. V. PHATT, 485 ifonnity law coil- operat- 10 stamp lade the it, how- directed of May, B 16th it ))usiness Ir. Collls iloj'ed on joner did , and the other day the deed, e thimble to pieces tlier parts and after r. "Walker, e business 9 manager at, was by irosecutors risoner re- same man- lion of the irties bene- custody of sy answered the assign- which they did. The Questions for the opimon of the court are : 1 Whettr the deed of assignment ought to have been received In evidence? ,, 2 Whether my direction to the jury was correct? And lastly, whether the conviction is valid? ^ ^ ^^^ Recorder. This ease was argued on June 8d, 1884, before Lord Campbell, C. t Z llXl po»,e,rion o. the good., ...« the .-'"■"'■/«*™ 7. c;tvz. ii::."Xin » "o,,>ah.ve «...,«,. h^. to. .». r.l.»civil.rtiono« tr..pa« .gainst a tl>.rdpcr,on, « » ''I'^ey''''^ B.W,,hich WM argued '»'<>7 f »*™™J of a »etv.»t is not the ,„, the P"P^,'/^ jt^r/nii I'^^rh:. ..one «..ethi«g to d. SlTeT'eirr^-.^sion. •»* -^^^l^ZTXtZ L-=Tea„„.theeonte„a«,onthepj^^^ aeea ne uau«* second place it is contended that determine the possession. In *^« ^^J^"^; ^ ^^„ -^ ^^ g^st executed I Dears, 257. 486 LARCENY. ence of an attorney, to give it a different effect, and I contend that the deed wlien so re-executed required to be restamped. Lord Campbell, C. J. Would not the re-ei -icution be a mere nullity? Bitlleston. Probably that would be so. A. Wills, for the prosecution, contended that this was a case of bailment, and that the prisoner by breaking bulk determined his pos- session, and that although the jury had found that he was not an agent, that, finding did not negative his being a bailee. Lord Campbell, C. J. The jury expressly find that the prisoner was not in the care and custody of the goods, as the agent of the trustees. Tills clearly negatives a bailment, and that is the only way in which f,he ctise can be put on the part of the prosecution. Tlie prisoner, there- fore, being in lawful possession of the goods can not be convicted of larceny. The other learned judges concurred. Conviction quashed. LAKCENY — CONSTABLE CONVERTING PROCEEDS OF SALE— BAILEE. ZscHOCKE V. People. [62 111. 127.] In the Supreme Court of Illinois, 1S71. A. Ck>natable HaTlnv an Execution placed in his hands, levied upon ^nd took posMi- ■Ion of certain ^^°«';.^\7;^^ ",;;t b«,ome a joint trespasser with the prisoner. It ^ "^'^I'S^d a constable or sheriff who becomes a tortfeasor in ^^^J-^^^ ^^f^^^ here holds the fruits of the tort as bailee for the p aintifl m tiie wnt ecause the plaintiff, by ratifying the act, becomes ^^^^l^^^^^^ and then the result would always follow that one of t^« J°'"V!^'^ o^ would become the bailee of the other, as to the P-^^^^^;^'^ by virtue of the wrongful act itself, simply ^^-^^^'J^^^l'^J^ the first possessor. The law does not recognize even th. right to oo^ 1 Rev. SUts. \«l. 2 Uffbtner «. Steinagfiw. » » 510- H>S»,««SSii*t«"J»«:i »;-*ved, was sold and le agreed he horses ;eive the nuing up from the own use. lad only 1 the pro- perty of Deemer, who would not sell ^bem except for cash ; that he would wait till the following Tuesday evening when if the defendant (should not have the money to buy the horses, they were t< be taken to Deemer, at Scboenersville, and with this understanding Dee^.t j accepted the $25, that on Tuesday evening the defendant took one of the horses to Schoenersville, and the next evening went f^ain, taking the other horse, on each occasion taking the horse back with him ; that on Tuesday Deemer went to AUentown for his horses and offered to return the $25 to the defendant, but he refused to give them ; and that the orig- inal contract was never changed, the horses were sold only for cash and the extension of time was given to enable the defendant to buy and pay for them. Sucb were the all^^ facts which now must be taken as true. Hnving ■• quitted the defendant of larceny of the horses, the Com- mou altu put him to another trial and convicted him of larceny, in stealing the same horses, under section 108 of the Crimes Act of 1860. Villainous as his conduct was, this conviction ought not to stand unless be was a bailee witinn the intendment of the act. The word " bailee " is a legal term to be i-nderdtood in its generally accepted sense among jurists, and if it bo doubtful whether a case be included, it shall be ex- cluded, in the construction of a criminal statute. Blackstone defines bailment as " " flelivery of goods in trust upon a contract, express or implied, tl>i.t ih>' trust shall be faithfully executed on the pai-t of the bailee" ; Stoij , "a delivery of a thing in trust for some special object or purpose and upon a contract express or implied to conform to the object or purpose of the trust; " Jones, '* a delivery of goods in trust on a contract, expressed or implied, that the trust shall be duly executed and the goods re-delivered as soon as the time or use for which they were bailed shall have elapsed or be performed ; " and Kent, " a deliv- eiy of goods in trust upon a contract express or implied that the goods shall be duly executed ^rd the goods restored by thp bailte, as soon as the purpose of the bailmsnt shall be answered." Mr. Edwards, in his work on Bailment,^ remarks: " These definitions agree in nearly all es. scntial particulars and disagree in two or three respects. Jones and Kent assume the property is to be returned, while Blackstone and Story include contracts under which no such return is contemplated. Story in- tends to include among contracts of bailment a delivery of goods for sale ; and Kent intentionally limits his definition so as as to exclude that species of contract." In general terms it may be said that the delivery ' f goods or any other species of personal estate for use, keeping or on some other trust, where the general property does not pass, creates a bailment. A delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase-money at a future 1 fee. 2. 490 LARCENY. day, is something more ttian a bailment ; it gives tbe buyer a conditional title. If the contract give the buyer a definite credit or a reasonable time within which to pay, it gives him a transferable interest in the chat- tels until the credit expires, and the property in them as soon as he pays the price. Authors of received authority generally specify five sorts of bailment, namely, depositum, mandatum^ commodation, pledge and hiring ; and as severally defined, in each the entire property of the thing bailed remains in the bailor, the possession only is given to tbe bailee, who is to return or deliver the thing itself as soon as the purpose of the bailiscut shall be answered. In this State it is stated that the bailee of goods wl o uses and enjoys them as if his own, can not divest tbe title of the bailor by a sale to an innocent person ; nor can a creditor of the bailee seize them in execution of his debt. When delivered under a contract of bailment the owner will be entitled to them against everybody. But a delivery on a conditional sale, the property to remain in the vendor until the goods are paid for, with right to reclaim them, is void as respects the vendor's creditors, or an innocent purchaser from him. The delivery being on the foot of a purchase the vendor's right as against the ven- dee's creditors is regarded as a lien for the purchase-money.^ By the terms of the contract the seller may retain the right of pn 'lerty of tbe goods till paid for, as against the purchaser, and in default of payment, he may reclaim them or use civil remedies for recovery of possession ; but the contract does not make him a bailor as respects other persons, nor the purchaser a bailee in the sense of the word as used in the statute. Our statute as shown by Beade, J., in Commonwealth v. Chathama,^ is taken from the English statute ; and in that case the interpretation of the words "bailee" and "bailment" as fixed by the English decisions was adopted, which decisions were cited, showing that the words must be interpreted according to their ordinary legal acceptation, that " bailment relates to something in the hands of the bailee which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under any obligation to return it in precisely the identical coins which he originally received;" that " to bring a case within this clause in addition to the fraudulent disposal of the property, it must be proved : First. That there \^as such a delivery of the property as to divest tlie owner of the posst ssion, and vest it in the prisoner for some time ; Secondly. That at the expiration or determination of that time the same identical property was to be restored to the owner." The term "bailee " is one to be used not in its large but in its limited 1 Ohamberlaln v. Si^th. 8 Wrifbt. 431; Haak v. Lir.derman, 64 Pa. St. 499; «. c. 8 Am. Rep. 612. I 14 Writht, 181. R. V. BARNES. 491 sense as Including simply those bailees Mrho are authorized to ke,.p to Ian ;ort or to deLr. Ind who receive the goods honafide and hen Sulently co.vert. Where it does not appearthat a ^ucary du y .s losed on the defendant to return the specific goods of which the al . ged baSment is composed, a bailment under the statutes - "oUonstit. ted.^ T^e bargain was struclc for a sale of the horses for $150, payable on delery Atthetime stipulated Deemer delivered the horses Krause nJd Si they agreed that the property should continue m Deemer, Ld on Ihe nexTTuesday Krause would pay the balance or return the horses. He refused to do either. The original contract was not tanged-timewas extended to Krause to enable him to pay ho money ; Sre was a delivery at all it wa« on the footing of the sale. There warno Agreement to sell at a future tune, a mere contract that he buyer would pay the balance of the price or return the Property, m the mean time the titl« to be in the seller. Payment would have been a riletrperformance. Krause was not bound to return the identical rperty. Hehada cransferable fnterest until the credit expired, and or W» transferee would have had; clear title the instant of payment^ This was something more than a bailment, and Krause was not a bailee ^rf:rX:^e;ty of the dtlzen, the court may, and in a proper case should, declare the evidence insufficient to co°vict.^ We are of opinion that the defendant's first point should have been affirmed Judgment reversed and the record with this opinion setting forth the causes of reversal is remanded to the Court of Quarter Sessions of Lehigh County for further proceeding. ^^^^^^^^ accordingly. \\ LARCENY -MASTER AND SERVANT. R. V. Barnes. [10 Cox, 265.] In the English Court of Criminal Appeal, 1866. of aU the m.n working t^Sether in one r^m. in.We wWcn vn« arrangement xien to whom the money was to be paid, and «>•«'"" °"'' ^ ,„, the , mong the men in each room. on« of them went to ^^^^ ^"eS The Jri.oner. wage, of all the men In «>\ ^^^ " iS in the Seurway by hl» fellowworkmen. and Zi';e?^rvS;SrTh^\^:iroreteLv^^^^^^ Whart. Cr. L. sec. 1855 (8th ed.). 1 Panli e. Com., 8 Sorrl«, 43«. IMMM ■Haaii 492 LARCENY. ^n it: i&:: ! ir tho wages to each absconded and appropriated the money to his own U86. Held, that he could not be convicted on an indictment charging him with stealing the moneys of his employers, (or the prisoner was the agent of his fellow- workmen, and the taandini the money over to him by the cashier was a payment by the employers. Case stated for the opinion of this court by the Recorder of Bolton. Robert Barnes was tried before me ut the General Quarter Sessions of the Peace for the borough of Bolton, holden on the 12th April, 1866, on an indictment which charged him with stealing a sum of £13, 6s, the money of Reuben Smith and others. The evidence was as follows : — Reuben Smith. On the 16th December last the prisoner was a fellow workman with me at Ormrod and Hardcastle's. The prisoner, myself, and two others, worked in the same room. It had been our custom for one of us to go every fortnight to get the wages of the four from the cashier, and to pay over the amount due to each. We did this by turns. On the 16th December last it was my turn to go for the wages. The wages due to me on that day came to about £5, Os, 6d. I can not speak to the pence. The prisoner asked me if he might fetch the wages this time. I said: "Yes; but you must fetch them again when it comes to your turn." He said be would. At twelve o'clock the prisoner went to get the wages. He did not come back, and never gave me my wages. Cross-examined. We used to get the four men's wages in a lump, and pay them over in separate shares. Thomas Unsworth. I worked in the same room with prisoner and Reuben Smith on the 16th December last. My share of wages on tliat day was about £3 18s. On that day prisoner went for my wages. He never paid them to me. Peter Critchley. I worked in the same room with the prisoner on the 16th December last. On that day £4 Ss 1 Id was due to me for wages. Prisoner went to get the wages. He has not paid me my share. John Makin. I am cashier to Ormrod & Co. On the 16th December last the prisoner came to me for his wages, and those of the other wit- nesses. The account of wages due to each was made out in my office under my superintendence, but I can not say exactly how much was due tx> each on the day in question. When the prisoner came to me, I be- lieve I said : ' ' Wliose wages are you come for ? " He answered : "No. 6, Sovereign." No. 6 is the number of the room in wtiich the prisoner and the others worked, and "Sovereign" is the name of tke mill. I had the money in one sum wrapped up in a paper. Our custom was to wrap up the wages for eacli room in a separate paper, inside which was written the names of tlic parties to whom they were to be paid, and the sum duo to each, and this was done on the present occasion. On the ICth December I banded the money to the prisoner wrap^ied up in a paper in the usual way. The sum wbick I lianded to the prisoner was R. v. BARNES. 493 i. Held, that 110 moneys uf the bandini of Bolton, r Sessions ^prii, 1866, ;i3, 6s, the as a fellow er, myself, custom for iir from the is by turns, ages. The n not speak i -wages this it comes to •isoner went B my wages. 3 in a lump, risoner and Eiges on that wages. He soner on the e for wages, lare. th December le other wit- , in my office luch was due to me, I be- rered: "No. the prisoner tite mill. I astom was to lie which was paid, and the aon. On the pped up in a prisoner was £18 6« Id. and it was made up of 5s Id in copper, £10 in silver, and £8 "onthis evidence it was objected by counsel for the defence that the ?nrd bv alei that the money in question was the property of amended by alleging i J^ indictment to be amended Messrs. Ormrod & Co., and 1 o'^^J*" , ^ ^^^ and an- aceordin.lybyins„^^^^^^^^^ ''t^:^1^t^ p s^rdidl address the jury or call witnesses, but rcontended that the above evidence was not in pom of law s«ffl^ cllnt to wlrant a conviction on the indictment as amended, either at «.,mmr»n law or under the 24 and 25 Victoria.* "nbeo 'ILd up t..e evid^-oe, .nd the Jury found the pr»oner Jltrbutoa the .ppUoationof counsel «ortho prisoner I «in..«ed S 11 " com. Sp .or judgment ,hen called upon, .nd I reserved the above question tor the opinion o. th. court ^^ ^ ^^^^^ Recorder. Sleigh, for the prosecution. The conviction ought to be sustained 3t wati^e custom for the prosecutor's cashier to wrap up the wages for e men n each room, in one sum, in paper, and on the occasion m nuoron the money so wrapped was delivered to the prisoner, and the «r due to each man was written inside. The prisoner had to give out a^h mi's wies to him, and until he had so distributed it the money rotTdtollprosecutors. [Maktik. B. Suppose the men had sued !^Ke prosecutors for their wages, and they had pleaded payment, what Tns/i coS tlie men have had to the plea? They sent the prisoner for ;rrr w4es andthe prosecutors paid him. That was a discharge o U mrThe Present^case is like Lavender^s C«-,'' where it was he^d rja servant' oing off with money given to ^^-^y ^^"^^^^^^^^^^ ^-^ to another, and applying it to his own use, ^'^^^^;;,\7^^^y °^^^^^^^^^^ So where a prisoner, who was occasionally employed by the prosecutors rcleXhavingrlceivedfrom them a cheque V^y^^^^ l^-^;^;;, a,>nronriated it to his own use, it was held larceny.' In Rex v. (^ooae, Tere ; sum of money was given to a seiW to be disbursed m a par- TieuLr way and instead of so disbursing it, the servant appropriated it to liis own use, the servant was held guilty of larceny. 1 Rh. 96, tec. 3. a a KMt'» P. C, ch. 18, iec. W. 3 Rex V. Metcalrt, R. A Moo. 433. « C. A M. 58^ ■HM HMiiMnM nwisemmn 494 LARCENY. Brasiwell, B. In all those cases the persons to whom the money was to be paid had a claim on the masters after the felony was com- mitted. It you could make out that the prisoner was the agent of the prosecutors until the money reached the several men, it would be a dif- ferent matter. Shee, J. There is another point here. Some of the money was the prisoner's own, and it was not separated from the rest. No counsel appeared for the prisoner. Erle, C. J. We are of opinion that the conviction should be quashed. The prisoner is charged with stealing the money of Messrs. Ormrod & Co. It appeared that it was the custom of Messrs. Ormrod & Co. to pay their workmen on a given day in this way. The men working to- gether in a room sent one of themselves for their wages, which he brought back in a lump sum wrapped up in paper, with the name of each man and the amount he was to receive written inside. On the day in question the prisoner was selected as the man to be sent for the wages of the room, and the cashier had the sum wrapped up in paper ready for him, and he delivered the money so wrapped up to the prisoner. The prisoner was sent as the agent of the men in the room, and he was the agent for all those parties. Messrs. Ormrod & Co.'s cashier paid their workman, and discharged themselves from further liability the moment the cashier put into tlie prisoner' s hands the money belonging to the other workmen. The prisoner, therefore, is not rightly convicted of stealing the moneys of Messrs. Ormrod & Co. The rest of the court concurring. • Conviction g^uuhed. dates. LARCENY — MONEY OBTAINED BY FRAUD— ALTBRING BOOKS. R. V. Gbben. [Dears. 828.] In the English Court for Crown Coxes Rnerved^ 1854. It WM th« Daty of O. m 0.'« Mrwnt to receive and p»y moneys for him and enter them in a book which was exaiolned by O. from Ume to time. On one examination Q. showed a balance in hie favor of £8 by making outriea of false paymento, and thereupon O. paid him thU £S. aA jr pL....o^ during «;. '"-»^^-"* r:.?,rrd';*of i 'gu^ „^dhimU.ld a.donbl, eompl.iri.g to. be did .otpay irrZ to ..r Z^^ *. Cber ..borer,, to pri^ner .aid it w- because he was working in the bara. 'Z^t^T::^T.::^'^n.^-<>--^ aayof Julyto the M day of December last, contained numerous Items, amongst whi^ tre payments made for the purchase of good, by the prisoner on ac count of the prosecutor. ■.■Mi*»rt»Si^ii>*tii- . pimuMiWiiwiiirH^^^" 496 LAKCENY. By one of these items the prisoner gave the prosecutor credit for £1 8s, which it wa? stated by his counsel, though no proof offered of it he had not in fact received. There was no entry in tlie boolt in thj handwriting of the prisoner. The prisoner was present during all the time the prosecutor was ex- amining the account, and signed his name to it on tlie prosecutor doing so ; but his attention was not called to any particular item. There was on the account a balance of £2 due to the prisoner, which the prosecu- tor paid him. At the conclusion of the evidence for the prosecution, the prisoner's counsel contended on the authority of Queen v. Chajnnan, that the offense charged was neither larceny nor embezzlement, and submitted to the court that on these facts the court should direct an acquittal. Tlie chairman directed the jury that the deduction of the five several sums of 48, from the five wecltly sums of £1 Ss to be paid to Brown, and of the several sums of Ss 6d, from the weekly sums of 158 to be paid respectively to Ludkin and Prylfe, amounted to larceny, and told the juiy that by a recent act they were enabled to return a verdict of either lar- ceny or embezzlement, as their minds might be directed by the evidence • on which the jury found a verdict of guilty, whereupon judgment was postponed, and the prisoner discharged on bail, to appear and receive judgment at the next Quarter Sessions for this county. The opinion of the judges is asked whether the jury could on these facts properly convict the prisoner of larceny. Eliot Thos. Yobke, _, , Chairmun Q. S. This case was argued on the 11th day of February, 18.'>4, before Jeuvis, C. J., Malle, J., WiGHTMAN, J., WiLMAMs, J., and Platt, B Tozer, for the prisoner. Tiiere was no evidence of larceny or em- bezzlement. There was no evidence that he received any money from his master except the £2. Maule, J. For aught that appears the payments may all have been out of his own money. Williams, J. The prisoner falsified the account, but the question is, was he guilty of larceny? WioHTMAN, J. The evidence is, he entered monev as paid which he had not paid. Jervis, C. J. And that he did so for the purpose of obtaining there- by a portion of the sum of £2. We are all of opinion that the offense of which the prisoner was guilty was not larceny, whatever else it may have been. ^ Conviction quashed. LARCENY In It WM tke X by E, on I to pay it < appropriai The pris< was reserv( ber, 1862, NELL, B. ai Littler, i at the trial tended to li and thereb was a case not be susi the intentii cisely in p( ciiarged wi prisoner wi persons em the end of shearmen, 1 sum as, ac4 prisoner, w) draw for m earned by tb sums ezcepi was due to the 9tb of in writing ii llsOd;" M count of th writing, whi work they ] 1 9 Den. O. C 8 Dkfi R. V. THOMPSON. 497 l.AllCENY — FALSE REPRESENTATION BY SERVANT TO OBTAIN MONEY. R. V. Thompson. [L. & C. 288.] In the English Court for Crown Cases Reserved, 1862. It WM the Duty of T., who waa a.'« clerk, to MMrtalii dally the amount of dues payable by E. on the exportation of E'« goods, and having obtained the money from the cashier to pay it over. T. falsely represented that a larger sum was due on a certain day, and appropriated the difference, arid, that he was not guilty of larceny. The prisoner was convicted of larceny on the facta above, but his case was reserved for this court, where it was argued, on the 16th of Novem- ber, 1862, before Pollock, C. B., Wiohtman, J., Willuims, J., Chan- NELL, B. and Mellor, J. Littler, for the prisoner. Regina v. Barnes,^ which was relied upon at the trial, is very similar to this case. There the prisoner falsely pre- tended to his masters that he had paid a sum of money on their account, and thereby obtained the money from them. The court held that that was a case of false pretenses, and that an indictment for larceny could not be sustained, as the clerk delivered the money to the prisoner with the intention of parting with it wholly to him. MitcheWs Case ^ is pre- cisely in point. There the prosecutors, from whom the prisoner was cliarged with obtaining money by false pretenses, were clothiers ; the l)risoner was a shearman in their service, and to take an account of the persons employed, and of the amount of their wages and earnings ; at the end of each week he was supplied with money to pay the different shearmen, by the clerk of the prosecutors, who advanced to him such a sum as, according to a written account or note delivered to him by the prisoner, was necessary to pay them. The prisoner was not authorized to draw for money generally on account, but merely for the sums actually earned by the shearmen ; and the clerk was not authorized to pay him any sums except what he carried in his account or note as the amount of what was due to the shearmen for the work they had done. The prisoner on the 9th of September, 1796, delivered to the prosecutor's clerk a note in writing in the following form: " 9th September, 1796, shearmen £44 lis Od ;" which was the common form in which he made out his ac- count of the amount of their week's wages ; and in a book in his hand- writing, which was his business to keep (of the men employed, of the work they had done, and of their earnings), there were the nam a of 1 9 Den. O. C. 69 ; 20 L. J. M. C. 34. S Defences. S 2 East's p. C. 839. 32 498 LAKCKNY. several men who had not been employed, who wore entered as having' earned different sums of money, and also false accoiintH of the work done by those who were employed, so as to make out the sum stated in the note t<> be due to the shearman. Upon this evidence the Jury found therisoner guilty, and the Judges supported the convction. Williams, J. It is impossible to particularize the coin which the prisoner is alleged to have stolen, because some of the money was rightly paid to him. Littler. Yes. The prisoner might have been convicted of obtaining money by false pretenses. He was not guilty of larceny. (He was then stopped. ) L. Temple, for the Crown. The false pretense made by the prisoner was not within the statute, inasmuch as it was a pretense as to some- thing future only, viz., that he would pay a certain sum for dock duet. Pollock, C. B. There was both a misrepresentation of what he would do, and also of what was owing for dues ; and this latter was t misrepresentation as to an existing fact. Temple. In Regina v. Robins,^ a quantity of wheat was in the pot* session of the prosecutors as bailees, and was deposited in one of their storehouses, under the care of one of their servants, who had authority to deliver it only on the order of the prosecutors or their managing clerk. The prisoner, who was also a servant of the prosecutors, by % false statement, induced the servant under whose care the wheat was to allow him to remove part of the wheat, which he carried away and ap- propriated to his own use. It was held that, under those circuiD> stances, the prisoner was properly convicted of larceny. In the present case, moreover, the prisoner had only the custody of the money, for, being a ser^'ant, his possession was the possession of the master. Wiohtman, J. Which part of the money do you say that he stole? Temple. The excess beyond the amount which he actually paid. WioHTHAN, J. How can you specify the coins he stole? Temple. In Rex v. Murray,^ the prisoner was indicted for embei* zling £1 Os 6d. The prisoner, who was clerk to the prosecutors, had received £5 from anoth<'r clerk to pay for an advertisement. The pris- oner paid only £1, but charged his m>\ster with £2 Os 6d. There it was held that the prisoner could not be convicted of embezzlement because the receipt from the other clerk was in fact a receipt from the master, but it seems to have been admitted that he might have been convicted of larceny. Pollock, C. B. The act of the prisoner did not amount to larceny, but to the offense of obtaining money by false pretenses. 1 Dflkn. C. 0. 418. ss . p. 145, note a. IMAGE EVALUATION TEST TARGET (MT-3) /. 'J.J. 1.0 I.I U;|2^ |2.5 ■so ■^~ MSK " 1^ 12.2 It 3 .1* 140 la •Ubu M m 1-25 1 1.4 11.6 ■« 6" ► 7 ^1 :V > ^^- Photographic Sciences Corporation \%. 23 WEST MAIN STREET WEBSTER, N.Y. 145S0 (716) •72-4503 k^ ^^ ^^ ■y^ CK ^^^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductions / Instltut Canadian de microreproductions historlques Wii decisis tenses the arj ticulai The 1. Lare anol appi 2.A,a Bell sapi Fro Ha3 reserv Tht mules acquil the f Inl asaf Onth that c him U day. reach: and p selltl day,] the m agree ceive( a bill atth( next STATE V. WINGO. 499 Williams, J. I am of the same opinion ; and I prefer to rest my decision on the broad ground that this was an obtaining by false pre- tenses, rather than on the narrower ground suggested in the course of the argument, that the coin alleged to have been stolen can not be par- ticularized. The other learned judges concurred. Conviction quashed^ LARCENY — FARM-HAND — SERVANT. State v. Wingo. [89 Ind. 204.] In the Supreme Court of Indiana, 1883. 1. Larceny ia the Felonious stealing, taking &ad carrying away of the personal goods of another. When property, lawfully in the custody of an employee or bailee, is criminally appropriated to the use of such employee or bailee, the offense is not larceny. 2. A, a Farmer, Sent B., his farm-hand, to haul a load of corn to market, with orders to sell it, B. using two mules and a wagon for that purpose. B. sold the mules to C. who supposed he had a right to dispose of thorn. Httd, that B. was not guilty of larceny. From Vigo Circuit Court. Hammond, J. This is an appeal by the State upon questions of law reserved at the trial. The appellee was charged in the indictment with the larceny of two mules from David Pugh. There was a trial by jury and a verdict of acquittal. The evidence is in the record, and shows without conflict the following facts : — In the spring of 1881, the appellee was in the employ of David Pugh as a farm hand, and in hauling corn to market for Pugh to Terre Haute. On the day of the alleged larceny, in March, 1881, Pugh sent him to that city with the two mules and a wagon, loaded with corn, directing him to sell the corn and collect the money for it, and return the same day. The appellee did not have permission to sell the mules. On ' reaching the city, before selling the corn, William R. Hunter met hira and proposed to buy the mules. Appellee informed him that he would sell them after disposing of his load of corn. Afterwards, on the same day, he met Hunter again, and informed him that he was ready to sell the mules, and drove to Hunter's livery stable. The price, $250, was agreed upon, and he sold and delivered the mules to Hunter, and re- ceived for them money through a check on the bank. He gave Hunter a bill of sale signed with his own name. He left the wagon and harness at the livery stable, saying that he would soon return for them. When next heard from he was in Kentucky. S'i^fe:!Si.S^v.:*,^;iJ«U*=- 600 LARCENY. Hunter Tvas acquainted with the appellee and with the mules, and knew they belonged to Pugh. He supposed the appellee had a right to sell them, but made no inquiry of and received no statement from the appellee as to his autliority in this respect. The attorney for the appellant requested the court to give the jury this charge: " If the jury find, from the evidence, that the defendant, in the yelr, 1881, in Vigo County and State of Indiana, was in the em- ployment of David Pugh, as servant or teamster, and had in his custody the team of mules of said Pugh to haul to the city of Terre Haute a quantity of corn, and, on the day of said hauling, was directed by said Pugh to deliver the corn in said city and return the same day with said team of mules, and that the defendant, while having the mules In his custody as aforesaid, took and carried or drove the same lo the livery stable of Foultz & Hunter, in the city of Terre Haute, and then and there sold and delivered the same to said Foultz & Hunter, or to William R. Hunter, without the knowledge, consent or authority of said David Pugh, and with the felonious intent of then and there converting said mules to his own use, then he is guilty of larceny of said mules, and you should so find." This instruction the court refused to give, but gave the jury at the request of the appellee, the following : — «' 1. If the jury find from the evidence, that the defendant was in the employ of the prosecuting witness, Pugh, and was working for Pugh upon his farm, and that Pugh sent the defendant to Terre Haute with a load of corn in a wagon, with the mules charged to have been stolen, and that the defendant while he still had possession of the mules sold them, then he is not guilty of larceny, and you should find him not guilty. " 2. Larceny is the felonious stealing, taking and carrying away of the personal goods of another. If you find from the evidence that the defendant had the possession of the mules with the consent of the owner, and sold them, you should find for the defendant. "a. If the defendant had the lawful possession of the mules and sold them, then there was no such felonious taking as the law requires in a case of larceny, and you should find the defendant not guilty. "4. If the servant while in the employment of his master has en- trusted to his care any personal property of his master, and he felonU ously sells and converts the same to his own use, he is, under the law of Indiana, guilty of embezzlement, but is not guilty of larceny." The refusal of the court to give the instruction asked by the State, and the giving of those requested by the appellee, were duly excepted to by the appellant's attorneys, and these rulings are assigned for error in this court. The principle is well settled that to constitute a larceny there must COMMONWEALTH V. UPRICHARD. 501 the mules, and e had a light to «iueat from the give the jury ; the defendant, , was in the em- d in his custody P Terre Haute a iirected by said le da}' with said the mules in liis me to tlie livery ;e, and then and ; Hunter, or to or authority of then and there Ity of larceny of 5 the jury at the indant was in the rorking for Pugh srre Haute with a lave been stolen, f the mules sold »d him not guilty, carrying away of evidence that the lent of the owner, of the mules and 1 the law requires nt not guilty. is master has en- r, and he felonU , under the law of larceny." jked by the State, sre duly excepted assigned for error arceny there must be a felonious taking of the property. When property which is lawfully in the custody of an employee or bailee is criminally appropriated to the use of such employee or bailee, the offense may be embezzlement, but it can not be larceny, ^ The evidence shows tnat the appellee was entrusted with the prop* erty by the owner. There is no evidence that he used fraud in procur- ing possession of it, nor is there any evidence of a criminal intent until after he arrived in the city. The criminal puri)ose probably en- tered his mind for the first time when Hunter proposed to purchase the mules. There was an entire absence of proof of a felonious taking of the property. As the possession of the servant is the possession of the master, it may be that in the absence of a statute upon the subject of embezzlement, the evidence in this case would authorize a conviction for larceny. ^ But tlie evidence clearly brings the appellee's act of converting to his own use his employer's property within the provisions of the embezzlement act of March 21st, 1879, which was in force when he committed the wrong complained of.^ This act was later than the one then in force relating to larceny, and it can hardly be thought that the Legislature in- tended to make the same act criminal under different statutes, defining separate offenses. The rule is familiar that a statute, so far as it covers the same subject matter of a former statute, repeals the previous enact- ment by implication. Our conclusion is that the court below did not err in refusing the in- struction tendered by the State, nor in giving those requested by the appellee. The appeal is, therefore, not sustained LARCENY — PROPERTY STOLEN IN A FOREIGN COUNTRY AND BROUGHT INTO STATE. COMMONWiALTH V. UPRICHARD. [3 Gray, 434.] In the Supreme Judicial Court of Massachusetts, March Term, 1S55. The Brinrlnv Into this Commonwealth, by the thief, of goods stolen in one of the British Provinces, is not larceny in this Commonwealth, SiiAW, C. J. Tlie defendant, together with Thomas Carey, was in- dicted in the Municipal Court for larceny, in stealing a large number of 1 Kelley r. SUte, U Ind. 86; Hart v. 2 2Bish. Or. L., sees. 8»3, 886; 2 Whart. State, 87 Ind. 1(M ; Umphrey r. State, 63 Ind. Cr. L„ sec. 1840. 223; Starek r. State, 03 Ind. 2«i; Jones v. 8 AcU, special session 1879, p. IM. State, e» Ind. 229; Moorse's Cr. L., sec. 918. 502 LARCENY. 80verei. Gardner, 8 Johns. 477 ; People i». Schenck, S Johns. 479. • Curomings v. State, 1 Harr. ft J. 340. • Hamilton r. State, 11 Ohio, 43.1. 10 State t'. Mockridge, cited in 11 Vt. 654. U SUte *. Ellis, 3 Conn. 186. " -- COMMONWEALTH V. UPRICHARO. 60» Don-law juris- > goocU stolen til altered by 1 the effect of in one part of jf , or received receiver might lorn where the ;, in whatever itted, the same ment attached, he territory of ier the English 1 into England, e United King- ( inquire how it n. In some of e in respect to [) tinotlier State a and a new as- In other States of stolen goods m there, is not essee.' And in n Ohio,9 in Ver- oods is larceny, next to be cited, sveral States are, ereign and inde- nd acknowledged ilaimed its pri vi- tal jurisprudence layw. 100; Simpson v. •, 2 Johns. 477 ; People 9. e, 1 Harr. ft J. 340. , 11 Ohio, 43.1. e, cited in 11 Vt. 6M. tnn. 185. mainly from that source, and as they had been, both before and since the Revolution, closely united for many purposes, there was an analogy, more or less strict, between the relations of these States to each other, and those of countries under the same government ; and therefore that the same rule might be safely adopted. The first was the case of Commonwealth v. Collins.^ The goods were stolen in Rhode Island and brought into Massachusetts. The court in- structed the iary that stealing goods in one State and carrying them into another State was similar to stealing in one county and carrying them into another, and was larceny in both ; and, therefore, if the facts were proved, the jury would find the defendant guilty of stealing in Massachusetts. But this point was not argued. In Commonwealth v. Andrews,^ the defendaht was convicted of receiv- ing stolen goods, which had been stolen in New Hampshire and brought into this Commonwealth ; and the court held that the stealing of them was larceny in this Commonwealth, and rendered the defendant an- swerable for receiving the goods, knowing them to be stolen. And in the same case, Dana, C. J., mentioned the case of Paul Lord, tried in York in 1792, before the publication of reports, in which it was held that stealing goods in another State and bringing them into this wore larceny in this. And that learned chief justice thought that many more cases had been determined on the same grounds. Some of the judges, however, in this case, were of opinion, upon the facts stated, that there had been a second taking of the goods in this State, so as to make it actual stealing Massachusetts. It has been argued that the same rule ought to api% to foreign gov- ernments as to the several States of the Union, because in their respec- tive jurisdictions, and in the laws which regulate their internal police, these are as much foreign to each other as each State is to foreign gov- ernments. Perhaps, if it were a new question in this Commonwealth, this argument might have some force in leading to another decision in regard to the several American States. But supposing it to be estab- lished by these authorities, as a rule of law in this Commonwealth, that goods stolen in another State, and brought by the thief into this State, are to be regarded technically as goods stolen in this Commonwealth, we think this forms no sufficient ground for carrying the rule further, and applying it to goods stolen in a foreign Territory, under the jurisdiction of an independent government, between which and our own there is no other relation than that effected by the laws of nations. Laws to pun- ish crimes are essentially local, and limited to the boundaries of the State prescribing them. Indeed, this case and the cases cited proceed 1 1 Mass. IKi. 2 2 Mass. 14. 50fi LARCENY . commission of the cnme m Nova ScoUa ^_^^^^^^ ^^^^^^^.^^^ and did not subject the ««;"^;^;;;JJ'^^ and alleges the crime of l,w. This indictment P'^^^^^^ °\ ^^^^^^ of tke law. of this Common- larceny to have been committed ^^^f^ j, ., ,„iy ^y assumingthat wealth, and within the body «' *^ ^^J i„to this State makes the „,nging stolen ^^^^'^ ''Zt\TZ^ZZn be sustained; but th.s tlie act of larceny here that this aUega ^^^^^ ,^ ^^^^ ^^^^.^^ ^^ ^^, involves the necessity o gomg to the la ^^^,^^^^^ ^^^^ consequently certain whether the act done tberej^a ^^^^^.^^^ ^^^^^^^^^ whether the goods were stolen ; o ^^"^^^^ % J ^ere. Were it any of the forces of both law« ^^^J * ^Fch gives an ambulatory character other offense than that of larcenjj^hc^^^^ ^^^ g„Uty possession of to the offense, by the movable charac^^^ ^^^^ ^^^ ^^ ^^^^^^.i, the goods stolen, there could be no c ouDt ^^enable to pen- pretense that our law had ^^^^'^ J^tltssCin^^^^^ °' ^'^ Uies created by it. "^^e Union f^^^^^^^^^ clause provid- into Vermont the ^^^ ^ ^^tk the case is not supported by that such had been the practice principle. the current of '^"t»^«"'>««V* of iS^on of the place where a party I, this was a mere q-;*;"l" «' ^;^1^^^^^^^^^ technical question ; but t should be tried, it would be ««b8tanUaUy .^ ^^^ ^^ ^^.^^^, stands on very different grounds. Here the q .^ ^^.^ ^^^^ ^^^^, pie, whetherthe defendants have ^^:7^^; *^Lrent from ours, in defining and pre- Nova Scotia, and that l'-^. -/;2d on L punish as a crime that which scribing theft, tl-^e ma be c^l^d o ^^^P^^ ^^^ ^^^^^ ^ ^^^.„ , would be innocent here. If we loo circumstances which carrying away of f "f^/'^JX^fbe minishable here. Foreigners, would not be criminal there, ^f^^'J ^^^ ,,„ iyi„g with thecu.- coming within our jurisd. ion wi^^^^^^^^^^ commit none in removing tomary regulations, commit no offense, 1 a vt. 030. COMMONWEALTH V. UI'BICHAnU. 507 liig State. The ,tion of our law, •escribed by our ;gc3 the crime of of tbis Common- by assuming that State makes the itained ; but this ova Scotia, to as- md consequently iinbined operation re. Were it any )ulatory character lilty possession of , and no plausible amenable to pen- ionstitution of the ntal clause provid- stice, and also for iderbyourgovern- ett,^ in which it was ,y the thief brought cted, on the ground is not supported by )le. place where a party cal question; but it tion is one of princi- It is said that they roods in our jurisdic- )k to our own law, or a felonious taking, ve look to the law of , in defining and pre- i as a crime that which iw, then a taking and circumstances which )le here. Foreigners, omplying with the cus- imitnone in removing them from place to place in the same or differeut counties. If tiiey can be iiuHcted and punished here, on the ground that such goods were stolon goods when they were brought in, it is but another mode of charging that the goods were obtained by a violation of the criminal laws of another country, and our courts must necessily take juris- diction of the violations of the criminal laws of foreign inde- pendent governments, and punish acts as criminal here, solely because they are in violation of the laws of such government, and which, but for such violation, would not be punishable here. It seema difficult to distinguish this from judicially enforcing and carrying into effect the penal laws of another government, instead of limiting our criminal juris- prudence to the execution of our own. 1 In Com, V. Holder, 9 Gray, T, it wai held by tlie game court that stealing goods in an- another of the United States, formerly a colony of Great Britain, and bringing them into this Commonwealth, may be punished Hslarcony here. Thomas, J., dissenting in an exhaustive opinton. Indictment for stealing at Hilford in this county goods of Henry VV. Dana. At the trial in the Court of Common Pleas there wag evidence that the defendant broke and entered the shop of said Dana at SmithOeld, in the State of Rhode Island, and stole the jcoods mentioned In tho indictment, and brought them into this county. The defend- ant asked that the Jury might be instructed that the indictment could not be maintained, liccause the courts of this State could not take cognizance of a larceny committed in another State. But Mellon.C. J., refused so to instruct the Jury, and instructed them that the evidence. If believed, was sufficient to support the indictment. The defendant being convicted, alleged exceptions. Shaw.C. J. A majority of the court are ot opinion that this case must be considered as settled by the case of Com. v. Upriehard, 3 Gray, 434, and the principles stated, and the precedents cited. Though to some ex- tent these colonies beforo the Revolution were distinct governments, and might have (UtTerent laws, it was not unreasonable, as they all derived their criminal Jurlspm- (lence from the English common law, to re- sard the rule applicable to a theft, in an Knglish county of goods carried by the thief into another, as analogous, and adopt It. We are of opinion that Massachusetts did adopt It, and this is established by judicial precedent, before and since the Revolution, and is now settled by authority as the law of this State. Neio trial ordered. TBOHA8, J. The real question in this case is, whether the defendant can be indicted, convicted, and punished in this Common- wealth for a larceny committed in the State ot Rhode Island. If it were a new question, it would be enough to state it. The obvious, the concluslvr tnswer to the indictment would be, thai the oifense was committed within the jurisdiction of another, and, so far as this matter is concerned, independent State, ot whose law only it was a violation, and ot which its courts have exclusive cog- nizance. By the law of that State tho of- fense is defined and its punishment meas- ured. By the law which the defendant has violated he is to be tried. Whether the acts done by hi-n constitute larceny, and, if so, of what degree, must be determined by that law. Its penalties only he has incurred. Its means ot protection and deliverance he may justly invoke, and especially a trial by a jury of bis peers in the vicinage where the oifense was committed. This obvious view ot the question will be found upon the reflection, I think, to be the only one consistent with the reasonable security ot the subject or the well defined relations ot the States. It is well known that the laws of the States upon the subject ot larceny materially diifer. In most ot them the common law of larceny has been greatly modifled by statutes. The jurisprudence of all is not even based on the common law. In sev.,ral the civil law obtains. In cases where a difference of law exists, by which law is the defendant to be ad- Judged ; the law where the o6fense (it any) was committed, or where it is tried? For example, the defendant Is charged with taking with felonious intent that which is parcel of the realty, as the gearing of a mill or fruit from a tree. By ihe S'it. o£ 18B1, ch. 508 LARCENY. LARCENY- BRINGING INTO STATE PROPERTY STOLEN IN A F0R3IGN COUNTRY. Stanley v. State. [24 Ohio St. 166.1 In the Supreme Court of Ohio, 1873. One can not be Convicted of larceny in Ohio, for bringing into Ohio property Jtolen by him in Canada. McIlvaine, J. At the November term, 1873, of the Court of Com- mon Pleas of Cuyahoga County, the plaintiff in error, William Stanley, was convicted of the crime of grand larceny, and sentenced for a term of years to the penitentiary. 154, the act is larceny In this Commonwealth. H it appears that in the State where the act was done it was, as under the common law, but a trespass, which law has the de- fondant violated, and by which is he to be tried? Or suppose the defendant to be charged with the stealing of a slave — a felony in the State where the act is done, but an offense not known to our laws. The difficulty in both cases is the same. You have not only conflicting Jurisdietioni, but different rules of conduct and of judgment. But supposing the definitions of the of* fense to be the same in the two States, the punishment maybe very different. Where ■uch difference exists, which penalty has the defendant justly incurred, and which is he to suffer? For example, the offense Is punishable by imprisonment in Rhode Island, say for a year ; in this Slate the same offense is punishable by imprisonment from one to fivo years ; is the defendant liable to the heavier punishment? Or suppose he has been convicted 'n Rhode Island, and in consideration of his having Indemnified the owner for the luil value of goods taken, his punishment has been more mercifully, meas- ured to him, can be, after he hab suffered the punishment, and because the goods were, after the larceny, brought into thia State, be made to suffer the penalty of our law for the same offense? Or suppose him to have been convicted in Rhode Island and a full pardon extended to him, can he be tried and convicted and punished here? Again ; the power to indict, convict and punich the offense in this State proceeds upon the ground that the original caption was felonious. If the original taking was innocentor buta trespass, the bringing into this State would not constitute a larceny. You must therefore leok at the law of the State where the first caption was made. And how is the law of another State to be ascertained? What is the law of another State is a question of fact for the Jury. The jury in this way are in a criminal case made not only to pass upon the law, but to pass upon it as a matter of evidence, subject, strictly speaking, neither to the direction nor the revision of the court. Again : the defendant is indicted here for the larceny committed in Rhode Island; while in custody here awaiting his trial, he is demanded of the executive of this State by the executive of Rhode Island as a fugi- tive from the justice of that State, under the provisions of the Constitution of the United States, art. 4, sec. 2, and the U. 8. Stat, of 1793, ch. 46. Is he to be tried here, or sur- rendered up to the State where the offense was committed and tried there? Or It he has been already tried and convicted and punished in this State, is he to be sent bark to Rhode Island to be tried and punished again for the same offense? And would his conviction and punishment here be any answer to the indictment there? Or if he has been fully tried and acquitted here and then demanded by the executive of Rhode Island, is he, upon requisition, to be spnt to that State to be again tried, to be twice put in jeopardy for the same offense? It is quite plain no ground in law would exist for a re- fusal to surrender. The defendant was indicted for larceny, not for the offense of bringing stolen goodi into the Commonwealth. He was, under the instruction of the presiding judge, tried for the larceny in Rhode Island, was convicted rtrfi STANLEY V. 8TATK. 509 IN A FOREIGN The indictmont upon which he was convicted clmrj?cd " that William Stanley, late of the county aforesaid, on tho twentieth day of June, in tlie year one thousand eight hundred and seventy-three, at thd county aforesaid, with force and arms," certain silverware, " of the floods and chattels and property of George P. Harris, then and there being, tlicn property ttolen by Court of Com- illiam Stanley, ced for a term nititute a larceny. [ at the law of the aption was made, nother State to be le law of another t tor the Jury. The criminal case made he law, but to paBS I evidence, eabjcct, er to the direction ourt. is Indicted here for In Rhode Island; ivaltlng his trial, he cutiveof this State de Island as a tugl- hat State, under the tntlon of the United id the U. S. Stat, of 3 tried here, or sur- ,e where the otFense ed there? Or if he and convicted and !• he to be sent bark tried and punished ise? And would his iment here be any snt there? Or if he 1 acquitted here and executive of Rhode lisltion, to be ipnt to rled, to be twice put 9 offense? It is quite wouldezlBtforare- ndlcted for lareeny. Tinging stolen goodi I. He was, under the Iding Judge, tried for Bland, was convicted for the larceny in Rhode Island, and must be punished, if at all, (or the loroeny in Rhode Island. And, under the rule given to the Jury, is presented a case where, (or one and tho sumo moral act, (or one and the same violation of the rights of property, the sub- ject may bo twice convicted and punished. Nny more, if a man had stolen a watch in Kliodo Island and traveled with it into every Stnto o( the Union, he might, under the rule given to tlio jury,lf his life endured so long, be indicted and punished in thirty-two States (or one and the same offense. And it Is well to observe that It la the retention of the property which Is the cause o( the now offense, and the carrying of It from the place of capton into another State. I( the de(cndant had stolen property in Khode Island, and consuir jO k destroyed it, and then had removed to Massachusetts, l)iit one offense wmild have been committed, and that in Rhodb Island. Such are some of the more obvious dUB- cu!ties attending the position that an of- fense committed in one Gtate may be tried ftiul punished in another. The doctrine violates the first and most elementary prin- ciples of government. No State or people cun assume to jiunlsh a man for violating tho laws of another State or people. The surrender of fugitives from Justice, whether under tho law of nations, treaUus with forr eigii powers, or the provisions of the Con- stitution of the United States, proceeds upon the ground that the fugitive can not be tried and punished by any other Jurisdic- tion than the one whose laws have been vio- lated. Even in cases of the invasion of one country by the subjects of another, it is the violation of its own laws of neutrality, that the latter country punishes, and not the violation of the laws of the country invaded. The exception of piracy is apparent rather than real. Piracy may be punished by all nations, because it is an offense against the law o( nations upon the seas, which are the highways of nations. The ruling of the learned chief Justice of the Common Pleas was, I may presume, based upon the decisions of this court In Com. V. CuUins, 1 Mas*. 116, and Com. v. An- drews, 2 Mass. 11. It is certainly the general duty of the court to adhere to tho law as decided. Es- pecially is this the case where a change in the decision would impair the tenure by which the rights and property of the subject are held. But even with respect to those, whore it is cinar a case has been decided against the well iiettled principles of law and of reason, it Is the duty and tho practice of tho courts to revise such decision; and to re- place the law on its old and solid founda- tion. This is peculiarly the duty of the courts where such decision works its injus- tice by impairing the personal rights of iln citizen, or by subjecting him to burdens and penalties which he never Justly Incurred. In my Judgment, the courts o( tlii um- monwealth have not, and never lia>i, under the Constitution o( the Unite i States or otherwise, the rightful power to try a mau for an offense co.nmitted in another Stntc. It is in vain, it seems to me, to attempt to preserve, and make rules of conduct, decis- ions founded upon wholly erroneous views of the relations which the States of the Union bear to each other under the Consti- tution, and in conflict with well settled priu- ciples of constitutional and international laws. I should be content to rest my dissent from the Judgment of the court in the case at bar upon the principles afHrmed in the recent case of Com. v. Uprichard, 3 (jrny, 434; ant; p. 3*1. In effect that case over- rules, as its reasoning thoroughly under- mines, the earlier cases. They can not stand together. But as the decision in the case at bar rests upon the authority of the case in the first and second of Massachusetts Reports, it may be well to examine with care the grounds upon which they rest. Such an ex- amination will show, I think, not only that the cases were put upon erroneous views as to the relation of the States, but that they were also unsound at common law. In the case of Com. v. Culllns, a Jury trial where three Judges of the court were pres- ent, the evidence showing that the goods were taken in the State of Rhode Island, Mr. Justice Sedgwick, who charged the Jury, said that " the court were clearly of opinion that stealing goods in one State and convey- ing stolen goods into another State was 510 LARCENY. and there uulawfully ind feloniously did steal, take and carry away," etc. The following facts were proven at the trial : — 1. That the goods described in the indictment belonged to Harris, and were of the value of one hundred and sixty-iive dollars. Bimilnr to stcalin,i; goods in one county and conveying the stolen goods into another, which was always holden to be lelony in both counties." Whatever the points of similarity, there was this obvious and vital difference, to wit, that conviction in one county was a bar to convi«tion in another, and that conviction in one State is no bar to conviction in another State. It was a doctrine of the common law, that the asportation of stolen goods from one county to another was a new caption and felony in the second county ; a legal Ac- tion devised for greater facility in convict- ing the offender where it was uncertain where the ffrst caption took place. The foundation of the rule was that the posses- sion of the owner continued, and that every moment's continuance of tlie trespass may constitute a ca|. i763) 2 East's P. C. 772 ; 2 Russ . on ed.)119. Or an analogy might jund in the cases of goods stolon seas and brought Into the coun- anJ, ol which the courts ot com- ^sed to take cognizance, because not felonies committed within notion. lHawk.P.C.,ch.83,Bec. 113 In these cases a test would found, applicable to the alleged CuUins, to wit, the offense was ited in a place within the Jurisd: > , court, but in a place as foreign irisdiction, so tar as thia subject- ,B concerned, as England or the ig provinces. The case ot Com. ,as no solid principle to rest upon, e ot Com. V. Andrews, two years be held to recognize tha rule laid 3om.«. CuUins. though itwaa an It against Andrews as the receiver tolen by one Tuttle in New Hamp- a though there is, at the least, ground for saying that there was king by Tuttle at Hansard in the rhere the defendant was indicted Indeed, Mr. Justice Parker takes Ue ground; though he adds that imonlaw doctrine respecting coun- weU be extended by analogy to the States, united, as these are, under eral government." " t""* »7" ta reference to or concerned the police or criminal Jurisprudence 2. Tl\at they were stolen from Harris on the 20th of June, 1873, at the city of London, in the Dominion of Canada. 3. Tliat they were afterwards, on the 2Gth day of same month, found in the possession of the defendant, in said county of Cuyahoga. It is also conceded that, in order to convict, the jury must have found that the goods were stolen by the defendant in the Dominion of Canada, and carried thence by him to the State of Oliio. Upon this state of facts, was the prisoner lawfully convicted? In of the several States ; If it was not obviously tor other different, distinct and well defined purposes ; and if wo could admit the right ol the court to exten'l by analogy the pro- visions ot the criminal law and so to enlarge its Jurisdiction ; there would be force in the suggestion. As it is. we must be careful not to be misled by tho errors ot wise and good men. Judge Thatcher puts the case wholly on the felonious taking at Harvard. Mr. Justice Sedgwick, though having the same view as to the taking at Harvard, does not rest his opinion upon it, but upon the ground that the continuance of the tres- pass is as much a wrong as the first taking. This doctrine applies as well where the original caption was in a foreign country, as in another State of the Union. If you hold that every moment the thief holds the prop- erty he commits a new felony, you may multiply his offenses ad infinitum; but in so carrying out what is at the best a legal Ac- tien, you shock the common sense ot men and their sense of Justice. Mr. Justice Sedgwick will not admit the force of the ob- jection that the thief would be thus twice punished, but regards with complacency such a result. But as we are to presume that tbe punishment is graduated to the of- fense, and, as tar as punishment may, expi- ates the wrong, the mind shrinks from sush a consequence. But saying that whatever he might think upon this question it it were rta inttgra.be puts his decision upon the case ot Paul Lord decided in 1792, and that of Com. V, Collins. Chief Justice Dana relies upon the cases before stated and a general practice, and also upon the principle that every moment's felonious possession is a new caption. Such was the condition ot the law in this State when the case ot Com. v. Uprichard came before the court. In that case the original felonious taking was in the province ot Nova Scotia. The bringing ot tho stolen goods into tblB Commonwealth wap held not to be a larceny here. But it it be true that every act of reofoval or change ot possession is a new caption and asportation ; t hat every moment's continuance of tli« trespass is a new taking; if this legal fiction has any life. It is dUflcult to B«3 why the bringing ot the goods within another Jurisdiction was not a new offense. No distinction in principle exists between this case, and a felonious taking in another State nnd bringing into this. So tar as the lawo <-■ ; crimes and pun- ishments is concerned, the States are as in- dependent ot each other as are the States and the British Provinces. The case of Com. v. Uprichard rests, I think immovably, upon the plain grounds that laws to punish crimes are local and limited to the boundaries ot tbe States which prescribe them ; that the commission ot a crime in another State or country is a violation of our law, and does not subject the offender to any punishment prescribed by our law. These are principles ot univer- sal Jurisprudence, and as sound as they are universal. dt is sometimes said that after all the offender is only tried and convicted for tlie offense against our laws. This clearly is not so. It is only by giving force to the law ot the country of the oriKinal caption, that we can establish the larceny. It In the continu - ance ot thecaptici felonious by the law of the place of caption. In the directions given tc the Jury such effect is given to the laws ot Rhode Island. The Jury were instructed that it the defendant broke and entered into the shopot Henry W. Dana in Smithfield in Rhode Island, and thence brought the goods into this county, the Indictment could be maintained. The felonious taking in Rliode Island is tbe inception and groundwork of the offense. The proceeding is in substance and effoct but a mode ot enforcing the laws ot and assuming Jurisdiction over offenses committed in another State. For the reasons thus imperfectly stated, I am ot opinion that the instructions of the Court ot Common Pleas were erroneous, that (he exceptions should be sustained, the vordict set aside and a new trial granted. Sxetption* overruled. 512 LARCENY. common law oi not, ii must uo .. „„ , „_ __ outhoritative expo- I, ha, .tood, unchallenged .»d ""I"" °°'«' " » ^^"i no e.p««, r:-rorhrd:r3.ri-:p-.^aa.....ed,inii.e "t^J.":' pS-'r b- decided the «o>e ,.y In .ever.. .«bse,uen. .rrMJ^ach-... ^e^e..^,^^^^^^^^^ has not been decided by tb« court ana w extended to z::^^x:^r:^^'^^ - -.ende..ov. 'm".;; unwilling ««.ctIon the doctrine or to "f ->P'. «« P"^.""^; whTreCr. crime cLmitted in a fomgn country, .nd m volet^n of the rato/thatconutryonly^^.^y^eon.™^^ irtrrrrrrThrg": .ere .tou . c^. -., 1 11 Ohio, 485. _ . t State V. EUU. 3 Conn. 186 ; State «. Bart- lett 11 Vt.650; State v. Underwood. 49 Me. m; Wationi;. State, 36 Miss. 693; State v. Johnson. S Ore. IM; State •• B"""**' " Iowa, 479 ;rerrel ... Oom.,1 D«v. IW; Com. V. CoUiOB, 1 Maaa. 116. ■te^ STANIiET V. STATE. 518 iurisdiction of ight into this in this State? itries and this property from id, I may add, ,te. In resolv' former decision held by a ma- a, in this State, . of the Union, round, " that a ite, had settled t to convict in rinciples of the ihan thirty years ihoritative expo- eived no express in our ciiminal ^orernment, that o be overruled; sustained, in like 5 added that the ;he couila of sev- sveral subsequent er, now before us mously of opinion ot be extended to independent sov- lopt the practice, in violation of the a mere fiction, be i in violation of the n Canada. They i; State v. Bennrtt. M Oom.,1 D»v. IW; Com. 6. were there taken from the custody of the owner into the custody of the tliief. The change of possession was complete. The goods were after- ward carried bj' the thief from the Dominion of Canada to the State of Ohio. During the transit his possession was continuous and uninter- rupted. Now, the theory upon which this conviction is sought to ^e sustained is, that the legal possession of the goods remained all (be while in the owner. If this theory be true, it is true as a fiction of the law only. The fact was otherwise. A further theory in support of the conviction is, that as soon as the goods arrived within the State of Ohio, the thief again took them from the possession of the owner into his own possession. This theory is not supported by the facts., nor is there any presumption of law to sustain it. That the right of possession, as well as the right of property, re- mained all the time in the owner is true, as matter of law. And it is also true, as a matter of .fiction, and the possession of the thief, al- though exclusive as it must have been in order to make hi;in a thief, is regarded as the possession of the owner, for some purposes. Thus, stolen goods, while in the possession of the thief, may be again stolen by another thief ; and the latter may be charged with the taking and carrying away the goods of the owner. And for the purpose of sus- taining such charge, the por-^ssion of the first thief will be regarded as the possession of the true owner. This fiction, however, in no way changes the nature of the facts which constitute the crime of larceny. What we deny is, that a mere change of place by the thief, while he continues in the uninterrupted and exclusive possession of the stolen property, constitutes a new "taking" of the property, either as a mat- ter of fact, or of law. Larceny under the statute of this State, is the same as at com- mon law, and may be defined to be the folonious taking and carrying away of the personal property of another. But no offense against (his statute is complete until every act which constitutes an essential ele- ment in the crime has been committed within the limits of this State. The act of " taking " is an essential element in the crime, and defines the act by which the possession of the property is changed from the owner to the thief. But the act of "taking" is not repeated, after the change of possession is once complete, and while the possession of the thief continues to be exclusive and uninterrupted. Hence, a bailee or finder of goods, who obtains complete possession without any fraud- ulent intent, can not be convicted of larceny by reason of any subse- quent appropriation of them. We fully recognize the common-law practice, that when property is stolen in one county, and the thief is afterward found in another 3 Drfrncbs. 8A ^mmsmmkaMm^iakita: ' .-6iM!agi^a5i^ 014 LARCENY. county with the stolen property in liis possession, he may be indicted and convicted in either county, but not in both. This practice ob- tained, notwithstanding the general rule, that every prosecution for a criminal cause must be in the county where the crime was committed. The reason for the above exception to the general rule is not certainly known, nor is it important in this case that it should be known, as it relates to the matter of venue only, and does not affect the substance of the offense. We are entirely satisfied, however, that the right to prosecute the thief in any county wherein he was found in possession of the stolen property, was not asserted by the Crown, because of the fact that a new and distinct larceny of the goods was committed when- ever and wherever the thief might pass from one county into another. His exemption from more than one conviction and punishment, makes this proposition clear enough. The common law provided that no per- son should be twice vexed for the same cause. It was through the operation of this principle that the thief, who stole property in one county, and was afterward found with the fruits of his crime in another, could not be tried and convicted in each county. He was guilty of one offense only, and that offense was complete in the county where the property was first " taken " by the thief, and removed from the place in which the owner had it in possession. When goods piratically seized upon the high seas, were afterwards carried by the thief into a county of England, the common-law judges refused to take cognizance of the larceny, " because the original act, namely, the taking of them, was not any offense whereof the common law taketh knowledge, and by consequence the bringing them into a county, could not make the same a felony punisliable by our law." ^ Tlie prisoner was charged with larceny at Dorsetshire, where he had possession of the stolen goods. They had been stolen by him in the Island of Jersey and afterward he brought them to Dorsetshire. The prisoner was convicted. All the judges (except Raymond, C, B., and Taunton, J., who did not sit) agreed that the conviction was wrong.^ Property was stolen by the prisoner in France, and was transported to London, where it was found in his possession. Park, B., directed the jury to acquit tlie prisoner on the ground of the want of jurisdiction, which was done.3 A similar decision was made in a case where the property was stolen in Scotland, and afterward carried by the thief into England. < I 13 Coke, 68; 3 Inst., 113; 1 Hawk., ch. 19, sec. .12. 1 Rex V. Prowes, 1 Moo. C.G. 349. > Reg. t'. Hadge, 9 Cow. A P., 29 * 8 East's P. 0., p. 772, cb. 16, leo. 106. STANLEY V. STATE. 515 y be indicted practice ob- ecutioa for a s committed, not certainly known, as it the substance the right to in possession ecause of the imitted when- into another. Iiment, makes 1 that no per- a through the operty in one ne in another, was guilty of mty where the Tom the place ire afterwards on-law judges I the original I whereof the the bringing punishable by where he had m in the Island The prisoner , and Taunton, jg.3 Property ;ed to London, ;ed the jury to ion, which was ^rty was stolen land." .ftF.,20 cb. 16, leo. 1B(. whereby prosecutions were authorized in any county in which the thief was found, in possession of property stolen by him in any part of the United Kingdom. In Commomvealth v. Uprichard,^ the property had been stolen in the province of Nova Scotia, and thence carried by the thief into Massachusetts. The defendant was convicted of larceny, charged to have been committed in the latter State. This conviction was set aside by a unanimous court, although two decisions had been made by the same court affirming convictions, where the property had been stolen in a sister State, and afterward brought .ly the thief into that Common- wealth. Without overruling the older cases. Chief Justice Shaw, in delivering the opinion of the court, distinguished between the two classes of cases. Tlie following cases are in point, that a State, into which stolen goods arc carried by a thief from a sister State, has no jurisdiction to convict for the larceny of the goods, and a fortiori when the goods were stolen in a foreign country : — In New York : People v. Gardner,^ People v. Schenk.^ The rule was afterward changed in that State by statute. New Jersey : State v. Le Blanch.* Pennsylvania: Simmons v. Commonwealth.^ North Caro- lina: Staie V. Brown.^ Tennessee: Simpson v. State.^ Indiana: BeaU V. State,^ State v. RounalU.^ There are two cases sustaining convictions for larceny in the States, where the property had been stolen in the British provinces.^o In Bar- letl's Case, the principle is doubted, but the practice adopted in cases where the property was stolen in a sister State was followed, and the application of the application of the principle thereby extended. Under- wood's Case was decided by a majority of the judges. After reviewing the cases, we think the weight of authority is against the conviction and judgment below. And in the light of principle, we have no hesitancy in holding that the court below had no jurisdiction over the offense committed by the prisoner. The judgment below is wrong, unless every act of the defendant, which was necessary to complete the offense, was committed within the State of Ohio, and in violation of the laws thereof. This proposition is not disputed. It is conceded by the pro- secution that the taking, as well as the removal of the goods anim.ofur- atidi, must have occurred within the limits of Ohio. It is also conceded that the first taking, as well as the first removal, of the goods alleged in this case to have been stolen, was at a place beyond the limits of the State, and within the jn.risdiction of a foreign ond independent sover- 1 3 Gray, 434. !S Johns. 477. 3 2 Johns. 479. * 2 Vroom, 88. • 6 Bin. 617. ' 1 Bayw. 100. ' 4 Humph. 4S6. » 15 Ind. 378. • 14 La. An. 278. 10 State V. BarUett, 11 Vt. 660; and State V. Underwood, 49 Me. 181. 516 LARCENY. elgnty. No", the rtoot.ne "«»'"- ^ ^ the prisoner mast have been under sueh «''™"'f°°''*'t,„re they »ere brought i'-'-o p<».ession of the good, by ^^^"^1 ^^ ^, I pretense that the Canada by the pnaoner. „hPther the act8 of the prisoner, By what rule shall it be determined ^^^^ejl^e ^^^^^^^^^^ .Jeby he acquired the po^e^^^^^ the crime of larceny? Bj the »a^» " territorial operation. If the criminal laws of this State ^'^J^J^^l'^'^e.^on of the property acts of the prisoner, whereby he «»™« >^ J ^^^ ^^^, of Canada, described In the Indictment, ^^^l^^'J^^Xrlny there. It matters it is perfectly clear ^^l^^l^^^^^X^.^^\^^^^^^ ^^ *^« *^- not that they were such as would nave action had taken place In this State. ^^ ,, ^^^ p^^ ^^ ^,y Shall the question, whether or not ^^^J^^^ ,y^, ^^^, of that the prisoner was a -me In^Ca-f ^' ^^ d t^-ne^ J ^„ ^^,,,,,,, ,,,. country? If this ^e grante^he" ^n^^^ ^^^^^ xuent in the comblnaUon ^'^^^nl^^^^^^^^^ of this State, and It was in yiolatlon of the laws of Canada, dux ^ ^goner was con- "ecause the laws of Canada -^2,:Xf2^ Cerent, though the vlcted. If the laws of *^^^/°";*'[. fine be could not have been conduct of the prisoner 'llXZ^^^^oucXn^^n, and if It be ::^-fiirsi:s^2— af^^ - r ;S^ ^i^r;r:=::S tls .ate a^amst the laws thereof. , . , 4. .„ «,5„ht make It a crime for a thief U* I have no doubt the ^^^g^'^'^^^^^^^^^^ country, i^vi bring into this State V^o^^^ ^^^^ ^^^Id be necessary to pmve in order to convict of «-^;"^,^\; J„7%he existence of such .. °r:::re:rr::rs:^er ueon-istsu..^^. 1 oh. 31, sees. 4, 7. « cU. 29, sec. 76. " -^ MARTINEZ V. STATE. 517 1, in respect to 8 George IV. ,^ original " tak- ! prisouer must rceuy. H the re brought i-to •etense that the Bi3 merely torti- f the conviction ty was stolen in of the prisoner, ada, constituted tainly not. The eration. M the of the property laws of Canada, >ere. It matters ceny if the trans- [ the propel y by f the laws of that s an essential ele- found guilty, was State, and it was prisoner was con- erent, though the uld not have been usion, and if It be foreign country, as I his offense; there- ite against the laws crime for a thief to jign country, i^vi jessary to pw)ve ^j., :istence of such ^^^ J r offense. Buc. t' || 1 reason that larc*; y a insists in taking and J .78. carrying away the goods of another person in violation of the rules of the common law, without reference to any other law, or the laws of any other country. It may be assumed that the laws of meum et tuum prevail in every country, whether civilized or savage. But this State has no concern in them furiber ihua to discbarge hucIi uiiUch uh are imposed upon it by the laws of nations, or through its connection with the general government, by treaty stipulations. Our civil courts are open for the reclamation of property which may have been brought within our jurisdiction, in violation of the rights of the owner; but our criminal courts have no jurisdiction over offenses committed against the sovereignty of foreigL and independent States. Judgment reversed, and cause remanded. Day, C. J., Welch, Sroms and White, JJ., concurring. LARCENY FROM HO USB — PROPERTY OUTSIDE OF STORE. Martinez v. State. [41 Tex. 126.] In the Supreme Court of Texas, 1874. BttwUng Property Haxurlnff at and outaide of a store door is simple larceny, and not larceny from a boase. Reeves, A. J. The only question in this case is presented in the brief for the State : *' Is an indictment for theft from a house, sustained by proof that the stolen prowerty was taken while hanging at and out- side of the store door on a piece of wood nailed to the door, facing and projecting towards the street? " Burglary at common law is an offense against the security of the habitation, the protection of the property being an incident, not the leading object. The precinct of the dwelling, the place where the oc- cupier and his family resided, included only such buildings as were used v?ith and appurtenant to it, and these only, were the subjects of burg- lary at common law, and to constitute this offense there must have been an actual or constructive breaking and entry into the bouse. The English definition of burglary has been modified by statute in this and other States so as to include offenses committed in the daytime as well as in the night under certain circumstances, and in other buildings than the dwelling 518 LARCENY house. The idea of regarding tlie liouso as a place of security for the occupants, and a place of deposit for his goods, underlies all these statutes. By our code, burglary is constituted by entering a house by force, threats, or fraud at night, or in like mannpr, by entering a horse during the day and remaining concealed therein until night, with the in- tent Tn either case of committing a felony.* It is not necessary that there should be any actual breaking, except when the entry is made in daytime.* The code provides different degrees of punishment for theft without regard to place. Tlie article under which tiie defendant was indicted is as follows : " If any person shall steal property from a house in such a manner of that the offense does not come within the definition of burglary, he shall be punished by confinement in the penitentiary not less than two nor more than seven years." » Where the house entered is a dwelling-house, the punishment of burglary is imprisonment in the pen- itentiary not less tlian throe nor more than ten years. Where the house entered is not a dwelling-house, the punishment is not less than two nor more than five years. In these cases the punishment is greater than that for the theft in general, as defined by the code, where the property is under the value of twenty dollars. We are of opinion that the goods were not under the protection of the house, so as to make the taking theft from a house in the meaning of the statute, r. ml that the defendant was only liable to the punishment prescribed for simple theft. The goods were not deposited in the house for safe custody, but tlie witness says they were hanging out to attract customers or purchasers. The statutes of the States cited in the brief of counsel, in general, punish theft in a he use, while other statutes referred to punish theft from a house as does our code, and they seem to use these terms as meaning the same thing. A different rule would not adm't of any definite appli- cation. A construction that would make the stealing of goods while exposed on the street, and not in the house, the same offense as stealing from the house, w^uldbe to lose sight of the distinction between different of- fenses and the different grades of punishment, and would introduce a latitude of construction too uncertain to be followed in the administra- tion of the criminal laws. The judgment is reversed and case remanded. Reversed ana remanded. 1 Pai. Dig., art. 3359. S arts. 2360, 2361. 3 art. 2408. ^rfM MIDDLETON V. STATE. 619 rity for the !S all tbeae a house by ina ahorse with the in- essary that ' is made in left without i indicted is 3C in such a eilnitioa of ary not less entered is a in the pen- ■etlie house lan two nor cr than that property is rotection of ;he meaning punishment in the house it to attract in general, ih theft from as meaning ifinite appli« hile exposed bealing from different of- introduce a administra- remanded. LARCENY FROM HOUSE — PROPERTY OUTSIDE OF WAREHOUSE. MiDDLETON V. StATE. [53 Ga. 248.] /)) t?ie Supreme Court ofOeorgiu, 1ST4. 1. A Baleof Cotton was stolen from annlleywayoutsidoof awarclinuseand not in a ware- house ; htUl, llmt the defenduiit wus guilty ouly of siniplo larceny. 2. The Court Charered that " if the bale of rotton was in front of the warehouse, and under its control and protection, stealing it is tlio snnio offense as if the bale of cotton were actually within the walls of the warehouse ;" Held, error. Warner, C. J. The defendant was indicted for the offense of " lar ceny from the house," and on the trial thereof tlie jury, under the charge of the court, found the defendant guilty. A motion for a new trial, on the ground of error in the charge of the court to the jury, and because the verdict was contrary to 1' ir and the evidence, whicli motion was overruled and the defendant excepted. The defendant is charged in the indictment with having taken and carried awaj' from the ware- house of the prosecutor one bale of cotton, tlie said warehouse being a place where valuable goods were stored, with intent to steal the same. The evidence in the record shows that the bale of cotton was not in the warehouse, but outside of it, in an alley way. The court charged the jury " that if they found from the evidence that the bale of cotton was in front of the warehouse and under its control and protection, it would be the same criminally as if within its walls, and would be a taking from upon the same basis as if a storekeeper places goods in front of his store, and a thief take them therefrom, it would be laaceny from the house." The forty-four hundred and thirteenth section of the code defines larceny from the house to be the breaking or entering said house, stealing therefrom any money, goods, clothes, wares, merchandise, or anything or things of value whatever. The forty-four hundred and fourteenth section defines the penalty for stealing in any of the bouses described in that section. Simple theft or larceny is the wrong- ful and fraudulent taking and carrying away by any person, of the personal goods of another, with intent to steal thesame.^ Tlie dis- tinction between simple larceny and larceny from the house will be readily perceived. The evidence in the record before us does not show that the defendant was guilty of the offense of larceny from the house inasmuch as it does not iSihowthat the cotton alleged to have been stolen I Code, 439S. kS"sf-,-jl*l<'SA, "M- 520 LABCENT. was in any house, or that it was taken by the defendant therefrom. The charge of the court in view of the evidence contained In the record. wa« error. ^^ ^^^ judgment of the court below be revernd. LARCENY FROM THE PERSON - SIMPLE LARCENY. Kino v. State. [64 Ga. 184.] Jn the Supreme Court of Georgia, 1875. On. can not b. Convlot«l ola.lmple larceny on cTWenc. which •.UblUhe. a larceny from 'he person. WABimn, C. J. The defendant was indicted for the offense of -Bimple larceny," under the forty-four hundred and sixth section of the code, and charged with having wrongfully, fraudulently and pri- vately taken and carried away, with intent to stea the J««°«;««^^ described United States national currency notes, of the value of twelve dollars. The evidence upon the trial proved a technical "larceny from the person." The jury, under the charge of ihe court, found the de- nto^fwas made for a newtrial, on the ground that the court erred in charging the juiy that they could find the defendant gmlty of Staple larceny, L defined by the forty-four hundred and sixth section of L code, notwithstanding the evidence showed that it was a techni- cal larceny from the person. The court overruled the motion, and the defendant excepted. .^ . j i „j By the forty-four hundred and sixth section of the code, it "declared that if any person shaU take and carry away any bond, note, bank-bill, or due bill, or paper or papers, securing the payment of ""o^ey; «*«; ' with intent to steal the same, such person shall be guilty of "'-Ple l"'' cenv Bv the forty-four hundred and tenth section, theft or larceny from the person is defined to be the wrongful and fraudulent taking of money, goods, chattels or effects, or any article of value from the per- son of another privately, without his knowledge, in any place whatever, with intent to steal the same. j!o*:„«t " Simple larceny," and - larceny from the person are two distinct offenses under the code. It is true that if any person shall take and carry away any bond, note, bank-bill, etc., with intent to steal the " -*- KINa V. STATE. 521 ,nt therefrom, in the record, I>« rvuerrti. ENY. gtoblisbesalaroany the offense of jixth section of ilently and pri- le same, certain value of twelve I "larceny from t, found the de- l that the court endant guilty of nd sixth section i it was a techni- motion, and the de, it is declared , note, bank-bill, tof money, etc., Ity of simple lar- theft or larceny [idulent taking of lue from the per- f place whatever, ' are two distinct ion shall take and tent to steal the same, such person is guilty of simple larceny ; and it is also true, that if any person shall wrongfully and fraudulently take and carry away the personal goods of another, other than bonds, notes, bank- bills etc., with intent to steal the same, he would bo guilty of sim- ple larceny, but it does not follow that if bonds, notes, bank-bills, etc., are taken from the person of another privately and without his knowledge, that the party defendant so taking the same may be in- dicted and punished for the offense of simple larceny. If one should take and carry away a box of jewelry, with intent to steal the same, he would be guilty of simple larceny, but if one should take it box of jew- elry from the person of another, privately, without his kiiof> ledge, with intent to steal the same, he would be guilty of larceny ircn the person. So in this case, if the defendant had not taken the c^irrency ' Uls from the person of another piivately, and without his knowledge, he might have been indicted and punished for the offense of simple larceny, but as the evidence shows that he was guilty of larceny from the person, he should have been indicted and punished for that offense. Simple larceny and larceny from the person, as before remarked, are two distinct offenses and the punishment is different. Simple larceny of currency notes under the forty-four hundred and sixth section of the code, is punished as a felony by imprisonment in the penitentiary for not less than one year nor longer than four years, whereas, strange as it may appear, larceny from the person of currency notes is only punish- able as a misdemeanor under the provisions of the act of 1866, reducing certain crimes below felonies. The result, therefore, is, in relation to the case now before us, that the defendunt has been indicted and found guilty of a felony, for which he may be punished by imprisonment in the penitentiary for not less than one year nor longer than four years, when if he had been indicted for larceny from the person, the offense of which it is admitted the evidence proved him to have been guilty, he could only have been punished, as the law now stands, as for a misde- meanor. It might be a convenient way to indict the defendant for simple larceny and punish him as for a felony under the forty-four hun- dred and sixth section of the code, when the evidence proved he was guilty of larceny from the person, and could only be punished therefor as for a misdemeanor. The simple objection to this course of proceed- ing is, that the penal laws of the State do not authorize it. There are four distinct classes of larceny recognized by the penal code of this State: Ist. Simple larceny. 2d. Larceny from the person. 3d. Lar- ceny from the house. 4thj Larceny after a trust or confidence has been delegated or reposed.^ 1 Code, sec. 4392. 599 LARCENY. or any article of va - rcn . ^- ^^^^ J^^^ ^^ ^^ ..^ ,, out his kuowlclge, In any piatt wiio^i , indicted there- the offense of larceny from ti.e l>erson, and ^^^'^^^^ for and puninhed a. proscribed »^y »';;;/«;^f:;,^r other vaU.ahle sou Bhall steal and carry -^^ -;;^;"j;«^yjr 1 from the per.on thiag as described in section .'^Z^^' /^^^^ J^^^^.^^ ,.,d sbould be of another, such person is gmlty of «"^P»« 7; ^^'^^^ that offense, indicted therefor, and V-^^^fj^^^^^^^^^^ in this Penal lavs are to be construed strictly, ^'''''f ° y„„„j,i,,d for the of- defendant's motion for a new trial. Let tbe judgment of the court below be reversed. GB.ND ..RCENY-IN8UF.ICIENCY O. EVIDENCE .OR CONVICTION. People v. Wono Ab You. [6 West Coaflt Rep. *88.] i» the .Supreme Court of California, 1885. AP.».. from . iudgmen. o, .he S»>«'^' f ^tt^Ltlt ITS ion states the facts. a B Darwin, for the appellant. STATE V. ORAVKS. 523 109 In ftcllon, .vatcly, with- la guilty of idicted there- If any per- ither vftUiahle m the person nd should be r that offense, endant in this ed for the of- il sixth section proved that he which is not a anor under the 3 such, in that i of tlie penal overruling the statement that when ho returned from Sr.nday-school he found the door th.'OURh which lie entered the houi-c, open, while a witness who was iu the liuusc at the time, testified that tlio defendant unlocked the door he- fore entering?. Thera is no evidenco tliat the stolen property, or any portion of it, was ever in the possession of the defendant, or that he knew wliere it was kept. The evidence is, that none of it has ever been diseovered sliiec it was first missed. Therefore tlio statement of the defendant tliat he found the door open, was not made for the purpose of explaining his possession of the stolen property. The must that can be claimed is, that lie made it for the purpose of averting suspicion from himself. That lie would naturallj' desire to do, whether guilty or innocent. It is not claimed that his unlocking the door had any connec- tion with the alleged crime. Nor is it claimed that he had not a right to unlock it, or that he had not been furnished with a key for that pur- po'se. He had been a servant in the house for a jieriod of twenty-seven months, and seems to have been very much trusted. We think that the bare circumstance of his having made a false state- ment in regard to a matter in no way connected with the crime of which he is accused, insufHcient to justify the veidict, and for thatrea- son his motion for a new trial should have been granted. Judgment and order reversed and cause remanded for a aew trial. Myrick, J., and ThoiiNTON, J., concurred. R CONVICTION. 5. more proof that the ig property was kept, regard to a matter In e city and county the defendant of trial. The opin- ent. having access to ney was kept, the ;ainst him, is his LARCENY — POSSESSION OF STOLEN PROPERTY. State v. Graves. [72 N. C. 482.] In the Supreme Court of North Carolina, 1875. On a Trial for Burgrlary and larceny, evidence was given that the respondent was found ill possession of the watch and chain stolen, within forty hours after the burglary. The court charged that if they believed this fact, the law presumed that he wan ttie thief and that he had stolen the watcti and chain, and be was bound to explain satisfactorUy how he came by them. Held, error. Indictmeitt for burglary, tried before Kerr, J. , at December term, 1874, Guilford Superior Court. The burglary alleged was the breaking into and entering the house of J. I. Scales, in the city of Greensboro, North Carolina, on the night of the 8th of August, with the intent to steal, and stealing and carrying away a watch and chain, the property of J. I. Scales. 524 LARCENY. There was evidence tending to prove that between nine o'clock on that night and two o'clock a. m. of the 9th of August, Mr. Scales' house was entered by some one forcing open the blinds and raising the window sash of a room called the nursery ; that between that ro'^m and the bed-chamber was the dining-room ; that a lamp was left burning in the dining-room, from which a light shone into both the nurEiery and bed- chamber. That Scales wtr.t to bed about nine o'clock, and hung his coat and vest on the back of a chair in his bed-room, the watch being in the vest pocket, and attached thereto by the chain. That Jennie Stevens, a colored servant girl, was in the bouse when Scales went to bed, at what time she left the house is not shown, further than she left during the night and went to her usual place of sleeping. It wm further in evidence that the prisoner was in Danville, in the State of Virginia, on the 10th of August, and had the watch and chain in his possession, and swapped them off for another watch and chain, gettlbg boot. It was in evidence that the prisoner was in Rockingham County on the 6th of August, at the election, and also on the night of the 6tb, and that be said on that night that he was going to Greensboro the next day, end did leave the house at which he was stopping the next day. There was no evidence that he was in Greensboro on the night la which the alleged burglary was cojimitted. The prisoner was arrested about the 4th of September, in Rocking- ham, and brought to Greensboro jail. When arrested, the prisoner denied the charge. When in prison, the prisoner told Scales that he got the watch and chain from John and Dennis Sellars on Sunday night, I the 9th of August, and that they told him to take them to Danville and trade them off. The prisoner at first told Scales that he did not knowl the watch, but in a few minutes afterwards, admitted that he did knowl the watch as soon as he saw it ; that he had seen Scales wear it a hun-[ dred times. It was proven that the prisoner, preceding and up to July J bad been a servant of Scales, and often in his house and the rooms thereof. That on the first or second day after the watch was stolen] Scales had Jennie Stevens, his servant, and one Jim Edwcll, arrestee on the charge of committing the crime. That on the night of the alleged burglary, Jim Edwell was seen about dark dodging behind a tree at thj corner of the house, near the window alleged to have been broken open That he was halted by a servant man twice before he did so, near thl front gate of the residence of Scales. That some hour or two after wards, this servant and Jennie Stevens went out of the front gate an] saw Edwell alone again passing ; that he walked before them a half mlle^ and Jennie Stevens had a conversation with him which the witness di| not hear. That Jennie Stevens had a small bundle which she gave witness to hold while she talked witli Edwell. That about an hot] STATE V. GRAVES. 525 etween nine o'clock on [)f August, Mr. Scales' B blinds and raising the between that ro^m and mp was left burning in oth the nursery and bed- s o'clock, and hung his J-room, the watch being be chain. That Jennie se when Scales went to rn, further than she left e of sleeping. It was >anville, in the State of watch and chain in his cratch and chain, getting \ in Rockingham County on the night of the 6th, 5 to Greensboro the next stopping the next day. ensboro on the night iB September, in Rocking- n arrested, the prisoner soner told Scales that he s Sellars on Sunday night, ake them to Danville and les that he did not know .dmitted that he did know een Scales wear it a hun- preceding and up to July, his house and the rooms ter the watch was stolen, one Jim Edwell, arrested on the night of the alleged dging behind a tree at the to have been broken open, before he did so, near the t some hour or two after- out of the front gate and :ed before them a half mile, him which the witness did bundle which she gave to rell. That about an hour afterwards, witness saw Edwell in about one hundred yard-, of Scales' house talking to a colored man. It was also in evidence that when the l)ri3oner had the watch in his possession and was offering to exchange it for another, he said that he had bought it of a broker for $40, and in a few minutes he told another person that he gave $48 for it, and said that he made a mistake when he said he gave $40. It was also shown that when the prisouci was arrested, he was concealed under a bed, and had tried to escape up a chimney. His honor, among other things, charged the jury that if they be- lieved from the evidence that the prisoner was in possession of the watch and chain la Danville, Virginia, on the Monday after the watch was stolen on Saturday night, the law presumed that he was the thief, and that he wab bound to explain satisfactorily how he came by it. The prisoner excepted. The prisoner's counsel asked his honor to charge 'Hhatif there was any reasonable hypothesis arising out of or suggested by the evidence by which, taking all the facts proven to be true and he not guilty, that the jury should acquit the prisoner." His honor charged the jury that in giving to the prisoner the benefit of the reasonable doubt, they should not be controlled by mere conjecture that some one else did the deed ; that they must be fully satisfied that the prisoner did the deed." Prisoner excepted. There was a verdict of guilty, rule discharged, judgment of death pronounced, and the prisoner appealed. Scott & Caldwell, for the defendant. Attomey-Greneral Hargrave, for the State. Peakson, C. J. The fact that the " watch and chain " were found in the possession of the prisoner at Danville, on the Monday after the burglary on the Saturday night preceding, at Greensboro, connected with the fact that he was offering to dispose of the articles at much less than their value, and made contradictory statements as to how he got them, were matters tending to show either that the prisoner was the man who broke and entered the dwelling h. .je and stole the watch and chain, or else ^hat he had received the goods, knowing them to have been stolen. These facts, taken in connection with the evidence of the mysterious movements of Jim Edwell and Jennie Stevens, about the premises on the night of the burglary, were fit subjects for the consid- eration of the jury. His honor committed manifest errors in taking the case from the jury and ruling that "if the jury believed from the evidence that the prisoner was in possession of the watch and chain in Danville on the Monday after tlie watch and chain were stolen on Saturday night in iJrecnsboro, the law presumed he was the thief, and had stolen the watch and chain, and that the prisoner was bound to explain satisfactorily how he 526 LARCENY. oamo by the goods." The rule is this: " Where goods are stolen, one found in possession so soon thereafter, that he could not have reason- ably got the possession unless he had stolen them himself, the law pre- sumes he was the thief." This is simply a deduction of common sense, and when the fact is so plain that there can be no mistake about it, our courts, following the practice in England, where the judge is allowed to express his opinion as to the weight of the evidence, h.ave adopted it as a rule of law, which the judge is at liberty to act on, notwithstanding the statute, wliich for- bids a judge from intimating an opinion as to the weight of the evidence. But this rule, like that of falsum in uno,falsum in omnibus, and the presumption of fraud, as a matter of law, from certain fiduciary relations,! has been reduced to very narrow proportions, and is never applicable when it is necessary to resort to other evidence to support the conclusion ; in other words the fact of guilt must be self- evident from the bare fact of being found in the possession of the stolen goods, in order to justify the judge in laying it down, as a presumption made by the law, otherwise it is a case depending on circumstantial evidence, to be passed on by the jury. In our case, so far from the fact of guilt to wit: that the prisoner broke and entered the house and stole the watch and chain, being self- evident, it is a matter which, under the circumstances proved, admits of grave doubt, for it may well be that the prisoner merely received tlie watch and chain after some one else had committed the burglary, which would change the grade of the crime very materially. As the case goes back for another trial, it is a matter for the solicitor of the State to con- sider whether it will not be well to send a new bill containing other counts to meet the difterentaspects of the case, as it may be looked upon by the jury- gjPQj.^ Venire de novo. larceny — effect of recent possession. State v. Walker. [41 Iowa, 217.] Jn the Supreme Court of Totoa, 1875. A Ohar^a which In«traota the Jury that proof ol po8ieg»ion of part of the itolen goodi, four months after the commlsBion of the crime, no reasonable explanation being given of the poaieavlon, ahoald be regarded as raising a strong presumptloa of goUt, ia •rroneoai. MiLtER, C. J. The court, among other instructions to the Jury, charged as follows : — " If you find that the store of witnesses, S. E. & John Johnson, was 1 See Pearce t>. Lea, 68 N. C. 90. ■te^M TAXES V. STATE. 527 3 stolen, one have reason- the law pre- ;he fact is so following the 3 his opinion at law, which e, wiiich for- ^he evidence. bits, and the ain fiduciary ons, and is evidence to must be self- of the stolen presumption ircumstantial the prisoner n, being self- oved, admits ■ received the rglary, which the case goes State to con- ; other counts I upon by the burglariously entered, about the niglit of the 3d of Feoruary, 1873, and a large quantity and variety of goods stolen therefrom, and that the following June different portions and varieties of the same goods were found in the premises of the accused, and you further find that the defendant has been unable to give any reasonable explanation of how he came by such possession, then such facts should be regarded by the jury as raising a strong presumption that the defendant was himself guilty of feloniously taking the property." This instruction is erroneous. Tiie rule is well settled that the recent possession of stolen property, unaccounted for, is a strong presumption, or prima facie evidence, of guilt.^ What is to be termed recent possession depends very much upon the character of tlie goods stolen. If they are such as pass readily from hand to hand, the possession, in order to raise a presumption of guilt, sliould be much more recent than if they were of a class of property that circulated more slowly, or is rarely transmitted. There may be cases where the possession is so long after the commis- sion of the crime that a court will refuse to submit the question to the jury — deciding, as a matter of law, that the possession is not recent — but in all other cases the question is one of fact, to be submitted to the iury.2 The instruction was erroneous, in that it directed the jury that, as a matter of law, proof of possession of part of the stolen goods four months after the commission of the crime was recent possession, from from which a strong presumption of guilt arose, unless the possession was satisfactorily explained. The judgment must, therefore, be reversed, and a new trial ordered. Revened. ire de novo. t the stolen goodi, latiou being given ptios of guilt, it I to the Jury, Johnson, was larceny — effect of becf.nt fossession. Yates v. State. [87 Tex. 202.] In the Supreme Court of Texas, 1872. Poaaeaalon of a Stolen Feather bod and 80me bed clothin;;, Are months after they were atcien, is not each recent possession as of itself to raise a legal presumption that the party in possession is the thief. OoDEN, J. The first clause of the charge of the court in this cases is in these words : ' ' Property recently stolen being found in the possession 1 Warren «. State, 1 G. Greene, 106; State V. Taylor, 2S la. %73; State v. Brady, 27 Id. 126; Jones «. People, 13 111. 269 ; Com. «. Mil- lard, 1 Mass. 6 ; Qreenl. Et., sees. SI, 32, 83. 1 See Rex «. Partridge, 7 C. A P. 6S1; SUte V. Bennett, 3 Brev. S14 ; SUte «. Jonei, 8 Dot. a B. 122; Rex «. Adams, 8 O. A P. 600; Reg. V. Cruttenden.eJur. 207; Com. v. Montgomery, 11 Mete. B84; Bnglenuui «. SUto,SInd.ei: •««fe*aifjjSU..'..*Sk;t!ii..vs''S' :i»l 928 LARCEKT. Of a person, the law presumes that pe«on ^toJ« ^^^^^^^^^^^ perso! n.ust rebut the PJ-^?*^- .^.^ ^^^^^^^ '^-S^ property in a P«Wic m«°°«r; , J;"^;^ oven on the trial of ItA. case, especially when -^^''ll'^X!rZot%Zml>er or first day of Janu- Easter Waggoner, on the last day oi i^ unknown to her, a „y, had taken from ^^l}^^^J ::ronZZr^ J^ne mo.in, feather bed and ^^'"^^t? "1' Trttles in appellant' shou^^ Five the deputy sheriff found the °»»««^"8 j''^^^^^^^^ ,,om the house months had elapsed since the property had ^« ° ^ «^^^^^ ^ant,' of the owner, before is was ^^^'^'l^" ^f^.^^^^^^^^^^ period; and and it may have ^^^^g^^^^^^/^^^ltinrwn b^^^^ court, that the we can not subscribe to the ^^^^^ J*f ^^^J^een stolen, was so possession of this property, "'^'"^^^"S^t to^^^^^^^^^^ Utafterthe theft as J, 7; VXtl^Z^which might ve^^ in possession is the t^^"; " ^ j^ connection with other evi- properly have been submitted *° *f ! ^^^^^ of possession, alone, dence of guilt; but we do no ''^'ll'^l.^f^'^ sufficient to warrant a conviction, and yet the charge o appear to give it that degree of ^^^^^^^^^ ,,^^ ,^^ date of the ing mind. ^^^„„ „,«„v decisions on this question, seems however recent after the then, aoes n Bumption of guilt to warrant a «««^<'*^» *°'^^^^^^^ attending that there are nearly always other ^'^'''^^^^""^^^"thTe^^^^^^^^^ given or possession, such as the character of *^^^Pf J' J^^^^Je^^^ dim- refused, or attempts at concealment, which may greatiy increase inish the presumption ^''f^^j'^^^''^:^:Zm.ol. importance to the I We think the charge of ^^^/^l^Jodnv? months after the same simple fact of the possession of stolen g°°^« ^^^ ^^^^^^^ ^ „i,iead the Sbjrrrer. T.eiurypj.ldth.tthel^^ possessor of Btolen property, recentWter«-^^^^^ Ld hemust rebut that ^^^^^^^^I Z^r^T^^^^^^ '^A PEOPLE V. NORKGEA. 629 e thief, and such laving bought the or in this charge, trial of iHis case. Irst day of Janu- nltnown to her, a of June following anfshouse. Five jed from the house [1 of the appellant; ig that period ; and the court, that the een stolen, was so rtion that the party , which might verj' ition with other evi- »f possession, alone, e of the court would ■cm the date of the lilty possession ; but 3h as time elapses, ession upon a reflect- this question, seems lion of stolen goods, iflSciently strong pre- crime. But he says ddence attending that explanation given or eatly increase or dim- ich importance to the months after the same I julated to mislead the | re is still more objec- 'the law presumes the I theft, to be the thief; 3h as having purchased r comprehend the force I rstand why a purchase , would not protect the I sen made publicly. There is much conflict in the testimony in this case, and therefore it becomes highly important that the jury should have the law plainly and correctly given them, as a guide for their verdict. The judgment of the District Court is therefore reversed, and the cause remanded. Reversed and remanded. LARCENY— :;ffect of recent possession. People v. Nokegea. [48 CaL 123.] In the Supreme Court of California, 1874. 1. On a Trial fcr Larceny, the only evidence was. that respondent was found m poisei. s.on of the stolen horse a few hours after it was stolen. Held, not sufficient to lustifr a conviction. v—"«j 2. On a Trial tor Larceny, evidence of the recent possession of stolon property is not of itself sufficient to Justify a conviction. i crij « uomi Rhodes, J. The defendant was convicte'' - '' grand larceny for the stealing of a horse. The only evidence of defendant's guilt was, that the stolen horse was found in his possession a few hours after it was taken. People v. Chambers,^ and People v. Ah Ki^ hold that the possession of stolen property is a circumstance to be considered l)y the jury, but it is not, of itself, sufficient to warrant a conviction. It is said by Green- eaf : 3 "It will be necessary for the prosecution to add to the proof of other circumstances indicative of guilt, in order to render tue naked possession of a thing available towards a conviction." The evidence discloses no circumstances of that character. The riding of the horse several miles beyond the point where he wm first seen in possession of it is only his continued possession of it, and is not a further circumstance indicative of guilt. The leaving of the saddle with the inn-keeper does not tend to prove a larceny of the I horse. There may be an abundance of authority to sustain the point of the attorney-general, that the court erred in excluding evidence as to the defendant's confession, after the preUminary evidence as to its having been voluntary ; but the point does not arise in the defendant's appeal. Judgment reversed, and cause remanded for a new trial. Remittitur forthwith. Neither Mr. Chief Justice Wallace, nor Mr. Justice McKinstrt ex- pressed an opinion. ' 18 Oal. 382. 3 Defences. ' 20 Id. 178. 84 3 3 Greenl. £?., sec. 8L maBm-' 530 ^^'^^^^^- LARCENY-POSSESSION OF STOLEN PROPERTY. Galloway u. Si ate. [41 Tex. 289.] In the Supreme Court of Texas, 1874. 1, „r ffin dav« alter it was stolen, ia connecMo* ..e ..enaant was convictea ^ -^"^^^1:^^^^^^^^^^ house of a pipe of the value of two dollars , P two years in the penitentiary. ^^^^ ^.^^.^ ^^^^^^ ^o^tha The prosecution Proved by A. u. , ^^ .^ ^^ ^^^^ ^^^^^er next before the -^^^f ' ^;^^; J^/ro^t half an hour afterwards in hia storehouse in Rusk <;««°*y ' j'J^ .^. ^e of losing it to sov- he looked *orthepipe,butcouldnotfind t SI ^^^^^ ^^^^.^^^^ eral persons at ^^;;Xj^::',VZ::mnot see the defendant in passing in and out of the house ^^ ^^^^ . ^^^^ ^^p, or about the store on the day the pipe ^^^j^^.^. j^^ taken without bis knowledge or ---^; ^ J\,, ,, j. A. Poe, a ^^rs^ed ---r ;:^^::- --- -- offered to buy it; defendant said he -uld^ ^^^ ^.^^ ^^^^^^ dollar's worth of cigars for it; defendant wa ^ ^^^^^^^_ ^^^^ in the town of Henderson, -«^^«^|^ J.^g 'iness in the town of Stroud, who had 1««^ *^;,7^.;r;, Writhe "had foun^^ ^ut Henderson ; ^ef-danUold ^^^^^^^^ ^, , „,g,„ .hose name he after talking awhile said he haa d g ^.^^^^^ ^^^^ ^^ same day he got it from defendant. No counsel for appellant. Broivn, for the State. aiieaed theft; the char- Moo.., A. J. The ptae »a .^nMr «. the ri^g ^ ^^^^^^ ^ ^, „,., .„d vJue of the -78 f'^^, !'"„„. person to ■o.othe, ..ciUty with which '' rL'',7J^,t» „e„.bl. Vn«.ttoprov. -^A"^uv» :s"5i*lr^"&.«-'"* , _„gfigt*mtisutm»m'iit=^'^'>'-"-'-'-' rtiAl OABLICK V. PEOPLE. 531 rY. )len, in conneotlOft )1 guilty. ?r theft from a jhment fixed at 1 twelve months t on the counter hour afterwards losing it to sev- le store trading, the defendant in st; the pipe waa I two dollars; he by J- A. Poe, a Q Poe brought it lily grocery a few lad lost his pipe ; Stroud's; witness atness gave him a ig the pipe openly the streets; that ess in the town of md the pipe," but ro, whose name he ;; witness went to ,m he got it on the ed theft; the char- l to be stolen; the person to another 5 appeUant to prove ^hom he may have gotten it ; the slight value attached to it ; the open manner in which he used and exhibited it in the immediate vicinity of the place where it was said to be stolen ; the length of time which had elapsed after the pipe was missing until it was found in his possession, with his statement when asked how and where he got it, tbat he bought it from a negro, whose name he did not now remember, if not sufficient to rebut all presump- tion of guilt arising from the bare proof of possession of the stolen property, warrants at least such a well founded doubt of appellant's guilt, that the court below should have granted a new trial. The judgment is reversed and the case remanded. Reversed and remanded. LARCENY— POSSESSION OF STOLEN PROPERTY. Gablick V. People. [40 Mich. 292.] In the Supreme Court of Michigan, 1879. Mere Poaseasion of etolen property raises alone no presumption of the guilt of taking it. Error to Berrien. Clapi) & Fnfe, for tlie plaintiff in errorr. Attorney-General Otto Kirchner, for the People, confessed error. CooLEY, J. Plaintiff in error was convicted of the larceny of certain articles of clothing from a car of the Michigan Central Railroad Com- pany. The larceny took place on or about the fourteenth day of September, 1877, while the car was in transit west from Jackson. Tlie most important evidence supposed to connect plaintiff in error with the larceny, was several of the articles being found on premises occu- pied by him, and some of them in his bed. The finding took place in January, 1878. As to the articles found in the bed, it appeared that search was made for them in the house the day before without success, but on going a second time, the officer discovered them. To break tlie force of the evidence of this discovery, plaintiff in eiTor called as a witness John Gablick, who had previously pleaded guilty of the same larceny, and he testified that he placed the articles where they were found after fhe first search was made, and that plaintiff in error had nothing to do with the larceny, or with the concealment of the goods. It also appeared from his evidence and that of others, that John Gab- lick occupied another part of the same house in which the things were found. This being the evidence, the court was requested to instruct 532 LARCENY the jiiiv that " the fact of possession of stolen property, standing ulone and unconnected with any otlier circumstance, affords but slight pre- sumption of guilt, for the real criminal may have artfully placed the property in the possession, or on the premises of an innocent person the better to conceal his own guilt." This request the court refused, but the jury were instructed that they must consider all the circum- stances, and allow the evidence such weight as they believed it de- served. We think the plaintiff in error was entitled to the instruction re- quested. It is perfectly true that the jury must jud-e of the proper weight of the evidence; but when evidence is laid before them wluch only indirectly tends to raise an inference of guilt, and the importance of which must depend altogether upon circumstances, it is the right of the respondent to have the jury instructed how these circumstances bear upon the presumption of guilt. Possession of stolen property, if immediately subsequent to the lar- ceny, may sometimes be almost conclusive of guilt ;i but the presump- tion weakens with the time that has elapsed, and may scarcely arise at all if others besides the accused have had equal access with himself to the place where it is discovered. A jury may or may not attach im- portance to these circumstances ; but as the law permits the inference of guilt to be drawn under some circumstances, and not under others, the jury should have some instruction how to deal with these circum- stances when they are placed before them. This is the only error we discovered in the record. The judgment w reversed, and a new trial ordered. The other justices concurred. PRESUMPTION FROM POSSESSION OF RECENTLY STOLEN PROPERTY. State v. Hale. [7 West Coast Rep. 141.] In the Supreme Court of Oregon, 1885. The Pr«.umptton Raised by the poesesslon by the priaoner of recently f °>" P^Pf;*^ 1, o" oXt from which the Jury may Inter guilt. And it I. error for the court to in- .tTctthem M a matter of law. to conTiot. upon Buch poseeaslon being unexplained. Appeal from Umatilla County. The opinion states the facts. Wm. Ramsey, for the appellant. 1 See Walker t'. People, 88 Mich. ||nHfi^tM)0BiHVli^«-^s£r•^.ull;v^ A^ inding hlone t slight pre- f placed the )ceiit person )urt refused, the circum- ieved it de- struction re- f the proper J them whicli e importance s the right of ircumstancea nt to the lar- the presump- ircely arise at ith himself to lot attach im- the inference under others, these circum- e judgment is !N PROPERTY. ;ly Btolen property for the court to in- ig unexplained. le facts. STATE V. HALE. 533 Morton D. CUfford, District-Attorney, and IF. 11. Holmes, for the respondent. LoKD, J. The defendant was indicted for tlie larceny of certain cat- tle, tried and convicted, and from the judgment of conviction brings this appeal to this court. There are numerous assignments of error, but after an attentive examination of them, we are satisfied that there is but one material error. The court instructed the jury that " when property recently stolen, is found in the possession of any person, such possession raises a presumption of guilt, and unless he shows that he came honestly into the possession of said property, the law will pre- sume that he stole the same." The objection to this instruction is, that the weight to be given to fact or circumstance, is, under our stat- ute, to be left to the jury ; that the court is not authorized to pass upon the weight to be given to any circumstance, or to direct tlie jury in reference thereto. It is often stated that the recent possession of stolen property by the prisoner unexplained, raises the presumption that he is the thief, and that this presumption shifts the burden from the State to the prisoner. But the presumption raised by such circum- stances is one of fact, from which the jury may infer guilt. There is no legal presumption of guilt from the recent possession of stolen property. In Conkenright v. People,^ it was held error to instruct a jury upon a trial for larceny, that possession of stolen property soon after it is stolen, is of itself prima facie evidence of theft by the pos- sessor and the burden of proving his possession to have been honest, is there thrown upon him. The question is undoubtedly a vexatious one ; and upon it, as Mr. Bishop says, " all sorts of utterances are to be found in the books." * But we regard it as a question of fact and not of law, to be submitted to the jury and for them to determine whether the defendant is the guilty party or not. In Curtis v. State,^ the court say: " The possession of such chattel as a horse, two months after the theft, is a circumstance to be considered by the jury, but it does not, even unexplained, raise a conclusive presumption of the prisoner's guilt. The jury may, and should, give it proper thought as evidence, but the matter is for them, and they are not bound in such case to convict the prisoner unless they are, upon the whole evidence, satisfied by his guilt." In State v. Hooye* this whole subject and the authori- ties upon it, is ably and thoroughly reviewed, and the result there reached is in conformity with our views. We think the instruction was error. The judgment must be reversed and a new trial ordered. I 35 111. 264. « Bish. Cr. Pr., sec 740. " 6 Col. <60N. H.610. . iCTi-.;-!..-..;;*? 534 ^ARCENy. LARCENY- VOLUNTARY RETURN OF STOLKN PROPERTY. Allen v. State. [12 Tex. (App.) too.] //, the Court of Appeals of Texas, 1SS2. well as the spirit ot repentance and restitution. Appeal from the County Court of WilUamaon. Tried below before the Hon. George W. Glasscock, County Judge. The indictment charged the appellant with the theft of five dollars the property of Goodson Bryson, on December 9, 1881. The jury found him guiltv, and assessed his punishment at imprisonment for one hour in the county jail. The material evidence appears in the opmion of this court. Appellant was a boy about sixteen years of age. Mackemion, Fisher & Price, for the appellant. H. Chilton, Assistant Attorney-General, for the State. Huux, J. The appellant was convicted of the theft of five dollars. The record presents but two questions deemed by us necessary to be passed upon in order to a proper disposition of the case: (1st) Were the confessions of the defendant admissible; and (2d) was the money voluntarily returned? The following were the facts bearing upon these two questions: Mrs. Bessy Bryson, wife of the prosecutor, in response to the question, " I the five dollars was returned to her," answered, " Yes, it was returned to me that evening by the defendant, Earnest Allen; he brought it to me and said, 'Here is your money, Mrs. Bryson; this is all I J,,, » » * II The defendant was at my house about an hour before he brought the money back to me, and made a statement about It I did not threaten him to make him confess. My little boy told him somebody had been in our house and robbed it; and defendant said 'Is that so?' and I told him, 'yes,' and that we had evidence enough to find out who it was. I also told him, unless it was stopped, we would have to send for Esquire Ward and have the matter investi- eated I did not threaten to have any one arrested, but said if the money was not brought back we would have to send for Ward and have the matter investigated. The defendant then told me he took the money from the house, and he went off and after a while came back and handed me the five dollars, and said, ' Here is your money, this is all I got, Mrs. Bryson ; don't tell ma, for I would not have her to know -mf^^a^f^mmssm fiiSt^^ft'it^F^-^P'^^'^' ^ W«*i>»l*ilWWi'*'i* ^iH ALLEN V, STATE. 535 OPERTT. Brty. — The return lu TiS of the renal and puuiihment an tl below before of five dollars, Tiie jury found nt for one hour the opinion of age. of five dollars, neceasary to be 96: (l8t) Were was the money questions: Mrs. le question, " If , it was returned ; he brought it n; this is all I ! about an hour statement about ly little boy told ; and defendant ve had evidence 3 it was stopped, e matter investi- , but said if the )rWard and have me he took the while came back ur money, this is have her to know this for anything.' I told him I would not tell his mother, or any one else, if I cculd lielp it, and unless compelled to do ho; uiul I did not tell her until alio asked tiio question direct. Tiie money had fresli dirt on it wlii-n he came hack and hundtul it to me, as if it hud been Imried." Were these confessions admiHsiblo? Upon this subject the Code of Criminal I'roccdure,' provides that "the confession of a defendant may be used in evidence against him, if it appear that the same was freely made, without compulsion or persuasion, under the rules hereinafter preseriijed." "The confession must be freely made;" tills, however, is modified by that which follows, viz, : " Without com- pulsion or persuasion." Here, if there was no compulsion or pcrsua- sion, in express terras or circumstantially, wo would conclude that the confession w.as freely made. There was no persuasion in tliis case, nor was the defendant threatened, directly or indirectly. It is true we may infer that Mrs. Bryson suspected some person, and threatened an examination into the matter, but that her remarks pointed to the defend- ant is an inference not supported by the evidence. That the defendant, liiiving taken back tlie money, believed that he was the suspected i)arty, we have no doubt; but, it will never do to hold that, when the defend- ant believes that he is suspected and is in great danger of a prosecution, liis confession is the result of compulsion. There should be some rela- tion or connection between the forces used and the result, that is, the confession. In this case there was nothing said or done tending to comi)el the defendant to the confession, save his own knowledge of guilt and his belief that he had been discovered. The confession was adinls8il)le. 2d. Did the defendant voluntarily return the property? It may be thought that the conclusion reached on the first question settles this. This, however, does not follow. Under article 759, Penal Code, "If property taken under such circumstances as to constitute theft be vol- untaril)- returned within a reasonable time, and before any prosecution is commenced therefor, the punishment shall be by fine not exceeding one thousand dollars." The return must be before prosecution was commenced. This was the case. Was it voluntary? This is the question: If the return is eaused by the fear that discovery has been made and a prosecution will he set on foot, would it be voluntary? Are the causes and motives in- ducing the return to govern? If so, of what character or quality must these be? Suppose fear of detection and punishment is the moving cause. Does it follow that the return is not voluntary? Admitting that it does, suppose that repentance and a desiie for reparation, to- 1 art. 749. !iSC, LARCENY. gcthcr with fear of dptootlon and punisliment, all contribute the acting causes prompting the defendant to return the property ; will he not be entitled to this generous provision of our code? This, we think, waw precisely the position of defendant when he confessed that ho tools the money. The intention to return it was present ; and, while it may be true that fear of punishment waa a factor, taking all of the facta to- gether and giving thera a close examination, we believe tlio conclusion will be reached that there were other motives, besides fear of punish- ment, prompting defendant to restore the property. Tlie punishment assessed waa imprisonment in the county Jail. This punishment was not supported by the evidence, and tlie judgment is therefore reversed and the cause remanded. Bever&^J and remanded. VOLUNTARY RKTUIIN t)F STOLEN PKOPKRTY. Bird v. State. [16 Tex. (App.) 628.J Ih the Court of Appeals of Texas, 1884. 1. Volnntary Return of Stolen Property, such as under the provisions of article 878 of tlie Penal Code will operate to reduce a theft from the grade of felony to misde- meanor, must be made under the following circumstances: 1. The return must be Toluntar>,that is, willingly made; not matie under the influence of compulsion, fear of punishment or threats. If, however. It ue made under tli4 influence of repentance for the crime, and with the desire to make reparation to the injured owner, It will be voluntary, although it may also bo inf-^enced by fear of punishment. 2. It must be made within a reasonable time after tlm .heft, and before prosecution for the theft has been commenced. 3. It must be an actual, not merely a constructive return of the property Into the possession of the owner. 4. The property returned must be the Iden- tical proiierty, unchanged and all of It, that was slolen. 2. Case Stated.— In this case the defendant drove thrj stolen animal about ten miles from its range, and attempted to sell it. Pending negotiang of sale, it was discovered by parties acquainted with it, when the paity with whom (ho sale was being negotiated told the defendant to turn it loose, and that they would ^^t it at another time. In a few days the owner told the defendant that all ho \ iUitjd was the animal, and that if fc- would drive It back home, he, the owner, vcoviM tot prosecute him, the defendant. Soon after thin the owner found the animal on Its accustomed range. Beld, that undur such circumstances the court should have given In charge the Issue as to the voluntary return of the animal by the defendant; that, while not strictly a return of actual pos- session. It was such as was demanded by the owner, and therefore sufllcient. Appeal from the District Court of Milam. Tried below before the Hon. W. E. COLLARD. The conviction was for the theft of one head of cattle, the property of Sam. McCassling, in Milam County, Texas, on the tenth day of De- MIKD V. STATE. 537 « the acting ill lie not be ?o think, woH ; ho took the lo it muy be ;he facta to- e conclusion ir of punish- y jail. This judgment is remanded. The penalty awarded was a term of tw? years in the ons of article S78 felony to misde- I return must be compulsion, fear CO of repentance owner, It will be it. 2. It must be 1 for the theft has Ive return of the must be theiden- int ten miles from vas discovered by being negotiated er time. In a few lal, and tliut If t~ n, the defendant. Held, that under 3 to the voluntary rn of actual pos- Qcient. ow before the , the property ith day of De- ceinlter, ISh;}. penitentiary. J. K Bryant was the llrst witness for tlio State. IIo testified in sub- stance, tliat on the night of tlio tenth day of December, 18«;5, lie got homo from the town of Rogers and found the defendant and Gran- ger Elliot in bed at his house. Next moniii g the defendiint told wit- ness that he had brouglit a steer to sell him, and that the steer was tied on the side of tlio road near liy. Defendant, Elliot and witness started down the road to look at tlio animal. Witness saw that the animal was not fat enough for beof, declined to buy it, and told the boys to release it. The animal was a white and black pided steer, bninded SA^IY on the ribs. En route to the point where tlie steer was tied, the party saw Pinkney Bird, James Cook and another man looking at tho steer. Witness and the two boys did not then go to the steer. It was then that the witness told tho boys that they had better turn the steer loose, and they would get it some other time. The boys did re- lease tho steer. Sam. McCasland testified, for the State, in substance, that he lived in Bell County, and owned a small stock of cattle in the SAMY brand Among them was a two year old white and black pided steer. He learned that this steer had been seen by Pink. Bird and others tied to a tree near J. B. Bryant's in Milam County. He then went to de- fendant and told him that he had heard of his driving the sveer to Jesse Bryant's. Defendunt said : " Yes, I did drive one "of your steers to Jesse Bryant's." Witness asked him why he did so. He replied tliat Bryant had promised him twelve dollars and a half to bring him a steer, and that tlie witness' steer was the first one he found. He told tho witness that ho and Granger Elliot drove the steer to Bryant's, tied it out over niglit, and started next morning with Bryant to see it, but saw Pink. Bird, Jim Cook and some one else looking at it, when Bryant told them they had better turn it loose and get it some other time. Defendant made these statements to witness voluntarily, without threat or persuasion. Witness afterwards told him that he only wanted the steer and that if he would drive it back, he would not prosecute, unless forced to do so by the grand jury. Bryant lived in Milam County, about ten miles from the steer's range. Witness never consented that the defendant, Elliot, or any one else, should drive the steer off. A few days after the interview with defendant, witness found his steer on its accustomed range. Witness* name was Sam. McCasland, but be was equally well and generally known as Sam. J'TriCassling.' Pinkney Bird testified, for the State, that he saw the steer described tied to a tree on the road near J. B. Bryant's, on the morning of De- cember 11, 1883. He saw Bryant, defendant and Elliot near it. De- '■tmmmmmKa 538 LARCENY. fondant turned the steer loose. Witness saw that animal again late that evening, about one hundred yards from where lie saw it in the morning, feeding along in a hollow. The motion for a new trial raised the issues considered in the opin- ion. The newly discovered evidence referred to in the last head-note of this report was to the effect that the witnesses L. G. and W. W. McDaniel would testify on another trial that, on the 25th day of De- cember, 1883, they had a conversation with Sam McCasland ; that in that conversation McCasland told them that he went to see the defend- ant about the alleged theft of the steer ; that he told the defendant that he had heard that he, defendant, had driven off one of his steers ; that he wanted him, defendant, to acknowledge that he did so, and bring the animal back, and that if he would do so he, McCasland, would not; indict him, unless he was forced to do so by the grand jury, and that thereupon the defendant acknowledged that he drove the steer off, and promised to bring it back. The witnesses L. G. and W. W. McDaniel were called as witnesses of the State and placed under the rule, and had heard none of the evidence when they testified in the • case. Since the trial they had heard that McCasland testified that defendant's confession or statement was made voluntary and without comi)ulsion or persuasion, and it was only since the trial that they had informed defendant's counsel of their conversation with McCasland. The affidavits of L. G. and W. W. McDaniela were attached to the mo- tion. Jt. Lyles and E. H. Lott, for the appellant. J. H. Bvrts, Assistant Attorney-General, for the State. WiLLsoN, J. 1. Sam. McCassling, the alleged owner of the animal charged to have been stolen, was as well known by that name as by his true name, Sam. McCasland, and there was, therefore, no fatal variance between the name of the owner as alleged and the evidence of owner- ship.* 2. If property taken under such circumstances as to constitute theft be voluntarily returned within a reasonable time, and before any prose- cution is commenced therefor, the offense is a misdemeanor, punishable by fine not exceeding one thousand dollars.^ A return of stolen prop- erty, influenced by threat of prosecution for the theft, is not a voluntary re I a within the meaning of the statute. 3 Where a defendant had driven a stolen cow about thirty miles, and was overtaken in possession of the animal, and told that he must return her to hei range, and he I Code Crim. Proc, art. 425; Rye v. State, 8 Tex. (App.) 163; Cotton i'. State, 4 Tex. 260; Hart ». State, 38 Tex. 382; BeU v. State, 25 Tex. 671; WeUs v. State,! Tex. 20. 2 Penal Code, art. 73S. 3 Owen V. State, 44 Tex. 248. (App.) >«l BIRD V. STATE. 539 at animal again late ere he saw it in tlie msidered in tlie opin- in tlie last bead-note jes L. G. and W. W. the 25th day of De- McCasland; that in ;nt to see the defend- le told the defendant off one of his steers ; that he did so, and he, McCasland, would f the grand jury, and ie drove the steer off, J L. G. and W. W. vnd placed under the I they testified in the Dasland testified that voluntary and without the trial that they had ,tion with McCasland. re attached to the mo- ae State, owner of the animal l)y that name as by his jfore, no fatal variance ihe evidence of owner- s as to constitute theft and before any prose- sdemeanor, punishable return of stolen prop- heft, is not a voluntary here a defendant had )vertalven in possession r to iiei range, and he drove her about ten miles back in the direction of where he had taken her from, and tliere left her, it was held that this was not a voluntary return within the meaning of the statute, ' In Cfrant v. State,^ this court said, referring to this provision of tlie Code, that " it never contem- plated that a thief, caught in possession of property stolen by him, could reduce a felony to a misdemeanor by simply then offering to give up the stolen property or pay for it." In that case the defendant while he wsa caught in the act of skinnirg a hog lie had stolen, and he then offered to return it to the owner or pay for it. In Moore v. State,^ this court in discussing this subject, said: " To entitle the thief to the mitigated penalty for a voluntary return of tlie stolen property within a reasona- able time, the return must be actual, and demonstrating in itself a con- trition for the act, and not a clandestine return and constructive redelivery of the propert}-. The purpose of the statute is to extend the grace and favor of the law to such wrong-doers as promptly repent of their acts, and endeavor to mak^ all the reparation in their power to the party injured. In such cases the law looks with mercy upon the penitent, and administers a modified punishment for its infraction. But when the thief fails in his purpose to realize from tlie stolen prop- erty, and, as in this case, releases the stolen animal, which, of its own motions, returns to its accustomed range, the law delivers the prisoner to justice, who sits blindfolded and inexorable, and sternly metes out the puisliment affixed for the original transgression." In Allen v. /Sfo^e,* this court, in again treating upon this subject, said: " If the return ia caused by fear that discovery has been made, and a prosecu- tion will be set on foot, would it be voluntary ? Are the causes and motives inducing the return to govern? If so, of what character or quality must they be? Suppose fear of detection and punishment is the moving cause. Does it follow that the return is not volun- tary? Admitting that it does, suppose that repentance and a desire for reparation, together with fear of detection and punishment, all contribute the acting causes prompting the defendant to return the property, will he not be entitled to this generous provision of our Code! " It was held in that case that if the return of the property was actuated by repentance, in connection with a fear of proseution and punishment, it was nevertheless a voluntary return within the meaning of the law. We deduce from the decisions upon this question, and from the statute itself, that a voluntary return of stolen property, within the /ells t>. state, 4 Tez. (App.) B, art. 738. tate, 44 Tex. 248. 1 Brill V. .State, 1 Tex. (App.)S72. 3 2 Tex. (App.) 103. '8 Tex. (App.)4iH5. ♦ 12 Tex. (App.) 190. '"«a««Baisaaiw«s8aaift«iB.M,iswiTii.**'"» i 540 LAKCENY. meaning of the article of the code cited, must be under the following circumstances : — 1. It must be voluntary, that is, willingly made; not made under the influence of compulsion, threats, or fear of punishment. If, Kow- ever, it be made under the influence of repentance for the crime, and with a desire to make reparation to the injured owner, it will be volun- tary, although it may also be influenced by fear of punishment. 2. It must be made within reasonable time after the theft, and before prosecution for the theft has been commenced. 3. It must be an actual, and not merely a constructive, return of the property into the possession of the owner. 4. The property returned must be the identical property, unchanged, and all of it, that was stolen. In this case defendant drove the animal from its range a distance of about ten miles, and, while endeavoring to sell it, was discovered by some persons who were acquainted with it, and thereupon defendant was told by the man to whom he was negotiating its sale to turn it loose, and they would get it again at some other time. Defendant turned the ani- mal loose. In a few days thereafter, McCasland, the owner of the animal, told the defendant tliat all he wanted was the animal, and that if he, defendant, would drive it back home, he would not prosecute him. Soon after this, the animal was found by McCasland, in its ac- customed range. We are of the opinion that, under the peculiar facts of this case, the court should have submitted to the jury the issue as to a voluntary re- turn of the animal by the defendant. We think there was evidence sufflcient to demand instructions from the court upon this issue. If de- fendant did, in fact, return the animal within a reasonable time, and in such manner as to satisfy the owner thereof, and in accordance with the owner's directions, and if, in so doing, defendant was actuated by a feeling of penitence for his wrongful act, and a desire to make repar- ation therefor, we think he would be within thebenign operation of this merciful provision of our code. While such return would not be strictly into the actual possession of the owner, still, if it was such a return as the owner desired, and as he was satisfled with, we think it should bo held sufficient. The learned judge did not charge upon this issue, nor did the defendant request him to do so, or except to the charge because of such omission ; but the matter was called to the at- tention of tlie court in a motion for a new trial. We think a charge upon this issue was a part of the law of this case, and that the failure, to give it was such error as was calculated to injure the rights of the defendant, and is therefore reversible error. ■'t4:-Ait--:i..'.-at-'iir-i^m-l"Sii^&M>/*iliKt'.^^^^ ^^m de following made under t. If, '.ow- crime, and ill be volun- ent. , and before Bturn of the unchanged, distance of sred by some ant was told t loose, and ned the ani- wner of the lal, and that 3t prosecute id, in its ac- 119 case, the oluntary re- !&s evidence sue. If de- time, and in ince with the Btuated by a make repar- ation of this )uld not be was such a we think it ge upon this [cept to the id to the at- ink a charge : the failure, rights of the LARCENY — A TAKING ESSENTIAL. 541 We are also of the opinion that the court sliould have granted de- fendant a new trial upon the ground of newly discovered evidence. The evidence set out in the afHdavits uccompaying the motion was ma- terial to show that defendant's confession, which had been admitted in evidence against him on the trial, had been made under the influence of promises and persuasion, and therefore was not admissible. We think it was sufficiently shown that this evidence had been discovered since the trial, and that its not having been discovered sooner was not attrib- utable to any want of diligence on the part of defendant. We think, also, that this evidence would probably change the result of the verdict on another trial. It would, perhaps, have the effect to exclude from the evidence the confession of the defendant, and should it have this effect there is no other inculpatory evi nor is sliooting a cow and cutting off its ears a sufflcieot taking ot the cow,' or coaxing a liog by bait.' In Wolf V. State,* a witness " beard a gun fire in the woods and immediately afterwards heard a hog squeal ; he saw the prisoner soon afterwards cba' 1 Rieb. 30 (1844). • S East's F.O.tse. ' 12 Tex (App.) 207 (1882). • 1 F. A F. 54 (1858). LARCENY — A TAKING ESSENTIAL. 543 lent taking of 1 immediately vards cha'dng luudrcd yards up end asked d hit tlie hog, ot a sufflcieut bog belonging le offense was oting the hog been nothing e approach of [ the shooting use? All the >vithout some lug a wrapper acked up in a ingthwisc in a vagoD, for the er all the way ken anything. Q to steal was f, must be a t, at least, for other cases in is incomplete ik my instruc- avicted of the falls to show institute theft the defendant t sold the ani- ot have been ceived the bill while was not no theft." id selling com irchases made unt as moneys id the price of a larger rate was held that IAN, J., "as It was impossible to distlngnish the moneys which the prisoner received of his employers from that which he received for them." Irx.B. V. Frampton,^ A. assisted by B. had done work for the father of C. and C. told A. and B. that If they would bring a stamped receipt they should be paid. B. bought a stamp with the money of A. and they together went to C. and the blank stamp was given to C. to write a receipt on it. C. did so and as the stamp lay on C.'s desk, A. signed the receipt and B. witnessed it, but neither of them ever had the stamp In his possession after the receipt was written on it. C. under pretense of fetching his father's check-book, took away the receipt and would not pay the money it was given for. This was held no larceny. " The stamp," said Wight.max, J., " was given by the creditor to the debtor for a special purpose, namely, to prepare the receipt; and it never was in the pros- ecutor's possession after the receipt was In a complete state." In R. v. JSird,»an indictment charged the stealing of " nineteen shillings in money," of the moneys of A. B. It appeared that A. B. got into a merry-go- round at a fair and handed the prisoner a sovereign in payment for the ride, asking her to give change. The prisoner gave A. B. lid, and said she would give the rest when the ride was finished. After the ride was over, the prisoner said A. B. only gave her Is, and refused to give her the 19s change. Held, that the prisoner could not be convicted upon this indictment of stealing 198. CocKBURX, C. J., said: "The majority of the judges are of opinion that the prisoner was not properly convicted of stealing the 19s charged in the indict- ment, for she had not taken them from the prosecutrix, and could not therefore be convicted on this indictment. The majority of the judges do not say that she might not have been convicted on an indictment charging her with stealing the sovereign if the issue had been properly left to the jury. Upon the present mdictraent, however, she must be discharged." In R. V. Wadsworth,' the prisoner was indicted for stealing a mare and a hal- ter. George Muck, the prosecutor said : " I am a baker at Woolwich, the pris- oner has been a commercial traveler. About six months ago he intrusted a mare to me to keep for him. I had the privilege of using it for the keep. I aft- erwards saw the prisoner in company with Swift and Sayer. I had three or four meetings with them about accepting a bill of exchange, at the latter end of July. The prisoner owed Swift some money, and they drew a bill and asked me to accept it. I refused three or four times because the mare was pnt up to a rafile. It was in my possession at the time. At last I accepted the bill, and they asked me to take an I. O. U. for the amount of the bill. I said no; an I. O. U. was of no use, and the prisoner then said I should have the mare until the bill was due, if I accepted it for Swift. It was agreed that the mare should be my property until the bill was due, and on that I accepted the bill. The words Wadsworth used were, " You won't lose much, you have got the mare." I would not have done it upon anything else. He went to the place where the raffle was to be and stopped It. I had afterwards, on the second of this month, to meet the bill. I have it not with me now. I bad it yesterday; I have sent down to Woolwich for it." Sleigh submitted that even supposing it to be proved that the prisoner did take the mare, yet there was no case to go to the jury, as he had never parted with his property in it. . \ 1 2 0. ft K. 48 (1846). a 12 Cojc, 287. 10 Cox, .W7 (1867). 544 LARCENY. Daly contended that it was not necessary that the property should be . ntlrely divested. If tlie mare was lodged as a security, and got buck by a contrivance, that would amount to a larceny. He referred to Begina v. Wakin$on,\ and Begina v. Bramley? The recorder did not stop the case on this objection; but at its closa, tne bill not being produced, he was of opinion that without it there wa* no caie, therefore directed a verdict of -Z^*" »«»">'• § 484. Ooods must be Taken f'um Owner — Ohani^ngr Piles of Ore or Manufactured Property. -Thus for miners to remove ore from the heaps of other miners to their own, in order to increase their wages, the ore still remain- ing in the possession of the owner, is not larceny. And the same has been held as to manufactured gloves.' In B. v. Wehh & Moyle,* the indictment charged them with stealing one hundred pounds weight of copper ore, the property of Stephen Davey and others. It appeared in evidence that Stephen Davey and others werethe adventurers in a mine called the Consolidated Mine. The pris- oners and twc oVwv" - "re tributers In their mine, but not adventurers. The prosecutors < f the . .nt were Cornish, and three others, who were also tributers in the u: 'i ■■ adventurers. It appeared that tributers (gener- ally In companies of I'jur; t^ke from the adventurers a certain number of yards in the mine, called a pitch, from which they dig out ore, and throw Into a Leap or pile in some i.: i'., w'lence tl ey convey it along the level to a shaft, and so up to the surface. There .. - tak , the adventurers, and the tributers do not interfere further. The t.lbutcift a;? paid according to their agreement, so much in the pound on the selling pi ice of the ore; where it is very good they receive a smaller sum than where if is Inferior, because the quantity of labor (which la what they contribute) produces a more valuable commodity in the one case than the other. The prosecutor's pitch contained better ore than the prisoner's. The prosecutors received £2 4d in the pound from the adventur- ers ; the prisoners 6s 6d. It was proved satisfactorily that the prisoner had taken a large quantity of ore from the prosecutors' pile and added it to tbeir own. Ealcomb, for the prisoners, contended, (1) that the property was not c*'- rectlylaid; for that whether the ore belonged partly to the adventurers and partly to the tributers (as the captain of the mine had stated in his evidence), or to the adventurers only, yet they were not partners, or a joint stock com- pany, or joint tenants, or tenants in common, within the Statute 7 George IV .« The learned judge thought there was nothing in this objection; but as he re- served the second point, he mentioned this also. 2. That by taking ore out of one pile and putting it In another, the prisoners did not steal from the adventurers, for both piles remain in tne possession of the adventurers, If the tributers be but servants; and if the tributers be tenants In common, still as both piles were intended to come, and ultimately would come. Into the hands of the adventurers, there could be no stealing from them. Bogitra, for the prosecutors, answered, that the adventurers were cheated, for they would have to pay 5s 6d In the pound on the ore removed to the prls- oners' pile, whereas if it had remained in the prosecutors' pile, they would pay 1 B. ft R. 470. S 8 Cox, C. C. 468. » R ». Pool, D. 4 B. 845 (1867). « 1 Moody 431. > ch. 64, lec. 14. ,'S«>S6SS^!S!»«6s.«5^*«»«l-"• -^^^^ ^« •^^^^ - ^o. Where a person employed by another is intrusted with a horse and wagon, and appropriates them to his own use, this not larceny but embezzlement* So if a servant appropriates to his own use bank bills drawnfrom a bank on a check given by his master.* So where money Is given to a person to obtain change for It and he convert. It to his own use, this is not larceny. ■» ^""verw 1 The conviction was held wrong on the •eeodd point. 2 McAfee V. State, 14 Tex. (App.) 668 ' K. V. Brooks, 8 0. 4 P. 896 (1837). ' R. V. Barnes, 1 Den. A P. 66 (1860) ; Lewer v. Com. 15 8. A R. »3 (1826) ; Felter v. State. 9 Yerg. 397 (1838) ; White ». State. 20 W'l*. 236 (1866) : Wilson t>. State, 1 Port. 118 (1^5) ; B. V. Wilson, 8 C. 4 P. IH (1837) ; Miller V. Com., 78 Ky. 16 (1879) ; B. v. Barnes. » Cox, 113 (1850) : B. v.Copeland. 6 Cox, 299 (1851) ; E. V. Braokett, 4 Cox, 874 (1850) ; B. v. Jacobs, 12 Cox. 151 (1872) ; B. t.. Goodenongh. 6 1 ox. 809 (1S53); B. r. Williams. 7 Cox. 356 3 Dkkkxcks. 35 (1857) ; B. V. EB8ex.7 Cox, 384 (1857) ; R. t». Gar- rett, 8 Cox. 886 (1880) ;B. v. North, 8 Cox, 433 (19S1); B. ». Nicholson, 3 Leach, 698 (1791); B. V. Parkes, 2 Leach, 703 (1794) ; B. f. Vai- mer, 2 Leach, 790 (1795) ; B. v. Jackson, 1 Moo. 119 (1826); B. v. Smith. 1 Moo. 473 (18;{6). 'Welsh V. People. 17 111. 339 (1865); Stinsoii f. People, 43 111. 897 (1867). • Boss r. People, 5 Hill, 294 (1843). ' KelJy V. People. « Hun. 509 (1876). • Ennls V. State, 3 G. Greene, 67 (1881). • Com. V. King. 9Cui>h. 2S4 (1852). io B. t>. Beynoldit. 2 Cox. 170 (1847). 546 LARCENY. In R V. Savage,^^ A. went B.'s shop and asked for shawls for Mrs. D. to look at B Riive her live, ol which she pawned two, and three were found at her lodgings. Mrs. D. was not called as a witness. It was held that A. was not gnllty of larceny — the possession of the goods being in her. Ini? V Bileij,-' the prosecutor having b'^en decoyed into a tavern by the pris- oner was induced to lend him money /or the purpose of paying certain losses which he appeared to the incurring at a game of cards with one whom the jury found to be a confederate. The prisoner stated that he was about to receive other funds, and would then repay the prosecutor. This was held not larceny. In B V. Lerj/,' the prisoner was Indicted for stealing a watch. It appeared that the prosecutor and the prisoner had met together at a public house ; when the prosecutor said to the prisoner: "My watch wants repairing, I wish you would take it and repair it." The prisoner took the watch, promising to return it in two or three days. A week afterwards, the prosecutor asked the pris- oner for the watch, when the latter said, it was not ready; and when the pros- ecutor saw him again, he said he had sold It. To this the prosecutor replied: " I will have my watch or the money." The prisoner said: " I will give you either the watch or the money to-morrow. Smith, for the prisoner, submitted that this was no felony :- the prosecu- tor had delivered the watch to the prisoner to be repaired, and on learning that it had been sold, had acquiesced in the sale. Vaughn, B. I think it would be too much to construe this to be a felony. It would have been different If the prisoner had obtained the watch by trick or fraud. Here it was voluntarily delivered to him. ^^^^^^^^ ^^^ ^^^^^ In JB. V. flareej/,* the prosecutor had sent his servant with his horse to Har- lowbush fair, in order to sell It. The prisoner met the prosecutor, to whom he was personally known. "Uiear" says the prisoner, "you have ahorse to sell. I think he will suit my purpose ; and if you will let me have him at a bar- gain, I will buy him." The prisoner and the prosecutor walked together into the fair; and upon a view of the horse, the prosecutor said to the prisoner: "You shall have the horse for eight pounds;" and calling to his servant he or- dered him to deliver the horse to the prisoner. The prisoner immediately mounted the horse, saying to the prosecutor that he would return immediately and pay him. The prosecutor replied: "Very weU, very well." The prisoner rode away with the horse and never returned. The Court. It is impossible by any construction whatsoever to make this case a felony. The case In Kelylng's Reports, where a man rides away with a horse which he had obtained on pretense of trying its pace, was conditional de- livery Major SempWB Case, which is the most recent of the kind, and included in it a consideration. King v. Pear, was a delivery for a special purpose, or. rather a contract of unlimited duration. But in the present case the deliv- ery was unconditional, and the contract was completed. It was a sale and the possession as well as the property was entirely parted with. The prisoner has defrauded the prosecutor of the price of the horse, but not of the horse itself; and the only remedy the prosecutor has is by action to recover the eight pounds but the prisoner can not be Indicted for a felony. And the prisoner was accordingly discharged. 1 6 O. ft P. 143 (1831). > 1 Cox, 98 (1814). 3 4 CAP. Ml (1880). 4 2 Leach.SSS (1788). Ts. D. to look c found at her liat A. was not •n by the pris- ; certain losses whom tho jury jout to receive Id not larceny. I. It appeared c house ; when ng, I wish you Qising to return asked the pris- when the pros- ecutor replied; I will give you — the proseco- m learning that I to be a felony. Itch by trick or ct, notjuiilty. a horse to Har- ;or, to whom he lave a horse to ve him at a bar- ed together into to the prisoner: is servant be or- idiately mounted ediately and pay ,e prisoner rode ver to make this Ides away with a s conditional de- ind, and included special purpose, at case the deliv- as a sale and the The prisoner has the horse itself ; the eight pounds itgly discharged. TAKING MUST BB AGAINST OWNER's WILL. 547 In R. Adamg,^ the prisoner was Indicted for stealing a hat, the pronertv in one count of Robert Beer, in another of John Paul.^ The substanc ,' Je evidence was that the prisoner bought a hat of Robert Beer, a hat maimer at TlTL^ :' Z *'.' T *" •'""'"'^ ""' '=*"^'' '- "' «»'' «^» told U wouW fn,?t WMf k' ^"" '" **"" *" '"°"'' ''"' ^« ^°"''» »°' '"^^^ »' without paying Zl f T ! T"'"* '"'" Beer, Beer showed him . hat which he had made for one John Paul ; the prisoner said he lived next door to him, and asked noon In half an hour or an hour. He then went away, saying he would send his brother's Wife for his own hat. Soon after he went^he me? a boy ^wiom he was not known, the prisoner asked the boy If he was going to iLlnrter, and being told he was going thither, he asked him if he knew Robert Beer here telling hin. that John Paul had sent him to Beer's for his hat, but added that a, he he prisoner, owed Beer for a hat which he had not mone;to pay for, he dJd for his trouble), to take the message from Paul and bring Paul's hat to him the prisoner; he also told h.m that Paul himself, whom he Ascribed by his p kson w„«;''.T ?^ of dress, might perhaps be at Beer's, and If he was tL boj was not to go m. The prisoner accompanied him part the way and then tbf boy proceeded to Beer's, where he delivered his message, and received the hat r":^e.ver.tT''".V' '"'' °' ^'^ ""'' '°^ "'« P^'^^^ *>'»"« desire the pr.sone; received It from him, saying he would take it himself to Paul. The fraud was discovered on Paul's calling for his hat at Beer's about half an hour after Z boy had left the place ; and the prisoner was found with the hat in his possession and apprehended. From these and other circumstances, the falsity ol the prisoner's representation and his fraudulent purpose were sufficiently estab- lished; but It was objected to on the part of the prisoner, that the offense was not larceny, and that the Indictment should have been upon the statute for obtaining goods upon false pretenses. The prisoner was convicted, but the learned judge forbore to pass sentence. AnT "!/;,, rr^fV^' *"' °P'"'°" °' the judges. In Easter term. 26th 5 April, 1812, all the judges were present (except Lord ELLrNBORouoH. Mans- FIKI.D C. J., and Lawrence. J.), when they held that the conviction was wrone that it was not larceny, but obtaining goods under a false pretense, §488. Larceny— Property Parted with through a Fraud.— Nor Is it larceny, though the property be parted with through a fraud.» In JB v Adanu and Hayden,» the prisoners were indicted for stealing a quantity of hams and bacon It was proved that tho prisoner, Adams, came .to the shop ol one Aston, and said he had come from Mr. Barker lor some hams and bacon, and at the time produced a note in the following terms : — "Have the goodness to give the bearer ten good thick sides ol bacon, and four good showy hams at the lowest price. I shall be In town on Thursday next and will call and pay you. "Yours respectfully, "T Parker " Aston, believing the note to be the genuine note ol Mr. Parker, who occasion. ally dealt with him, delivered the hams to Adams, and they were afterward. > B. •. R 9M (18U). 8 Felter v. State. 9 Yerg. 397 (1846) ; K«l- 'ogg t>. State. 36 Ohio St. 15. 1 Den. 38 (18M). 548 LARCENY. received and sold by Hadeu. under clrcum.tauce. whlcU showed -nfflclently a CaL.UUat tie oflense did not ->--*;°;:3\'',"'o:tL oX'i ^ex. v. that opinion. The ioUowln« cas^'« wc.e r^ r ed to o^^ ^ ^^^^ ^^^^ ^^^^^ ^^ Campbe«,«B«x v- »'' -'-' J^^ ^^ p^^' .^held such a case to amount to which It was said, that Baron ramo larceny. . » .{je Jurv, who found both the The learned judge, therefore, le the ^l^^'^^ ^^^^^ ^^^^ence. There was prisoners guilty, but the learned judge ^^J^^^^J^^ ^^^^^, ^.^er. on which T^:;S^r^^:^^^^^ '- requested. Whether the ollense of Adams was a larceny^ ^^^^^^^^ ^^ ^^^ the judges, except pr;:o::V.toK:i™:a J. They were an of opinion that the Cheat the complainant, induced him t^shpgo^^^^ him.^^Ul^^ ^^^ ^^^^^^^^ ownership, on t^VS'^^^^^^J'^.^f ' Je^^^^^^^^^ the freight. The prisoner sell the goods, and account for *»»« P™f ^'!! * ^eld not larceny. larceny.' 5 489. — intent to Steal B^eutlal.-To constitute larceny an Intent to steal IS necessary.' and must be found by t^e J^-J- ^„„^ lekeled pork. in E. V. ^*r''-^«'7^r?r::ru app r^^^^^^^^^ the shop of the some knives and a ^-^ /'^J^^^; " ■'^C^onUwo minutes he returned, re- prosecutor and ran away with the porK. ^° "" . ^ y t^e whole 'placed the pork In a '^o-^-Jf^J,^^:^^^^^^^^^^^ In about half together, threatening de«truct on to ^nj °°« ^ ^„^ ^^^k away the loaf. an hour after, he «-™« J^^f *V?u8t ceTiT^^^^^^^ the jury that the Thi prisoner was acquitted, Mr. Justice i-ixiwi. felonious Intent was not «»f f,«»«/^^^^^^^^^^^ convicted of the larceny of a In Blunt V. Commonmalth,^^ if, ™el asked the instruction that If the watch, on the trial the ^'^^''''^'ll^'^^ZLTt^Te ^^^tch x^\th Jolmson's jury Should find that the ^^'^^^''^'^IZ^^tZXl he would pay for It Jlerk. who delivered It to hm <>; J^J^^j; ^^J^^^^ay with him and failed immediately, and that ^^' ^'''°''''J'"^'^'^" "'^^t L Lrt refused to give to pay for It. in ^-^^^^ed thITurihrt f'^^^^^^^^^ that the prisoner had rdratrrwIh^TrorcK f^the wa^h. in pursuance Of wh^^^ 1 2 Buss. p. 1" (2d. ed.) ; 3d. ed. p. 84. i Moo. C. 0. 1"9. 3 Id. 15S. » 2 Buss. 120 (2d. ed.) (»). M ed., p. ". • 77 N.Y. 114(1879). I United Stotes v. Bob«twn, 6 Cranch C. "■ fwitt V. State. 9 Mo. 761 (1846) ; SUte v. Newman, 9 Nev. 48 (If 73). • B. V. Deerlng. U Cox. 298 (1869) . 1041c. * P. 388(1830). a 4 Leigh. 680; 20 Am. Doc. 341 (18S4). INTENT TO APPROPBIATE EU8ENTIAL. 549 3d Bufflclently a ty of Atkinaon't ed Judj?e vas of ir side: Bex. v. ise v.as cited lu to amount to found both the ace. There was I order, on which ted, whether the e judges, except opinion that the with a design to Ith the indicia o! unce the freight, tit. The prisoner jt larceny. 3., and pretended ;he cigars and ap- was not guilty of •ceny an intent to )me plckeled pork, red the shop of the es he returned, re- ok away the whole ilm. In about half look away the loaf, 5 the jury that the of the larceny of a truction that If the tchwith Jolinson's he would pay for it with him and lalletl urt refused to give lat the prisoner had suance of which the Robwtaon, B Craneh C. Mo.761(lM6); SUteii. If 73). Cox. 298 11869). BO). Am. Doc.34l(18St). watch was delivered upon his promise to pay the price immediately. Intending thnt the prisoner might take the watch away and return Immediately autl pay lor It, then he was not guilty of larceny; but If the jury should llnd that the prisoner obtained the watch by a false and fraudulent pretense of buying it for cash and then carried it away, without the consent or knowledge of the owner'« clerk, then he was guilty of larceny. The prisoner excepted. May, J., delivered the resolutions of the court. 1. That the instruction* asked by the prisoner's counsel was properly refused; because if the prisoner acquired possession of the watch In the manner therein stated, with a felonious intent at the time to carry It away, and appropriate It to his own use, v.iihout paying for It, ho may have been guilty of laM * ny in so doing. 2. That the prisoner's counsel having applied to the court lor an Instruction on the law, and the court having refused to give It in the precise form in which It was asked, it was correct that the court should give one with such .nodlfleatlon ns, In its opinion, was legal and proper. For the court may at all times Instruct the jury on any question of law arising In a cause If, In Its opinion, justice shall re- quire such Interposition. 8. That the Instruction, however, which was given, was erroneous in this that although the prisoner may have obtained possession of the watch in the frauduMmt manner Indicated lu the latter i)art of the In- struction; yet unless he so obtained it and carried it away with a felonious intent at the time, he was not guilty of larceny. The judgment is therefore reversed »nd the cause sent back to the Circuit Superior Court of Henrico for a new trial to be bad ; In which trial If any In- struction shall be moved for on the same subject, or the evidence shall require it, the court Is directed to Instruct the jury, that if they shall find from the evidence, that the prisoner with a felonious Intent obtained possession of the watch by false and fraudulent pretenses, and afterwards carried away the same without the consent of the owner or his clerk, then the prisoner is guilty of larceny. § 490. Goods Must be Taken with Intent to Appropriate them to Prtaoner'B Own Use. — In R. v. Van Alttyen,' the prisoner was tried on an In- dictment for stealing linen, geneva and other articles, in a vessel called the Paulina Maria, in the port of Weymouth, a port of entry and discharge, con- trary to the statute. The goods, specilled in tlie Indictment composed part of the cargo of the Paulina Maria, a Prussian ship of which the prisoner, a natlTe of the United Provinces, but a subject of Prussia, was master, and which had been captured by a British ship, called the Diana. The first count of the In- dictment alleged the property of the goods to be in the owners of the Diana; the second count, In the master of the Diana; the third count, in the agents of the Diana; the fourth count, in one Saxton, who had been appointed the ship, keeper for the prize ; and the fifth count, in the king. The Paulina Maria was taken under Prussian colors on the 6th of October, 1806, betwixt which day and the 9th of October she was brought Into Wey- mouth. She was taken on suspicion of being Dutch property. The Diana had letters of marque and reprizal granted to her on the eight of October, but they were not against Prussian vessels. On the 8th of November, 1806, there was a decree in the Court of Admiralty for restitution ; on the (ith of April, 1806, an embargo was laid on Prussian vessels; on the Uth of May, following. His Ma- 1 R. AR. nsdsoti). «8WS^IIft:tJr«ffi&i7»S«8«?-fl*W*<«*A', ^ vift^^'^f." 650 LAKCKXY je8tv'8 proclamation Issued for reprl/.al8 against Prussia, «°;\°» ^h^ JOf " of July the Court of A.lmlralty rescinded the decre. of restl ut on of the 8 h of Noveu.ber. pronounced the vensel and cargo at the tln.e of the cap are to have belonged to Prussian owners, and condemned them as prize to the Wng taken before the commencement of the hostilities against Prussia. It appeared that the prisoner, who had lodgings In Weymouth ^'j f^-^rut on board the prize, and was seen there on the 10th or lUhof Ju y. About nine of the crew and two of the custom-house officers were kept on boa'd t the cargo was kept below the main hatches, which were locked np and Saxton, who on the 10th of October, 1805. was appointed the ship-keeper, kept the leyZ the hatches. Betwlx't the 10th and Uthand the 10th of July, the prop- erty in the indictment was conveyed away from the ship, some violence hav^^ ng been used In breaking a bulk-head to get at part of It, and the loss was dis- covered on the 15th. on which day the prisoner had purchased two trunks and on the same day had sent the trunks to a carrier to be forwarded to London the direction being of the prisoner's handwriting. On the 16th some sea chests dlrec ed in the sle manner had also been sent by the prisoner to the same caSr The chests and trunks were forwarded to Dorchester, to he ware- hoe of the London carrier there on the 15th and on the 16th, on which atter day a search was made at the carrier's warehouse at Dorchester and great part of the stolen property was found in the trunks and chests, and some Russian colors, which the prisoner on his apprehension said he had taken from the ship wc^e also found on searching his lodgings at Dorchester. The Prlsone was found guilty, but upon a doubt whether his regaining the possession in the manner above described, of the goods, which ha.l belonged to his owners, and had been entrusted to his care as master of the vessel, ««"»d b« <:onsidered as a larceny, Chambre, J., forbore to pass sentence, and reserved the point for the oplnionof the judges. .„„ t \ «« At ameetmgof all the judges (except Mansfield, C. J., and H^ath, J ), n Michaelmas term, the 15th of November. 1806. the majority of ^'^"^^-^^^J *° think that if the prisoner had taken the goods for the purpose o converting them to his own private use, it would have been larceny but not otherwls . And there was no evidence to show whether he took them for his own benefit or for his ownars. The judges did not come to any formal decision on the point, and no judgment was given, but it was agreed to be proper that the prisoner should be recommended lor a free pardon. I 491. open Taking. -Therefore an open Uklng negatives the Idea of an iubcui to steal.' § 492. intent to tJae and Return Property. -A party taking property Intending to use and return It is not guilty of larceny." 8 493 TaklnB Horse with Intent to Return It. - In ffumphrey v. SUxte,* the evidence tended to show that the prisoner took a horse intending to borrow if that he turned It loose, after riding It some distance, and headed It toward 1 Stuart V. People, 73 111. CO (1874) ; Wat- kins V. State, 60 MU». 323 (18S2) ; McDanicl v. State. 3S Tex. 420 (1870) ; Ltttlelohu t>. State, 69 Mias. 27S (1881). « Com. V. WllBon, 1 Phlla. 80 (1860) ; State t'. South, 28 X. J. (I-) 2S (1869) ; Stote v. SeH, 1 Bay, 243 (1793) ; LitUeJolin v. State. 69 Mi88. 278(1881). 3 63 Iiid. 223. mamiimmmmem-.' ii^ai INTENT TO Al'PUOl'KIATE K88KNTIAL. 651 on the 10th of Hon of the 8tli the capture to prize to the 8t Prussia. It cnt sometimes [ July. About , on board ; the up and Saxton, epcr, kept the July, the prop- rlolence having e loss was dln- wo trunks, and ded to London, lome sea cheats dur to the same ;r, to the ware- on which latter , and great part cl some Russian taken from the , The prisoner ossession in the his owners, and considered as a le point fertile 1 HiiATH, J.), in «,hcm seemed to se of converting t not otherwise, his own benefit, I decision on the proper that the tires the idea of taking property tmphrey v. State,* ending to borrow headed it toward Phila. 80 (1860); J.) 2S (1889); stater. itUe]ohn v. State, 59 home, thinking it would return thither, and nothing appeared to Indicate any felonious Intention In the taking of the horse. It was held thiit a conviction of hirceny could not be sustained. So In an English case It was held not larceny totaVx a horse and ride hini forty miles, and then leave him, there being no at- tempt to sell or dispose of hliii ■ In Berg v. State,^ it was held that tho fraudulent appropriation was not proved, Winklkr, J., saying: "Theft Is the fraudulent taking of corporeal nal property, belonging to another, from his possession, or from the pos. .on of some person holillug the same for hlin, without hU consent, with In- tfut to deprive tho owner of the value of the same, and to appropriate it to the use or bencflt of the person taking." •' The general rule Is that ' the taking must bo wrongful, so that. If tho prop- erty came into the possession of the person accused of ♦' tlieft by lawful means, the subse(|uent appropriation of It is not theft.' "But if tho taking, though originally lawful, was obtained by any false pre- text, or with an Intent to deprive the owner of the viihio thereof, and appro- priate tho property to the uso and benefit of the person taking, and the same is so appropriated, the offense of theft Is complete.' « " Where the taking is originally lawful, the article of the code quoted above requires, not only that the possession be obtained by means of .some false pre- text, or with an intent to deprive the owner of the value thereof, and appro- priate the property to the use and benefit of the person taking, but also that, in order to render the offense complete, the property mu.st be so approprlati-d, as set out In the article quoted. " In order to a proper understanding of this opinion, the following extract Is ■in from the testimony of the prosecuting witness. He snys: " I know the idant; he came to my stable on the morning of the 23d of last August V .6), and said he wanted to hire a horse to ride to the San Pedro Springs, and would be gone from an hour to an hour and a half. I had the bay mare saddled up for him, and he rode off. Before leaving, he asked mo if it made any differ- ence If he paid me then or on his return. I told him that It mar'-j no difference. He h*d a bundle in his hand, and asked if he could leave it until his return. I told him he could; he loft the bundle on my desk. I waited for the defendant to return until about noon. I then went to see if I could find him or hear any- thing of him. I found he had not been to the San Pedro Springs at all that day I could not find him anywhere. I did not see him again until after he was ar- rested and brought back from Austin. In eight or ten days after the defendant got the mare, I received a telegram from New Braunfels, from a friend of mine, stating that my mare was there, In the stable of a boardlng-houso or hotel. I sent for the mare and recovered her. Tho defendant had left New Braunfels and gone on to Austin. The mare Is now In my possession. • * • I never authorized the defendant to ride tho maro to New Braunfels, or any other place than San Pedro Springs. This mare was worth seventy-five dollars. • • • All this transaction took place in this (Bexar) county, in August of the present year" (1875). " One of f^ar witness testified in the case, who corroborated the statements of the prosecuting witness as to the circumstances under which the accused ob- 1 R.V. AddU, 1 Cox, 78 (1844;. And see Jobnion v. State, 36 Tex. 373 (1871J. »2Tex. (App.) 148(1877). • Penal Code, art. 74.1 ; Pasc. Dig., art. 2381. * Penal Code, art. 748 ; Pasc. Dig. , art. 2381. 552 JUAUCENY. tained the mare, and the purpose for which he said he wanted a horse — namely, to rkle to Sau Pedro Springs. This is substantially the testimony, so far as it relates to the connection of the accused with the mare, and the cir- cumstances under which he obtained possession of her. " One of the grounds of the motion for a new trial is set out in the motion, as follows : ' Because the verdict of the jury was contrary to the law a id contrary to the "evidence.' " If one person hire or borrow of another a horse or other animal to ride, the possession acquired in such a manner would be a lawful possession ; but if such possession was obtained by the use of any false pretext, by which the owner was misled or deceived, and induced to part with the possession of his prop- erty, and with the intent mentioned, this would not amount to theft unless the taker of the property thus acquired would go one step further, and make an ap- propriation of the property so taken to the taker's use and beneflt,^which might be done in various ways known to the law, so as to deprive the owner of its value. " In the present ca je, whilst the evidence shows that the accused obtained the possession of the mare under the false pretext of vr^shing to ride to the San Pedro Springs, and that he did nut go to the place mentioned, but instead went to another and different place, and to a greater distance from the place where he obtained the animal, and from which the jury might well have found that; either at the time or soon after he obtained possession, he intended to fraudu- lently appropriate the property to bis own use, and thus deprive the owner of its value, still, the possession having been obtained with tiie consent of the owu jr, he can not legally be Convicted of the theft of the mare, for the reason that the evidence does not show an appropriation of the property, which is an Indispensable ingredient of the offense of theft of property, the possession of which is thus acquired. " Interpreting the intentions of the accused by his acts and conduct in relation to the animal in question, the proof, we think, tends to show an intention to ride to a different place than the one mentioned when he hired the mare rather than an intent to appropriate the property to his own use, or to permanently deprive the owner of its value — to steal a ride rather than to steal the animal. There is no proof that an appropriation, in contemplation of law, was made of the property, nor proof of any fact or circumstance which would have author- ized the jury to infer that such appropriation was made. "The case would, doubtless, have been different if the party had been taken with the property in his possession, and conveying it in a different direction or to a greater distance, than was made known to the owner at the time he parted with the possession, as, in that event, the jury might well have inferred from the conduct of the accused an intent to deprive the owner of his property or its value, and have interpreted his acts as an appropriation; but, when It is shown that he had parted with the property under such circumstances as tend to show an absence of an appropriation, the verdict was contrary to the law and the evidence. Wc hold, therefore, that the court erred in refusing a new trial, and for this error the judgment must be reversed. " On the trial below, an instruction was asked, by the counsel for the accused, to be given to the jury, which embraced a correct principle of law applicable to the case, and which was refused by the court. In this we find no error, for the reason that the substance of the charge asked and refused, was given in the ^rfta INTENT TO STEAL ESSENTIAL. 553 I he wanted a horse — itially the testimony, so I the mare, and the cir- set out in the motion, ae to the law and contrary other animal to ride, the 1 possession ; but if such jxt, by which the owner possession of his prop- ount to theft unless the further, and malce an ap- md beneflt,^which might eprive the owner of its the accused obtained the ling to ride to the San tioned, but instead went ce from the place where lit well have found that; , he intended to fraudu- lis deprive the owner of rith tiie consent of the the mare, for the reason he property, which is an operty, the possession of ts and conduct in relation to show an intention to he hired the mare rather m use, or to permanently than to steal the animal, tion of law, was made of 'hich would have author- le. the party had been taken in a different direction lie owner at the time he might well have Inferred the owner of his property >priation; but, when it is jh circumstances as tend as contrary to the law and d In refusing a new trial, le counsel for the accused, iciple of law applicable to :s we find no error, for the refused, was given In the rca.u charge of the court. In view of another trial, however, and the peculiar facts of this particular case, should the evidence still be the same, the court might well give more prominence in its charge to the subject of an appropria- tion of the property, which is, we thinls, the vital point In the case. " Counsel for the appellant insist, in argument, that the indictment in the case is sufficient to support a conviction, under the peculiar circumstances of the case, as developed by the evidence, and whilst It is conceded that it would be sufficient to charge an ordinary theft, yet, Inasmuch as the proof shows the or- iginal taking to have been lawful, and could only have become criminal on ac- count of the intention and subsequent acts of the accused, the indictment should have stated the facts as they existed; and, in support of this proposition, we are referred to the case of Marahall v. State.^ In reply to this position, we deem it sufficient to say that in more recent decisions, the ruling in MarshaWs Case, has not been followed, either by the Supreme Court or by this court. We regard the law as being settled against the position contended for. It is sufficient for the Indictment to charge theft in the usual form, and under such an indictment proof could be admitted of a fraudulent appropriation of prop- erty, the possession of which had been lawfully acquired, but under circum- stance? otherwise amounting to theft. The subject is one of proof, not of pleaoing. See Jtfaddox v. iS«a«e,* and authorities there cited. " For reasons above stPl- \ the judgment is reversed and the cause remanded "Bfiversed and remanded." J 494. Intent to Steal Kssentlsl — other Motives— Alarm. — In JTad- ley's Case,' the prisoner, intending to steal fowls, brolce open a hen house in the night, but being detected, fled, carrying away the padlock in his hand. It was held that if he carried it away from fear or alarm, or any other motive except to steal, he could not be guilty of the larceny of the padlock. § 4!»5. Aldlngr to Bacape. — So a person stealing otlier property and tailing a horse, not to keep it, but to aid his escape, is not guilty of stealing the horse.* In State v. Tor*,' an Indentured servant, to escape from his master, mounted a horse which he found hitched on the road, and after riding him to the nearest town, abandoned him. This was held not larceny. § 496. TWdner In a Joke. — In Devine v. People,' the prisoner was drinking in A.'s saloon, when one of the party gave a dollar bill to the bar- tender, who gave back the change and put the bill in the money drawer, which was left open. While the bartender was stooping down to get a bottle from under the counter, tlie prisoner reached over and took the bill from the drawer. He made no attempt to secrete it, but at once released It with the remark that it wac done In fun. This was held no larceny. ««The defendant," said the court, " on the trial swore that he took the bill In fun, and all the circumstances surrounding the act tend to support his assertion. Similar acts of taking money or small articles of property from associates in joke situated as these . ersons were at a saloon counter on a drinking bout, are of almost daily occur- 1 31 Tex. 471. 2 41 Tex. «06. 3 5 City Hall Rec. H (1820). * R. t>. Cramp, 1 C. ft P. 6S8 (1825). » 6 Harr. 473(1851). • 20IIun,98(1880). 554 LARCENY. rence. Such conduct is silly, and frequently leads to altercation, but it falls far short of larceny in the absence of all proof of secret action, or of evidence tending cleur'v to show an intent to deprive the owner of his property. § 497 Intent to Induce Criminal Oonneotlon. — In R. v. Dickiraon,^ the prisoner w.w Indicted for stealing a straw bonnet and some other articles of female apparel. It appeared that ho had entered the house where the things were la the night, through a window which had been left open, and took the things which belonged to a very young girl whom he had seduced, and carrl.d them to a hay mow of his own where he and the girl had twice before been. The iury thought the prisoner's object was to Induce the girl to go again to the hay mow that he might again meet her there, and tliat he did not mean ulti- mately to deprive her of them. It was held that he could not be convicted. § 498 Taking Part ot OoodB Seised on Breoution. — So the owner of goods attached Uklng part of them from the officer, but intending to leave enough to satisfy the claim. Is not guilty of larceny." 8 499 servant OlvlnB Away Ooods in Charity. - So when a servant gave away certain old and used property of his master as an act of charity. It was held no larceny by the servant.' The court said: This was a prosecution upon information for petit larceny. The information charges the defendant with stealing one set of butcher's iron scales, and one butcher's meat saw, the property of George Nicholas, the prosecutor. On the trial the prosecutor tcs- tlfled in substance that he was a butcher, that the defendant was In his employ- ment in February, 1873, and had charge of his slaughter-house and everything In if that among other things there was a set of butcher's scales; that he looked for them to have them repaired, and asked defendant if he knew where they were, and he replied that he did not know; there was also an old butcher s saw, which was broken, bat the bow remained ; that he missed that at the same time. On the 9th of April he saw these articles In the possession of Christ Meyer, a butcher keeping a stall in the Mound Market in St. Louis. Christ Meyer was then introduced, and in substance testified that he was a butcher; that some time in January, 1873, he went to the shiughter-house of prosecutor where defendant was employed; that he had before that time done some work there, and on this occasion he told defenfant he was about to com- mence butchering for himself, and as he was poor he weald be thankful to him, if be would assist him a little. He asked whether there were not some old tools there which he did not use. Defendant replied there were an old set of scales and a butcher's saw lying around there, which he did not use and that witness could have them. Witness afterwards called and defendant gave him tlie scales and saw, and he took them and repaired them and used them; he paid 91 .26 for repairing the scale and H for repairing the saw. When he got them they were useless, broken and battered. After they were repaired they were as good for use as new tools. Afterwards, about two weeks before the trial, the prosecutor came to witness' pUU at Mound Market, and said the scales and saw were his. Witness replied that he could have them if he would pay for the repairs; the defendant who gave them to witness took them away. 1 B. V. R. 419(18205. S Com. f. Greene, 111 Mm«. 8M (1873). 3 Bute V, Fritchler, 54 Mo. 434 (1873). ^^m INTENT TO APPROPRIATE PIJOPERTY. 555 but it falls far or of evidence ipcrty." . V. Dickirson,^ ther articles of here the things I, and took the ed, and carried :e before been, go again to the not mean ulti- e convicted. So the owner of inding to leave when a servant ct of charity, It is a prosecution I the defendant >s meat saw, the prosecutor tes- ts In his employ- nd everything In ; that he looked mew where they d butcher's saw, it the same time. Christ Meyer, a ed that he was a aughter-house of ■e that time done as about to com- thaukful to him, •re not some old ere' an old set of lOt use and that endant gdve him d used them ; he N, When he got !re repaired they weeks before the ket, and said the them if he would took them away. 4 Mo. 434 (18T3). Christ Hill was introduced as a witness and testified in substance to the same purport as the preceding witness. This was all the evidence given or offered on the part of the State. The de- fenflanii aoked the court to declare tliat upon the evidence given he was not guilty of larceny. The court refused this instruction. The defendant then in- troduced several witnesses who testified to his good character for honesty, etc. At the close of ail the evidence, the defendant asked the court to declare the law to be that " if it appear from the evidence, that the defendant while in the employ of the prosecuting witness, did in good faith and out of charity, give the articles in the complaint mentioned to a poor person in need of assistance, and that these scales were of no value or of very small value, and not being used or needed by his employer and without any intent to convert them to his own use, then he is not guilty of larceny." The court refused this declaration and found the defendant guilty, the case having been submitted to it sitting as a jury. Thfi defendant excepted to the several rulings of the court, and filed a motion for a new trial which was overruled, and he has appealed to this court. ■There is not a particle of evidence in this record to establish the defendant's guilt, there Is a total want of proof of the animus furdndi, the very gist of the of- fense charged. It is the very soA of evidence upon which he might have re- lied to rebut the charge, if there had been any proof to establish it. It is very true that he had no legal right to exercise charity on the credit of his em- ployer; but in doing so he only laid himself liable to a civil action for the value of the goods, there being no felonious Intent whatever to convert them to his own use. The court erred in overruling the demurrer to the evidence, and also in re- fusing the instructions asked by the defendant at the close of the evidence. Judgment reversed and the cause remanded. The other judges concur. § 600. Intention to Deprive Owner of ProiMrty Permanently Neoas- •iry. — In R. v. Guernsey,^ the prisoner was indicted for stealing ten pieces of paper, value one penny, the property of the Queen. A dispatch of a very Im- portant character had been received by the government from Sir John Young, the Lord High Commissioner of the Ionian Islands, on the 10th of June, 1857, and another on the 14th of July, 1868, which came Into the hands of Sir Edwayd Lytton, the Colonial Minister, In the month of August. A certain num- ber were printed at the private printing office of the government, and which were marked '< private and confidential," and were Intended for distribution among the members of the Cabinet ; and twenty-eight copies of these dispatches were delivered at the office of the librarian at the Colonial Office for that purpose, and given to the sub-librarian. He placed them on a table in the office. The pris- oner frequently visited Mr. Miller at the Colonial Office, and they were on ex- tremely intimate terms. About the 28d of October the prisoner, it appeared, called upon him at the Colonial Office ; and after that they had had some con- versation together he had occasion to leave the library for a short time, and when he went out Guernsey was standing by the flre. Mr. Miller returned In a few minutes, and at this time he observed that the prisoner was standing close to the table apon which the dispatches were lying, with a large book upon tbem; and when the prisoner daw hlni, he exclaimed, <■ I have not been prying 1 IF. AF. :»4(1»8). t£jai''fcitlIlii. mH H am»¥ " n^ 556 LAKCENY. into your secrets; " to which Mr. Miller replied, that he did not suspect that he was doiug so. The prisoner remained a short time longer with Mr. Miller, and they Ijoth left together. Shortly afterwards the prisoner sent one of these printed copies to the editor of the Daily News newspaper, with a note signed by the prisoner and marked " private," requesting that the dispatch might be Inserted in the Daily News, and stating that no other journal had received a copy. The editor had not had any previous acquaintance with the prisoner. Before he gave directions that the dispatch should appear In the Dally News, he wrote to the prisoner at the address in Regent Square, mentioned in his letter, and received a reply from him sUting that it was " all right," but he did not wish his name to be men- tioned in any way as connected with the publication of the document. After the receipt of this letter the editor directed the publication of the dispatches in the Daily News, aud they appeared on the 12th of November. About the middle of the following week, the editor having previously received a communication from the Colonial OfBce, wrote to the prisoner, requesting him to call upon him. The prisoner called on him, and introduced himself as the person who had sent the Ionian dispatches. T je prisoner then stated that a person had left them at his house, and he pressed the witness not to give any further Information. The witness who produced the paper, stated that the only object for which the dispatches were sent to him as he understood, was that they might be pub- lished in the Dailv News. There was no pecuniary inducement for the act, buf it rather appeared that the prisoner bore some resentment to the Colonial Minister for the refusal of an appointment. Parry, Serjeant, submitted there was an utter absence of any felonious in- tention on the part of the prisoner, and that it was clear that the only object he bad in view was that the contents of the dispatches should be made public. He urged that there was no evidence to show that the prisoner intended perma- nently, to deprive the Colonial Office of the property in the dispatches, and cited Regina v. Thornton. Martin, B. It is a question for the jury, with what intent the prisoner took the dispatches. The question you have to decide is, whether the prisoner, in taking these dispatches in the manner it appears to be admitted he did it, was guilty of the offense of larceny. The offense consists in the taking away th* property of another without his consent, and with the intention at the time to convert that property to the use of the taker. Such documents as those are clearly the subject of larceny, and inasmuch as the stealing of the paper itself would have been a felony, the fact of the paper being printed on, makes no difference, and Indeed this fact might In a great many instances materially in- crease the value. And the only question you have to decide is, whether the evidence establishes to your satisfaction, that at the time the prisoner took the documents away from the Colonial Office, he intended to deprive that office of all property In them, and to convert them to his own use. *^ "^ ' Verdict, not guilty. I 601. Intent Must Exist at Time of Taking. —The intention to convert the property to the person's own use must exist at the time of the taking.' 1 R. •. Hore, 8 F. 4 F. 815 (18*8) ; R. v. Manh, 8 F. * F. Ka (1868) ; R. »'. l-eppard, 4 T. A F. 51 (1864) ; State v. Stone, 68 Mo. 101 (1878) ; WUion v. People, 89 N. T. 469 (1868) ; Langley'B Case, 4 City Hall Rec. 189 (1819); Spivey V. SUte, 26 Ala. 90 (1885) ; Fulton ». •^^ yiA^fk^fi^iil :iS*v^)a!B!i!«SBSIS*»l««fWJ»«^^ ^rfH INTENT MUST EXIST AT TIME OF TAKING. 557 uot suspect that with Mr. MlUer, id copies to' the he prisoner und irtcd in the Daily The editor bad le gave directions the prisoner at ived a reply from name to be men- iocuraent. After the dispatches in About the middle a communication to call upon him. son who had sent 1 had left them at Information. r object for which liey might be pub* her appeared that r the refusal of an ' any felonious in- the only object he made public. He r intended perma- ipatches, and cited the prisoner took er the prisoner, in tted he did it, was le talcing away th* tion at the time to ments as those are of the paper itself ited on, makes no ices materially in- de is, whether the ) prisoner took tlie prlve that office of 'erdiet, not guilty. itention to convert of the taking.! ile,89N.T.«9a868); ^Hall Rec. lS9(18ie); i. 90 (18SS) ; Fulton *. Thus, where property was delivered to the prisoner under a contract of sale, part of the purchase-money to be paid on time, and the purchaser to retain and use the property meanwhile, and there was no pretense that at the time of the sale he had a felonious intent, he could not be held guilty of larceny from the fact that, after keeping and using the same for several months, under the con- tract, he carried it away without completing the payment.* So, where tlie prisoner received certain material to be made up into coats and return to the party furnishing it, and he made it up, but was afterwards persuaded to sell it to a peddler and absconded with the proceeds, he was held not guilty, if at the time he received the goods be did not Intend to steal them.' So, one who, after selling and transferring a note and mortgage executed to him, and after notice of the transfer given to the mortgagor, receives the amount due on the mortgage, and converts it to his own use, is not guilty of stealing the money.' Where a cotton picker had the right to retain possession of what he picked until it was weighed at tlia close of the day, the mere fact that after picking it he secreted it, did not justify a finding that he had the intent to steal It at the time of picking it.* A person hiring a horse from a livery stable and taking It away and afterwards selling it is not guilty of larceny, unless at the time he hired it he intended to steal it.^ So where a person is overpaid money but does not discover it until subse- quently when he converts it he is not guilty of larceny.* For a gamekeeper to take a gun from a poacher and afterwards to convert it to his own use is not larceny.' If a man takes a letter sbpposing it to be for him, and on finding it is not, appropriates property it contains, this does not make him guilty of lar- ceny, there being no animutfurandi when he first received the letter.* In B. V. Jones,* the prisoner, who was not before in A.'s service, was em- ployed by A. to drive six pigs from B. to C. On the way he left one at D.*a stating that it was tired, which he subsequently told A. A. then told the pris- oner to go out and ask D. to keep the pig for him. A. went and sold the pig to D. This was held no larceny. So in B. v. Evans,^'* A. delivered a waistcoat to E. to take to R. to be washed. E. delivered it to R. as his own, and it having been washed and returned to E., he converted it to his own use. There being no intention on E.'s part to convert it when he obtained the possession from A., it was held no larceny. InR.v. Bank,^^ the prisoner borrowed a horse under pretense of carrying a child to a neighboring surgeon. Whether he carried the child thither did not ap- pear; but the day following after the purpose for which he borrowed the horse was over, he took the horse in a different direction and sold it. The prisoner did not offer the horse for sale, but was applied to to sell it, so that it was pos- sible he might have had no felonious intention till that application was made. State, 13 Ark. 168 (18B2) ; People v. Stone, IR Cal. 369 (1860) : People v. Smith, 16 Cal. 280 (l^:t) ; People «. Jersey, 18 Cal. 837 (1861) ; Uinphrey v. SUte, 63 Ind. 228 (1878) ; Snell ». State, SO Oa. 210 (1873) ; Hart v. State, 67 Ind. 103 (1877) ; Beatty v. State, 61 Mite. 18 (1883) ; Wilson V. People, 1 Cow. Cr. Rep. U9 (1«W). 1 state V. Shermer, S5 Ho. 618 (1874) ; R. v. Threutle, 2 C. A K. 842 (1840). In this case A. delivered his watcb to B.,awRtGbinaker, to regulate. B. converted it to bis own use. It was beld not larceny. * Abrams v. People, 6 Hun, 491 (1876). a SUte V. McDougal, 20 Wis. 482 (1866). 4 Lyon V. Sute, 61 Ala. 924 ( 1878) . » R. V. Cole, 2 Oox. 841 (1847). • Bailey v. SUte. 68 Ala. 41S (1877). 7 R. V. Halloway. 5 C. A P. 534 ( 1833) . • R. ». HueUow, 1 Moo. 160 (1827). * C.AM. 612 (1842). I" C. A 51. 032 (1842). 11 B. A R. 421 (1821). MwflWW™^*^"' •^'"^tuvsMmK iim m i»mm ■ W'JM MW l "WB»fr^ 558 LARCENY. The iury thought the prisoner had no felonious intention when he took the horse ; but as ft was borrowed for a special purpose, and ^^at purpose ^as over when the prisoner took the horse to the place where he so d It, the learned 7ud"e thought it right upon the authority of 2 East's Pleas of the Crown,« and Kseivfo submit to the consideration of the judges whether the »uj'^«^qj°t '^ disposing of the horse, when the purpose for which it was borrowed was no longer in view, did not include in it a felonious takiug. In Easter te™, 1821, the judges were of opinion that the doctrine aid down on this lub ect 'm 2 East's Pleas of the Crown,* and 2 Russell/ was no correct. They held that If the prisoner had not a felonious intention when he originally took the horse, his subsequent withholding and dispos ng of It did not cottimte a new fei;nlou8 taking, or make him gnilty of felony; conse- auently the conviction could not be supported. ^ in Lck V. State,^ it appeared that a ^^^^ »»«»f <^''™; ^^J^! '^s she re land and herded with his cattle; that at first he drove her off, but as she re- turned, he flnaUy kept her. Held, that to constitute larceny, it must appear that the respondent intended to appropriate the heifer to his own use when he first took possession of her. Held, also, that a charge which o^'y "»« «J ^^j if the respondent had such intent when the heifer first came npon his land he was guilty of larceny, tended to mislead the jury, since it did not, of necessity, rggS the conclusion that if the Intent was formed afterward, the conversion ''t'i'v^S'the evidence showing that the defendant had borrowed a wagon and horses and afterwards attempted to convert them to his own use, TeW. that no conviction could be sustained on the indictment, founded on sec- tion 26. page 466.» unless the State showed that the intent to stea existed when the property was taken ; that no conviction could be had on this in- ' .t though the evidence might have warranted a conviction had there bee-. ,. unt in the indictment founded on section 37. page 469.» in So« V. Stau,* it was held that the intent at the time ol taking was not proved. The indictment was for the theft of a horse. Henry Brown, for Jie State, testified in substance that he lived in Lampasas County; that he got ac- quain\ed with the defendant on the « trail; " that about Januaiy »« • "f ' Jf; defendant was living at witness' house, and had a horse in his lot ^"ch d^^^^^^^^ ant intended riding to Belton. Bell County, to see his mother ; that his horse sot out of the lot, and the witness loaned the defendant his, the witness', horse Shun for defendant's. The defendant searched for two days without success, ^dtoen importuned the defendant to lend him his horse to ride to Belton on a Xlt to his mother, promising to return in a week The^itne-s refused a* aZ bnt his wife interceding with him for the d«*e°i''»t. ^e flnaUy con.ent,d a." directed the defendant to occupy two days in making the trip to Belton. as the disSnce was too great for a single day's ride. The witness heard nothing 1 pp. 090, 694. i pp. 1089, lono. In 2 Rusi. 1089 it !■ said that "In the case ot a delivery ol a horse upon hire or loan, if such a delivery were obtained bona fide, no BubBequeut wrongful conver- sion pending the contract will amount to felony; and bo ol other goodB. Bnt when the purpose ol the hiring, or loan, for which the delivery was made, has been ended, fel- ony may be committed by a conversion of the goods. 3 pp. 690, 69S. « pp. 1089, 1090. > 63 Ind. 28S. • 68 Ho. 101. ' Wag. Stat. « Wag. Stat. * V. Tex. (App.) 3M (1882). MM ^^M FINDER OF LOST GOODS. 559 lien be took the arpose was over it, the learned bhe Crown,' and > the Bub'jequent irrowed was no itrlne laid down issell/ was not tention when he iposing of it did t felony; conse- the respondent's Ef, but as she re- , it must appear >wn use when he only btated that pon bia land, he lot, of necessity, 1, the conversion had borrowed a I to his own use, , founded on sec- leal existed when I this In-" ^t, lere ber- r /- Jnt of taking was not ry Brown, for the ; that be gotac- lary Ist, 1882, the lot which defend- er; that bis borse he witness', borse I without success, Ide to Belton on a rltness refused at flnaUy consented, trip to Belton, as ess beard nothing I by a conversion of of the defendant or his horse for two or three weeks, and grew uneasy. He wrote to Belton several times but failed to get replies to his letters. He finally received a letter from B. D. Johnson, saying that Ills horse was sick, but he would return him as soon as lie could travel to Lampasas. The witness after- wards got his horse from Mr. Markley. A. Markley testified for the State that he bought the horse in question from the defendant. When he bought him he was so poor that he could scarcely stand on his feet. The witness had seen the defendant riding the horse for two or three week*. The defendant claimed that the horse was bis. White, P. J. It is well settled in this State that under an ordinary Indict- ment for theft a conviction may be had on proof wliicb shows that the taking, though with the owner's consent, was obtained by false pretense, or with intent to deprive the owner of the value of the property, and appropriate It to the use and benefit of the taker.' But it is also equally as well settled that, in order to sustain a prosecution for theft when the taking was originally lawful, the proof must show that the taklns was obtained by some false pretext, or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker.' The Intent is the gist of the offense, and sucb Intent must exist at the time of the taking; for If the ln*nt did not exist at the time of the taking, no subsequent felonious Intention will render the previous taking felonious." Whilst there was no error in the portion of the charge of the court which is complained of, — the same being in harmony with the rules of law above enun- ciated, —we are of oplnlnlon that the facts shown In evidence do not establish a fraudulent Intent at the time appellant obtained possession of the horse, nor do they esUblisb the fact that the borse was obtained by means of a false pretext. Becanse the evidence Is Insufficient to support the verdict and judgment, the judgment Is reversed and the cause remanded. Ber>«r$ed attd remanded. § 602. liOBtOooda— Finder not Oulltyof likrceny. — Stated broadly (the cases below illustrate the limits of the rule) a finder Is not guilty of larceny.* In B. V. MartKa Leaves,^ the child of the prisoner found six sovereigns In the street which she brought to the prisoner. The latter counted it, and told some bystanders that the child had found a sovereign, and offered to treat them. (1882). I Penal Code, art. 727; White v. State, 11 Tex. 769; Smith v. State, 35 Tex. 738; Mad- (lox V. State, 41 Tex. 20S ; Reed v. State, 8 Tex. (App.) 40; Spinki v. State, 8 Tex. (App.) 1?9; Jones V. SUte, 8 Tex. (Apr.) 648; Uudion v. State, 10 Tex. (App.) 216. < Hornbeck v. State, 10 Tex. (App.) 408. • Billiard v. State, 30 Tex. 868; Johnson V. State, 1 Tex. (App.) 118. * B. V. Hatchinson, 1 Lewin, 196 (1828) ; JR. V. Milburne, 1 Lewin, 251 (1829) ; R. v. Mole, 1 C. ft K. 417 (1844) ; Brooks v. SUte, 86 Ohio St. 46 (1878) ; Ransom v. State, 22 Conn. 158 (1692) ; Lane V. People, 10 III. 306 (1848) ; Por- ter V. SUte. 1 ^art. ft Terg. 226 (1827); Com. V. Titus, 116 Mass. 42 (1874) ; State ^>. Coaroj, 18 Mo. 821 (186S); BiUard v. State, 80 Tex. S69 (1867) ; State •. OlilTord, 14 Nev. 72 (1879) ; Hunt v. Com., M Gratt. 867 (1866) ; Tanner*. Com. 14 Gratt. 636 (1837) ; Bailey «. SUte, 62 Ind. 462 (1876) ; R. o. Scully, 1 Cox. 189 (1845) ; R v. Shea, 7 Cox, 148 (1856) ; R. v. Dixon, Dears. 680 (1866) ; B. «. Davies, Dears, 640 (1890) ; R. v. Thnrbom, Temp. A M. 67 (1849) ; R. «. Christopher. Bell, C. C. 77 (1858) ; R. V. Preston, 1 Den. ft P. 361 (1861) ; R. v. Knight, 12 Cox, lOS (1871) ; People v. Ander- son, 14 Johns. 294 (1817) ; SUte v. Dean, 44 la. 7S (18«7). ' 11 Cox, 227 (1869). ••W«>5'«'a«Wlf »*«•**•»"•»•»«'****' ■• 560 I-ARCENV. The prisoner and the chlM then went down the street to the place where the child had found the money, and found a half sovereign and a b i;,'. Two hours afterwards the owner made hue and cry of hU loss in the vicinity. On the same evening the prisoner was told that a woman had lost money; the prisoner told her Informant to mind her own business, and gave her half a sovereign for herself It was held that there was no larceny, as there was nothing to show that at the time of the finding the prisoner had reason to think that the owner could be found. . . . InR V. Matthews,^ the prisoner found two heifers which had strayed, and put them on his own marshes to graze. Soon afterwards he was informed by S. that thev had been put on his, S.'s, marshes and had strayed, and a few days after that that they belonged to H. Prisoner left them on his marshes for a day or two, and then sent them a long distance away as his own property to be kept for him. He then told 8. that he had lost them, and denied all knowledge of them. The jury found (1) that at the time the prisoner found the helfershe had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner ; (2) that at the time of finding them he did not Intend to steal them, but that the intention to steal came on him sub- sequently ; (3) that the prisoner, when he sent them away, did so for the purpose and with the Intention of depriving the owner of them and appropriating them to his own use. Held, that a conviction of larceny, or of larceny as bailee, could not be sustained under the above circumstonces. Bovill, C. J. " We have consid- ered this case, and have come to the conclusion that the conviction must be quashed. The jury have found that at the time the prisoner found the heifers he had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. But at the same time they have found that at the time of finding the heifers the prisoner did not Intend to steal them, but that the Intention to steal came on him subsequently to the first interview with Stiles. That being so, the case is undistinguUhable from Beg V Thurbom* and the cases which have followed that decision. Not having any 'intention to steal when he first found them, the presumption Is that he took them for safe custody, aud i^nless there was something equivalent to a bailment afterwards, he could not be convicted of larceny. On the whole, we think there was not sufficient to make this out to be a case of larceny by bailee. " Conviction quashed." In Tyler v. PeopW the Supreme Court of Illinois, In reversing a conviction of larceny say • " The whole of the evidence establishes clearly that the article of property for which he Is charged with stealing was found In the highway and was a pair of saddle bags. It was further proven that there were no marks by which the owner could be distinguished. Larceny is defined by the books to be the felonious taking and carrying away of the personal goods of another. The original taking then in this case can not by any feasible construction that can be given It, be construed to be with a felonious Intent." In People v. Gogdell,* the prisoner had been convicted of stealing the pocket- book of John Warren, with six hundred dollars in bills therein contolned. The book and contents having been lost In the highway, Cagdell found and at once concealed them. The other facts appear In the opinion of the court 1 12 Cox, 489. * 3 Cox, 0. 0. 453. 3 Braeie, 893(1830). * 1 HIU, 94; 37 Am. Dec. 297 (18*1). FINDER OP LOST OOODS. 561 ace where the ;. Twi> hours tnlty. On the : i the prisoner a sovereign for othlng to show that the owner :rayed, and put informed by S. and a few days I marshes for a I property to be ill knowledge of e heifers he bad ) did not believe of finding them me on him sub- I for the purpose prlatingthemto >ailee, could not We have consid- victlon must be nd the heifers he I that he did not B same time they r did not Intend sequently to the nguliihable from ion. Not having >n is that he took isnt to a bailment e, we tbinlt there aitee. ctioH quashed." g a conviction of bat the article of the highway and rere no marks by y the books to be of another. The xuction that can laling the pocket- lerein contained. ;dell found and at f the court >ec. 297 (IMl). StHMHWlK*' By the court, Cowen, J. There was abundant proof of the concealment and frau.lulent conversion of the money after it had been found. This was undoub^ clly under unconsciousness In the prisoner that it was accldentaiyZt u ZdT'ht .? ^r""'''^. °' '"" ''^ ^'^^ °''»''^' ^'"^ «-P-t«<« '«'« having found It, but the prisoner denied the finding and concealed the bills. By 2 owner's good fortune, they were traced to the hands of the prisoner and flnall^ ;; „?n , ? ' T """' " '""'^^ °' «^''«'°" '"'^ concealment! plainly 2 eating his fraudulent intent to keep the money if possible It did not appear In evidence that the pocket-book or money had any mark by which the prisoner could have discovered Warren to be the owner hough he must have been conscious that the owner, whoever he might be. won d maL an effort to find the money. He did make such effort, oiering a reward to the prisoner personally. In short, the loss and finding were pureraccidental Everything after that done by ths prisoner was characteristic of the thief a^d f he can escape the legal consequences of the conviction of larceny, t must Je solely because that crime is not predicable of a taking and conversion inder the clrcums ances mentioned. Singular as it may seem toone reason ng upon prt ciple, this appears to be the settled doctrine of the law, and was considered to be so by this court in People v. Anderson.^ It Is supposed. I perTelle by the counsel for the State, that from what was said in People v. iJc^rJen Hv^m' be considered as holding It a duty to disregard the adjudication in CH ^«de«on Which is not denied to be a point blank case agllnst the prosecuMon' But ne ther the decision nor any dictum In People v. m(£rren, nor trcTur i ^f reasoning In that case. W« at all to countenance such an expectation All w« asserted Uiere was that probably the rule must be conLedTol ch a case?, te present, where it does not appear that the prisoner knew or Sad the means of knowing the true owner; the cases were cited to that effect 0^0™ bT rabr r'^'Tf "'""' '"'' ''"''''' ""'^«'' -"•> owner's n^me. the fin dS being able to read. Such cases themselves Imply, that if the owner has nul:? no mark about the property, and none exists j;;hich the Ldercandis over made a test the doctrine of People v. ..nVSs'lnS ^one Sca"e7an; finder could fail in his search; and this being generally obvIousTaiurv they would hardly ever fall to convict for that reison. The rule would th./, 7' practice, be brought down to a very narrow exception ' '" .« "h Tl ^^J""^ """""" *° P*"'**^* *° ««»°d morals* why this should not be so; but that Is no argument lor disregarding a settled rule of llw caiiea thereto by the exclamation of a bvsUnder «« Th«r« i- » k , .. u ^ si.aken the dirt from it. placed It on the chairsl^Mng^he^p ^uto^^^^^^ cages of the animals, and leaned his body over U. A^tlrs tne iS tt « 14 Johns. 294; 7 Am. Deo. 462. * 17 Wend. 480. 8 Defences. » a Dev. L. 478; 24 Am. Dec. 2B8 (18S2). 86 5G2 LARCKNY. 4 11 «f unnrtitoro After a short lapse of time the defendant secreted 11 Mtho time he took tlie sliavvl the owner w.. within «)»»'> of his »ol». '^JTf'°""r:Tl.''^:'^^^U -a ro..»oU U,cen, Is <.e..e. «. h. " the' Lnsln or Zd»lc«t taking .nd carrying .»ay h, an, peraon «1 1 Lre Lr "n.T good. o< another, Iron, any place, with a Monloo. Intent . ITr t,^r.o hf. (the taker'.) own ».., and -»V^«" "' -"S:": :»rc*.-:odi,r-o.Lrnrrotnero:r9^^^^^^^ r.'ratrt^rx"rc-od7k:2^^^^^^ not lost.* In the case before the court it ^PP^"*'*'*'** *^! 'J^^^' ^s ^ sha^l; «' that the defendant took it up after a bystander had ^^ J^ - ^^ sh^ ^^ ,^^ that he shook the dirt off it, and then laid It on^»^« J"^*"^^^^^^^ \ ^he shawl afew moments and then secreted it in ^''^J'^J^^^^^^J^^^^^^^^^^ but it had had not been placed by the owner where ^^^^'^^^^^''''^l^'^^^^^^ m a pub- accidentally fallen there and was lost, the vlth «hlch he placed the shawl on the chair was not submit tTto the jury, and without an abandonment of possession by him, no matter inder what circumstances he afterwards withdrew it from the chain, no n ZtixZ he knew who was the owner or not or -hether she was or ,^s not within the sound of his voice; such withdrawal was not alarceny. Shoul. the lury be of opinion that there had been an abandonment of the possession, I am iot'prepareS to say that the article was then placed in a situation to be^he object of larceny. Did such abandonment by hanging It on th ch*l J;^^'^* J- an abandonment, restore the possession to the owner, without b" /'"O^'"'*^^ Iml did It merely cease to be lost property? Or did it only restore it to its Bltuatlon when it was first discovered on the ground? These are questions I leave to future discussion, If the occasion should re- quire it, lor as 1 said before. I am not prepared to^eclde il.e^^ ^^^^^ Pbb Cubiam. 5 603. —Finder Keeping ArtlcletlllRewardUOffered for ItsBeturn.- Inif V For^t.'the prisoner was tried upon an Indictment which »«'««" count charged him with feloniously stealing one sliver watch, and In the second Zl wSecelvlng the said watch. welUnowlng the -- t° 5:;:^ Te w^ ' The evidence against the prisoner seemed to prove that ». had found the watch, Id had subsequently appropriated It to hU own use. It was therefore cou- Lnded on the part o, Z prosecution, that If at the time the prisoner found he watch he toolc possession of It with a view of stealing It or if he found the watch and Intended to detain and keep It until a reward wa P^ld fo th Tame he was guilty of larceny. The jury, after hearing counsel on behalf of Zp^lsonTr! ired to consider their verdict, and upon their return into court, iellv red the fo lowing special verdict in writing, the words in Italics having Seen rubsequeutly added by the jury after explanation by the court with the ^" « Not guilty of stealing the watch, but guilty of keeping possession of It In the hone of reward / om the time he first had the watch." T^^^'second count was abandoned by the counsel ^"^ t'^^ P[«''«-f;"' ^'f^, verdict of " Not guilty " was entered thereon. The counsel for the prisoner Ihen moved fhe c^ourt'that the prisoner should be forthwith discharged, the special verdict being one which amounted in law to a verdict of acquittal The court, after argument, decided that the verdict amounted to a verdict h gulUy and the following entry was made in the record : .'Gulty^ Judgment fo be Reserved until the next Sessions, lu the meantime a case o be submitted Tthel^dges. The prisoner to be admitted tc ball himself In £100 am. one surety m £60. conditioned for the appearance of the said George \o. pear at the next Sessions, and abide the judgment of the court. The with a surety then In open court, forthwith entered Into the required gm- Tancesand was discharged, and the facts of the case were dlrec ed he court to be laid before the judges to determine whether the opinion of the court upon the said finding of the jury was or was not correct. I aC. & K , 341 ; 1 Den. 343 (187S). ^^m WHAT NOT SUBJECTS OF LAUCENY. 565 applicable to nil s owu particular (eut in each par- entitled to a new he chair woh not 98lon by him, no oin the chain, uo r she was or was larceny. Should the possession, I ituatlon to be the chain, if it was t her Isnowiedge. y restore it to its ^aslon should re- I. Igment retened. tor Its Return. — which in the first and in the second (have been stolen, i found the watch, ras therefore cou- he prisoner found or if he found the was paid for the insel on behalf of return into court, Is in italics having the court with the possession of it in prosecution, and a jl for the prisoner th discharged, the , of acquittal, ited to a verdict in Guilty. Judgment ise to be submitted elf in £100 and me George Yoi ' itt." Tlie e required gui- 're directed the the opinion oC the ct. This case was argued on the 9th of December, 1848, in the Eschequi-r Cham- ber, before Pollock, C. B., Pahkk, B., Pattkson, J., Cuesswell, J., E. V. WiLUAMS, J. Flood, for the prisoner, was not called upon by the court. Macmilay was heard in support of the conviction. He contended that the finding of the jury ought not to be regarded as a special verdict; It was in truth an Irregular statement of the result of a desultory colloquy between the court and the jury; that the words not guilty of stealing the watch were mere surplusage, being inconsistent with that part of the finding which followed; that the finding, properly stated, would be this, that the prisoner from the first held It dishonestly, with the Intention of getting something from the rightful owner; and not simply with a view of restoring it. Pollock, C. B. It It submitted to us as the finding of the jury; if it Is Irregular this court can not amend it. Parkb B. If a man finds a thing can he be guilty of larceny? Macaulay. The jury do not say that he found it, and even If he had done so, the facts of the case seem to bring It within the qualification of the rule, that a finding is not such a taking as amounts to larceny. In Merry v. Gretn, Parke, B., said during the argument: " Suppose a person finds a check In the street, and In the first I nitonce takes it up merely to see what it is; if after- wards he cashes it, and appropriates the money to his own use, that is a felony though he is a mere finder till he looks at It.** Here the words •' from the time he first had the watch,'* merely show that the dishoaest Intent of appropriating the watch and holding it as his own till he could extort a reward from the rightful owner was the first idea that occur- red to his mind after he took it up; it seems to come precisely within Baron Parke's dictum. Pollock, C. B. We can not reason upon what the jury intended to find. Their verdict is "not guilty of stealing; '* there is no stotement that he feloni- ously took It. They have absolutely acquitted him. Parke, B. It seems clear, taking the finding In conjunction with the facts, that the prisoner can not be deemed to have committed the offense of larceny. The rest of the court concurred; and it was therefore held that the prisoner ought not to have been convicted. § 604. What Not Subjects of Iiaroeny — Oboaes in Action. —At common law cboses in action were not the subjects of larceny .^ § 506. Bank Notes. — It Is not larceny at common law to steal a bank note.' <■ 'm. BaUroad Ticket.— And so a railroad ticket is not the subject of arccu>, at common law.* § 607. BUlsof Bzcbanse. — County orders are not " bills ol exchange '» within .1 itute.* > 7M. AW. 829. 3 Gulp V. Statt, 1 Port. (Ala.) 33 ; 26 Am. Dec. 867 (1884) ; Warner v. Com., 1 Pa. 8t, IM; 44 Am. Dec. 114 (18 ^ R. ». Wattl, Dears. 827 (18S4). 3 U. 8. c. Bowen, 2 Cranch, O. C. 143; U. 6. V. Camot, 2 Cranch, C. 0. 469. « Stote V. Hill. 1 Honst. C. C. 420 (1874). » AVarner v. Com., 1 Pa. St IM; 44 Am. Dec. 114 (1849). 566 LARCENY. § 50S. Bills of Exchange — Orders for the Payment of Money — Prop. ©rty not In Proseoucor. — In B. v. Hart,^ the prisoner was indicted and ac- quitted of larceny under the facts as detailed in the opinions of the judges fol- lowing: LiTTLKDALK, J. : It appedfs to me that there is not enough In this case to make out a charge of felony; however, I do not say anything respecting any other prosecution that may be instituted. (His lordship stated the different counts of the indictment.) With respect to the flr.st, second, and third counts I am of opinion, tliat, when these acceptances were taken from tlie prosecutor, they were neither bills of exchange, orders nor securities for riic ney. It appears that Mr. Astley, in consequence of what he saw in a newspaper, wrote a letter, and that lie afterwards had an Inter^'lew with the prisoner, when the latter pro- duced these stamps, upon which the prosecutor wrote the words, " Payable at Messrs. Preads, No. 189, Fleet Street, Loi :lon," and as soon as that was done, the prisoner received them from Mr. Astley, and carried them avay; and it seems that, singularly enough, little or nothing was said as to wha . was to be dune with the papers. It then appears that it was found that Mr. Astley's name was not put upon them; and at another ir eting, the prisoner again pro- duc'. ! the stamps, pnd Mr. Astley wrote the words "Accepted "and "F. D. Astley," there being at that time on the papers neither the name of any drawee nor any sum or date ; but it seems, that in the course of the discussion, it was stated ih.-t ihe stamps were to be used for bills of £500 each. The papers were again taken away by the prisoner; and it appears to me, that when they were so taken away, they were neither bills of exchange nor orders for the payment of mouey, but were only in an embryo state, there being the means of making them bills of exchange. The statute 7 a d 8 Geoige IV. ,^ enacts, that if any person shall steal any "bill, note, warrant, order, or other jc^curity what, soever for money, or for payment of money, whether of this kingdom oi any other State," the party is to be punished as he would be for stealing a chattel of like value. Now, bow could this be said to be of any value j And of what value can it be said to be? If these papers had been stolen from : dwelling-liouse, could they be charged to ,e of the value of £500 each? Ther| is no sum mentioned on them, and none drawn; and they being, as I before ob served, but a kind of embryo security, I am oi the opinion that the first ( counts of this indictment are not proved. There is, however, a fourth counll which describes the p:i'>er? as ten pieces of paper, each having a six shllliul stamp; and upon this count the question is, whether the prisoner csn be sail to have stolen tlie property? As to the first three counts, I think the case turiT upon a mere question of law, which is, I thln.i, entirely for the court, as thea papers do not come within the description contained in the statute 7 and! George IV.' The fourth count correctly describes them; but it seems to be thl the clrcumstft'jces under which they were obtained by the prisoner were nJ such as to make the prisoner liable for a felony. If a person by false represcl tation obtains the possession of the property of another, intending to convert f to his own use, this is felony; but the property must have previously been in tl po.ssesslon of the person from whom It Is charged to have been stolen. Now! ihink that these paper.«, In the state in which they were, were the property of t| prisone-. He took them from his pocket, and Mr. Astley never had them, exec for the purpose of writing on them. They were not out of the prisoner's sigl 3 6C. & P. 107 (!»::>;. » ch. 29, sec. 2. a ch. 29. "ORDERS Ton THE P4VMENT OF MONEY." 5(57 yment of Money — Prop- ter was indicted and ac- oplnions of tlie judges fol- . is not enough in ttiis case vy anytliing respecting any rdslilp state a tlie different t, second, and third counts talcen f r Fleet Street, London," written upon It. In its then state, no piece of paper could be more useless. However, it is brought to Mr. Astley again, and the word '< accepted " and his signatures are added; and It is In that state when it is charged to have been taken away. Can it, then, be called a bill of exchange? I should say, certainly not. In the next count it is called an order for payment of money; and that it clearly is not, as by it no money is directed to be paid; and It certainly can not be called a security, as no money is even mentioned in it. Then comes the fourth count, which states that there were papers bearing certain stamps, and th.at the prisoner stole the papers with the stamps upon them. This question then arises, —whether these papers were the property of Mr. Astley or of the prisoner. And on that point the case stands thus : The prisoner being solicited by the prosecutor to come into Hampshire, he does so; and the prisoner pro- duces these stamps, and a negotiation takes place. In which It is ultimately arranged that the prisoner Is to provide the prosecutor with money, at the exorbitant rate of £6 per cent. There is no agreemeu that Mr. Astley Is to pay for the stamps. BosAN'QUET, T. I am of the same opinion; but after v hat has been said by my learned brothers, I shall not give my reasons at any great length. The question Is not whether the piisoner Is guilty of fraud, or whether he has acted improperly, but whether he has committed a felony. The thing stolen (for I will take it as If there were only one) Is charged to be a bill of exchange, an order for the payment of money, and a security for the payment of money. I do not think that at the time It was taken It fell within either of these descriptions. There was no money mentioned in it, »nd no parties; and it seems to me quite impossible that the words written on It by Mr. A.stley can bring It within the terms of either of the earlier counts of this Indictment. The counsel for the prosecution feeling this, rely on a count whloh charges it to be a piece of paper with a star.p on it. It then becomes material to con- 568 LARCENY. aider Tvhether tlie prisoner stole ttiat from tlie prosecator, as it is essential, to support tliat ctiarge, that tlie thing talien was the property of the prosecutor, and stolen from him. Now we find that the paper itself was produced by the prisoner, and that the stamp on it wao bis. He h?d purchased it, and it does not appear that the prosecutor ever paid for it. The prisoner produces it when both parties are In the room together, the prosecutor writes soma words on it, and the prisoner then takes it away. Is that a stealing from the prose- cutor? It is in the possession of the prisoner before it is ever placed before the prosecutor; and even if we talie it that it was ever in the possession of Mr. Astley at all, it is given by him again to the prisoner. But as it is pro- duced by the prisoner, and he stays all the time Mr. Astley is writing, and when the writing is done he takes the paper up again, It seems to me that the stamp never was out of the possession of the prisoner. The case of Mr. Phipoe bears very strongly upon the present, only In that case the instrument was a complete promissory note; and there the judges were of opinion that, however atrocious the circumstances, and atrocious in that cab'b they certainly were, it was not a case in which she could be convicted according to law ; and nine of the judges held that the note was procured by duress and not by stealing. In that case, Mrs. Phipoe produced the stamp and made Mr. Oourtry put his name upon it. I tlierefore concur with my learned brothers in thinking that the charge of taking can not be made out. L1TTLEDAI.E, J., decided on acquittal. Verdict, not guilty, $ 609. •^— " Ooods and Otaattels." — Bank-notes are not " goods and chat- tels; " 1 nor is money; ^ nor are bonds, bills and notes.* § 610. "Lawful Money of the United States."— Lawful money of the United States does not include national bank notes.* §611. "Money." — Bank notes are not "money" within this word In a statute.' § 612. "Money, Oooda. Wares or Merchandise." — A promissory note IS not " money, goods, warets, or merchandise."* § 613. "Order for the Payment of Money" — "Oerl'dflcate for tbe Payment of Money "—" Public Security."— A lottery ticket, before the drawing, is not within these phases.? § 614. "Personal Goods."- And choses in action are not "personal goods." * 5 616. " Promissory Notes." —And a statute making promissory notes the subject of larceny will not include bank-notes.* § 616. Wliat Is a "Direction In Writing as to tbe AppUoation or Dis- position of Moneys" within the English stotute.>* I R. V. Morrit, 2 Leitch, S37 (1787). 1 R. V. Guy, 1 Leooh, 877 (1782), * U. S. V. Morgan, 1 Cranch.O. O. 278 . * Hamilton v. State, 60 Ind. 19S (1877). * Johnson v. State, 11 Ohio St. 324 (1860). * R. V. Major, 2 L«acb, 89t (1796). ' Heale7'sOa«e,40ityHaU B«o. M (1818). • U. 8. V. Davit, a Maaa. 166 (1829). * Culpv. SUte,l Port 3S; M Am. Deo. 387 (1834). v> See B. v.Brownlow, 14 Cox, 216 (1878). THINGS ATTACHED TO THE REALTY— MINERALS. 56a essential, to i prosecutor, duced by the and It dnes produces it B0ID9 words m the prose- laced before )08SC88ion of as it is pro- writing, and > me that the case of Mr. e instrument tpinion that, liey certainly to law ; and I and not by Mr. Oourtry s in thinking not guilty, ds and chat- Ate for tb« , before the tion or Dla- § 617. Thlngrs Attacbed to or Savorincr of Realty. — So things attached to or savoring of realty are not the subjects of larceny — as cabbage in the ground' or copper pipes part of a machine in a manufactory .» It is not felony to take and carry away rails from a fence, If the severance and carrying away are one continuous act.' § 618. Nuggets of Gtold. — So of a nugget of gold. In State v. Burt,* the court said: " Nuggets of gold are lumps of native metal and are often found separated from the original veins. When this separation is produced by nat- ural causes, there is no severance from the realty, but such nuggets will pass under a conveyance, like ores and minerals which are embedded in the earth. When ores and minerals are taken out of mines, with expense, skill and labor to be converted into metals, or used for the purposes of trade and commerce', they become personal property, and are under the protection of the criminal law. '• In England, ores, even before they are taken from the mines are protected by highly penal statutes.* Loose nuggets which are occasionally found in gul- lies and branches, and in woods and fields, are hardly considered by the law as the subjects of determinate property; until they are discovered and appropri- ated, and then they become personal goods, and are the subjects of larceny. In this respect they somewhat resemble trove, waifs, etc., in the criminal law of England. " It is an ancient rule of the common law, that things which savor of, or ad- here to realty, are not the subjects of larceny. In this recoect the common law was very defective, and did not afford sufficient protection to many valuable articles of personal property which were constructively annexed to the realty. These defects have, in some degree, been remedied by a number of sUtutes in this country and In England. " These beneficial changes were Induced by the necessities of progressive civ- ilization, which required many valuable species of personal property to be an- nexed to realty, to be used for the purposes of trade and manufacture, and in the arts; and which needed the constant protection of the criminal law. " In a case like ours, there is no necessity for the court to depart from the ancient technical strictness of the common law, and there Is no need of any additional legislation upon such a subject. In public estimation it has never been regarded as larceny for the fortunate finder of a nugget of gold, or a precious stone, to appropriate to his own use, although found upon the land of ' another person. Hundreds of Instances of this kind have doubtless occurred, and yet no case can be found of a prosecution for larceny or .his account, either In the courts of this country or of England. This fact sustains us in the opinion, that for cases like the one before us there is no necessity to depart from the ancient landmarks established by the fathers of our criminal jurisprudence. The nugget was found upon a loose pile of rocks by one of the defendants and the taking and carrying away was one continued act, and did not amount to larceny, but was only a civil trespass.* I B«0. 86 (1818). I (1829). ; M Am. Dec. ox, 218(1878). 1 Bute t». f oy, 89 N. C. 679 (1880). » State V. Hall, 5 Harr. *»l (18S3). 3 U. 8. V, Wasner, 1 Crancb, C. 0. Sli; V. 8. tf. Smith, 1 Cranch, C. C. 475. * 64 N. U. 619 (1870). • 8UU. 7 A 8 Geo. XIV, amended by U and 25 Vict. • 1 Hale's P. 0. 510 ; 2 Eut'i P. 0. 687 ;Ro8- ooe Cr. Kv. 450; 9 Baas, on Or. 186; 3 Bisb. Or. L., MC. 779. ''8liiB MSii si)fe»ft^fea»ai.ijaftiH->i'fc4ri^^ 570 LARCENY. .. There was no error in the ruling of his honor, and the judgment must be affirmed. it judgment afflrmed." 5 519. sea Weed. -So drifted and ungathered sea weed cast ox tiie «liore is not the subject of larceny .» § 620. — " Peraonal Property." - A growing crop of corn is not " personal property " within the Alabama statute." r",r"reKotS;C\X:^... or...... court O.M...go».^ Co»ro< petit Urcenj, lor .u^allng, » ch^wd, "*'«'«»'' ""'"/^'J.^S ,tog»d. .ndchatKla ol O. B. White, tb. pro»eut„t, ''tT^^.Z' Ishment awarded to each. It is true, in a s^^s^^"''' , . r^^^^ j„ reib"lr.rtag them torn the eUh, .nd ..t.,™rd. picked »p th. ,.,.■ °'~H.'"ons:^u°°»T:jr-^^^^^^^^^^ Zt ,X™ t; JSv-ere the • «t o< ..other p.r.o., or «, .Iter th. »..,..c. but II th. ~«er.iic. Y ' , I tlta^, .lt.r which h. returned ..d took r.n!'r.»;.s.r.s':...d >^^ou>.>^ .,.dut..ct „«,«,. rL t-cTreis- M-r-d -irrriTtrir.:: H the4 be .^ toll V.1 between hi. .e.erl.g ..d t.l.l.g then, .J.,, «. h« U 1 U. .'. Clinton.lr. Bep. 4 0. L. 6 (1869). a MoCall v. State, 69 Ala. «27 (1881). 3 4 Baxt. 429 (18T4). « leo. 163. 6 Citing 1 B. H»l«'8 P. C. 810; 2 BMt'8 P. C. 687. • p. 878. ANIMALS NOT SUBJECT OF LARCENY 571 Igment must be ent affirmed.^' sd cast 01 the s not " personal )ortatlon must tiff iu error was of Montgomery 8weet potatoes, sentenced to the judge was erro- Ing of bis charge ind correctly in- eny, and the pun- his Instructions, says: 'The jury rsonal property.' owing In or upon ;t of larceny, and Dther, entering to ound, or cut a lot eked up the vege- e larceny.' >rding to the rule If the severance 3 only a trespass; fter the severance returned and took distinct acts, it is d:' Things though y by being severed od be cut, fruit be ill be the case, not r the thief himself, sm away, so that it le thief sever them are converted Into on whose soil they are so turned Into t severs a copper, it remain after it i» sF. C.SlOi 2 BMt'sF. severed any time, and comes back and takes it, then the removal of it becomes a felony; and so of a tree that has been severed.' " The principle is, that where the severance and asportation constitute one continuous act, then it is a trespass only, but if the seveiaucc is a distinct act, and not Immediately connected with or followed Uy the asportation it is a larceny. "To dig potatoes, whereby they are cast upon the surface of the earth, and Immediately to pick them up, and put them In a bag and carry them away, would be one cont..iUous act, although the picking up, necessarily, was after the digging, and after they had lain upon the ground. Tha act would be con- tinuous, without cessation, until the asportation, as well as the severance was completed, and thus a trespass only. And, so, also, of cutting a ' lot of cab- bages,' 'severing them from the earth,' the 'severing' necessarily precedes the taking away, yet, when the taking away Immedlatoly follows. It Is a « contin- uous act,' and is trespass only. "It Is argued by the attorney-general, that the taking of vegetables s vered from the ground, and the carrying of stolen goods into another county, seem to stand upon the same footing, although it Is considered that the authorities hold, as to the first mentioned, that the possession is not in the owner as per- sonalty, and in the latter, that the legal possession still remains in him. The trespasser holds the severed property, as personalty, but he can not be con- victed of larceny, for he did not obtain that possession feloniously. No felony was committed In the taking tmd carrying away from the owner, but a trespass only. In the case of an original felonious taking and carrying away, every moment's continuance of the trespass and felony amounts to a new caption and asportation,! and the offense is considered as commlted in every county or jurisdiction into which the thle.? carries the goods." It is difficult to see any difference In the moral guilt of one who takes and carries away immediately upon the severance from the freehold and one who severs at one time and takes away at another, but the Leglslatme has not altered the distinction made by the common law, and It is still in forat in Tennessee. " The Judgment of the Criminal Court will be reversed.'* § 522. Animals Not Subject of Larceny— Ferrets. — At common law, animals are not the subject of larceny.' Ftrrets though tame and salable, are not the subject of larceny, nor rabbits.* § 623. "Cow. Sheep, Hogr, or Other Animal." — This phrase in the Alabama statute, means the live animal and not iti> carcass.' § 624. Doves. —So doves are ferce naturm .and not the subject of lar- ceny.— In Commonwealth v. CAose,* Pabkek, C. J., said: " It is held in all the aulhorllics, that doves are ferce nature, and as such are not subjects of larceny, except when in a dove-cot or pigeon-house, or when In the nest before they are able to fly. If, when thus under the care of tho owner they are taken furtively. It is larceny. The reason of this principle is, that it Is difficult to 1 8 Arch. Cr. Pr. ft PI. 34S, note 1. » Ibid. 3 R. V. SflarlDK, R. ft R. 3fiO (1818.) • R. V. Towuley, 12 Co«, 69 (1871) ; R. v. retch. U Oox. 116 (1871.) > Hunt I). State, SS Ala. 138 (1876). • !) Pick. IS (1829) ; n as of murtlDS in trap. Narton r. Ladd, B N. H. 903 (1830). KmmeisiikBBii -timmmmmMmmmmawsimmi^'nm , 572 LARCENY. ..stmguiBh then, fro. other fowloi ^f ^^ronT In^at^relt^^^^^^^ and mix in large flocks with the doves ol ^^bTtTL prodnctlon or preser- the air, except when Impelled by hunger °' ^^^Jf ' "'^^^^^^^^^ the owner, vatlon of their yonng. they seek »»> ^^f «73,7' j^^f^rtlng on his barn ^nrrimirsiredX^^^^^^ r^n^orblrilnsr t^ .. ^o^od/and they a. .i^^^^^^^^^^^^^^ o— rled'awayfrom the enclosure of ^^^ ^^^''^^^^^'^^r^^^^^^^ killed, this case thtre Is no evia.nce «*»''««'*";""" *JfJ„'e' or mingled with whether on the flight, a mile from »»>« 8^°""^ ?f *^^°^"''^^^^^^ the doves of other persons, enjoying their natural • W" "^^^ ^^. i^ deuce, the act of killing them, though for the purpose of using them food, not felonious. Therefore, a new trial is granted. § 526. — DOBS.- so dogs are not the subject of larceny at common law.i § 626. __.. Personal aood.."- Nor are dogs "personal goods,"« >. thin a statute. § 627. — Horse- Fiuy. -one who steals a horse Isnot Indictable for steal- inga«'fllly."» §628. — Oy.ters.-So larceny can not be committed of oysters In the -And so of other kinds of flsh not confined or Ma.* I 629. Other Flsh.- dead.* 5 630. — Sheep.-One who steals a lamb under a year old Is notlndlct- able for 8tealln$i; a sheep.* § 631. — Prosecutor Must Have Property In Oooda.-The prosecu- tor aust have property In the things stolen.' c 632 — They Must Have Borne Value. - So taking a letter ^^ch h« no InSslc val^fs not larceny.* One Indicted for stealing a bank-note, must be acquitted If the note Is not proved to be genuine. Where a debtor procured his creditor to sign a receipt for Ms deot, una prelnrtJathe wasgolng to P^^ ^". -<> f ^ i-'l^ ^^..^^^^^^ inal intent and without paying him this was held not larceny, uie p p being an Instrument of any legal obUgatlon. 1 Warrt v. State, 48 AlB. IM (1878) ; 8Ut« ». Holder, 81 N. C. 6«7 (1879) ; State v. Lymui, 26 Ohio St. 400 ; R. v. Roberton, Bell, C. C. 84 (1869). . „ -„ a State v. Doe, 79 Ind. 9; 41 Am. Rep. 599 (1881 )• s LunaJord v. SUte, 1 Tex. ( App.) U9 (1876).^ * R. V. Walford, Bap. 682 (1808). » State V. Krider, 78 N. 0. «1 (1878). . B. ». Blrket, 4 0. * P. 816 (1880). > B. f>. smith, 1 Den. *P. 44 (18M) ; McNalr ». state, 14 Tex. (App.) '8 (1888). » Payne*. People, 6 Johna. 108 (1810). • state V. Dobaon.a Harr. 678 (1848). 10 People V. Loomia, 4 Denlo, 880 (1847). U80.*F.BeS(188S). PROPERTY aroST HAVE VALUE. 573 »tteii take a flight re free tenants of iaction or preser- m by the owner, istlng OQ his barn e trespass, and if or caaf{bt, or car- j larceny. But in 5 In when killed, ', or mingled with Without such evi- g them as food, is y at coiuinon law.^ 1 goods,"" wXUn a Indictable for steal- I of oysters in the jh not confined or ar old is not indict- da. — The prosecu- ; a letter which has tg a bank-note, must t for hrts debt, under •om him with a crlm- ny,io__tbe paper not ,_ Opening a letter >ject be to prevent It dictment charged the ,78N.O.«10n")' 3. A P. S16 (ISSO). en.*P.**(l««;McNalr pp.) 78 (188S). e, 6 Johns. 108(1810). j.SHarr. 678 (1848). iitt,4Ueiiio,880(18i7). BBS). prisoner with having stolen six sheets of paper of the value of three pence, and a paper parcel containing two letters of the value of three pence of the goods and chattels of William Brlnton. It was opened by W. J. Alexander, for the prosecution, that Mr. Brlnton was a solicitor at Kiddermi aster, and that the prisoner, Mr. Godfrey, was an inn-keeper and stage coach proprietor at that place; and that on Saturday, the a!»th of July, 1837, Mr. Brlntou, being at Brierly Hill, engaged in the South Staffordshire election, he had occasion to send two letters to Kidderminster, these letters being Inclosed In a parcel addressed, " Mrs. W. Brlnton, Kidder, minster. Immediate." The parcel was sent by a coach of which the prisoner was the proprietor. However, on Mr. Brlnton's arriving at home on the next day, he discovered that the parcel had not arrived; and on a note being sent to Mr. Godfrey respecting it, he returned a written answer, stating that no parcel had arrived directed to W. Brlnton, Esq.; and, in answer to another note, he replied that no parcel had arrived lor Mrs. Brlnton. It would, however, be proved that the parcel did arrive, and that Mr. Godfrey himself received and opened it; and finding It to contiln letters, he broke the seals and read them, and then disposed of them in such manner as he thought proper. Lord Abinobr, C. B. The facts you hare opened are rather a trespass than a felony. Opening a letter from idle curiosity would not be a felony. W. J. Alexander. I should submit that when the act was done with the Intent to injure another, that would be sufiBcient. Lord Abingkb, C. B. The term lucH causa Infers that it should be to gain some advantage to the party committing the offense. A malicious injury to the property of another is not enough. W. J. Alexander. In Cabbage's Case, it was held that a taking with intent to destroy is a stealing, if it be done to effect an object of supposed advantage to the party committing the offense, or to a third person. There a person took a horse and backed It into a coal pit and killed It, his object being that the horse might not contribute evidence against another person who was charged with stealing It, and that was held to be larceny, six judges against five, holding it not to be essential that the taking should be Iwri causa; but thinking that a taking fraudnlenter, with intent wholly to deprive the owner of the property was sufficient. Lord Abinobb, C. B. I can not accede to that. If a person, from Idle, impertlDent curiosity, either personal or political, opens another person's letter, that Is not felony. Mr. Alexander, has opened an action for not safely deliver- ing a parcel, in which a jury might give considerable damages. I can not see any excuse for the conduct of the defendant, if it was as stated. Still, assum- ing that statement to be correct, it is no fi^lony. It was cvldenUy done to gratify some idle curiosity, or perhaps to prevent the letters from arriving. It is a trespass and a breach of contract, but no felony. His lordship directed an acquittal. Verdict, not guilty. $ 534. " Wrttins Oontalnlnc Evidence of Any B^stlnff Debt " — Value ot Newspaper List of Bubaortbers. - In State v. James,^ it was held that a printed list of subscribers to a newspaper, with dates, in the possession of the pro- prietor was not within this phrase. "The questions reserved were," said 1 88 N. H. 67 (1877). - "i i W lli «a ili y< fc i i ;ffiiiimW i i» l ti(ffit f iii i i ' »«^^ 574 LARCENY. BiNonAM. J., " whether the list ^vas a writing containing evidence of an existing Hphr Within section 8- » >yhether If It was not such a writing, it was a chattel tuhln a LctC a^d f such a chattel, whether evidence was admissible to Tr^ve It wor h to the owner twenty dollars, although to others It was of no vah^. Z smute of December 1812. so far as -terlal was the same a--tlon ^^ m Blanchardx. Fisk,' U was held, la construing the act of 1812. that, to maKc L tiklng^a rS bills larceny, It must contain evldenceof unsatisfied deb^ or srisung contracts, covenants or promises, or of the discharge, paymentor "" Wal'ttelr: Vrl^^^^^^^ containing evidence of an existing debt, within said sectors? It conums no evidence of a contract, promise or covenant sub- Bcr bed If evidence. It must be as a book of accounts; but. as a book of ac- counttit" wanting in nearly aU the elements required by thejule to make It ''IfltTvalue as astatutory subject of larceny Is Its market value, and evidence that t Is worth twenty dollars to Its owner, and worth nothing to anybody etc does Tt show Its market value to be twenty dollars. To be of the market value of twenty dollars, it must be capable of being sold for tha «um at a Jal ly condlted sale, at'a sale conducted with reasonable care an^ cmigence in respect to time, place, and clrcumsUnces. for the purpose of obtaining the highest prlce.» „ ^^^ discharged." c 536 Lucrl Causa Besential. - The taking must be of some value to the Drl8oner.« in State v. Hawkins,^ It was held that taking a slave from his master w"S the intention of enabling him to obtain his freedom by send ng Tm to r free State would not support an Indictment for the larceny of the ''"In i? V Smith,<^ it was considered that a servant who stole his master's corn for °hf purpose ^f feeding It to his master's horses was not guilty of larceny c 536 NO Larceny of One's Own Property - The Ooode Muet toe the ... State, 7 Tex. (App.)26 (1879). 1 ch. 260, Gen. Stata. ^ a ch. 260, Gen. Stata. 3 2 N. H. 898, 400. 4 CumminKB v. NlchoU, 13 N. H. 420; Swain I'. Cheney, 41 N. H. 286. » Locke 1'. State, 82 N. H. lOfl; State f. Ladd /od8 MtiBt be the rt to B. to repair ivas not guilty of verting to his own [ the court said: B indictment by A. »y him." lant in common or namonlaw." ird, 31 Hun. 67(1888). . Deo. 394 (18S9). trewst. 670(1868). ley,9CBl.280 (1868). te, 69 Ala. 218 (1881); la. 427 (1881) ; Bell v. i (1879). § 538. Person HavioGr Lawful Posseselon of Property. — Where the prisoner has the lawful possession of property it is not larceny to appropriate it to his own use.' In B. v. Mattheson 4" Potts,* the prisoners were tenants and occupiers of a house in which were certain gas fittings belonging to a gas company. It be- came necessary that a gas meter should be changed, and the old one was taken down and left in tlie custody of the prisoners till called for by the company's servant. In the meantime they converted it to their own use and tried to sell It. It was held they were not guilty of larceny. " The possession of the meter," said the court, " was lawful on their part." § 639. Bailee. — Therefore a bailee of property appropriating it to hlfl own use is not guilty of larceny at common law.' So one is not guilty of lar- ceny as a bailee who refused to deliver back a watch loaned to him.* Nor is pawning a ring loaned larceny at common law.^ Where one lost a carpet bag on the highway and sent the person to get it for him, which he did as his bailee, but concealed it and denied having found it, he was not guilty of larceny.* In E. v. Sausard,'' it appeared that tlie prisoner was employed by the prosecu- tor, who was a tarpauling manufacturer, to make up for him canvas bags. The canvas was cut out by the prisoner, at the prosecutor's shop, and taken away by him ; and It was his duty to make It up at his own house, and bring back the bags complete. A portion of a large quantity of materia! received by him was worked up and brought back to the prosecutor; the remainder he pawned, and appropriated the money to his use. The Recorder (after consulting Mr. Justice Cressweli.) . An extremely nice point of law arises in this case. If, uiuler ordinary circumstances, a servant has possession of his master's goods, the possession of the servant is the possession of master, and if he makes away with the property, he Is guilty of larceny. But a very refined distinction has been taken between the case of a servant having goods of his master's upon his master's premises, and having them to work up upon his own. He is, in the latter case, considered not in the light of a servant, but in that of a bailee. If he then makes away with the property, he is guilty of a fraud, but not of larceny. If on the other hand a servant so entrusted were to separate a portion of the goods, and dispose of them to bis own use, then the very act of separating them would determine the bailment. He would no longer be in lawful posses- sion of those he had so separated with a fraudulent Intent, and would there* fore be guilty of larceny in converting them. Here it appears the prisoner had separated and made up a portion of the materials, which would be a lawful act; his pawning the rest, therefore, would not render him guilty of larceny. I have consulted Mr. Justice Cresswell on the subject, who, after some hesita- tion, thinks that the jury should be directed to acquit the prisoner. Verdict, not guiltjf. In B. V. Rielly,^ the prisoner was indicted for stealing a sheep, the property of George Guest and was found guilty under the following circumstances : " Mr. 1 state V. Copeland, 86 N. 0. 691 (1882) ; Ex parte Kenyon.S DUl. 389; B. v. Pratt, Dears. 360 (1854). 2 5 Cox, 276 (1860). • R. V. Hey,2 C. ft K. 982 (1849) ; State v. Fann, 65 N. C. 317 (1871) ; Zschocke t>. Peo- ple, 62 111. 127 (1871). 4 Com. V. FrantB, SPhila. 612 (1872). B Com. V. Perry, 8 Phila. 616 (1872). • State n. England, 8 Jones (L.),399 (1861). '6 Cox, 296 (1861). e Jebb, 61 (1826) the statement is from the report of tlie trial Judge to the Judges. mmai»tmmmmm'mmmiTimmmmmmmmmmmmmm>' mmmwi «76 LARCENY. Guest who resided In Liverpool, stated. In substance, that ho bought upon SrrHdly the 30th of June last, a lot ol thirty sheep, in 8™ithfleld market, that Je had the-" directly after the sa'o branded upon the back with his own brand ind arnug™ I throrgh persons of the name of Wilson & ^J'^^'^'^' '^^'^^l .houtd be d iven on the same day to the water's edge, for the purpose of ex- w,„n tnT ivernool That he set off himself immediately for tha. town, but Ihtrtv T at he thereupon returned to Dublin, and that on the 6th of July, lefnTthTweLsday next after the purchase, he saw the missing sheep in a fl IdMar DuS Samuel Fisher, the next witness, ^^f^^l^;^;:''::: that on the same Thursday mentioned by Mr. ^^f ' ^^e^ JJwIirearB^u si tl,« nrlsoner and another man were driving a lot of sheep down ureai r»ru wick Street (^Sfch appeared to have been the route to the Pigeon House) , that Te was standing at the time In his timber yard, which opens upon the sreet iirthe two drivers solicited permission to leave one of the sheep, which they repreBenteTto 1!::^*^^ time in »>>« f'**' ^^''*»'!J:j;:rb";r J^k from them a sheep (which was proved to ^e/he one identifled by Mr Guest upon his return to Dublin, as the "'«« °8 "^7,^ ' "''' '^J* *\'ot^^^^^^ thereupon proceeded forward In the --^^-^ "^e ty ,^^^^^^^ flusDectlng a fraud, he took measures with the police, oy ™''»"" ^Snet wlo caned the -xt morning for the sheepwas^a^^^^^^^^^^^^ Jeace officer who made the arrest was ^^'''^^'\^''^l'^^Z^^^^^ prisoner, as to the property of the «2; -f ^.^^'^^ JlXreed that Mr. purposes of this case necessary, to detail. I shouia nave Guest did not accompany the drivers. j *^ k„ Mr ruipst was "Neither of the persons (Wilson & Graham), alluded to^^^y^r. Guest was examined and the case In some respects came Imperfectly before the court hol«Pr t was to be collected from all the circumstances, and such was the lo be purchased there, to such places as the purchasers or ««>««^«""S/°' ,1, HirPPt The nrlsoner was not defended and produced no witnesses, "^flt id not appei tome thatthere was any reasonable g-und f or presum ng the books of a carrier separating part of what h« »» f°^™;*«'*;° ^^^^ ^^,1,. 1 Russ. A By. Cr. C. M. 'i— LAHCEXY UY A UA1I,EE. 577 bought upon 1 market; that lis own brand, ham, tha* they purpose ot ex- that town, but instead ot the he 6th ot July, sing sheep in a amlned, swore (f the purchase, n^reat Bruns- in House) ; that ipon the street, eep, which they in consequence dentifled by Mr. that the drivers That, however, ins ot which the rehended. The declarations ot insider it tor the bserved that Mr. r Mr. Guest, was Setore the court; ind such was the re ot the class of hlch may happen 16 acting tor them iritnesses. md tor presuming ipon the delivery It, and I did not, jury. I thought, 16 familiar one In to carry from the t they were satls- 6 driving, was the upon the occasion sheep In question 186, to find in such t my direction for good deal, and ad- Icularly the case of ras erroneous, and t!i;it I should in the circumstances and event supposed In that part of my charge, I.Mv,. (llrectPd an ucf|ulttal. I think It rlglit, however, to submit the case to Uio cdiisideriitlon and (lecision of tlie judgoH." Tlio judges wire unanimously of liie opinion that the conviction was wrong; tliMt ilie prisomr was not a servant but a spcciiil biiilee, and timt according to the adjudged cases tlierc was not such a severance of the slieep as to put an end ti) tlic huilraent. They also held that the animtta furandi should have been left to tlie jury. § 540. Bailee Palllnsr to Account. — So one is not liable for larceny as a tiMilce who having agreed to conduct a l>usiness, pay expenses and divide the utt ijrollt with the prosecutor, fails to account.* § 541. Larceny by a Bailee — Meaning of Bailment. — The bailment in- tended by the English .statute punishing iurceny by a " bailee " is a deposit of something to be returned in specie. Tliereforc, one with whom money lias iMcn deposited and who is under an obligation to return the amount, but not the identical coin deposited is not a "bailee " of the money within the statute.* Ill Ji. V. JficAs(-»,a the prisoner was indicted for the larceny of a coat of which he was liailee. From the evidence it appeared that the prisoner lodged with the pro.secutor, and on the 3d of January borrowed a coat from the prosecutor lor the day, and returned it. On the lOth of January he took the coat without the prosecutor's permission. He was seen wearing It by the prosecutor, who asain gave him permission to wear it for the day. Some few days afterwards, 111' lift tlie town and was found wearing the cpat on his back on Ijoard a ship bumid for Australia. Martin, B., stopped the case, stating that in his opinion, there was no evidence of a conversion sufflcient to satisfy the statute. There aio many Instances of conversion sufHcient to maintain an action of trover, wlii(h would not be sufflcient to support a conviction under this statute; the determination of the bailment must be something analogous to larceny, and i-omo. act must be done inconsistent with the purposes of the bailment. As, for instance, in the case of bailment of an article of silver for use, melting it would he evidence of a conversion. So, when money or a negotiable security Is balled to a person for safe keeping, if he spend the money or convert the security, he i^Jiuilty ot a conversion within this statute; the prosecution ought to find •^oine definite time at which the offense was committed ; the taking the coat on board ship was subsequent to prisoner's going on board himself. EiUin, for the prosecution, contended that there was evidence of a conversion sufncientto satisfy the statute; that the fact that the prisoner was taking the coat with him on a voyage to Australia, was Inconsistent with the bailment, ^vhich was a bailment to wear the coat for a limited period. Maktix, B., said that the case did not disclose a crime contemplated by the statute and refused the application ot the prosecution to grant a case. In R. V. Loose,* the prisoner who was a trustee ot a friendly society, was ap- pointed by a resolution of the society to receive money from the treasurer and carry It to the bank. He received the money from the treasurer's clerk, but in- stead ot taking it to the bank he applied it to his own purposes. He was la- 1 Cora. ti. Snpt. Phlla. Prison, 9 PhUa. 651 (1ST2). " R. V. HasBall, L. & C. 68 (1861). 3 Defexcks. 37 3 9 Cox, 505 (1864). * Bell. C. C. 859 (1800), 578 LAIUKNY. u ., «f th« n.oufv of the treasurer an ub olTrceny, although he Is not a common carrier.' 6 5U _- Servant.-Andsoapersonhavlngpossesslonofpropertyasaser. vant IS not gu.l.y of 1--"^ ^TcT^Z fiot'ltl^^^^^ to pay wages, and I„ Jl. V. muu,;* a servant 'f ^^^^"^^ "^'"^jj'" ^rles were found charging the in the book m which '«" f '^l^* j^ fj^ 1" idb t there was no proof that he muster with more money than ''^ / "^^ '^^^ "'^^^^^ ,,„« held not larceny. " The ever delivered this account to »>'« '"'f ^.^' ' ^,^^ i.^ncr In fact deliver this question here Is," said Wioutmxn. J., ' did the prls ^^^^^^^ ^^^^ ^^ Iceount to his -I>'"y-«-J:;;,;,^;'^Li':rle8 which i^^ the prisoner which are Incorrect; y."'^;'^'^'^' ^.n.er them with explanations, ,„temled to deliver, or «^/-.'>;;^„2\nmrth. this case have been an account- But this was not accounting; '^»'\'\'^f ""';„„ „ lug, m order to fix the prisoner ^f ^^^ J^ ,*^;;j;,„an and in making a sale of in B. V. BetU,^ the prisoner was a '"'""''^^J^ ^^ ,„ ,i,, books but appropri- flour and giving a receipt rffratte was 'rgu, ity of stealing the goo.l. ated the money. It was held that ^.^J^^^^^^J^J i„Jead of being indicted for .. m this case." said I'^'^-^^^'f.^^j^Xr he goods delivered to a customer embezzling the money received ^^^ f ,■". Tj^' ,,,:„„g the goods. He neglected upon that customer's orders, 7«/"^"7^J;^;';,S It was his duty to make, to make the entries of the sale ""^.^^^''j'^';;^' proceeds of the sale, he eon- and, by omitting to give !''« --*" ^f J*„*;/,t It opinion that as the goods cealed the sale from his mas er. TJ^'" * proprlated the money which ho were actually sold. "'0»g»' ^fP'^Xt'forsteuling the goods. Vs between received for them, he could not be '"f 'f ^J/^^^^'^t sale f and waat the pris- the buyer and the prisoner's ^''^ f^f;;;;'^t,':Sr^ the goods, but appropri- oner did wldch was objectionable was^^^^^^^^^^^ ^^^^^^^^ ,, to atmg the money Instead of making ^e proper ^^^^ ^^^ ^^j^^y ^^ IE. t.M8dox, B. & B. 92 (1805) ;R- «'■ 2 B. V. Fletcher, 4 C. & 1 • "^ (1831). 3 B. V. GlasB.2 C. & K. 'i'^, (»847. See R. V. Barnes, 10 Cox, 255 (1866) ;B. v. Green, Dears. 823 (1864); B. «. Tbompson, L. * C.233 (18; andwuatthe prls- goods, but appropri- d handing It over to 5 he was not guilty oi embezzling the price. ionviction quashed.^' ed by the Postmaster- irery morning, and de- R. V. Tbompson, L. * | 1846). 1859). W). liver them at Great Chevrll to the parties to whom they wore addressed. There was a post-olllcf iit Chevrll for receiving letters whicli the prisoner carried every evening to Westbury and delivered nt tiio poHt-odlco there, and ho also on the rotid from Great Chevrll to Westbury received letters at a village called llrat- ton, which were In like manner delivered at the post-ollko at Westbury. The Great Clievrll and Bratton letters, were at the respective receiving houses, put In biif^s which were tleil up, but not locked or sealed, and those bags he carried In a leatlier pouch which was supplied by tlio Postmaster-General. (At Brat- lon It was his duty to open the Great Chevrll l)ag in order that the Bratton post* niiisler might mark on the time bill the time of his arrival. Tlie postmaster at Great Chevrll had no power to Issue money orders and the nearest post-odlco at which they could bo obtained was Westbury. It was no l)art of the duty of the postmaster at Great Chevrll to procure money orders from Westbury, or to forward Instructions to the postmistress at Westbury re- specting them. Alark Sawyer residing at Great Chevril, and wishing to remit £6 to Henry Osnian, of Meeksham, and the like sum to James Rawllngs, of Trowbridge, on tlie 14th September, directed an envelope to eacli, which he sent together with two i'5 notes to the postmaster at Great Chevrll, with a, written request that ho would send them by Glass, and desire the po^itmasters at Westbury to make out two money orders for £5 eacli, and forward them in the envelopes;whlch he had sent. When the prisoner called ut the Great Chevril post-ofllce In the afternoon for the letters, the wife of the postmaster told him that Mr. Sawyer had sent two envelopes and two £5 notes, and some written Instructions to be taken to Westbury, and asked whether he would put them In his pocket, or have them put In the bag with the letters. He requested her to put them In the bag which she accordingly did, and tied the bag as usual. The prisoner put thp bag In his pouch. On his arrival at Westbury, he pretended that he had lost the Great Chevrll bag; went away as If to look for It, returned, and then produced the bag untied, with all the letters that had been placed In It, and the two envelopes, but not the £5 notes. The jury found the prisoner guilty, but added that he had no Intention to steal the notes when they were given to him by the wife of the postmaster at Great Chevrll. Entertaining some doubt, whether the taking of tlie notes by the prisoner, under the circumstances above mentioned, amounted to larceny, the learned judge respited judgment, and requested the advice of the judges on the point. On April 24th, 1847, Lord Denman, Wilde, C. J,, Pollock, C. B., Parke, B., Patteson, J., RoLFB, B., Cresswell, J., WiGHTMAN, J., Earle, J. and Platt, B., were unanimously of opinion that the conviction was wrong. The driver of a coach hired for the day is not the " servant ' ' of the party hiring it.i § 645. Steallner — " In a Building." — It is not enough to constitute '* lar- ceny in a building," that the property was In the building; it must be shown that it was under the protection of the building, and not under the eye or care of some one therein. Therefore, where the owner of goods in a shop placed two watches in the prisoner's hands for inspection, who ran off with them while the owner's back was momentarily turned, this was not " larceny in a building." ^ 1 B. V. Hayden, 7 C. A P. 449 (1836). 2 Com. V. Lester, 129 Mass. 101 (1880). 580 LAKCi;XY. § 54i;. stealing From a " Dwelling-house." — To steal from a " dwcll- iii'^-liouse," the goods must bo deposited in the house; to talco them from the persou of an inmate, or from outside it ia not within the statute. > § 547. "In a Dwelling-houae." — Stealing clothes from the railing or banisters of a piazza, attatciied to a dwelling-house, is not larceny " in a dwell- iug-liouse."2 § 548. "Dwelling-house." — Abed-room over a stable, not undev the :>anni roof, nor connected with the house, Is not a '• dwelling-house " withJn the 'English statute.' '} 54'J. " Orouncl Adjoining a DwelUng-house." — This phrase imports acfual contact; ant' therefore grounds separated from a house by a narrow walli and iialiiig with a gate In tt are not within the words.* § 550. Larceny from a House. — Stealing property hanging at and outside a door k not "larceny from a house."' So of goods outside a wash-house." §551. Shop. — A ' ' shop " is a place for the sale not the deposit of goods.' § 5)2. "Warehouse "~ " Granary."— A building of twenty-one feet by flfteou feet placed on a market garden and used for storing the tools and agri- cultural implem(!nts used there, such seeds as are sown and manure employed, Is not a " warehouse " or a " granary " within the statute of New Hampshire.s § 553. — — Stealing from the Person — Property must be Completely Re- moved. — In ^. V. Thompson,* the prisoner was indicted for stealing from the person of John Hlllraan, a pocket-book and foiir promissory notes of £1 each. The evidence of the prosecutor was this: " I was at a fair at East. Grlmstead; I felt a pressure of two persons, one on each side of me ; I haa secured my book lu an Inside front pocket of my coat; I felt a uand between my coat and waist- coat ; I could feel the motion of the kuuc'^les ; I was satisfied the prisoner was attempting to get my book out. The other person had hold of my right arm and I forced it from hlir, and "(rust it down to my book. In doing which I just brushed the prisoner's 'nnd ani arm; the book was just lifted outof my pocket; it returned Into my pocket; it was out; how far I can not tell; I saw a slight glance of a man's hand down from my breast. I secured the prisoner after a severe struggle, and a desperate attempt at escape, in which he was assisted by twenty or thirty persons." Upon cross-examination the witness said : " My coat was open, the pocket net above a quarter of an inch deeper than the book; I am satlsfl' d the book was drawn from my pocket; it '.ya» an Inch a'jove the top ot the pecket." > K. V. Campbell, 2 Leach, 642 (1792); U. V. Owen, 2 Leach, 0S2 (1792); M.Hrtiiiez v. State, 41 Tex. 126; Middletoa t>. Stito,63Ga. 248. 2 Henry v. State, 39 Ala. 679 (1866. . 3 It. V. Turner. 6 C. & P. 407 (1834); and •ee R. v. Flanagan, H. & R. 186 (1810). « R. V. Hodges, M. A M. 341 (1829). 6 Martiiiex v. "■ uto,41 Tex. 126. < Mlddleton v. .State, 53 Ga. 248. ' H. V. Stone, 1 Leach, 370 (1784). » State f. Wilson, 47 N. U. 101 (1806). » 1 Moody, 78 (1836). -^- ♦' POSSESSION OF STOLEX I'lIOPEUTY. 581 To steal from a " dwcll- ; to take them from the e statute.* thes from the railing or not larceny " In a dwell- a stable, not undev the Blllng-house " within the "—This phrase Imports I house by a narrow walk hanging at and outside a itside a wash-house." I not the deposit of goods.' ling of twenty-one feet by ;torlng the tools and agri- wn and manure employed, ,tute of New Hampshire. 8 must be Completely Be- sted for stealing from the 3is8ory notes of £1 each, t a fair at East Grimsteadi ne ; I haa secured my book jtwecn my coat and waist- i satisfied the prisoner was id hold of my rlglit arm and lok, In doing which I just just lifted out of my pocket; can not tell; I saw a slight ■ecured the prisoner after a In which he was assisted by 1 the witness said : " My coat deeper than the book; I am ras »n Inch a'love the top ^f odges, M. A M. 341 (1829). sz 1.. = 1110,41 Tex. 126. ton V. State, B3 Ga. 248. tone, ILeacli. 376 (1784). .. Wilson, 47 N.H. 101 (1806). ,y, 78 (1836). Upon the evidence it was insisted for the prisoner that this did n.t amount to a taking from the person. Tlic learned judge recommended it to the jury if they were satlslled that the prisoner removed the book with intent to steal if, to flud him guilty. Tlie jury found the prisoner guilty, but tlie learned judge respited the esecutiou of the sentence until the opinion of the judges could be taken on the point. In Hilary Term, 1825, the judges (Best, L. C. J., and Alexander, L. C. B., being alosent) met and heard this case argued by Laio for the prison<;r, when AitBOTT, L. C. J., Baylev, J., i'AUK, J,, HoLm)Yr), J., BtRuouuii, J., and Lrr- n.EDALE, J , thought tliat the nrisoner was nn rightly convicted of stealing from tlie person, because from first to last the book remained about the person of tlie prosecutor. Graham, B., Garuow, B., Uullock, B.,anJ Gasselee, J., were of tlie contrary opinion ; but the jmlges were unanimous that the simple larceny was complete; and sentence of transportation far life having been passed, a pardon, ou condition of transportation for seven years, was rec- ommended. * § 554. Stealing "Privately from the Person." — To steal from one who lias rendered himself insensible by intoxication is not a "privately stealing from tlie person'- within the English statute." In a. V. Scribble,'^ the priso was indicted for having stolen a watch from Thomas Sheridan, privately from lis person and without his knowledge. The prosecutor had been drinking at a public house witli tlie prisoner, an^ being both of them much intoxicated, they went together to the pris-oner' lodging, where the prosecutor fell asleep ; and while he wa.s asleep the prisoner stole his watch. The court ruled this not to be such a stealing privately as would oust the offender from the benefit of clergy, within the meaning of the legislature; and mentioned the following case as having been decided by the judges: a person who had become intoxicated at Vauxliall G.^^rdens fell fast asleep on his way home, in one of the watch-houses or niches on Westminster Bridge. A waiter, also from Vauxhall, passing that way stole the buckles out of his shoes without waking him, and tlie judges were of opinion, that the statute was intended to protect the property which persons by proper vigilance and caution should not be enabled to tecure; but that it did not extend to persons who by intoxication had exposed themselves to the dangers of depredation, by destroying those fac- ulti(>s of the mind by the exertion of which the larceny might probably be pre- vented. The jury found the prisoner guilty of stealing, but not privately fron e person. § 555, Beoeivlner Stolen Ooods. — Receiving stolen goods is not larceny.* § 556. Possession of Recently Stolen Property. — Convictions are some- times had on the fact alone that tlie pri.-ioner has in Ills posttession the stolen property; that the possession Is recent and he gives no reasonable explanation of tlie possession. But iu a number of cases it is laid down tlmt • conviction 1 Kir/«2E88t'BP. C.555, 556, 5,'i7. 2 U. r. Kennedy, 2 Leach, 914 (1797); 3. I- Mi)rriB, 14. 915 (1797); R. v. Duff, Jd. 915 (HflO). ■5 1 Leach, 275 (1782). * Pcoijle f. Maxwell, M C»l. 10 (isu*,. 582 LARCENY. can not rest on recent possession alone. > For the rules of law and the presump. iioDS as to this proof, see my book on "Presumptive Evidence." « I 557. Possession of Recently Stolen Property — Erroneous Charge. — Tucker v. State.— In Tucker v. Stale,^ the defendant was indicted and con- victed of stealing a horse from one Carr ; the evidence being as follow^' : G^rr's horse was stolen, in Erath County, about the 2Gth of October, 1882. About a month before the horse was stolen, appellant was seen in the neighborhood. The last of October or first of November, 1882, appellant came to the house of S. B. Walker, in Mason County, one hundred and fifty miles from Erath County, and was riding a horse In every way filling the description of Carr's stolen horse, and defendant " said he was just back from Mexico." This was, in brief, all the evidence. Upon the subject of recent possession, the court charged the jury " that the possession alone of property shown to have been recently stolen is not in law sufficient to warrant t..> conviction of one charged with theft. Such possession, if proven, is only a circumstance for the jury to weigh and consider in connection with other established facts in determining whether the accused is guilty of the offense charged or not. If, therefore, the alleged horse was stolen as charged, and if the said horse has been traced to the possession of the defendant, such possession, if unsupported by other evi- dence, will not warrant the defendant's conviction; and if such be the case, you will acquit the defendant. If, however, you find that such possession, if shown, is corroborated by other evidence, than to warrant the defendant's conviction all tho evidence taken and considered together, including the fact of possession, if it exists, should be sufficient to exclude from your minds every reasonable theory consistent with defendant's Innocence." On appeal this was held error, — White, P. J., saying: This objection was objected to, and is complained of and assigned as error. However comprehensive the charge may appear to the 'egal mind, we fear it was calculated, and did mislead the jury by impressing them with the idea that if the mere fact of "possession" was "corroborated" that would be sufficient to establi-sh guilt. There was no question about " pos- session" and " recent possesMOU." The evidence, if it establlslied anything, established "recent possession," and that fact needed no "corroboration." What the jury should have been told wa<, in effect, though recent possession be establlshel, still unless the other evidence iu llir case tended to connect de- fendant with tlie fraudulent taking of the animal, he would be entitled to an acquiital; iu other words, that tiiere must be other evidence of guilt besides the recent possession, and tliat those evidence., together with the rjcent pos- session, must be sufficient to establish Id the minds of the jury defendant'.s guilt to a moral certainty, beyond a rca»*fei». ..« doubt. Because the charge was calculated to, and perhaps did, misl. id the jury, and because the evidence is insufficient to support the >• rdict and judgment, the judgment is reversed and the cause remanded. „ , , ,„ , Beversed and revianded. 1 state V. Graves, 71 N. C 4K; State v. Wali-.f. 41 Iowa, 217; Yates f. 8tRto,.S7Tex. 202; People t'. NoroROa, 48 Cal. 12;t: Gallo- way f. Slate, 41 Tex. 289; 11. ' — , T C. & P. 45'.' (1826; ; U. r. Ariams, 3 0. « P. 600 a823) ; Slate V. Oarler, 72 N. C. 444 ; Slate v. Graves, 72 N. C. 482; State v. Walker, 41 Iowa, 217 Gablick ti. People, 40 Mich. 292. ■' LawBon un PresumptlTe BTidame, Rule 109. s 10 Tex. (.\pp.) 471 (1884). INSUFFICIENT mOOF — CASAS V. STATE. 583 the presump* a Charffc . — ,cd and con- loMfdi G{irr'8 82. About a e'ghborhood. the house of ilrath County, Carr*s stolen This was, In n, the court to have been E one charged r the jury to 1 determining ;herefore, the ecn traced to by other evi- the case, you ion, if shown, t's conviction )f possession, ry reasonable tils was held complained of appear to the by impressing lorroborated " 1 about "pos- hed anything, trroboratlon." I possession be o connect de- entitled to an guilt besides he rjcent pos- ry defendaut'.H he charge was he evidence is s reversed and ,d remanded. er, 41 Iowa, 217 292. ) BTldMwe, Rule ). § 55g, <• Voluntary Return " of Stolen Property. — In Texas the penalty for theft is mitigated where the property is voluntarily returned within a "rea- sonable time." The evening of the day on which li was taken is "reasonable time." 1 The return of stolen property may be voluntpy ivlthln this statute, although It Is caused by fear of detection and punishment, as well as by re- pentance.* ^ 550. Evidence held InsuiQcient on 'wbloh to Convict. —In a large number of cases in the appellate courts the evidence below has been held In-iufllcient on which to convict.' Tlie most important of these cases )n the Court of Appeals of Tex^s are given in full in the succeeding sections. S560. Evidence Insvifflclent to Convict — Casas v. State. — In Casas v. State,^ the liuUitment charged the prisoner and one Gomez, jointly, with the tlirtt froii le ihop of one Fierling of dress goods to the value of $20. The in iiir Nvas convicted. Aiulreas Fierling was the first witness Introduced by the State. He testified that, at the time of the theft, about the first day of June, 1881, he was the proprietor of a tailor shop, situated in front of the steamboat office in the city of Brownsville, Tex i Evurything of value which was stored in the shop was taken on the occasion raferred to. The articles mentioned in the Indictment being read over to the witness he identified the following: One blaclc cap, one blatli vest, two grey vests, one pair of soldier's pants, two pair.of blacli pants, cue coat and pair of pants, one casslmere coat, one black coat, one cassimere vest withr at a batk, trimmings, and one pocket knife. He gave the value of each article, i '] testified that their aggregate value was 035. The witness recovered the ai tides named through Mr. Storms, a justice of the peace. They were stolen in the morning between three and four o'clock. The witness had suffered with toothache up to three o'clock, and between ur and five 1 Inglo V. state, 1 Tex. (App.) 807 (1876). 2 Allen V. State, 12 Tex. (App.) 190 (1882). had see Bird r. State. 10 Tex. (App.) 528. a State t,. Rice, 83 N. 0. 6«1 (1880) ; State 1 . Wilkerson, 72 N. C. 378 ('875) ; State v. De;i;, 04 N. C. 270 (1870) ; G;. ... v. State, 12 Tex. (App.) 61 (1882) ; Casas v. State, 12 Tex. (App.) 59 (1882) ; Pettigrew t>. State, 12 Tex. (App.) 225 (1882) ; Hardomann v. State, 12 Tex. (App.) 850 (1882) ; Johnson v. State, 12 Tex. (App.) 385 (1882) ; Soymoro v. State, liTex. (App.) 391 (1882); Taylor v. State, 12 Te\. (App.) 489 (1882); Shelton v. State, 12 Tex. (App.) 513 (1882) ; Santello v. State, W Tex. (App.) 249 (1884); Harrison v. >>tate, 16 Tex. (App.) 326 (1884); Madison I. state, IB Tex. (App.) 435 (18S4) ; Tucker t . Slate, 10 Tex. (App.) 471 (1884) ; Flotcher State, 18 Tex. (Apo.) 635 (1884) ; Evans v. Maie.l5Tex.(App.)3I (1883) ; Willis v. State, 15 Tex. (App.) IW (1883); Clayton f. State, 15 Tox. (App.) 221 ( 1884) ; Taylorf. State, 15 Tox. (App.) 357 11884); Prator v. State, 15 Tex. (App.) 363 CW84) ; Soliindler r. State, ij Tux. (App.) 394 (1884) ; Harris v. State, 15 Tex. (App.)' 411 (1884) ; Powell v. State, 15 Tex. (App.) 441 (ISM); Buntain v. State, 15 Tex. (App) 490 (1884): Castellow v. State, 15 Tex. (App.) 651 (1884); MoNair V. State, 14 Tex. (App.) 'i > (1883) ; Cook v. State, 14 Tex. (App.) 8« (1883) ; Mapes v. State, 14 Tex. (App.) 129 (1883); Dresch V. State, 14 Tox. (App.) 175 (188,3) ; Woll v. State, 14 Tex. (App.) 210 (1883) : Hammel v. State, 14 Tex. (App.) 326 (1883) ; Knutson t'. State, 14 Tex. (App.) 670 (1883) ; Deering V. State, 14 Tex. (App.) 689 (1833) ; Hart ». State, 14 Tex. (App.) 657 (18?3) ; Hunter V. State, 13 Tex. (App.) 16 (1882) ; Voiisht V. State, 13 Tex. (App.) 21 (1882) ; Harria v. State, 13 Tex. (App.) 309 (1882); Johnson V. State. 13 Tex. (App.) 379 (188;',); Irvine V. Slate, 13 Tox. (App.j 499 (1883; ; tpndinr. Slate, 10 Tex. (App.) 03 (1881) ; MoPhall v. State, 10 Tux. (App.) 128 (1881) ; Baiter V. State, 11 Tex. (App.) 2(>2 (1881) ; Merritt V. State, a Tox. (App.) 177 (1877) ; Smith v. Slate, 2 Tex. (App.) 477 (187"') ; DlXon v. Slate, 15 Tex. (App.) 480 (1884). * 12 Tex. (App.) 69 (1882). 584 LAIICEXV. o'clock ho heard a noise lu the shop; and, proceeding to Investigate It, liu i»is- covered that the establishment had been "cleaned out." The goods wiic taken la June or July of 1881, and the taking was without the consent of the witness. The wltniss gave Mr. Pccina a sample of the goods lost, and recov- ered goods corresponding witli tlie samples. On his cross-examination j^hc wit- ness stated that the man whom he thought took the goods was a man who stayed about the steamboat ofllce, until about a month after the iobbery. The witness did not know the man's name, l)Ut considered him a very good frieuii until he began to miss articles every day, after this man's visits to his sliop. Tlie witness missed articles invariably after this man's visits to his sliop, whicij was the reason of his suspicion. The loss of the knife and a pocket handker- chief, on two separate occasions following tlie visits of this man, was larticu- larly spoken of by tlie witness. The man was a Mexican and disappeared soon after the discovery of the stolen goods. Some of the stolen goods ^tted the man exactly, and these the witness had never recovered. Tlie defendant re- sembled the mm spoken of, but the witness could not possibly Identify him as the same. If the defendant was not the man, then defendant was never about the shop — or if so, the witness did not know it. On redirect examination the witness said the man he spoke of was al)out the height and strength of the defendant, and the clothes referred to yould fit the defendant. He proved the venue and want of consent. D. Buterera testified, for the State, that he was a police officer at the time of the robljery, and as such executed the search warrant under which th" goods were recovered at tlie house of Pedro Alvarez. The articles there found were those described in the indictment. He found at Pedro Alvarez's house, when he executed the search wrr.'nt, Pedro, his wife, three daughters, and this de- fendant. The latter, when found, was asleep in a little room. None of the ar- ticles removed wore found in the large family room, but for the most part were found in a box under a bed, in a small room occupied by the defendant. The witness found some of the articles under a mattress in a large room, and some In a trunk in the same room. The witness had never seen the defendant before that day. Over the objection of defendant, the witness testified that he found other stolen property in the house beside that named in tlie indictment. A sad- dle was found in the defendant's room, which was turned over to the owner, Faustino ViUareal. A pair of saddle bags containing a pair of sp srs, and ordi- nary toilet articles were found in defendant's room, which were claimed by and turned over to him. Cross-examined, the witness stated that he did say on the trial of Alvarez, the day before this trial, that, when he searched the house under the warrant, he heard a stamping like some one leaving the house. He said nothing about this on his direct examination on this trial, because he avus not asked about It. Pecino was about the premises and saw the shadow of some one running oft. The witness saw a bed just outside the door, which had tlie appearance of bt ug recently occupied, but the witness saw no shoes near or under It. On his return to the house, the next day, the witness was told that Gomez fled on his approach the day before. The house is an ordinary grass covered jacal, divided very nearly In the middle; one division being subdi- vided, forming the small room aud kitchen. The witness found Pedro Alvarez, his wife and three daughters in the largo room, and read the warrant to tliora, about one o'clock. There was an open space or hole for a door leading into the room where the defendant was. The defendant heard the warrant read, and got up, but made no effort to escape. The witness first searched the hUw. INSUFFICIENT ntOOF — CASAS V. STATE. 5«:i istlgatc It, hu ilis- The goods \\\\v le cousout of the Is lost, and rccov- uninatiouj^c wit- s was a man who the iobbery. The , very good frieuii 'Isits to Ills shop, ;o his shop, which I pocltet hundlier- man, was larticu- disappeared soon li goods 'jtted the Tlie defendant re- )ly identify him as b was never about ircct examination nd strength of tliu t. He proved the Jeer at the time of r which th" goods there found were irez's house, when liters, and this de- 1. None of the ar- ,he most part were e defendant. The i;e room, and some le defendant before ifled that he found ndictmcnt. A sad- over to the owner, of sp jra and ordi- cre claimed by and it he did say ou ti»e earched the house Ing the house. He lal, because he avus the shadow of some oor, wiilch had the V no slioes near or tncss was told that » an ordinary grass ision being subdi- und Pedro Alvarez, le warrant to tliera, I door leading into 1 the warrant read, first searched the truuks. In one he found the soldier's pants i.nd some ladles' wearing apparel > in another a lot of trimming and n gray waistcoat in which there was no back* He next fouuvl, under the mattress, a black coat and pi.ir of pants, and next went into the small room, where the defendant still was, and there he examined the saddle-bags llrst. lie then looked under tlie bed and discovered the box in which the missing goods were fouud. Tho house was the property of Alvarez. Upon finding tiie goods the witness arrested tlie defendant and Aivarez, and took them and the goods found to tiie justice of the peace. He siiortly returned with another search warrant, and then arrested the wife of Alvarez. Faustino ViUareal recognized the saddle recovered from the Alvarez house as the one stolen from him the night before the ari.st of the defendant and Alvarez. It was found in the room in which tlie defendant was arrested. The witness had never seen the defendant before his arrest. Louis Kowalskl testiflc?' for the defence, that as a business man and poli- tician he knew nearly every m^^a in Brownsville. He was custom-house odlcer iu Brownsville. He knew the defendant. In the beginning of the year 1881 the defendant worked for the witness^ mother. lie afterwards disappeared and the witness heard nothing more of him until his arrest. The defendant has two sisters, one living In Matamoras, and one living with the witness. The defendant was in Brownsville during the first part of tlie ye-r of 1881. The witness knew nothing personally of his goin^ away. Elisha Campbell, for hj defence, testldcd that he was acquainted with Pedro Alvarez, who owned the house in wliich the stolen goods were found The witness was present when the arrests were made. Alvarez, wife, daughters and defendant were In the house and !lef ugio Gomez was iu the kitchen. Gomez heard the order or search warrant read, and ran out and attempted to mount the witness' horse. He did not succeed, but ran on down the street and escaped. Tills witness had heard a conversation between Gomez and defendant, in which Gomez, speaking of having rented a small room, said he had to payAlrarez one dollar for it. He had several times seen Gomez at Alvarez's house, previous to the arrest. Gomez left his shoes when hu ran away. The defendant made no effort to escape. Juana Casus, defendant's sister, testified that for eight or nine years past the defendant had resided at Corpus Chrlsti, having left the neigliborhood of Brownsville and Matamoras when he was ten or twelve years of age. He had been back but twice siuce; the last time he returned was about fifteen days before his ancst. Buterera, for the defence, testified that when he arrested the defendant he old hlra the reason of his arrest. The defendant immediately deiUed any knowledge or participation In the theft, and do^lared that he had been iu - Brownsville but two or three days, and was from Corpus Christ! S.ivarlo Maza testified, for the defence, that he knew Gomez before arrest of iefendant, but did not know where Gomez went to. When in Brownsville G(-mtz stayed at Alvarez's house. Guadalupe, tlie man referred to bv Fierlln-' as;he man who worked in the steamboat odke, was when the triaf was had" on -.he Mexican side of the Rio Grande, but was In Brownsville when these parties were arrested, and for six weeks after. Campbell, m rebuttal, testified that he saw the defendant at the Alvarez house on four different days, before his arrest; the first time as many as seventcea days before the arrest. 586 LARCENY. , . J t Tnno 1 R81 the shop of one Andreas Flerllng HURT, J. on the 1st day of June 1881, th« «'u,p ^^^^ ^^ ^ was rifled of Its contents, consisting of goods, such a n.^^^n of the vina«e tailor «'-P;„j^ --t,::7taril o^r/^a^ seard/d and the go^ods town ^JB--^™;"; *.'i;^^^^^^^^^ and defendant. Angel Casas. r;f ^std. 'pr^riTJItawere jointly indicted and tried. Pedro men'; in the penitentiary for the t^rm o* two >ear^^ ^^ ^ ^^^ ^^ The defendant, when the house was ^'^''^^l^' ^^^^^^^^^ being Informed of a small room of the house of Alvarez. "^^^^ f''^'^^^^'' gls saddle-bags the charge, he denied having any knowledge o^^^^^^ ^^ being examined, no fruits of the " --;;„';,^^^^^^^^^ this box It was not ever, In a box wasfound some of the ^^^^^^'^^^'J ^^ ^^ ,uown that de- shown that defendant had any ^°"":,^"°^i7^'^;^^^^^^^^^^ On the other hand, fendant had control of the '^^^-j'^J^^Vw^^^^^^^^^ «- '«««>• -'^« nh^rrtrrhr^rnr^^^^^ reversed^and the cause remanded, with a new trial awa^ded.^^^ ^^^^ ^^^^^^^^^ indictme* chargcid the appellant ^"J f « *'^J* ^y of March 1882. He was John collier, in Dallas f ^^^^ °\f j:;;! '^fn the penlt;ntiary. convicted, and was awarded a term «* f ^y^^^^f J^^^^^^ t^^t he worked John Collier was the first witness, for the Stale^ He test his certain sorrel horse «- ;^l>«i^ "^f^^^j^f, ^,Vf m^w^ 1882, and at night he turned the — ^/'^^.''^^^J^'v^nays later, in Eastland, next morning. He next saw the ^°f *^' "'g^^^^X had George Cook, John Eastland County, In possession of *";«; J^^^^ ^"^^ this animal. Each Broach and Joe McGee in custody ^^^^J ^^^^'^^^^ on Tuesday, the day of these three parties denied all «'f ™ '° ^^^^^"'JJquiry, that the defendant aner tUe ho.e -s lost t ^ jrhC ^o^lldTo J west.'^onnd for Eastlana, 'and Joe McGee had left his nei^noo j ^ eigliteen mles west and he immediately left in pursuit^ At Ar Uugto" » po .^ ^^^^^^^^^ ^^^^ of his house, the witness ^^^'^.fJ'J'^^^Z^ovtl beyond Arlmgton, the lowing on that road In the «» 'f ^^^ ?* ^^^^^ ^ad lost a horse on the witness overtook R'l^y Pe™*'^^'^"' ,''. °'^|L'^rn tTiewUness heard of his and same night that the -f -« ^^^^J^; Jf^eprterto be In the possession 1 UTex. CApp.jW 1883). I INSUFFICIENT PROOF — COOK V. STATE. 587 Ireas FierUng irily kept In a ilceman ol the md the goods Angel Casas, tried. Pedro ;he same theft, laptured. Ap- lent at confine- eep on a bed In ig Informed of lis saddle-bags • the bed, how- , box It was not shown that dc- the other hand, the room, — he business ol the tiat some ol the i case, we are ol 'he judgment Is and remanded. >ok V. State,^ the , the property of , 1882. He was entlary. i that he worked onday In March, h he was missing Iter, In Eastland, jorge Cook, John lis animal. Each Tuesday, the day hat the defendant uud for Eastland; shteen mles west p1 trave'^ers. Fol- ,nd Arlington, the t a hcffse on the heard ol hts and In the possession tness and Pembcr- )oint beyond Fort IS aad Pemberton traced the track of a wagon drawn by a yoke ol bulls, and within a day or two came upon a camp near a small creek, which camp had been occupied by lour men, having in their possession horses answering the description of those stolen, and a wagon drawn l)y a yoke ol bulls. Reaching a point eight miles distant from Eastland the roads forked, and the witness took and followed one and Pemberton the other. When the witness reached Eastland, he found Pem- berton already arrived. The witness' horse was tlwre in possession of the sheriff. George Cook, John Broach and Joe McGee were there in the custody of the .sheriff. The defeudaut was not there, but, knowing that he had a brother-in-law living a lew miles out Irom Eastland, witness, with a~party, went tlicre, lound and arrested him. George Cook, a brother ol the delendant, escaped Irom the officers at Eastland, and has not since been seen. Joe McGee lived in the witness' neighborhood, and owned the yoke ol oxen, and was seen in company with the delendant a lew days belore the theft of the animals. He lias been sent to the penitentiary for the theft of these animals. John Broach is under indictment for this theft, and is out on bond. Witness could not say tbat these parties were familiar with the stock ol tlie country, but knows that they had seen his horse olten enough to know it. Witness never saw the defendant in possession ol his horse which was stolen on the night ol March 27, 1882, and which was taken without the consent ol the witness. An Indict- ment lor horse thelt is now pending against tlie witness in the District Court of Dallas County, but witness asks no more than a trial as lair as he thinks defendant will get in this case. Riley Pemberton Avas the next witness lor the State. He testified that he lost a horse Irom his place near Collier's place, in Dallas County, on the same nis;ht that Collier lost his. He saw the delendant and Joe McGee together near his larm on the Sunday belore, and on the lollowlng Tuesday learned that they had gone west with a horse owned by delendant, and a yoke ol bulls, which were worked as steers, owned by McGee. Witness started in pursultj find near Arlington, in Tarrant County, met up with John Collier, on the same pursuit, and the two traveled on together. At Arlington they heard of their liorses for the first time, but could get no description of the parties who had ...:>' in possession, nor of the exact time they passed through Arlington. Be. ond Fort Worth witness and Collier got on the trail ol the bulls, wagon and two pc^rsons. A day or two thereafter, and some distance beyond Fort Wort 1, they again heard ol the horses, bulls and wagon, in possession of lour pcrso IS who had camped one night on a small creek. Collier and witness sep- arater) at the forks ol the road, eight or nine miles Irom Eastland, each taking one of the lorks. Alter riding along his route a short distance, the witness saw ))artles ahead, and leaving the road and riding around them, the witness reached a point near the road ahead ol them, and secreted himsell so that he could see them as they passed. As they passed witness recognized the delend- ant and Joe McGee in the wagon driving Collier's horse and another horse which the witness did not know. George Cook and John Broacb came on behind the wagon and were driving the bulls. They were riding horses which the witness did not know. The witness' horse was not In their possession. When the party had passed the witness, he again took to the brush, passed them, rode rapidly into Eastland and notified the oflicer?. George Cook soon came into Eastland, and was arrested. Witness and the officertj then went in quest of the other parties and the wagon and stock. 1 588 LAUCKNY. H ■ ' i; Hi. They found Joe McGee and John Broach with the wagon, camped a hundred or two yards off the road, and arrested the two men. Collior's horse, another one, the wa-on and the b.tUs were In tlieir possession. Neither McGce nor Broach claimed the Collier horse. Witness and the olllcers returned tjCl.ust. land with MrOec and Broach, and found Collier, who had then reached town. Geor-e Cook escaped from the officers In Eastland and has not been seen sluce. John^Broach was released by the offlcers, over tl>e protest of the witness, l>iit has since been indicted In Dallas County and is now under bond. Collier and the officers went out and arrested the defendant somewhere in the country. McGee and the defendant were broufjht to Dallas, and were indicted for this theft. McGee has been convicted and is now In the penitentiary. Dave McQeo testified, for the State, that he was a brother of Joe McGee, heretofore convicted and now serving a term in the penitentiary for this offense. At the time of this offense Joe McGeo lived with his mother, in the neighbor- hood of the witnesses Collier and Pemberton. Ou the Saturday before this theft, the defendant came to the McGee house, and said that he had come f..r Joe to go west with him to Eastland County. Tkey left for Eastland that morning, Joe talking with him, at defendant's request, a yoke of bulls heowuecl. Defendant had a gray horse with hlin.whcn lie came to the house. When the two left, they took with them Joe's bulls and the defendant's horse. Defendant said at the time that he had sent his brother, George Cook, to get a wagon in whlc^ "le intended to work the bulls. Joe McGee owned a horse at that time, but it was lost. Witness saw no more of them until after tiieir arrest and re- turn to Dallas County. ,» ^ .. ^ J W Vincent was the first witness for the defence. He testified that some time In March, on Tuesday, he saw the defendant and a young man whom, from description, he supposes to have been John Broach, in camp on Sycamore Creek They had a yoke of cattle standing near a wagon. Defendant said tuey had no horses, but that his partners behind, who were going with him to a ho;,' ranch in Eastland County, would bring along two or three. The witness saw the same parties that night at a dance at the house of Mrs. Dietz, who lives m the suburbs of Fort Worth. ^ u t Mrs E Deltz testified for the defendant that she lived in the suburbs of Fort Worth; that on Tuesday, March 28th, she saw the defendant and John Broach at her house ; that they returned tb xt night as attendants upon a dauce which occurred there at that time. Witness had kaown defendant seven or *'^Car^rirSaraueIs, who attended the dance at Mrs. Dietz's corroborated that witness. Motion for new trial assailed the sufficiency of the evidence, and was over- WiiiTE P J. (after ruling on an instruction as to principal and accessory). In the case before us, whilst in a legal point of view the charge of the court, as we haveshown, was a correct enunciation of the law upon this point, we are of opinion that the evidence was not sufflcient to support the verdict and judg- ment upon the ground of defendant's guilty complicity as a principal offender. The evidence before us lacks that probative force which carries with it the con- viction that it is incapable of explanation upon any hypothesis other than that of the defendant's guilt. Agiln, tae evidence, so far as defendant's guilt is sought to be established, is wholly circumstantial. Such being the case, under repeated decisions it ha» INSUFFICIENT PKOOF CUOCKKTT V. STATE. 589 icd a hundred or i horse, another ther McGce nor turned tjCl'^ast- i reached town. beea seen slucu, the witness, but ind. Collier and in the country. indicted for this r of Joe McGee, ' for this o£ten!*e. , in the neighbor- iirday before this he had come for )r Eastland that if bulls he owueil. louse. When the orse. Defendiint to get a wagon in orse at that time, leir arrest and re- 2stlfled that some man whom, from mp on Sycamore jfendant said tlu;y with him to a iio;,' The witness saw )ietz, who lives in in the suburbs of fendant and John ants upon a dauce Icfeudant seven or 1 corroborated that nee, and was over- )al and accessory). large of the court, 1 this point, we are 3 verdict and judg- principal offender, ries with it the cod- jsis other than tliat to be established, led decisions it has been held error for the court to refuse, fall or omit to Instruct tlic jury as to the law with reference to that character of the testimony. BLcauso the evidence was Insutnclent, and because the charge of the court (lid not submit tlie law essential to the evidence, the judgment is reversed and tlie euuse remanded Iteversed and remanded. oilL'. Evidence held Insufficient — Crockett v. State. — In Croekett v. Stact,' tlie Indictment cliarged the appellant with tlie theft of a boar hog of tlie vahie of twenty-flvc dollars, the property of George Brown. The theft was iilleiied to have been committed on the seventeenth day of January, 1883. The piniishmont assessed against the appellant, by a verdict of conviction, was a term of two years In the penitentiary. George Brown testidud, for the Slate, that the defendant lived about three- (juarters of a mile distant from his house, and about tliree hundred yards from Tate's. Ill January, 1883, the witness had a very line black and white spotted buar hog, which he valued at twenty-five dollars. Wlicn turned out, the hog ffouul customarily remain away from the house three or four days, and then return. The hog had been missing longer than his usual timo when, on Janu- ary 17, witness went to look for him. In that search he got Information from Tate which caused him to give up the search. The hog was marked and the left car was scarred by dogs or worms. Witness gave no one his consent to take the hog. Witness has not seen his hog since he missed him on the occasion uanu'd. Henry Tate testified, for the State, that on the morning of January 17, he and his wife passed the defendant's house, and saw a large fine black and spotted boar hog lying at the defendant's hog pen. On their return that night, they learned that the defendant had killed a hog that evening, and as the wit- ness had recently missed a hog, he went over to see the defendant next morn- ing. Witness found blood about the hog pen, and called the defendant out and asked him if he had not killed witness' hog, which the defendant denied. Witness then went off and got Jim Battle, and returned and asked the same question of defendant. Defendant replied that witness should know he had not IJilled witness' hog; that the hog he killed was much larger than that of witness, lie showed the witness the head of a large hog; off which the hair had been scraped and the ears cut close. He then asked witness if he had ever noticed a large black and spotted boar hog running about the neighborhood. Witness re- plied that he had, and defendant said that that was the hog he had killed. That hog, according to the witness, was worth twenty-live dollars. Jim Battle, for the State, corroborated the witness Tate. He stated, further, that he identified the head shown by defendant by the scarred appear- anee of the left ear. It was the head of a large black and spotted boar hog whieh had been running In the neighborhood for some days. Flora Crockett, wife of the defendant, testified that she was at home on the January evening when her husband, the defendant, killed a large black and spotted boar hog. That hog was one of four the defendant bought from Hay- *n Smith, about two weeks before, for thirty dollars. When Tate and Battle came to the house next morning, witness was in the house singeing the ears of tue slaughtered hog. 1 14 Tex. (App.) 220(1883). V-.»X'AJ3t'..i3Sj*i*feSl^ I i 590 LAKCENY. .., „o.ara te..e.. lev U. ...no. U.. - - J^^^^ ^ t^ when heklllca a hog on January ^ ' ' ^^'^^ j';'J ..^^ boiling the cars fur Crockett did. except that she ^vas J°f ^^^ J* J',, '".^^hUo Tate ami battle breakfast on the morning after ^^»« J^^^f J jfj^i; J ," « castrated, were at the house. She also tes .lied J^a ">« m -j ^^ Fanule Smith testUled for ^f^^^^'^J^;: 'Zn on 'summer's ph.. bought some hogs about t»'« ""\"' J""i''b^;,7 These hogs, four In number, four hogs for twenty-eight dollars. «"« »^^ ^, ^^^,,3 witness bought «pottod^oar. Which witness a^^ra-cifrm^^ T ^^^^ ^^,^^,^ ,,„„ ::f ^! rhrsorthe dTudirwas a smaU hog. and on this point Brow. . grounds. It ^va. -PP0>^^<=;;^^7^; : .^'^^bV: Ly '^B h^ saw a large black and Reed set up. In substance, that ^f^ about two and a half miles from George spotted boar hog on Bennet s P/^/^' '^5°;' 'J^t^^ 'hat at the time of this trial, Brown's place. The affidav.t of John Shaw se tup th ^^^^^^^ ^^^^^^^ ^ ^^^^^^ or a few days before, there ^^«« ^ " " ^^"^InN.^^ large black and white spotted left ear appeared ^^'^''^^^^'If '™*'tt„„(,ant Is not Identified positively as the WHITE, P. J. The hog killed by (^elendant IS ease of clrcumstan- hog of the P---«"t:rrs£;y ofrstatf^s wltnLes. and, 11 nodouU tlal evidence Is made by the t«'^"™°Ynuestlonably have been sufficient to sup- bad been thrown upon It, ^'J^^^J^^^^^^f ^^e Lt tl- defendant's .vltnesscs port the verdict and judgment. 1^^^ J fj *' ^^^ concede, as stated, that the contradicted each other In ''l''''\^^'}''^X',^Za a positive Identification of case made by the State ^Vrir^s mot on for a new trial defendant pro- the hog to make it <=°;^ "^'j;- J/ ,eTt"?a ts which if true were, in couuec- dnced the aflidavlts of three witnesses to la ^^ ^^^ ^^^^ ,„^j^, Uon with defendant's ^^^'^^^^'^'^^^I'^^T^^^^^ killed by defendant at all, by the State, to prove that f ™^"^«^°; j'^";' f,,, ^ues of Brown's home some :rr ^:i:rt rdtrg r ^.ch he was tned, and up to with. . | ''V:lTlt :pi*^:rthe court, under the circumstances of the case. shouU I have granted the new trial. Beveraed and remanded. § 663. evidence Heldlnsufflclent-Deerlng ^; ^^^^i"^! ''e1'gt"e"eVhead of the indictment charged the ^^^-^^Coa use was alleged to have be » ^Zr^Z^^^^^^ fi^fteenth day Of November,... .e) 1 U Tex. (App.) 599 (1883). rj^JiMKSSMilBfW"*"'*'*^'' PKOOF INSUFFICIKNT UEEItlXO V. STATE. 591 with defendant jxactly art yimu ling the ears fur Tate ttUfl^Battlo teU. I, Haytlcn Smith, I Summer's pUicu, I, four In numbir, eea dollars, lltr [le sold defendaut re black and white „.rs witness bought ;old George Brown lis point Brown, in ence among other ies. That of Tom w a large black and miles from George le time of this trial, ;nnett place, a Utile k and white spotted ver Jackson's afllda- ded that the hog re- the right ear. The fled positively f s the case of clrcumstan- ises, and, If no doubt eu sufllclent to sup- efendaut's witnesses ;le, as stated, that the Itlve identification of ' trial defendant pro- true were, in cornice- ong as the case made kI by defendant at all, Brown's home some | id, and up to within a ;s of the case, shouW | versed and remanded. _ In Deerinfif v. (S;oe witness ever saw them Th brands and marks showed then that they were original marks and brand changed The brand showed that it had recently been changed Irom the bi and clalm'ed bv Burkett. The letter V was also branded on the cheek opposite the cha^-ed brands, and was Ire.-her than the lormer. One ol the eighteen headUlentitted by Burkett had a broken horn, and another the letter B branded °Va Drering, lor the defence, testified that the delendant was his son, atid | thai if" the defendant ever owned any sheep, he. the witness, did not knovvit^i The witness' family ha.' owned a small flock of sheep since 1875, wh.ch wa. started Irom a pet lamb presented to some one ol them by Captain Gas. Jonc8 Two or three other sheep were alterwards obtained Irom Sam Moore, and a many Irom Dave Williamson. In 1880, the witness' family exchanged a buck Tnd some mutton with George Johnson for six ewes, and In the laU ol the sam ^ear got five or six more from George Johnson. The witness' children sold flock of about sixty l>ead of sheep to John Hester, and he Hester and Tob Deerin- drove them ofi. The defendant had no interest in those sheep There were several marks among tl^e sheep, but they were all in the same b™°J. ;;•'; [M was the letter H and the figure four connected. That was ol record. The wlM ness hud nothing to do with the sheep, an''. V r -v but little about them On his cross examination the witness desc. d the marks and brands on th sheep belonging to his family, but none ol them corresponded with t^e Burkett mark and brand. These sheep, when driven Irom the house, were started lu| :^^^{:^»tr-}if9^'>^''-^^-'^ ■^' .0^. \^ IMAGE EVALUATION TEST TARGET (MT-S) 1.0 145 MM |2.5 150 ■^~ ■■■ 1.1 l.-^KS Itil |,.25 1 ' ^ 1 ' ^ -• 6" ► V Photographic Sciences Corporation 23 WEST MAIN STRLiT WEBSTIR.N.Y. M5S0 (716) S72-4S03 '<^ 'V- CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductions / Instltut Canadian de microreproductlons historiques PROOF INSUFFICIENT DEEUINO V. STATE. Gonzales County, about eight miles from where they were stopped by Bv.rkett. Except five or six of the flock, which belonged to one Spaulding and were un- bnmded, they were branded in the H4 connected brand. The defendant's brothei-in-Iaw, J. L. Johnson, testified that in 1879, 1880 and 1881, he lived with the defendant's father. The Deering family owned a small flock of sheep, in which the defendant neither had nor claimed an interest. In 1878 the witness got four or five motherless lambs from Sam. Moore, and in 1879 five or six more from Will Jones, which he gave to old Mrs. Deering. In 1881 the Deering family traded a buck to George Johnson for five or six head " His " (Johnson's?) brand was the letter H with the cross-bar elongated, and when the Deerlngs got these last sheep they put all the rest in that brand. The mark was a smooth crop off each ear. The witness h^re corrected himself, and said that it was in 1882 they got the sheep from Johnson. The Deerlngs im- pn ssert the letter V on the jaw of the sheep. Old man Deering made the trade with Hester, in the presence of all his family except the defendant. S. S. Gary testified, for the defence, that five years ago the Deerlngs owned a small flock of sheep. The witness understood them to belong to Mrs. Deering aiul the little children, and that the defendant had no interest in them. Leon Kendall testified, for the defence, that he had seen a few sheep running around the Deering place, which he understood to belong to the old lady and the boys. A. H. Jonea testified that the young Deering children claimed some sheep, but he had never known the defendant to claim any. They got a few lambs from the witness' father in 1874, and traded a buck to George Johnson for five or six ewes. The motion for new trial, which included the questions involv'cd In the opin- ion, was overruled. Hurt, J. Bart. Burkett lived in Gonzales County; and in the spring of 1881 lost about one hundred head of sheep. On or about the fifteenth day of Novem- 1)1 r, same year, John J. Hester and Tobe Deering were found in the posse^slop of eighteen head of Burkett's sheep, Hester stating that he l.ad purchased them from defendant. Hill Deering, who was not present. Burkett stopped the sIm ep, putting them in his pen, and Hester sent for defendant. When the de- foiulant arrived he stated that he had sold the sheep to Hester. When the de- fciulant first arrived he said the sheep were his, but afterwards said in same conversation that they were honest property, and that he had sold them for his Utile brothers. An agreement was made, the terms of which were that Burkett was to " let Hester go on with the sheep, and defendant was to bring suit apiiiist Burkett for them, Willis Arrington standing security to Burkett for the same." Defendant did not sue Burkett. Hester sold the sheep to Lee Floyd, ami Floyd and Burkett arbitrated the matter, Burkett gaining the sheep, and Fioyd paid him for them. Viewing this evidence in its strongest light against defendant, what docs it prove? First. That defendant sold the sheep to Hester, as his own property, or as the property of his little brother. Second. That he agreed to bring suit a;?iiinst Burkett for the sheep, but failed to do so. A most thorough scrutiny of all the evidence in the record will not show at anytime defendant in possession of these sheep. On the other hand, when we take in consideration the testi- mony for the defence, without conflict on material points, the confession of de- f< :i(lant " that he sold the sheep to Hester " will be reconciled with his perfect liuiocence. 3 Dkfences. 88 «• 594 LARCENY. by defendant must be proved by the ^ ate «uUi UK, g ^^^^^ ^^ a principal. Does tbe lact that he sold the f ^^P'J™" "'^ ., ^ by the '^'■^^''*" . «f ti,p phftree is we think, justly complained of by The seventh paragraph of the charge is, 7^;"' ' ^ ' . ., i, the jury Bheep, then and in that event .vha ^l'°»\'» "^J^^^^^^^^^ ^j„^, „,' t^e jurors from palpable error in this charge con Ists in l*"^^^' - ^ ™;°^j^i defendant fraudu- L issue ,nade and tendered by the 'f''^^ll';^^^%Sst,^^ u..e, and lently take the sheep from the possession of B"'-\;"; ^^ f^^^ ,1,, indictment, the only i.sue which could bo determined ^^^ "'« ^"f "ion of this main Other inferior issues may be determined in order to J d;<=^«^°^;;^ ^^^.,^, issue, but for no otlxer purpose. From t»i^« «»>"f *^^ the sheep of Burkett to in concluding that it was the offense of theft ^^fJ^lh^Lhe legnl right Hester, unless iu good faith the defendant believed '^l^l' ^;:^^X^^^^ to do so; and defendant's honesty in ^i« belief in regard to his leg g ^^ Hell 18 made the issue by this part «* /^e charge Th,s as we n ^^^ error-the issue being that deftndai^t fraudu ently took the^^^^^^^^^ afnrmed by the State and denied by tl^edeendant This must be^^^^^^^^ State to sustain a conviction on this ^-^^^'^^^'J.^'J^^ be w'u -tUy a con. or fraudulent connection with the sheep, whatevei '* "^y '^«' ^'^'^^ unexplained, vlction for theft. Possession of property --tly after ^^ t^^^*; ^^^ ^, ,,,' 19 used for the purpose of proving that the p.irty «« > ^ , ^^^ j,, fraudulent taker. A party being so in ^^^'''''Z'ZJl^ZL the party possession, butfrom «"« Po--^^- ^^^^ ^^aJ"^^^^^^^^^^ "^ who fraudulently took the property. We are °«* P^'-l^'^f J" ^^^ ^^^^y, ^ can given to recent possession of stolen property, for the purpose '•^ F:fthe error In the charge, and because the verdict Is not supported by the evidence, the judgment ,s reversed and the cause -man^^^d^^^^ ^^ ^^^^^^^^ 1 UTex. (App.) 175(1883). PROOy IN'SUFFICIEXT — DRKSCH V. STATE. 595 . The taking onstitute him ths alter they ! urged by the , What i3 it? brands? Did heory, but, on point, or facts The Reporter ;8 to have been It? We thinii n precisely the )t support the nplaincd of by : «'lf tlie jury d in good laitli, ester, ♦ ♦ • dm." Butsup- nt did not hon- } dispose of the of course. The the jurors from 'fendant fraudu- 18 the issue, and the indictment. Ion of this main )uld be justified 3p of Burkett to d the legnl right his legal right to we have said, is sheep. This was be proved by the sequent felonious will justify a con- ie(t, unexplained, sseasion was the shed for being iu t he was the party a the weight to be I for which it can ; supported by the id and remanded. 1 Dresch v. State,^ goats, of the value of one dollar per head, the property of Frank Gaines, In Maverick County, Texas, on the twenty-flfth day of September, 1881. The punishment assessed aijiiinst him by a verdict of guilty was a fine of twenty-flve dollars and couflne- iiient in the county jail for one day. The substance of the testimony of Frank Gaines, the first witness for the State, was that on or about the twenty-flfth day of Septemijer, 1881, he lost' .seven head of goats from his herd. He found his animals in a herd of goats reputed to be the property of the mother of the defendant, and which at that time was under the charge of the defendant. These animals, which the witness lost and afterwards found in Mrs. Drcsch's flock, included six " nannies " and one "billy," worth In the aggregate at least seven dollars. He recognized tliem by their flesh mark, and the '♦ billy " as well by his ear mark, notwith- standing It had been clianged. He demanded his property, and tlie defendant said that he would first speak to his mother and then deliver the goats to the witness. These and other goats of the witness were under the cliarge of the witucfss' son as herder. Witness did not give his consent to any one to take those goats, nor did he authorize his sou to consent to such taking. He recov- ered these goats next day under a writ of sequestration. Cross-examined, the witness stated that the six "nannies " taken under the writ of sequestration were his. They were all white. There were a great many white goats of the size and age of these six In Mrs. Drench's herd when these were taken, but nevertheless the witness knew that these six were his. He knew the «' billy " goat was his, and he was mad because his mark had been changed. All of Mrs. Dresch's goats had been freshly marked. Witness did not see the defendant mark them. The goats were returned to the defendant 8iil)sequent to their seizure under the writ of sequestration. The writ of se- questration was issued in a suit instituted by the witness against the defendant. Witness was mad, and did not wait to hear what Mrs. Drescli had to say about his demand for the goats. The written testimony of the witness on the exam- ining trial was read, and dlclo.sed a conflict with his present testimony as to the time he lost his goats, and as to the total number lost. J. W. Yates, deputy sheriff, testified that in September, 1881, he seized seven goats from the herd of the defendant under a writ of sequestration is- sued by Judge Terry, a justice of the peace. In a suit instituted by Frank Gaines against the defendant. These goats were pointed out to the witness by Gaines. Witness kept them a long time under the writ of sequestration, and finally returned them to the defendant under an order of court. Miguel Leal testified, for th State, that he sold Frank Gaines a " billy " goat a long time before this trial. The goat was then In the witness' mark. Wlt- ners subsequently saw the same goat In possession of the sheriff. He was then in a different mark. The witness did not know the mark of either Gaines or Mrs. Dresch, and knew nothing of this alleged theft. The substance of the testimony of Mrs. Gaines was that seven head of goats belonging to herself and Frank Gaines were lost about the time alleged, and were subsequently found In the defendant's herd. She identified those lost and tliose found, as described, as the same identical goats. Mrs. V. Dresch was the first witness for the defence. She testified that the defendant was her son. She owned a herd of goats in September, 1881. Vic- tvtriano 41eman had cared for them on tlie shares for three years previously, and had returned them to her about the last of August, 1881. For two days there- after they were In charge of the defendant as agent for the wtnees, and subse- 596 LARCKNY. quent to that time they were in cliarge of oue Antonio as herder. In Septem- ber, 1881. Mr. Dell came to the witness and told her that her goats and his had got mixed, and tiiat, because or the slinilurity of marlis, he found great difll- culty iu separating tiieni, and he a>^kod tlie witness to have the marks on her goats changed. The witness directud tiiL« defendant to change the mariis, auci he accordinj^ly did so. Late in the same month Franlc Gaines told the witness that he had lost some goats and believed that they were in witness' herd. He described them at tlie request of the witness, and the witness said to him: " Frank, you have lost some goats, and as you can not find them, you want to make your number good out of my herd." Gaines laughed, saiti "yes," and went off. On the next morning Gaines came with tlie slieriff to the witness' lierd and took seven of her goats. These included six small nannie goats, the offspring of mother goats wliich belonged to tlie witness. These mother goats cried for the " nannies " long after tliey were taken, and tried to follow them. The " nannies " taken by tlie sheriff belonged to the witness, as did the whole herd. Frank Gaines owned no interest In the goats taken— they were wholly and ab- solutely the property of the witness. F. C. Dell testilled, for the defence, that he knew Mrs. Dresch's herd of goats well. They became mixed with bis herd on tliree separate occasions which the witness mentioned, and their separation involved a great deal of trouble on ac- count of the similarity of marks. The defendant did not know his mother's goats from those of the witness when they were mixed, and the latter had to point out to him the ones to take. Witness demanded that the efendant change thf marks on his mother's goats. One day Frank Gaines' g^ i got mixed with the witness' herd, and they had a great deal of trouble separating them, as both herds were large. About the time that he and Gaines got their herds separ- rated, Mrs. Dresch's herd ran Into the witness' herd, and were again separated with great trouble. This was the third and last mixture. Witness got mad and sent Mrs. Drescli word that he insisted on her having the marks changed so that their respective marks could be readily distinguished. The witness knew nothing of the defendant marking any of Gaines' goats. Edwardo Jiniinez testified, for the defence, that he was present when the sheriff took the six small ♦< nanny " goats from Dresch's herd, and lie knew that the mothers of the " nannies " were left in the herd. They cried for the young " nannies " when they were taken, and tried to follow, and were still crying for them two days later, when witness and others drove the herd across the river. Witness helped defendant to mark part of his mother's goats one afternoon. He knew nothing of Gaines' " billy" goat being in Mrs. Dresch's herd at that time. WiLi-soN, J. * • • There are other errors apparent from the record which, In our opinion, would demand a reversal of the judgment. It appears from the evidence that the goats which were alleged to have been stolen by tlie defendant were, at the time of the taking thereof, in the possession and under the care, management and control of the alleged owner's son, and yet there is no evidence that the goats were taken without this son's consent. Such evi- dence we think was necessary.' We think, furthermore, that the evidence is Insufficient to support this conviction. It fails to show with any degree of cer- tainty a fraudulent intent In taking the goats, conceding that defendant did take tbeui. But one of the goats, the old "billy," was certainly identified as the 1 WUion r. Stat4, 13 Tex. (App.; 481. " '- 1 PnoOF INSUFFICIENT — OKKKN V. STATE. 597 In Septem- aud Ills had i great difll- larka ou her arks, aiKi lie tiieaM that he le described < Frauk, jou > make your i^ent oS. 33' lierd and .he ollMpring Its cried for them. The whole herd, lolly and ab- icrd of goats us which the ouble on ac- Dther's goats bad to point t change thp xed with the em, as both herds separ- lin separated got mad and I changed so vitness knew nt when the he knew that or the young ill crying for ss the river, le afternoon, herd at that the record It appears stolen by tlie m and under I yet there is t. Such evl- ( evidence is legree of cer- dant did take itlfled as the property of Frank Gaines, the alleged owner, except by the testimony of Frank Gaines and his wife, who, it is true, stated that the " nanny " goats belonged to them, but failed to identify them by any particular marks. Under the circum- stances of this case this evidence of ownership, to say the best of it, should be considered cau'iously, and not received with Implicit confidence. While, how- ever, it may be admitted that the goats were the property of Frank Gaines, as charged, still we think there is a total want of evidence proving or even tending to prove that the defendant look tliera with the fraudulent Intent to deprive the owner of tlie value thereof, and to appropriate the same to his own use. We tliiiik the evidence reasonably shows tlie contrary, that the goats in question got into the flock which defendant had charge of, without his knowledge or consent, aiul that whatever ownership he exercised over them was under the bona fide be- lief that they belonged to the flock of goats of which he at the time had charge, Tiie judgment is reversed and the caused is remanded. Reversed and remanded. § SfiS. Bvldence InauSlclent to Convict — Green v. State. — In Green v. Stutp,i tlie Indictment charged the appellant with theft of a saddle, bridle, and lialter, worth $20, the property of T. J. Fields. By the verdict of conviction the punishment was assessed at a term of two years in the penitentiary. T.J. Fields, for the State, testified that about the 1st of Au^just, 1881, at night, he went to a church at Blooming Grove, in Navarro County, on horse- hack, and was riding a full-rigged, red leather, oil-tanned saddle, worth $22 or 823. He hitched his horse to a fence, about two hundred yards from the church. Defendant was at the church that night, and for a while was sitting In a waijon In front of the church, along n'lth witness and others. Witness went dowu to his horse, ana while there saw the defendant approaching. Defendant, as soon as he saw the witness, stopped, and witness went up to him, and they rcturued together to the church door where witness stopped. The last he saw of the defendant that night, the lattei left the church door and went out in front, in the direction of witness's h->rse. When witness started home, his horse and accoutrements were gone. Witness had tied him securely, and did not think he got loose. He recovered the horse the next day, but did not find his saddle until some three weeks afterwards, when he found it in the posses- sJMi of a young man named Brown, in Limestone County, about two miles no. th of Groesbeck. It did not have the stirrups to it. Part of witness' bridle and halter were also in Brown's possession. The stirrups and the rest of the bridle witness found at Simmons' livery stable in Mexla, and the rest of the halter In possession of another person near Mexia. The defendant knew or miglit have known witness' horse and saddle. On cross-examination the witness said he had known the defendant seven years, and lived four or five miles from him. Witness saw other persons besides the defendant walking around among the horses near the church. So far as witness could say, the defendant knew no more about the horse and saddle than any other young men in the neighbor- hood. There were other saddles of the same sort in the vicinity. Witness did not know whether the defendant had left the church when witness missed his horse and saddle. The fence was tlie only hitching place near the church, and there were many horses hitched to It and between witness' horse and the 1 18 T«x. (App.) 51 (1832). 598 LAKCENV. church. If defendant had a horse there, he must have hltcuod it beyond wit- ness' from tlie church. Willie Brown, for the State, testified that in August, 18S1, the defendant came to the bouse of witness' father, two miles north of Oroesbeck, on the road to Mv.\ia. lie came a)>ouc half past eleven in the forenoon and aslced for dinner and to have his horse fed. His horse was fed, l)ut he did »iotget dinner, there being sickness In the family. He said he was going to flill County. He was riding a sorrel mare, and proposed to trade saddles with witness. They swapped saddles, and witness also traded part of his bridle and halter for par- of defendant's. When the defendant left he inquired, and witness told him tiie way to Mr. Winston's, and he started in that direction, which was also the direction of Mexia. The saddle witness got from the defendant, was a fuil- rlgged, red leatlier, oil-tanned saddle, worth twenty dollars, and the bridle and halter were worth two dollars. The saddle the defendant got from witness was worth fourteen or fifteen dollars. On cross-examination, the witness stated that defendant said he wanted to swap saddles, because his mare's back was sore, and he wanted a lighter sad- dle. The mare's back was sore, and defendant's saddle was a heavier one than the saddle witness traded him. Mr. Winston lives in the neihgborhood, and is a well known man. W. Jordon, for the State, testified that he lived about two miles south of Groesbeck. A short time before the defendant was arrested, he came by wit- ness' house, and, ns witness thought, stayed all night. Pie said he lived in Hill County, and was on his way to Austin to see his sister. To come by witness' house In traveling from Hill County to Austin, would be a long distance out of the way. (To this evidence the defence objected on the ground of Irrelevancy, but the objection was overruled, and the defence excepted.) Defendant said his saddle cost him tweuty-flve dollars. When he left witness' house he started towards Groesbeck, which was not the way to Austin. This was some time in August, 1881. Tom Whatley, for the State, testified that he lived about a mile south oi Groesbeck, and thought he had met the defendant between home and Groesbeck after the latter had left the public road and taken a wood-road. Witness told the defendant he could not get through that way, and defendant replied that lie thought he would save distance by taking that route. To this evldfence the de- fence objectt ' that it was irrelevant and calculated to mislead the jury, and the objections being overruled, the defence reserved exceptions. J. W. Simmons for the State, testified that he kept a livery stable in Mexia. Some tlTie in August, 1881, the defendant came to the stable, riding a black EWilm-tree saddle, which had stirrups that did not correspond with the saddle. Defendant told witness he had traded saddles the preceding day. The stirrups had red leather housings. Afterwards a young man named A. J. Fields, came with a saddle which corresponded with the stirrups on the Swalm-tree saddle ridden by the defendant. The saddle ridden by Fields was a red leather, oil- tanned saddle, worth about twenty-five dollars. Fields also brought with him a part of a bridle which corresponded with portions of a bridle left at the stable by the defendant. The defendant said he had made a crop about twelve miles southwest of Mexia. For tiie defence the first witness introduced, was Jesse Green, a brother of the defendant, vvlio stated that he remembered when Mr. Fields is said to have lost his saddle, and was at the church the night it was reported to have been lost. PROOF INSUFFICIENT GREEN V. STATE. 599 iod It beyond wlt- )81, the defendant Oroesbeck, on the loon and asked for did »)otget dinner, ) Hill County. He 1th witness. Tliey and halter for par- itness told him tlie liich was also the endant, was a fuU- and the bridle and t from witness was : said he wanted to tnted a lighter f>a(l- iras a heavier one the nelhgborhood, wo miles south of sd, he cume by wit- said he lived In Hill 'o come by witness' : distance out of the of Irrelevancy, but Defendant said his s' house he started 8 was some time in ut a mile south of ome and GroesbecR 'oad. Witness told lant replied that he tils evldfence the de- islead the jury, and ons. ery stable in Mexia. ihle, riding a black >nd with the saddle. day. The stirrups d A. J. Fields, came i Swaim-tree saddle is a red leather, oil- lo brought with him die left at the stable about twelve miles Green, a brother of ields Is said to have ed to have been lost. Dave Peveyhouue, Frank Simpson, the defendant and the witness went to the ihiircii together on horseback. Before they started to church, their horses wore liitclied to trees in the yard, and a little before sunset a man rode up to the gate on a sorrel mare and leading u gray horse. He Inquired where he could get water for his animals, and was directed by the defendant to an old will about three hundred yards distant. The man Inquired If any of those lirLsout liad any trading stock, and said his mare's back was sore, and lie wanted to trade her off; to which the defendant replied that he had a horse he would trade. The man said hu would camp at the well, and told the defendant to l)riiig his horse there the next morning. Witness and the defendant, with tlieir companions, then went to the church. Mr. Fields was there, and witness saw him at one time In a wagon with others, and afterwards saw him at the door of the c'.mrch. Defendant and his party remained until the services were over, and then returned home together. Before leaving the ground, but after the services had closed, the witness heard some one say that Mr. Field's horse had gjt loose with the saddle on him. About sunrise the next morning, the (lefondant took his bay horse, and accompanied by witness and Frank Simpson, went down to the well and traded his horse to the man for the sorrel mare, the bridle, halter, l)lanket and saddle, giving thirty dollars in money to boot. The saddle was a full-rigged, red-leather, oU-tanned saddle. The mare's back was a little ^ore. The man gave his name as Southerlaui; he was about five feet ten inches high, dark complexion, had a mustache, and, witness thought, a lit- tle chin whiskers. For some time previous, the defendant had been talking about leaving home and he had fixed to start on the day he traded with Souther- laud. Defendant sometimes sports, and was going off to cee if he could find a fiame of cards. Ho had taken such trips once or twice before. After breakfast on the day he made the trade, he left on the mare and saddle he got from Southerland, and said he was going to Waco and probably to Mexia. On cross- examination, the witness said he saw Southerland when he first rode up, had never seen him before, did not know where he lived, nor hear him say where he was going. Witness did not know Mr. Field's saddle, and thought his brother, the defendant did not. Frank Simpson, for the defence, testified that he knew Mr. Fields, and remembered tlie night, about August 1, 1881, on which the latter's horse and saddle were said to have been taken from the church. In the evening of that day the witness, who lived near Blooming Grove, was at the house of the defendant's mother. About half an hour before sunset a man rode up to the p[ate and inquired for stock water. Some of the boys directed him to go to an old well two or three hundred yards off. Witness and the other young men were ready to go to church, and had their horses hitched to trees In the yard. The man who came up to the gate was riding a sorrel marc and leading a gray hiirse. He said his mare's back was sore, and inquired if any of those present had a horse to trade. The defendant told him he had a horse he would trade, and the man told him to bring the horse down the next morning. Shortly afterward, the wlness, with Dave Peveyhouse, Jesse Green and the defendant went to the church, hitched their horses to the fence, remained until the services were over, and then returned together to the house of defendant's mother, and witness stayed there ail night. The next morning witness and the others went down to the well where the man was camped. The defendant took with him a bay horse-pony he had. The man was of a dark complexion, above medium 600 LARCENY. height, had a black mustache, and said his name was SouthiTland. Defendunt traded his buy pony to the man for the sorrel niare, the bridle, halter, blaiikut, and a red leather, oll-tanncd, fuU-rlgged saddle, paying the man thirty dollars in money to boot. After breakfast, the defendant left, riding the mure and saddle he had traded for; he said he was going to Waco, and probably to Mexia, Cross-examined, the witness stateu that he was sitting on the porch at defi nd- ant's motl'.cr's when the man rode up to the gate, which was twenty or thirty steps distant from the porch. He could see the man plainly, but did not notice how many saddles he had. The county attorney asked the witness if he and defendant's brother Jesse bad not made up this story fur the purpose of acquit- ting the defendant ; to which the witness replied that they had done no such thing. The defence proposed to prove that several neighbors of Frank Simpson and and Jesse Green were present in court, and tJ:;it two of them had been broufiht there by the prosecution, — the object being to show that the State had the means of assailing the reputation of Simpson and Jesse Green in the regular way. Tlie court, on objection of the State's counsel, excluded the proof, and the defence excepted, but reserved no separate bill of exceptions. The defence also proposed, but was not allowed, to prove that the defendant was an expert at card.>4; and excepted in like manner. C. B. Poarre, Esq., was introduced by the defence, and stated that he lived at Waco, and had heard the description given of the man Southerlund by the witnesses Simpson and Jesse Green. Witness had known a man named South- erland in McLennan County, who was above medium height, had a dark com- pU'xion, a black mustache, and some chin whi.skers. Southerlund had left McLennan for Navarro County over a year before the trial. On cross-examina- tion the witness stated that he heard Simpson and Jesse Green state the name and description of the man Southcrland, before he, the witness, made known that he knew such a man, Southerland had a wife and children. White, P. J. Because of the Insufficiency of the evidence, the judgment is reversed and the cause remanded. § 66G. Evidence InsufSolent to OonTict — Hammellv. State. — In Hammell T. State,^ the indictment charged the appellant with the theft of thirty-four dollars from the person of W. W. Glover, in the county of Falls, on the eighth day of March, 1883. The penalty Imposed by a verdict of guilty was a term of two years in the penitentiary. Jay Gammel, city marshal of Marlin, was the first witness for the State. He testified that he saw the defendant on the streets of Marlin, Texas, two or three times prior to the eighth day of March, 1883. Witness knew W. W. Glover at that time. Glover Is now dead. On the Monday morning of the week of Glover's death, the witness arrested him, Glover, for drunkenness. Before confining him in the calaboose the witness took from his person one much-worn and somewhat mutilated ten-dollar United States currency bill, one new twenty-dollar United States silver certificate bill, four silver dollars, and forty cents in small silver change. One corner of the ten dollar bill was some- what torn. Glover was then very drunk. When he sobered up that evening between three and four o'clock, the witness took him before the mayor for trial. 1 U Tex. (App.) 326 (1883). PROOF INSUFFICIENT — HAMMELI, V. STATK. «01 ind. Defendant , halter, ))lui)kL'i, an thirty dollars g the mure uiul ■obubly tu Mexiu. porch at defuul- tweiity or thirty ut did not notice witness if he and urpose of acquit- lad done no such ank Simpson and lad been broufiht ;he State harl the en in the regular ad the proof, and ns. The defence int was an expert ted that he lived tutherland by the an named South- had a darlc coni- berland had left )n cross-examina- :n state the name ess, made lvas a b^^^cl. mare^bo^t ^^^.^^ ^^^^ ^^^^ ^^ had no brands on her ^'-^ ^^«^ -"^/^^jf ^n^ tthe\vitness' place in Coleman July or the first of August, 18 . . , the n^'"^^'^'" ^^.,^, ^^t branded at that county, Texas, being at the *"- ^ y^-^'^^J^^ ."^ Z witness' place, with his tlm. She continued to range and s^"/ "*;"'^ ^ j ^he witness regarded stock, from that time until the ^^ll'ZTJto^^-^ea in i^o .cl^l^^^^r. this animal as an estray, a- «»- - ^^^^^ 7,;!,, ,„ Aoes he yet know who hood where she ranged. Tl e ^»»^^!^ ° ^^^ ^,,.„ ^tock the witness made was the owner of the animal. I"/""^'"^.^'' " 5,,^ to Oud out who owned her. inquiry of stock men concerning tin mare b a.icd^ ^^^^^^ ^^^^ ^^^^^ ^^^^ The defendant, in November, 18«0, Uvea aoo ^^^^ ^^^ ^^^^ dence of tae witness. In "f ^'"^"f . f^^^^^^^^^^^ fifty yards from the defend- of a field, some two hundred or two hjclredan^^^^ yjj^^^^^ ^^^ ^^ ^^^^^^^^^^ ant's house. The witness wen *'«"' ^-^j^f^^ „„f ^^ Spalding's he passed near of a Mr. savage, to get a 7"^^^';"; °;;;' ^'d ^t behL the field. She then the defendant's house, and ^^^^ \^; /^J ^^ ^^^^ ^, the same black mare which hart a colt. The witness ^^^^ogn zecl tins — ^^^^ ^^^^^^^^ ^^^ ^^^^ ^.ul been running with his stock « /^ ^^^^^^^^^ told him that he had seen to Spalding's mill he found the ,f ^J.^^'^^^V'^^^^^^^^ if he knew who took the mare tied out behind the field. »f ^f *; ' "';;'^.,^, The witness then told the mare up, and the defendant answered t a j e. ,U ^^^ ^^^^^^ ^^^ ^^^. him that the mare was an estray and had been ™ = from Sam Harrell. eral years. The defendant replied that he ad P-^ ^f J,, ,„ ,,,, defendant The witness did not remember ^^^^f^^.^J^^^f^.^^'Jbe Jre. Subsequently the in that conversation about the colt that ^^^ ^ ^ J' " ^^, This all occurrcl defendant asked the witness if ^'X^'^^TltTl^^^ the county. On in Coleman County, Texas, ''"^' ^^J J^ teimd never seen the detendant in cross-examination the witness «^''*/** "'**,. "Jo witness that he had purchased possession of the animal. The defendant told thwitnes^^^^^ The colt that vas ?he mare from Sam llarrell, and ^'^^^^'^j" ^V^'^elincl the field was about a with the mare when the ^-'^"^^ ^-^^^^^^^ *fonce or twice since, and once at year old. He had seen the mare -^^^ ^f « °'^\,, „ot seen the colt since it the lick-log near his house, with his horses. was at his house with the mare. ^^^ ^^^^ ^nhout Moses Jackson testified, for the Stat*'' ;;^^*^^;,^;'J,,, m Coleman County, brands, which at one time 7. ^'^''g^ was recognised la the neighborhood as He did not k.-.ow who '^^^^^'^^^^.'-^^'f^^'Jue range some time during the year tr'S.h:d:rh:r:nhrtr:-"--^^ He had never se.! the mare in the possession of the defendant. 1 12 Tex. (App.) 385 (1882). ^^ PKOOF INSUFFICIENT — JOHNSON V. STATE. 607 V trial, and for [ltd remanded. — In Jofti»«onT. mare, the prop- uiua In convic- ishment. mtand the mare e years old, tind 30ut the last ol place In Coleman branded at that place, with his (vitness regarded , in the neighbor- tie yet know who the witness made t who owned lier. les from the resi- ire tied out back from the defend- ! mill to the house ;'s he passed near e field. She then black mare which witness got back n that he had seen ; he knew who took witness then told his horses for sev • from Sam Harrell. Qg to the defendant Subsequently the This all occurrcl )m the county. On n the detendant In atlie had purchased The colt that was le field was about a ; since, and once at en the colt since it black mare without iu Coleman County, he neighborhood as time during the year He had never seen Taylor Smith testified that he saw the defendant with a black mare in bis possession several times during the fall and winter preceding this trial Sh ■ was not then branded, so far as the witness could see. He saw the mare fre- quently about the defendant's place in Coleman County, Texas, and the witness thought that ho had seen the defendant working her. The defendant had but one black mare during the period mentioned, that the witness knew anything about On cross-examination the witness stated that he did not, of his own knowledge' know that the mare for the theft of which the defendant was being prosecuted' was the same animal which lie saw in the.defendant's possession during the last winter, but, after he had seen the mare in his possession, defendant's brother James Johnson, told the witness that she was the animal about which the 'uss was being made. James Johnson was riding the mare when this conver- siit.ou occurred. The witness was tolerably well acquainted with the range about J. R. Jackson's, and had been through It several times. He did not re- member that he had ever seen this mare upon that range. He may or may not have seen her. Will Faris testified that about four years before this trial he saw an un- branded black yearling colt with his horses on the range in Coleman County This was the first time he saw her. The next time the witness saw her, as well as he could remember, she was running with J. R. Jackson's horses, and was still unuranded. She then had a colt about four months old. The witness did not remember having seen the mare but twice. He did not know to whom she belonged. He regarded her as an astray. Cross-examined, the witness stated that he had never seen the animal in the possession of the defendant He did not remember when it was that he last saw|the animal, but It was some time during the year 1880. Frank Rucker testified that, in the spring of 1880, he saw a black mare and colt with Mr. Faris' horses on the range in Coleman County, Texas. The mare was nnbranded. The witness did not know to whom she belonged. He re- ganle.l her as an estray, but did not know that she was. During the faU of 1880 the witness saw an unbranded black mare in the defendant's pasture. He saw no colt with her at that time. The witness did not know that the black mare he saw m the defendant's possession was the same animal he saw with the colt on the range during the preceding spring. The State next introduced tlie defendant's application for a continuance The application was based upon the absence of J. B. Hooten, of Coleman ' County, by whom the defendant proposed, if he was granted a continuance or postponement, to prove the handwriting of Sam Harrell to an unacknowledged I bill of sale conveying to hlra the mare In question. J. U. Ruling was the first witness Introduced by the defendant. During the the month of November, 1880, the witness was at the molasses mill of R L Spalding, in Coleman County, Texas, and while there he heard J. R. Jackson ask the defendant al)out a black mare which was then staked out between the mill and the house of a Mr. Savage. The defendant told Mr. Jackson that he tiart taken the mare up, that he had purchased her from Sam Harrell, and rthat he had Harrell's bill of sale conveying the mare to him. The witness was joi opinion that Mr. Jackson, In that conversation, said something about the Inmre havihg a colt. The witness had never, to his recollection, seen the mare jin question. This witness stated on his cross-examination that Jackson told Ithe defendant where he had seen the mare staked out, back of the field; where- 608 LARCENY. uDoa the defendant told Jackson that he had taken her up. that he had pur- rrefherton^ Sam Harrell and that he had Ilarrell's bill of sale convey „g the animal to him. Thi. was some time after Harrell had moved out of tho settlement. The recollection of the witness was that in this conversation With the defendant, Jackson told him that the colt was with ^^^^^^^^- R L. Spalding testified, for the defence, that In November, 1880, he-and the defendant lived about one-half a mile apart In Coleman County, Texas. The ro d 1 ad ng from the witness' house to the house of Mr. Savage runs with.,. Ibmi two hundred yards of the defendant's house. The witness heard noth.ng o thco^vation 'between J. R Jackson and the defendant about the mare, wldch is said to have occurred at the molasses mill on the witness' place, In ^"b T^Rortestlfled, for the defence, that some time during th« spring of 188lhesaw an.l examined a black mare In the defendant's possession She was a young anlmai, and In the opinion of the witness had never given birth to Holt lie did not remember whether or not the animal was then branded, Lr does he know that she was the same animal for the theft of J^hich the de- fendant was now on trial. The witness would not ^''^\^'/f:^''''^'l''' mare he saw in the pos'.ession of the defendant had never had a colt. It was his opinion that she had not, but he might have been m.staken. HruT, J. The appellant was convicted of the theft of a mare He moved for a continuance of the case ; which motion was overruled. In his mot lop for a new trial this ruling of the court was made a ground for a new trial. We are of the opinion that a new trial should have been granted. The only criminative fact against defendant was recent possession of the rnare, an estray. This was explained by defendant, he stating that he had pur- d.ased the mare from one S«m Harrell. The State proved that there was such a man us Sam Harrell, and that he had lived in that county, but had moved ofl • That tlds explanation was reasonable can not be questioned Tils be ng the case, to convict, the State (relying upon recent possession alone) must prove this explanation false ; to do this there was no attempt made whatever.^ ht Terdict of the jury was not supported by the evidence and upon this ground aNo a new trial should have been granteil. The judgment is reversed and the cause pumanded. S 570. Evidence Held Insuffldent - Johnson v. State. -In Johnson v. sL'^nho indicfuent charged that the appellant on the twenty-flrst day of August, 187(5, d.«t in N«varro County, Te rintrr s .».:=<>.-•» ••*-•' '—• «»'"' °°' "-■ \r rpTi;rX:"°otr, "^ott.) . on the ,n«c,.nc, o. the e„. WuiTB, "^ J- '",'?.*:'•., ,^,, ac!encl«nt raHod » serious iino.tion as to J.nc., 1» "f ''^™ ^ * ^"J tolppou «lo„ Ui. nl,httb« nor..»a. .to..., his personal Identity, it is inaac i" "I'l' , ^ defendant was on. " Mr P.*. •-;«,tS:tdl 'di: P^^^^^^^^^^^^ t.,at nl.Ut, and „>. supposed to be. And whilst dtienaaui ff j ^^^ altogether r^r;;; -^ ^--r: :: mJ ?:r; h^t ^""„.gestions we wonld not do 1"*-,;--^.^ "'^^^^^^^^^ saddle hags on the are thro, a out because tdsappe.^^^^^^^^ Inculpatory facts iu night the horse and woman ^ ^J ^w W ^ ''[^^^; ^^ ^e pertinent and strong clr- the recrd ''f;|-^, J^^ ,^*;ra;u ,^^^^^^ -ery :^r:Z:!J:^Z^Xt^ of -« guUt. as we have endeavored to '^The judgment Is reversed aed the cause remanded. ^^^^^^^^ ^„^ ,,,„„,,,. , . ^_i»«4- TTnutaon V State. — In Knutson v. S vt^;t of'gX -e"sed his punishment at coullnement in the penitentiary '"w ir M^I-t^^Vrtt first Witness introduced by the State He testified that h:^;^-^o^ the ^^ij;>i:::::\^:-L^:^::z^j^^ f t hroulThis Hvtn 'refused to do, and the defendant then said that bail him out. This "'« ™ ^ ^j^ ^^ ^^,^ ease then pending against infe ^iZ ^teraud iL detndant gave him a clay ban. horse as his ? J 111 lot the horse and kept him a while, during which ti.ne he was lee. Witness got «»; J^^J^^/"; ^ ^^ ^^^^ ^hen turned on the range four or r miles :Zt"Z^:^ rslLcf. shortly after the defendant employed 1 14 Tex. (App.) 670 (1883). ^A PROOF INSUFFICIENT — KNUT80N V. STATE. 613 About the ho witness' a defendant le and July, 1877. The ton County, testified on c years, anil ge, was per- 3t of August irro County, g out West. r of the evl- lestion as to e was stolen, efendant was Ight, and his i)t altogether orse to carry It's domestic rights In the to advantage fc. e suizgestions e bags on the atory facts in nd strong clr- exclude every endeavored to !cf remanded. [n Knutson v. )rsc, the prop- iptember, 1882. le penitentiary le testified that ir of 1881, the )ted witness to i then said that lending against nlc horse as his Eh ti.ne he was B range four or idaut employed the witness, he secured ball and was released from jail. The witness after- wards saw the horse in the possession of the defendant. He told the defendant tliiit he must quit riding that horse, and the dcfeudnnt proml.sed thiit he would. The witness at no time cousented to the taking or using of this horse by tho defendant or other person. lie represented and acquitted the defendant In the case for which as a fee this horse was given him. \V. W. Robertson testified, for the State, that In the summer of 1882 he saw the horse once owned by the defendant, and which was said to have been trans- ferred by him to tho witness Martin. The horse at that time was necked to another, and was turned Into the witness' pasture by the defendant and one Chancey. lie remained in the pasture for several days. This pasture was «cvin or eight miles from Martin's. The defendant and Chancey left the wit- ness' house with the horses still necked. They were driving a small herd of cattle at the time. The witness did not know where they went, but Chancey usually drove his cattle to Corslcana. Cross-examined, the witness stated tha he had heard 'cut did not know of his own knowledge that the defendant had ever transferred the horse to Martin. The defendant was in the employ of f'hancey, who was a cattle buyer. Chancey had bought a great many cattle In the witness' neigliborhood during the preceding three or four years,^and was In the habit of penning them in the witness' pa«ture. This pasture Is about three -examlned, the witness said that he did not el the dnlunab; Martin's saying that he could use the hor.se until the defend- ant Lme to him and asked hl.n abont it after his arrest. The wi ness did not Jclemrer to whom he told this. The defendant must have derived his Informa- UoT rom «on.e of the neighbors. The witness, when he was asked by defend- aM tourhlm what Martin said, and he thereupon had the witness subpoenaed. T ; V t. esH^who live.1 In the same neighborhood in which he defendant lived, ^d in 1 ich the horse ran, often saw the defendant riding .he horse during the tplng of 1882. After he ^as Indicted, the defendant told the witness that he took the horse to Corsicuna and left him at Chanccy's. . „ ., Tom Clmncey was the next witness for the defence. He testified that l.e ll^ed in C sicana, and for several years had been engaged In buying cattle In Hen- derson and adjoining counties, and of using the pasture of W. W Roblnso.. to pen them. He had bought at least four hundred head o cattle In Henderson County. The witness had known the defendant since December, 1881. about Sch time he employed him to assist in driving cattle. He understood then «,at there was a case pending against the defendant in the District Court, an. hat he was out on bond. The defendant was using a ye low horse at tha time, which he always said was the property of W. "; M-"'"- «« -* ^^^^ pretended that he had a claim to him, but repeatedly refused to trade him because he was the property of W. H. Martin. In May, 1882, the witness nmde other purchases of cattle in Henderson and Anderson Counties, and agah. employ" d the defendant. The cuse against the defendant had then been d.s- nosed of The defendant again took up the same yellow horse, asserting that the horse belonge.l to W. H. Martin, and denying any claim himself En route to Corslcana with fifty or sixty head of cattle, after having remained at Robin- son's pasture four or live days, the witness and the defendant passed through the town of Malikoff. and he thinks that he saw A. S. Tanner on that occas.on. The defendant W.-18 riding the yellow horse when they passed through MallkoB. He remained with the witness a few days at his house in Corslcana. when the witness purchased his saddle, bridle and blanket. He then left on the train, Having that he was going to Madison County. He requested the witness to take the yello-v horse back to Martin when he returned to Malikoff. This the witness promised him that he would do. The horse remained In the witness pasture about two weeks, when he and a black mare broke out and ran away. The witness found them after a search of six or eight days, and returned them to the pasture. Two weeks thereafter the witness and Charley Pickle rode the vellow horse and black mare around the neighborhood, and Anally turned them out on the prairie near the witness' house. Since that time the witness has PROOF INSUFFICIENT — KNUT80N V. STATE. (515 He testified he defendant Ich was after lie horse, und Ills horne sev- rtlsposltion of liorne. Some I he wltnesw in xasion asked fool kind of a iltch. Martin e and use hiui lid not tell the til the defend- fltness clld not 3d his Infornia- :ed by defend- 98 subpuinaed, ifendant lived, trse durlna the Itness that be d that he lived ; cattle in Ilen- V. Robinson to ) lu Henderson ter, 1881, about nderstood then rlct Court, and r horse at that He at no time d to trade him le witness made ties, and again I then been dis- '., asserting that nself. En route lalned at Robin- passed through m that occasion' irough Mallkofl. alcana, when the eft CD the train, d the witness to illkoff . This the 1 In the witness' t and ran away, id returned them y Pickle rode the lally turned them i the witness has seen neither of them, though he hunted several days for them. This was about July, 1882. The defendant lelt for Mafcndant milked the cows spoken of lie I'ved about nine iiillcs from the place where he lived wlu'U he sold tlie ho^sto (irooms. Witness owned three sows in thu lot the defendant sold to Grooms, otie a black sow, one II brown or f andy sow with spots al)out on her body, and the other a spotted sow. Grooms' plaeo was about two and a half miles from witness' residence. The witness identltled the defendant, and stated that the hogs were owned by tiiiii, witness, and were taken without bis consent, In Walker County, Texas, oq ur aliout March 10, IHSa. The witness Grooms testified, for tlic State, that he traded for a bunch of lio^.'M with the defendant; that at the time he made the trade tlie hogs were run- iiiiig in Ills, witness', field ; that he informed the defendant tliat the hogs were in the tiekl, and the defendant said that he thought they were his, the defendant's, hd^'.s, us he had hogs miming in the same range with the Ciihlness' hogs. Wit> Dt'ss made the trade with the defendant for the hogs on Thursday. On Satur- day following, while he, witness, was putting the hogs in a small pen for the purpose of marking the shoats, Cablncss came up and claimed the hogs as his. The defendant was then sent for, and came to the hog-pen. Cabinets told the defendant that the hogs belonged tu him, Cabincss. Defendant replied that the hogs looked like his, and he tliought that they \';ere his when he traded them to the witness. The bogs, except one open sow, which the witness hud killed, were taken away by Cabiness. Cros.s-exumined, the witness stated that the dc- feiulaut owned a bunch of hogs that ran on the same range with the Cabiness' bogs, About eight days after the hogs traded for were identified aa Cabiness' hof!H, the defendant found his hogs, and turned them over to the witness for the game consideration that hud been paid on the trade for the Cabiness* hogs. The defendant had a Une lot of bogs, numbering about thirty iieud of shoats, ami four or five sows. Of the Cabincss hogs described, the witness bought of defeiulunt eleven shoats and three sows. One of the sows was black In color, another was a sandy animal with some white spots about the body, and the other was spotted. The sows witness last l)ought of the defendant were marked with u crop and split In one ear, and a crop and upper hull-crop and undcrbltin tlie other. The defendant hud a very poor faculty for distinguishing ear-marks, and could not now. If required to do so, go out into the court house yard, ex- amine the mark of a hog and return aud describe it correctly. Before he traded for the hogs that proved to belong to Cabiness, the witness knew that the de- fendant owned bogs running on the same range with the Cabiness' hogs, not far from where be, witness lived. He knew that the defendant had not seen his hogs oftener than twice since Christmas, 1882. There were two different ear- nrnrks in the second lot of hogs tiiat the witness got from the defendant, one of which was the defendant's mark and the other the Roberts' mark. Neither of these marks resembled the Cabiness' mark. When the witness bought the Cabincss hogs from the defendant, be and the defendant called the hogs right up to them. They were quite gentle. Witness went to defendant's house after Cabincss claimed the hogs, when, it is the impression of the witness, the de- feiidant, upon being asked about the mark, said: "That Is the old Cabiness mark." The Cabiness and. Roberts' mark, excepc that both hud a split in one ear, were totally unlike. Tbe State ciosed. fll Jwf W^' " -" 618 LAllCENY. Jimmie Smith was the first witness for the defence. He testified that he was present at the Grooms' house on the Saturday that Cablness sent for the (k- fendant to go to Grooms' house. When Cablness told the defendant that the ho!|3 lie had sold to Grooms were his, Cablness', hogs, the defendant said that they loolced like his own hogs, and that at the time he traded them to virooms lie thought they were his. The witness knew that the defendant owned hogs running^'ln the same range with the Cablness' hogs when he made tlie trade with (;rooms. He owned a "likely" or good bunch, numbering four or five sows and some thirty pigs, or shoats. The witness owned these hogs originally, but sold them to Roberts, who subsequently sold them to the defendant. Witness heard of this latter sale through both Itoberts and the defendant. These ho^'s had been somewhat dogged, and were, therefore, Inclined to be skittish. Tte Cablness hogs were gentle. Witness knew that the defendant had a very poor faculty for distlnguishiug the ear marks of animals. It Is possible that the de- fendant might be able to distinguish his own hog mark from that of another per- son, but the witness doubted such fact. J. W. Robinett testified, for the defence, that he knew that the defendant owned hogs running in the same range with the Cablness hogs. They were a fine lot, numbering some "^ . e or six sows, and some twenty or thirty pigs or shoats. Witness had mad<' an ineffectual effort to trade with the defendant for his bunch of hogs. Witness knew the defendant well. His, defendant's, faculty for distinguishing ear marks of animals was exceedingly poor. He had no ability to identify ear marks at all. Among the hogs owned by the de- fendant there was a black, a black and white spotted, and a sandy colored sow. This latter had some spots on her body. There was some resemblance between these three and some sows owned by Cablness. The proof in tills case further showed that the complaint was made before a justice of the peace on March 10, 1883, and that the defendant had no notice of isuch complaint until he was arrested on the thirteenth day of the follov/lng April. That the verdict was against the evidence, that the court erred in its general charge, and in the refusal to give certain requested charges, were the grounds urged in the motion for new trial. White, V. J. The appellant was convicted of the theft of certain hogs, the property of one Cablness. Without discussing the many errors assigned, we propose to discuss but two questions, to w t: (1) As to the sufficiency of the facts to establish theft as defined in our code; and (2) the sufficiency of the evidence to establish the guilt of the defendant. A fraudulent " taking " is the essential element of theft as that offense is de- fined in our code.* At common law, a carrying away or asportation was neces- sary In connection with a fraudulent taking, but under our code,'" to constitute theft, it is not necessary that the property be removed any distance from the place of taking; it is sufllcient tbvt it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.'"" What is a taking under our law? Must actual, manual possession, or the ex- ercise of actual custody and control, be established to couotitute a taking? 1 P. C, art. 724. 8 P. C, art. 726. ^ PROOF INSUFriCIENT MADISON V. STATE. 619 [c testified that he was lincHS sent for the de- the defentlant that the tie defendant said that raded them to viroonis iefendant owned hojjs he made tlie trade with ring four or five sows ISC liogs originally, )>ut e defendant. Witness efendant. These ho^is d to be skittish. The mdant had a very poor s possible that the de- om that of another per- jw that the defendant s8 hogs. They were a rteuty or thirty pigs or with the defendant for ill. His, defendant's, edingly poor. He had >g3 owned by the de- d a sandy colored sow. ic resemblance between Int was made before a ndant had no notice of I day of the following urt erred in its general rges, were the grounds eft of certain hogs, the ay errors assigned, we the sufficiency of the ) the sufficiency of the if t as that offense Is de- asportation was neces- urcode,'" to constitute ved any distance from 1 the possession of the of the person deprived e 8ha!I elapse between t elap»e, the offense is al possession, or the ex- to couotitute a taking? These questions are suggested, and necessary to be determined from the facts ill this case. It Is shown by the evidence, beyond controversy, that the appel- lant sold the hogs to Grooms, and that the hogs belonged to Cablness. The hogs wore running in Groom's flelil, who, believing them to belong to defendant, in- formed the latter that they were in his fleUl. " Defendant said he thought they were his hogs; that he had hogs running in the same ra.ige." Witness (Grooms) and defendant " culled tlie hogs right at (up to?) them." Defendant sold the hogs to G-" lis, and Grooms, the next day, put them into his pen, where they were afterwards foniid, and claimed by Cabiness. W.'is this such a "tak'ng" by defendant as constitutes theft under our stat- ute? At common law tliire was required to be not only a taking, but asporta- tion also. And Mr. Kusstll says: "There must be an actual taking or severance of the poods from the possession of the owner, on the ground that iar- (fiiiy iiic udes a trespass. If, therefore, there was no trespass in taking goods, there cui. be no felony in carrying them away. But the taking need not be by the very hand of the party accused; so that if the thief fraudulently procure a person innocent of any felonious Intent to take the goods for him (as if he should procure an infant within the age of discretion to steal the goods), his offense will be the sami; as If he had taken the goods himself, and it should be sotharged. It appears to be well settled that the felony lies in the very first act of removing the property; and, therefore, that the least removing of the thing t;ikeii from the place where it was before, with an intent to steal it, is sufficient asportation, though it be not quite carried away." ' 111 the case before us, the hogs were in their accustomed range, and Grooms, after his purchase, did not drive o»- pen them for a day or so. Did the single act of defendant in selling him tne hogs, under the circumstances, amount to theft? At tlie request of the district attoniey, the court charged the jury " that the selling of property belonging to another by one who knows the same is not his own is sufficient In law to constitute a taking as meant in the definition of theft; and if all the o*,her ingredients of theft, as given you in the general charge, are proven, and a taking is shown by a sale of the property, then such sale is a taking under the law." This charge simply affirms that a sale is equivalent to a taking, lu Hardeman v. 6'(a«c,2 Hardeman gold a steer running on the range, the prop- erty of one May, to one Wenr, and this court said : " The evidence falls to show that the steer was ever In possession of the defendant. To constitute theft, there must be a fraudulent taking by some person. In this case, the defendant dill not take the animal, nor did Calvin W. , to whom defendant sold the animal; and. If Wear had taken the property, his taking would not have been fraudulent, but honest, he having bought and paid for It, and received the bill of sale for the steer. This steer, running on the range all the time, was not talseu fraudulently or otherwise by any person, hence there was no tneft." This decision fully refutes the proposition announced n the charge given — that a sale alone constitutes a taking. Under the Hardeman decision, it would appear that a defendant must have some sort of possession of the stolen prop- erty, else a sale of such property by him would not amount to theft; and we are of opinion tiiat this proposition la well sustained by authority and reason. There must be an actual taking or conversion of the stolen property to support •26. ' 2 Kuaa. on Cr. (9tti ed.) Hi. a ]" Tex. (App.) 207 620 LARCENY. a verdict of guilty of theft. In White v. State,^ the Supreme Court say that in- tention and conversion were both " necessary elements to make out a charge of theft. In all criminal cases nothing is presumed against the accused. The proof must show that there was a conversion, which under the code is the synonym of talcing." * In Martin's Case, the proof was that tlie owner -f the alleged stolen hog, while in his field, heard the report of a gnu; advancing be saw, just over a hill, the defendant loading his gun, and on approaching the de- fendant he saw, about fifteen feet from where defendant was standing, one of hig hogs freshly shot. He said to the defendant, " that is my hog." Defendant replied, " I did not shoot it." It was held tiiat actual conversion or possession was not shown, and that the intent and act constituting the offense must both exist to make out the oftense. In State v. Wilkerson: ' " When A. was indicted for stealing a hog, and on the trial it was shown that a hog belonging to the prosecutor bad been killed and concealed in the corner of the fence, covered with leaves, and that A. was Been at night to go to the place, and look carefully around and stoop over, as if to take the hog, and upon being hailed fled, field, that these facts alone would sot justify a verdict of guilty." The case we are considering is not, it will be noticed, precisely similar to any of the other cases we have cited. In this case, though the hogs were in their accustomed range, yet they wore gentle and were called up by defendant or Grooms, and were riglit up at them, in their presence, and could have been immediately driven oft by either or both when defendant made his sale and constructive delivery of tliem to Grooms. Under these circumstances, liad not th'j hogs been taken, in legal contemplation, by defendant before the sale? He called them up; this was exercising control over them certainly, and after they came up, and whilst they were thus in his control if he, knowing tliim not to be his property, sold and constructively delivered them to Grooms, who afterwards took them into actual possession, under the purchase. It would, in our opinion, bring the case fully within the rule quoted above from llussell, viz: that "If the thief fraudulently procure a person innocent of any felonious intent to take tlie goods for him, his offense will be the same as if he had taken the goods himself." The appropriation, so far as defendant is concerned, was obvious, and the taking did not rest solely upon the subsequent exercise of ownership and possession by Grooms. But, as stated above, the charge given at the request of the district attorney was erroneous. In addition to this eiTor, we are not satisfied that such fraudulent intent is established by the evidence as warrants the conviction. Appellant had hogs which he had bought of Roberts, running In the same range. Grooms believed these to be defendant's hogs. Defendant said that he also believed them to be his. The marks. It is true, were somewhat different, but defendant is shown to be little acquainted with the difference in marks, There was no concealment or attempt at concealment with regard to any part of the transaction by defendant. His actions are not inconsistent with honest and fair dealing, under an honest but mistaken claim of right to the hogs. He certainly promptly, and fully righted tiie wrong, if any had been done as far as 1 11 Tex. 771. » Martin v. State, 44 Tex. 172. 8 72 N. C. 376. PROOF INSUFFICIENT — MARTINEZ V. STATE. 621 irt say that in- Dut a charge of accused. The be code Is the e owner uf the ; advancing be Daching the de- landing, one of ;." Defendant a or possession ense must both a hog, and on bad been klUed nd that A. was toop over, as if ts alone would sely similar to s hogs were in p by defendant ould have been le his sale and tances, liad not e the sale? He nly, and after knowing them ) Grooms, who ie, it would, in from Russell, >f any felonious le as if he had nt is concerned, squeut exercise istrict attorney lulent intent Is ing In the same ant said that he jwhat different, rcncc in marks. ;ard to any part ent with honest 3 the hogs. He 1 done as far as could be by satisfying Cablness and Grooms in so far as they were likely to he injured by a loss of the hogs alleged to have been stolen. In our opinion, the evidence docs not support the verdict and judgment, and in connection with our conclusions upon this point, we cite the following ciises: Mullins v. State,^ McIIenry v. State,^ Clark v. Statv,^ Landin v. State, fihellon V. State,'' Taylor v. State,* Mapes v. State,'' Breach v. State.'^ The judgment Is reversed and the cause remanded. Reversed and remanded. §573. Evidence InsufBcient to Convict — Martinez v. State. — In Mar- tinez V State,* the iiidlctnient charged the appellant with theft of a saddle, bridle and saddle blanket, of the aggregate of thirty dollars, the property of Juan Montex, in Bjxar County, Texas, on the eighth day of December, 1883. A verdict of guilty was returned against the appellant, and his punishment was assessed at a term of two years in the penitentiary. Juan Montez was the first witness introduced by the State. He testified that on the eighth day of December, 1883, his son, Jose Montez, left his, witness', lioHse near the mission, nine miles below San Antonio, to go to the city. Wlii'ii Jose reached the suburbs of the city, he was thrown from the horse, and the horse, with saddle, bridle and sadd'<^ blanket, made its escape from Jose. As soon as the witness was apprised of . 'is fact, he started out to hunt for the horse, saddle, bridle and blanket. When he reached the Goliad road, he saw two gentlemen traveling that road, going in the direction of San Antonio. From them he learned that they had met a man riding a paint horse, and leading a horse answering tlie description of witness' horse. The man they said, was going eastward from San Antonio. Witness continued his search, and after a time found his horse on the range, but the bridle, saddle and blanket were gone. Witness subsequently learned that there was a paint horse on the ranch of Alejos Perez, which answered the description of the horse given him by tlie two gentleman ho met on the Goliad road. Witness went to the ranch of Mr. Perez, and there learned that the defendant had taken up a horse with a new saddle and bridle on, and had taken them to San Antonio. Witne.ss had the parties at the ranch to describe the horse and saddle, and became satisfied that the saddle was the one he was searching for. At Perez's ranch, witness tallied to Trinidad Cortlnez, and from him learned of the defendant's having bad the horse, saddle and bridle. >VItness received this Information from Cor- tlnez on the evening of December !0, 1883. Next day witness went to San Antonio, distant from Perez's ranch fifteen miles, and began a search for the .'addle In the city. Preliminary to his search, he secured the professional ser- vices of Police ofllcer Pancho Galan. They finally learned that a party had taken a saddle to pawn to the pawn shop of Don Carlos Guergnin, on the night of December 9, 1883. The saddle so pawned to Guergnin, was a full-rigged new saddle, and answered the description of the one the witness had taken from him. On the night of December 9, 1883, the witness and Galan went to the house of Creccncto Bueno, across the San Pedro Creek, and there found the saddle. This saddle was the property of the witness and was taken without his 1 .37 Tex. 837. ' 4fl Tex. 46. 3 7 Tex. 67. * in Tex. (App.) 63. '• n Tex, (App.) BX3. • /d.,480. I 14 Tex. (App.) 129. « Id. 178. » 16 Tex. (App.) 122 (1880). 622 LARCENY. knowledge or consent. Witness did not know the actual value of the saddle. It was quite new, having been used but two or three times in riding from witness' ranch to San Antonio and back, a distance of nine miles. The saddle tree was a present to the witness, and was worth at least four or five dollars. Tlie wit- ness had paid twenty dollars to have it rigged. The saddle exhibited on thi.t trial was the one lost by witness and recovered from Crecencio Bueno. This all occurred in Bexar County, Texas. Cross-examined, the witness stated that the saddle was his property, but was lost by his son Jose, It was worth twenty- live dollars. Witness did not know who got it. He did not know the defendiim. He learned in following up the saddle, that a man named Garcia, took the sad- die to Guerguin's pawn shop, to pawn it. Pancho Gnlan was with the wilnos when the saddle was recovered at the house of Crecencio Bueno. The witui'.«s did not know from wliom Crecencio Bueno got the saddle, except from his state- ment. Witness did not know, except from hearsay, that the defendant ever hmi the saddle in his possession at all. So far as the witness knew, the defendant may have sold the saddle for Quireno Garcia. Witness would not swear that the defendant stole his saddle; he did not know whether he did or not. J. S. Ramsey, testified for the State, that he was the proprietor of a saddle and harness establishment on Main plaza. In the city of San Antonio. He had been engaged in th.at business for the past fifteen years, and was a judge of the quality and value of saddles. He had examined the saddle involved in this proceeding. That saddle has been used a little, but not enouglt to greatly de- preciate its value. In the ooinlon of the witness, that saddle Is worth at lea^t twcnty-flve dollars. Cross-examined, the witness testified that he did not deal in second-hand saddles, and would not keep them In stock. This saddle showed to have been used somewhat, and witness would not buy it. It is a second-hand saddle, but well worth twenty dollars, though the witness would not give that price for it to put In stock. If, however, he wauted to buy a sad- dle for his individual use, witness would pay twenty dollars for It, and esteem the price cheap. On redirect examination, witness said that the saddle In the hands of the original purchaser, after being ridden back and forth over a dis- tance of nine or ten miles, a^ often as three or four times, would, In the condi- tion of this saddle, be worth to the original owner as much as twenty-five dol lars. It would deteriorate Intrinsically by such use, but little, if at all. Francisco Galan (spoken of as Pancho Galan by the prosecuting witness), was next called to the stand by the State. He testified that he was, and for fll. teen years past had been, on the police force of the city of San Antonio. He knew Juan Montez. On or about December 11, 1883, Montez applied to him for assistance in searching for a saddle, bridle, and blanket he had lost. Witness went with Montez, and on that night they found and recovered the saddle from the house of Crecencio Bueno, west of the San Pedro Creek. The saddle exhib- ited on this trial was the saddle found by Montez and witness at Bueno's house and claimed by Montez as his. Cross-examined, witness stated that he at no time saw the defendant in possession of that saddle. The witness did not know the value of the saddle, but would think it worth from twelve to fourteen dol- lars. It was prol)ably worth a little more before It was used. Redirect, the witness stated that he was a policeman, and not a dealer In saddles, and was not posted as to the value of saddles. He named the value stated merely as matter of Individual opinion, and not from a knowledge of values. In his opinion the saddle was worth, when new, ftfteen or sixteen dolars, and was now worth twelve or fourteen. - ■*- PROOF INSUFFICIENT MAUTINEZ V. STATE. 62a )f the saddle. It II, from witness' saddle tree was liars. The wit- Khibited on thi.t lo Bueno. This iiesb stated that IS worth twenty- vthe defendam. [a, took the sud- ivith the wilne>s o. The witnt'ss t from his statt- !endant ever hud V, the defendant \ not swear that I or not. etor of a saddle atonio. He had ,s a judge of the Involved In this »!> to greatly de- ls worth at least b he did not deal ;k. This saddle ; buy it. It is a e witness would ted to buy a sad- )r It, and esteem the saddle in the forth over a dis- lid, in the condl- s twenty-flve dol if at all. icuting witness), : was, and for flf. an Antonio. He pplied to him for id lost. Witness I the saddle from rhe saddle exhib- lit Bueno's house ;ed that he at no tss did not know ! to fourteen dol- d. Redirect, the dies, and was not merely aa matter n his opinion the was now worth Crecencio Bueno was the next witness for the State. He testified that he recognized the saddle exhibited on this trial as the one he purchased from the defendant, and which was afterwards reclaimed from him by Montezand Ualan. Defeudunt brought that saddle to the witness' house, and sold it to him on the ni^ht of December ID, 1883. On cross-examinutioii, the witness stated that he pai turcr, whereas Garcia said that it was made in Kansas. WiLLsoN, J. (after other rulings). 4. There is another question in this case of more importance than those we have discussed. Conceding that the defend- ant took the saddle, did such taking, under the facts of this case, constitute theft? and did the court charge all the law applicable to the issues raised by the evidence? That the owner of the saddle had lost it was proved beyond a ques- tion. It was, then, lost property, but was, nevertheless, the subject of theft To constitute theft, however, the fraudulent Intent, which is the gist of this offense, must exist in the mind of the taker at the very time of the taking; and, in the case of lost property, the time of the taking is the time of the finding of the property. If the fraudulent intent did not exist at the time of the taking, no subsequent fraudulent intent in relation to the property will constitute theft.i In this case it was proved that on the day the saddle was lost, the defendant was seen in pos^session of such a saddle, and said that he was going to the city of San Antonio to search for the owner of it in order to deliver it to the owner. He did not then pretend that the saddle belonged to him, but admitted that he had found it, and intended to search for the owner of it. There is no evidence which shows that, even if the defendant took the saddle, he at the time intended to deprive the owner of the value of it, and to appropriate it to his own use or benefit. On the contrary, his own statements, above alluded to, which were proved by the State, sliow that after he had taken the property, his intention with regard to it was an honest one; he intended to restore it to the owner, if such owner could be found. Upon this state of facts we think it was the duty of the trial court to instruct the jury clearly and specifically upon the issues as to the Intent of the defendant at the time he took the property, if he did take it. The charge of the court did not explain this issue to the jury any farther than to give the general definition of theft. Defendant requested the following special instruction, wldch the court refused to givs, viz. : " If the property came into the possession of the defendant by lawful means, the subsequent appropriation of it is not theft, and you will acquit tlie defendant, unless it was obtained by false pretext, or with intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking." This charge would have been more directly applicable to the evidence if it had read: " If you believe from the evidence that the property was lost, and that the defendant found it, he can not be convicted of the theft of it unless you believe from the evidence that at the time he found it he fraudulently took it with the intent at that time to deprive the owner of the value of it, and to appropriate it to his own use or Ijeneflt. No fraudulent intent in the mind of the defendant iu relation to the property, which was formed after he had taken the property, will authorize his conviction of the theft of such property." We thiuk a charge iu substance such as we have suggested was demanded by 1 Robinson v. State, 11 Tex. (App.) 403. ik. PROOF INSUFFICIENT — PETTIOREW V. STATE. 625 this was the rale 1 his examination smber, 1883, ttiat ritness examined itter article than reutly belonged; intouio manufac* Btion in this case ; that the defend- I case, constitute ues raised by the d beyond a ques- subject of theft. the gist of this the taking ; and, of the finding of ne of the taking, will constitute it, the defendant going to the city • it to the owner, admitted that he re is no evidence the time Intended ;o his own use or to, which were rty, his intention I to the owner, if k it was the dutj pon th(! issiiefl as if ho did take it. jury any farther ted the following If the property , the subsequent endaut, unless it rner of the value t of the pcrsob e to the evidence rope rty was lost, theft of it unless rauduleutiy took lue of it, and to ; iu the mind of iter he had taken property," ras demanded by the evidence in this case, and that the court erred in omitting to give such an one. The charge of the court was excepted to by the defendant, because it failed to give the jury all the law of the case, and for other reasons. We think the court erred in not instructing the jury upon the question of intent as above indicated. The judgment is reversed and the cause remanded. Beversed and remanded, §574. Evidence InstifBolent to Convict — Pettlerrew v. State. — In Petti' yrew v. State,^ Willson, J., delivered the foUowlug opinion. The defendant was inilicted fur the theft of a mare, nnd was convicted, and his punishmcntassessed at confinement in the penitentiary for five years. The evidence to support the tharfie is substantially as follows : The mare v as the property of J. N. Bape. She was stolen from him in Hill County, on the 4tli day of September, 1881. A few (lays after the mare was stolen in Hill County, t'^o detbudant had the mare at his father's house iu Bell County. The defendant had been absent from his father's about two years, but it does not appear where he had been during this two ye;irs. No other facts were proved connecting the defendant with the th( ft of the mare. The fact of possession stands alone to support the con- vi(:ion. On the part of the defendant it was proved that he was about twenty- one years of age; that he was very weak-minded, had scarcely any mind at all in some things, and was particularly deficient in memory and reason; that he could not count one hundred and could not learn to count, and could never learn anything at school, Several witnesscv^ who had known him from childhood tes- tli'd that in their opinion he did not have as much intellect or mind as a child ten or twelve years old, and not enough to know right from wrong; that he has always been regarded in the community in wiiich he lived as a fool, and not re- sponsible for his acts, on account of his want of mind. We think the evidence insufflclent to support the verdict, and that the court below should have set it asiile and granted the defendant a new trial. We are also of opinion that the evidence establishes such a deficiency of intellect as renders the defendant irresponsible for crime.* The judgment is reversed and the cause remanded. § 575. Evidence InsulBclent to Convict — SaltlUo v. State. — In Saltillo v. SUite,^ the prisoner was charged with the theft of a horse the property of W. M. Reyuolds, and was convicted of driving it from its accustomed range with intent to defraud the owner. The punishment awarded by the jury was a term of two yeiirs in the penitentiary. W. M. Reynolds was the first witness for the State. He testified that he knew and had known the defendant for a short time. Defendant lived in that part of the town of Uvalde known as Mexico. Some time in the month of Jan- uary, 1884, the witness hoppled and turned a certain mare out on his range, which extended from the town of Uvalde to Salt Creek, a distance of about seven miles. On the rooming following the evening on which the mare was turned out, the witness' son Lonnie, as usual went out to drive her up. Failing to find her after a search which was kept up until the morning of the third day after her disappearance, Lonnie returned home. ' 13 Tex. (App.) 826 (1882). ' Thomag V. State, 40 Tex. 3 Dbfencbs. State, 6 Tex (App.) 6S6; Williams v. State, Webb ». 7 Tex. (App.) 168. s 16 Tex. (App.) 249 (1884). • 40 626 LARCENY. Acting on certain Information he had received, the witness went to, and found his mare at the defendant's house. He asked defendant what he was dolug with the inure. Defendant replied that two or three evenlngs.before, he had hobbled his two horses out ou the range near Knox's ranch, seven miles aouih- east from Uvalde; that when he went to hunt them next day, ho found bin one of his horses, and the witness' mare with hlmj that ho concludtd some one had taken his horse and left the mare; tt.at he wanted to take the mare to Uvalde and And and deliver her to her owner If he could. He did not claim the mare, but delivered her to the witness on demand. The mare had been hard ridden, and was considerably used up. Defendant had no consent from tiic witness to take the mare. The mare was under witness' control. Lonnle Reynolds testified, for the defence, that he was the son of W. M. Reynolds, the State's witness. He owned the mare In question. He turned her out ou the rans^o one evening, between Uvalde and Salt Creek, and failed to And her as usual next day, but, within two or three days, found her at defendant's house. In that part of Uvalde known as Mexico. Defendant made to witness the same statement concerning his possession of the mare, and his intention with regard to her, as he subsequently made to W. M. Reynolds, as set forth in the latter's testimony. Defendant refused to deliver the mare to witness, who then went for his father, W. M. Reynolds, to whom defendant delivered her. Lanatho Calsado testified, for the defence, that the defendant worked on Knox's ranch. In Uvalde County, but that his family lived in the town of Uvalde. At the time that he was employed on the Knox ranch, the defendant owned two horses, one a bay with white face, and one a sorrel. One evening in Janu- ary, 1884, In the presence of the witness, the defendant hoppled his two horses out near Knox's ranch. On the next morning, the defendant went out to hunt his two horses, and returned with but one of them and a black mare. At this point, the testimony referred to in the first head-note of this report was offered, and excluded. The defendant had never recovered one of the horses he hop- pled out at Knox's ranch. At least, the witness had never Iseen that horse since he was turned out. Wm. Reynolds testified, for the State, on being recalled, that he was the father and "natural guardian of Lonnle Reynolds, who was but fifteen years old. He had control of both Lonnle Reynolds and the mare. The mare was both belled and hoppled when she was turned out. She had on neither bell nor hop- pies when recovered. WiiiTK, P. J., (after passing upon other points) : — We are of opinion that the evidence Is insufficient to support a conviction for either theft or driving the animal from its accustomed range with intent to defraud the owner; of which latter offense defendant was convicted. There is no proof that defendant ever drove the animal from its accustomed range. When found by Lonnle Reynolds, the owner, in possession of the mare, it was in the town of Uvalde, in or near her range, where the owner had hobbled her out; and defendant stated to said witness that ««he had brought the mare t» Uvalde to find an owner for her, and in case he found an owner for said mare he would give her up." In view of the insufficiency of the evidence, the court also erred In overruling defendant's motion for new trial. The judgment is reversed and the cause remanded. Beveraed and remanded. ik ■i.MiHi&Vit,i^tttKi--' ^-■^ PROOF INSUFFICIENT — 8EVMORE V. STATE. 697 It to, and fcnnd It ho was (loiug i.before, he had en miles juuth- ', ho fouiul but ludkd some one iko the mare to id not clutm the 3 had been hard lUMOUt from tbe ol. I son of W. M. He turned her ,nd failed to find r at defendant's made to witness id his intentiuD Ids, as set forth aarc to witness, ndaut delivered idant worked on town of Uvalde. ufendant owned evening in Jauu- d bis two horses iveut out to hunt k mare. At this port was offered, le liorses he hop- jseen that horse that he was the fifteen years old. le mare was both ther bell nor bop- 3ort a conviction ige with intent to !onvicted. There ccustomed range. I the mare, it was ' had hobbled her ught the mare to ner for said mare tridence, the court d and remanded. § 87fi. Bvldsnce Instifflolent to Convict — Seymore v. State. — In Seymore y.Stale,i Hunt, J., delivered the following opinion: Seymore, the appellant, was convicted of the theft of a trough of the value of three dollars. The evi- dence is as follows: — J. W. Stewart, a witness for the State, being sworn says: «'I reside In Robertson County, Texas. I know the defendant W. P. 8e>more. He is In court (identmes him). I rented for the year 1881, the Duranl and Edrlngton farms. I am living on the Durant farm. When I took charge of the Edrlngton farm, on the first day of January, 1881, there was upon the place the wooden •rough now in controversy. \V. P. Seymore, defendant, hud the farms rented or the year 1880, and by order of Edrlngton the farm implements and fixtures were turned over to me by Seymore. I moved the trough from the Edrlngton farm to the Durant farm, where I am now living, and pi iced the trough in my lot and had the same in use. The cedar trough wis worth three dollars. I rented both places or farms from E. C. Edrlngton. W. P. Seymore has nothing to do with the same. I pay my rent to Edrlngton and settle with him for the farms. On the 13th day of July I was away from my home. On my return I found that the troujjh had been taken away; I never gave my consent to any one to take the trough. Edrlngton never gave his consent to any one for them to take the trough. There was no one at my house but my wife and children and servant. The defendant Seymore never notified me that he had taken the trough, nor informed me that he had done so. Cross-examined. " Seymore lives in two hundred yards of my house, keeps a store, and leases one acre of land from Edrlngton. There was a plank trough on the Edrlngton farm, belonging to Seymore. When 1 took possession of the place I moved the plank trough together with the cedar trough now in controversy from the lower end of the Edrlngton farm to the Durant farm, and put them in my lot. Some time in April last Mr. Seymore wrote me a note stating that the troughs, that is the plank trough and cedar trough, were his, and to either send them home or pay for them. I replied that the plank trough was his, and he could either come and get it or that I would pay him one dollar for same; aNo that the cedar trough was not his property, that belonged to the Edrington farm, and I would not give It up. Mr. Seymore claimed the property openly in April. In 1879 Seymore was agent for Edrington, and in 1880 he had the place leased; he has nothing to do with the place this year, except the one acre upon which his place is situated. I afterwards saw the trough in Seymore's lot at bis well. He claimed to own the trough In April last," Cttsar Grant, a witness for the State, being sworn, says: "In 1878 Billy Redden and myself dug the cedar trough. We were tenants on the Edrlngton farm. It was dug from a tree grown on the Kdrington farm, and was dug by permission of Fulks, the agent. We used the trough to water our hogs. When we left the farm we left the trou^^h there, and I left the same on the farm, con- sidering that It became the property of the Edrlngton farm. Mr. Seymore col- lected some of the rents In the year 1878; In 1879 he was agent, and in 1880 he worked or leased the place." Bob Lee, a witness for the State, being sworn, says: " I am living with Mr. Stewart on the Durant farm. On the 13th of July last Mr. Seymore came to Mr. Stewart's house in the absence of Mr. Stewart, opened Mr. Stewart's lot gate, and Wash Lockett drove the wagon in the lot, and Mr. Seymore and Wash 1 12 Tex. (App.) 391 (ISffl). 628 LARCENY . Stewart wtts at home." ,„„H«nt hAino sworn 8aT« : •• On or about the Wu8h Loekett, a wltnea» lor defendant, being sworn, says " v\ 1811 i.otK , ge more told me to drive my wagon up to Mr. Stew- from Mr. Stewart's house. Mr. S'^y"'°;;^J'^;;;Jj , .ro^^hs In the wajjon. the and opene.l the gate, and dro • J »- ^^".^ ^J- ,,",,, ,,,e and put the cedar and plank trough, and I dro^e »'"- wago" gtewart was Hitting up at his well." „,i„„f ♦„ ho o rnffue We can not and .. .ppc.r .,, tt , rec,,ra , '^ VI iTlovi U,/., Indo.d, b«.1r.,„s o. t.«l crime of theft upon sucu lvuicuv- ,io«prve to fill our prisons as «:"v.." .r".p^" tt v^rdic.' The i«d.o,e«. 1= reversed ..d thee.... remaudcd. Beoersed and remanded. S677 evidence insufflclent to Oor^vlct-Sbelton v. 8tate.-In 5Ae!(on t.. »« 1 HiTuT T delivered the following opinion: — " nlr, f Thelppernt was convicted of the theft of a certain steer, upon the following evidence : - County, Texas. I „«rk and br...d, ...d the ..me 1. '"»""'» "'*'\''~°i .nd h.d •>,« ,„ .„. r..g. m «''7,^7'? "n;7»,:r.prAf .'80° ae rSr J. B. B.«l.. I Intended to make a work-ox ot tne siet-r. i uv defendant's possession." 1 12 Tex. (App.) BIS (1882). ^^ PROOF INSUFFICIENT — 8HELTON V. STATE. (529 thout saying ir as I kuuw, y door. The rnlng. Vrs. I or about the to Mr. Stew- no; said that irt's house Is u wagon, Mr. t thirty yards rd ol Stewart tie wnjjon, the •e and put the ,rt was Hitting iig the troughs Lnd as I drove daughter was lot nee or hear MilH was about ', Mr. Seymort B cedar trough re can not and port such facts ( the nefarious ndreds of (lood our prisons as Ing them; they and the cause md remanded. a. — In Shtlton aln steer, upon lunty, Texas. I , Texas ; have a ■. I have stock 8, and had some Mr. J. B. Rawls. fork in the right I, four years old, mark and brand, the defendant or It. I have never the steer in the J. B. Rawls, State's witness says: "I live In Mllain County, Texas, about four miles from Milano Junction. I know the defendant. In the full of 1879, till- defendant came to my house. He liad two young men with him, neither of wliom I knew. They drove up to my house and penned with my cattle some cattle tliat I liad sold, niid one white steer with a red head, branded k, marked Willi a short crop off of the left car, and a swallow fork in the right. This Ulcer laiiie to my place and took up with my cattle when It was two years old, MMil remained tliere, and slept at my pen most of tlio time until ho Wttsn the railroad nge after that [arm, and was set I that I was) ve knowu It." e from Rawls' and Home red ,nt Matt. Shel- e Rawls cattle vhen we drove k ran out with ;er, branded k. [t was the only c; don't know Identified the 3 bunch of cal- , as we crossed aid 80, and run the steer after- ens' house, aud dant, and then 3ra to the house nd turned them :1 ft half months id. He did not fie wo ilrove the is', and the cat' way." It Matt. Shelton. id in December, :om Shelton and se and there put rom my house to , and have known It for years. It Is k, but I can't say that I know his marV I don't pay much attention to marks, but always pay close attention to brands. There wos no k stcir or animal of any sort In the bunch that defendant drove to my house. I iKitlced the brand of all tho cuttle In the bunch and know there was no such (inlmiil there us tho one charged to have been stolen. I know the description of the animal described by tho State's witness as the one charged to bo stolen. I s:iw a steer In tho range near Rawls' hoiiso In tho spring of 1880, I think In .March or April, that suited tho description of the Kirk steer. He was branded k. I never heard that Kirk had but two hea 16 Tex. (App.) 179 (1885). 634 LAUCENV. Trent delivered to the witness a car load of one hundred and forty-one hogs, In Waco, Texas, on the fifth day of October, 1881. These were the only hogs ever delivered to the witness by Trent. Witness turned these hogs Into a pen witli about four hundred other hogs which he had purchased from several different parties. Witness knew J. B. and J, P. Henderson, the gentlemen who wer« present as witnesses In this case. Some two or three weeks after Trent deliv- ered these hogs to witness, J. B. Henderson came to the pens of the witness in Waco, looking for hogs which he said had been stolen from him. He found four head in the witness' pen which he claimed. One was a white and blaclc spotted sow, two were slioats, and the fourth was a black barrow with white feet. The hogs claimed by J. B. Henderson were marked with a swallow- fork and underbit in each ear, and were a portion of the number delivered to witness by Trent. The two shoats would. In the judgment of witness, have weighed about eighty pounds each, the sow would have weighed about one hun. dred and twenty, and the black barrow about one hundred and ten pounds. The barrow's ears looked as though they had been dog bitten and afterwards Infested by worms, but the mark described was plainly discernible. In addi- tion to this pen, the witness had what he termed his " invalid pen." Hender- son did not go through the Invalid pen, as witness told him he had put none of the hogs purchased of Trent in that pen. Some of the hogs purchased by wit- ness from Trent died before the arrival of Henderson. Within a week after the visit of .T, B. Henderson to the witness' pens, J. P. Henderson, a son of J. B. Henderson came to the pens, examined tlie hogs, identified and claimed the same hogs that were claimed by J. B. Henderson. J. P. Henderson found also in the Invalid pen another sow iu the same mark as the four described, which he claimed for his fathsr. The two Hendersons claimed to know each of their hogs by their flesh marks. Witness paid Henderson fifteen dollars for the hogs, which, In the opinion of the witness, was their full value. None of the hogs were caught and examined at the time of young Henderson's visit in the presence of the witness. The hogs were mast fed or range raised hogs, some- times called " razor-backs." J. B. Henderson was the next witness for the State. He testified that be knew the defendant Womack, the man Fuller, and the witness Wheeler. In September, 1881, the witness owned a buncli of forty head of hogs, running at what is known as McDow's hollow, iu Erath County, Texas, from which the witness lived three miles distant. The witness last saw the hogs which the de- fendant is accused of stealing, about the last of August or the first of Septem- ber of the year 1881, On his return home from court about the tenth of October, 1881, the witness missed eight head ;of hogs from his bunch. Two of the missing animals were shoats, and six were large hogs. They were all marked with a swallowfork and underbit In each car. They were mast fed or range raised animals. One of them was a black barrow with white feet. The witness made careful and unsuccessful search for the missing hogs through the range, and then, taking Mr. Norton with him, went to see the defendant about them. At that time the witness had no ac testified that he was his father's loss of /^aco in October, aud examine some hogs shoats, and a black ,r marks to belong to another pen, which the swallowfork aud B. Henderson. Wit- tritness saw the black |ured, and had been not Identify the mark Itively know whether thought he was. At I catch the hog. S. L. Norton was the next witness for the State. He testified that some time in'October, 1881, Colonel Henderson asked him to go with him to see the dt fendant, and he did so. When they reached the fence Colonel Henderson called the defendant, who came out to tlio fence. Colonel Henderson intro- duced himself, and the defendint replied to Henderson that he knew him. The witness then gave substantially the .same account of what transpired, and what wassiiid by Henderson and defendant at the fence, as was given by Henderson, exc('i)t that he did not reiiiciiiber hcarlnjj defendant say that he and Fuller were partners. The witness had discussed the matter with Colonel Henderson as latcas tlie day before this trial. Henderson reminded him of some parts of the conversation whicli he hatl forgotten, but which, his mind being refreshed, he remembered distinctly. Calvin Martin was the next witness for the State. He testified that he and a Mr. Caiiysle were present at a conversation between the defendant and J. B. Henderson, in tlie town of Dublin, some time in October, 1881 . This witness repeated the conversation in detail substantially as it was related by the wit- ness J. B. Henderson. Tlie witness stated in conclusion that he had not talked over his testimony with Henderson. At this point the State closed. Mr. Carlysle, the first witness for the defence, gave a different version of the conversation between Henderson and defendant in the presence of himself, the witness, and Martin. Henderson said to defendant: '< I have been at Waco, and found four or five of my hogs that you and Fuller drove. Now, if you will come out and tell the truth, and help prosecute Fuller, you shall not be hurt. I liave talked with Bell, the district-attorney, and he says that if you will come out with the truth and help prosecute Fuller you shall not be hurt. Now, Woniack, do you know my mark?" The defendant replied: "Yes, I Iciiow a mark said to be yours." Henderson then a.sked : •• Did you and Fuller drive any hogs in that mark? " Defendant replied that he and Fuller drove five or six head in that mark. Henderson asked, " Where did you get them? " Defendant replied, "The first I saw of them they were in the pen at old uncle Dauicl Fuller's. I had to go to the wood yard to meet the pay train, and when I pot back to old man Fuller's the hogs were in the pen," Henderson asked, " Who penned them? " Defendant replied, " Uncle Daniel and E. M. Fuller." Henderson then asked him, " Did you not tell me the other day that you did not drive any hogs marked with a swallowfork and underbit in each ear? " De- fendant replied, " I said that I did not remember driving any in that mark ; that Idid not have the list of marks with me. I told Fuller (hat he ought to be careful about driving hogs in marks given in the county ; that he might get his foot into it; and that Fuller said that they were his hogs, that he had the marks recorded and would do with them as he pleased." Henderson then said, " Yes, he has my mark, and five or six others given in the county, recorded. Is that all you know about it?" Defendant said, "Yes." Henderson replied, " Well, Womack, I will pledge you my word as a man, a neighbor and a Mason, that you shall not be hurt. I will go right to town and have Fuller arrested." Henderson then left, thanking witness, and Martin. Witness heard every word of that conversation. Defendant did not tell Henderson that he and Fuller were partners. He said nothing about a dog catching the barrow and injuring his ears as he was driven Into the pen. Mrs. £. M. Fuller, the wife of the party jointly indicted with the defendant, testified that, in Januafy, 1881, £. M. Fuller brought home a small bunch ot 638 LARCENY. hogs that included a spotted sow, a black barrow, and four small shoats. Wit. ness knew nothing about their a^es. She knew nothing about their marks, but knew that these animals were said to be marked with a swallowlork and underbit In each ear. The black barrow had some white leet; witness did not know how many. One of his ears was a little crimped, by a dog catching him. These hogs were quite gentle, and ran at and about Fuller's ploce from January until he drove them off in September, 1881. Witness had not seen them since. She frequently fed them a little corn to keep them gentle, before they were driven off. E. M. Fuller and his father, Daniel Fuller, drove these hogs to Daniel Fuller's house about the first of October, since when witness hasj not seen them. ^ %, -r. n , Wash. Hammett testified, for the defence, that he lived on E. M. Fuller s place In the year 1881, and was at his house in January of that year. Fuller, at that time, asked witness to look at some hogs he had just brought home. Among them was a two year old spotted sow, a black barrow with some wliite feet, about eighteen months or two years old, and four spotted shoats about six months old. These six hogs were all marked with a swallowfork and underbit in e ' ' ^ Witness saw these hogs almost every day after that, until they %T. r'^ - >** by Fuller, about the first of October, 1881. Some time in July, or ^ >•» caught the black barrow, and so injured his ear that it crimped considerable, but not enough to disfigure the mark. All of the hogs described wer. o-entle. Witness had frequently seen Fuller and his wife feed them. Fullor^claf od th. ' ^d said that he bought them from William Payne, of East- land i^ounty. Wim.^^'j hiid not seen those hogs since Fuller drove them off m October, 1881. He had heard Fuller say that he had the defendant hired. George Johnson's testimony, for the defence, was, in substance, the same as that of the witness Hammett. Mat Tucker testified, for the defence, that Fuller penned some hogs at Ws, witness', house in September, 1881. The defendant was then with him, and seemed to receive his directions from Fuller, and obey them. Fuller told the witness that defendant was hired to him. M E. McLaren testified that about the first of October, 1881, he went with Holcomb to the hog pens of A. Wheeler, near Waco. Holcomb had a list of marks on a piece of paper. They found four hogs in the pen which Holcomb said belonged to J. P. Henderson. Three were spotted hogs and one was » black barrow. They were small, Inferior hogs, in reasonably good order. Holcomb testified, for the defence, that he found none of the other hogs for which he was hunting In Wheeler's pens, except the four that belonged to Hen- derson. . , , Moses Hurley, Mat. Tucker, Carlysle, County Surveyor Lowe, Land Agent Hymen, Sheriff Slaughter and State's witness Calvin Martin qualified them- selves, and testified that the defendant's reputation for honesty was good. White, P. J. (after passing on questions of law). In addition to this error committed by the court In the admission of the confession of defendant, we are of the opinion, even taking the confession to have been properly admitted, and as part of the evidence, that the testimony is not suflJcient to establish the guilty complicity of defendant In the taking or theft of the hogs, however much it may show his conduct and subsequent connection with the stolen property to be reprehensible In morals and law. The iudgment la reversed and the cause remanded.* Btvened and remanded. HHMa tmii. ^^m WILSON I'. STATE. G39 r siTiall shoats. Wit. .out their marks, but a swallowfork and [eet ; witness did not a dog cutchin^ him. '8 place from January not seen them since. ;le, before they were drove these hogs to (vhen witness ham no^ jd on E. M. Fuller's that year. Fuller, at 1 just brought home. TOW with some white otted shoats about six lowfork and underbit after that, until they . Some time in July, his ear that it crimped of the hogs described his wife feed them, 'illlam Payne, of East- Her drove them off Iq the defendant hired, ubstance, the same as nned some hogs at his, IS then with him, and them. Fuller told the ler, 1881, he went witli Holcomb had a list of he pen which Holcomb 1 hogs and one was a lably good order. B of the other hogs for • that belonged to Hen- (yor Lowe, Land Agent Martin qualified them- lonesty was good. Q addition to this error jn of defendant, we are properly admitted, and fQcient to establish the he hogs, however much h the stolen property to leveraed and remanded. Part IV. RECEIVING STOLEN PROPERTY. receiving stolen property — elements of the crime. Wilson v. State. [12 Tex. (App.) 48.] In the Court of Appeals of Texas, 1882. 1. The Want of the Owner's consent to the taking of the property must, in a triu\ for theft, be proToU like any other element of tlie offense, and can not bo presumed or inferred. It may, however, be proved by circumstantial evidence. 2. Where one Owns the Property and Another has the Possession, management, control or care of It, the want of the consent of both to the taking must be proved. And this proof should be made by the persons themselves if attainable, and If they are not, their absence should be accounted (or betore the State can be allowed to resort to cir- cumstantial evidence. 3. Beceivini; Stolen Property. — Betore a defendant can bo convicted of receiving stolen property, it must satisfactorily appear beyond a reasonable doubt : (1.) That the property was acquired by theft, and (2) that, knowing It to have been so acquired, be concealed the same. Appeal from the District Court of Wise. Tried below before the Hon. C. C. PoTTEU. The penalty imposed was a two years' term in the penitentiary. The opinion discloses the nature of the case, and also the evidence so far as it relates to the want of consent to the taking of the animal. With reference to the other questions involved, Gordon testified that he, Railey, Ray, Piper, and McDaniel made two trips to Black Creek in search of this and two yearlings of Railey's that had been stolen, That on their second trip, having divided into two pailies and traversed considerable territory, they finally discovered defendant and one Tate driving three yearlings at a distance of three hundred yards. They were driving the yearlings very fast, going towards Black Creek bot- tom. As the witness and his party approached the bottom, into which the men and yearlings had disappeared, one of the other pursuing party exclaimed: "Come on, here are our cattle, and here are our men." The men, whom the witness recognized as the defendant and Tate, wheeled their horses and ran in an opposite direction from that they were going with the yearlings. The witness, Railey and Ray followed them as fast as their horses could carry them but failed to get sight of them after they crossed a neighboring ridge. The yearlings when lost ■■^H«»."«i"»^'*" • g^Q llECEIVINO STOLEN rUOPEKTV. ^"''''''"" w ,v w Mc-Danielstestifled that he was at Friers the but now lives in tbo " N«Uon- te.tille.l tliat » lc« weeliB l>e- Tl,e drfcndanf, brother f°''" ^y'' ''"■ ''*"f; , " ,„„ tlie 0^ .„t .„ work for l.m w, . c. Ue. t^»l w^ t 1_^ Y _^^ ^.^^^,^ ^__ ^„^ ^,^ dollars |.er month, "■"' ^7~- '°° „„,, ,., vtiA cnt three yearling. defendant was seen »ith the ".f'f- °"'' ~" , „„„k Tate to dri f,„ni a Imneh, and heardhim tell the defendant and BUCK. ::dow„to\heeree.,tnrnthemlooseandletthe™go^h-^^^^^^^^ =r ;t:ro;":h::frthr -:.» -'-'^ of January, or at any other time. jr ri:r.;:rrwrrtrradr ^^^^^ .« - ». Sotwi^^n^^ixv^x^:^-^^^^^^ — »' "'rcCSrthtr;^ant (on„ttin. .r,n„ent on other a finding of want of consent, etc I" the case ^^^^^ :rntreor;'o.'3r-t.:?:^^^^^^^^^^^^ point. 1 ITex. (App.)4l»- s 7 Tex. (App.) 868. !,smm^ amt)immmmimm ^ WILSON V. STATE. 041 rhat the witness no more of the i!U arresteil. 10 testivaony of ivasatFriersthe itrs, and assisted ricl's mark. He the county since, t a few weeks be- nploy the defeml- defendant fifteen Frier 9 on the day lit three yearlings lack Tate to drive rotoh-n. They nore of defendant nploy. On cross- ,nd Marion Wilson uige about the Ist records of Denton ied for the theft of about the last of n, Mack Tate and the description of irguraent on other The court charged upon which to base Erskine v. State,^ it It of the true owner roved, and that this en direct testimony as held that wf.it of 3 absence accounted le evidence on this There is another view in which the testimony is insulHcient to support the verdict. Gordon liad no such special property in the animal as would sustain the allegation that the property was his. Gordon says: "The yearling iu'longed to Wilkinson," etc. " He had left this one in my fliargc, tliat is, ho sent rao word to look after it for him." I insist that tills fails to show that Gordon had such special property in the ani- mal as would have made him responsible to the true owner for its loss. ill' cniild not have sued for it. lie had no interest in it whatever, but was nierelj' acting as a servant for Wilkinson. ' There can bo no theft without a trespass. I think this case is not as strong as the case iif Blackburn above cited, where it was held that the proof was not suf- ticifiit. If it was not Gordon's property that was stolen, then can a c.nviction for "concealing stolen property" bo sustained? The in- ilictment chargiid him with theft of Gordon's property, under which a convietion could be had for concealing only Gordon's property.'' //. M. Ilolnu's. for the .'^^tate. WiLLSO!*, J. A motion to dismiss this appeal is made by the Attor- ney-General. The ground of the motion is that the defendant has taken his appeal from an interlocutory order, overruling his motion for anew trial, and not from the final judgment. Defendant's notice of appeal was given upon the overruling of his motion for a new trial. The judgment had been previously entered against him, and when his motion for a new trial was overruled, the judgment was then a final one vjfar as the court could make it final, "and then was the proper time for the defendant to give notice of appeal to this court. The motion to lisniiss the appeal is therefore overruled. The case having been sub- mitted finally, as well as upon the motion to dismiss, we will proceed to consider and determine the questions presented by the record, in so far as we may deem it necessary to so do. The defendant was indicted for theft of one head of cattle, alleged to be the property of G. C. Gordon. The verdict of the jury as we find it in the record is as follows : " We, the jury, find the defendant guilty of concealing stolen property, and assess his punishment in the State luison for two years." The evidence as to the ownership of the animal alleged to have been stolen, is, substantially, that it belonged to one Wilkerson, who resided at JIcKinney in Collin county, Texas ; that Wilkerson had some cattle running near G. C. Gordon's, and moved them away from there, leav- ing still in that range this particular animal; that W^ilkerson left this animal in charge of said Gordon, "That is," says the witness Gordon, "he sent me word to look after it for him. I \pp.) 868. 1 4i Tex. 460. a Defences. • Penal Code. art. 743. 41 fi MMta flir - ijIW Oiaii W 64S RECKIVIN(J STLLKN PROl'EHTY. waa looking ftftcr it for him. I lm(! the yearling nnd its raotlior in my pasture awhile, but when it was talten It was nmnini,' on tlic range." Tliis was all the evidence showing ownersliip of the ani- mal to be in G. C. Gordon, as alleged in the indictment. Defendant's counsel insist that there is no snfflcient proof of ownership as allog.Ml. Article 426,' provides that, «' Where one person owns property, and another person has the possession, cliarge or control of the same, the ownerwership thereof may be alleged to be in either." Article 728 of the Penal Code provides: " It is not necessary, in order to constitute theft, that the possession and ownership of the property be in the same person at the time of taking;" and article 729 reads : " Possession of the person so unlawfully deprived of the property is constituted by the exercise of natural control, care or management of the property, whether the same be lawful or not." Proof of either a general or spe- f.lal property in the alleged owner will bo sufficient.* We think the proof of ownership in this case met the requirements of the law. It showed that G. C. Gordon had the animal in charge, anc was actually taking care of it, by watching after it in its accustomec. range. The case of Blackburn v. State,^ cited by counsel for defendant upon this point, differs materially from the case at bar. In that case the ownership of the animal was alleged to be in one Esparza, and the proof showed that it was an estray, and that at the time it was taken he had neither a general nor a special property in the animal. But we think there is an insufficiency of evidence in this case to sho^ a want of consent on the part of Wilkinson, the owner of the animal to the alleged'taking. The want of the owner's consent must be proved like any other element of the offense. It can not be presumed or in- ferred It may be proved by the circumstantial evidence, but still it must be proved." Where one person owns the property, and another person has the management, control or care of it, the want of the consent of each of these persons must be proved; and this proof should be made by the persons themselves if they are attamable and if they are not to be had, their absence should be accounted for before the St*t« can be allowed to resort to circumstantial evidence.5 Iq the case before us there is no evidence proving or teftding to prove a want of consent to the taking of the alleged stolen animal, on the part of Wilkinson, the owner. The only circum. stance pointing in that direction is the one that he resided in a distant 1 Code Cr. pr. » Dlgnowitty p. State, 17 Tex. 681. 3 U Tex. 475. 4 Garcia t>. State, 26 Tex. 209; Wilson v. State, 15 Tex. 76; McMalion v. State, 1 Tex. (App.) 102: Welsh V. State. 8 Tex, (App) 422; Foster ». State, 4 Tex. (App.) 246;TraI' ton ». Slate, 6 Tex. (App.) 480. 6 Erskine v. State, 1 Tex. (App.) 405; Jackson II. State, 7 Tex. (App.) 363. ^^ K. V. WILKY. (543 niul its motlipr 4 nmniiii; on tlio rship of the ani- ■nt. DcfenilftiU's ership as alleged, 'na property, inul I of the same, the " Article 728 of )rder to conslitute rty be in the same i: " Possession of constituted by the of the property, r a general or spe- he requirements of mal in charge, and in its accustonieil insel for defendant bar. In that case e Esparza, and the ime it was taken he dimal. In this case to show er of the animal to int must be proved be presumed or in- vidence, but still it )perty, and another t, the want of the d; and this proof ley are attainable, aould be accounted ; to circumstantial jvidence proving or ;ing of the alleged . The only circum- I resided in a distant h V. State, 8 Tex, (App.) te,4Tex. (App.) 246;Traf- X. (App.) 480. itBte, 1 Tox. (App.) 405; 7 Tex. (App.) 363. county at the time of the taking. His absence from tlie trial was not iucoiintcd for; while the cvidonco showed tiitit he resided within the uiisdiction of the court, and could have been reaehed by its process. Before the defendant can be proparly convicted of coneeaiiii 5 Tex. (App.) 569. 9 ch. 29, sec. 64. ■ 'rwnummwiW WI 644 REfEIVINO STOLEN rUOl'KUTY. ., ». „ao nf Tnl.n Wilov's father with a loatlctl sack that wns .ar- Bccutocomo out of the "^ ;' '^^ „„,,;, ^UouUlers, ancl to i,'o " 1 Lh ^b on. iu. to the sumo house, situatea i. an enclosed yar "; ?. f u n t rCne the house an.l stable bcinj,^ on the same ,.v... ,,e . .11'*^ ^^'* « 3\,,^ ^^,k on the floor tied at the mouth, an.l tl,e goui- in, tlicy found tuc sa bargaining, but no words ^''^^V'lr^in:;: h A >le in':t^;^r:u.b ^..ch ^ouUry fo.h.s '""' ; hn^ The 1 when opened was found to ..ontain s.x h.nB, were protruding. 1 he Da y>ix i inhabitants up two cocks, and --j^ ;^.; ^^^^^ charged with receiving ti.e ;:r t::; •;:: " " :'':Si:: - s^d ^ he did not th.. he wo.a poultry laid in the indictment, and John wuey guu y fouml St,«ag.,a„.ml WiUlamso,, f"^.°„\;^';«'::;t been stolen. conviction was proper? ^^^^^^ j^^rd Thiq case was argued on the 2.'r. Tl'e question is as to tl.e meaning of the word receiving. Tlie statutes taken together show that it is no longer an offense mere y to buy; therefore tlio mere fact of admitting the goods w.th a view to buvini them is not a receiving. The property remains in the prosecu- to.-; the thief gets the actual possession, and nothing more The word receive is to be constructed with a reference to the rights of all the par- ties'who had anything to do with the goods. The thief having no legal prop-Ttyiu th;g)od3caa only pass the actual possession; and if l.e pu.les tl.at ho lias no possession left In him, and therefoi^ has not even constructive possession, and so he can not be taken to be holding the goods as agent for tlie prisoner. Therefore the prisoner can not be held t > have had constructive possession. It is doubtful whether mere naked possession will entitle a party to maintain trover even against a wron- doer.-' Here the prisoner had not even such possession, and therefore if the right to bring trover be a test of receiving, it is clear that he is not a receiver. There must be a willing parting with tlie possession by the thief, and a willing taking on the part o' the re- Lord Campbell, C. J. Can there not be a joint possession between a receiver and a thief? , , . -^^ 4 • O'fr Ileeeiviug means something more than having possession. L:.RD CvMPBKLL, C. J. Thc latter case shows that actual or poten- tial possession is enough. There may be possession without corporal touch. MviTLE, J. What is potential possession? Otter. There must be a disposing power over the goods. 1 The judges had rcsoWed that whenever the ( ourt ot Criminal Appeal, crenled by gtats. 11 and 11. Vicl., ch. 78. were not unani- mous, the case should be brought before me consideration of the whole beueU. 2 1 Hale'B C. P. 018. 3 Per Parlic. B., Fryeon v. Chambers, M. * U. f. Wade, 1 C. & K. 739; B. v. Hill.l Den. C. C. 453. ^^ i. 50, this case was re- ive following judges: , J., Alderson, B., ,E, J., Platt, B., V. r the fact, but he wos lulcl have been indicted iiless what he did was iscape. ' the word receiving, iger an offense merely le goods with a view to ■mains in the prosccu- ihing more. The word le rights of all the par- e thief having no legal possession ; and if he and therefore has not be taken to be holding the prisoner can not be doubtful whether were I trover even against a II such possession, and of receiving, it is clear villing parting with the on the part o* the re- oint possession between 1 having possession.'* vs tliat actual or poten- session without corporal !r the goods. C. p. 018. Ue, B., Fryeon v. Chambers, 9 M. ide, 1 C. &K.739; B. «. HlU.l n. V. WILEY. (547 jRD C.urpBKLL, C. .T. Suppose the thief and receiver to have at the same time the joint manual possession, will not that do? Aldersov, B. Suppose there was a large bale, and A., a thief, had hold of one end of it, and B., a receiver, had hold of the other end there would be actual possession in l)oth; here the auestion is only as to the actual possession; that may be in two persons. ^ We have to decide whether the direction to the jury is right. It is consistent with that direction that the thieves alone had actual posses- >io.i at the time of going into the stable. For all the circumstances set mit m the case are not to be taken as incorporated into the direction by the words " as above." Liddell, for the Crown. Tlie direction to the jury must be taken to incorporate all the circum- stances set out in the case. On the other side, the fallacy has been 10 confound constructive with joint actual possession. Here the pris- oner had the latter with the thieves. A man may be a receiver under the statute who would not be an ac- cessory at common low, e.g. A., a tluef, gets B. to take stolen goods; B. knows that the> .... stolen, but thinks that A. is not the thief; he n-ould be a ivcoiver though not an accessory, for he would not have the intent of aiding the thief.2 The right to bring trespass or trover is inapplicable as a test, for the question here is, had tiie prisoner had possession or no ; not what civil right had he, supposing him to have possession. Nor \s there any ques- tion as to constructive possession, nor as to the right of property. At c )iamon law receiving a felon would mean knowingly harboring with a view to aid. Substitute the word goods, and the meaning will be the same, and so make a man a receiver under the statute. The object of all the statutes relating to receivers was to extend the subject-matter of tlie receipt, so as to include the goods stolen, as well as the receiver, tliereby enlarging the definition of an accessory after the fact. In this c:ise the possession must be conaidered to be in all three prisoners. They are all treating it as a chattel in their possession and power; they were only undecided as to the mode of partition. Lord Campbell, C. J. If a man receives stolen goods, for any pur- pose, malo animo, knowing them to be stolen, is he not a receiver? Supposing the prisoner to have carried the sack, then he would have i>een a receiver; supposing him to have carried the candle, in order to aid one of the thieves in carrying the sack, where is the legal differ- ence? The act is a* joint act. It is difficult to see why the prisoner 1 R. V. Parr, 2 M. A R. 346. - See doflnitioii of "recolvinjr," ln2 East's P.O. 765; K. V, David, 6 C. & P. 178, per Gurney, 11.; R. t>. Bichardeon, 6 C.4 P. 836, per Taunton, J. 648 RECEIVING STOLEN TROrERTY. had not joint possession of the sack as much as the otlier thief who is not said to have had the manual possession. As to the word potential. i <^hink that must be put out of consideration. I do not understand its legal meaning. Liddell. R. v. Rogers,'^ R. v. Gerrisch,^ show that there may be a personal possession in A. without a manual possession by him. Maule, J. To make these cases applicable the money should have been stolen. Otter replied. The judges retired to consider their judgment, and on their return, there being a difference of opinion, gave judgment seriatm. Martin, B. I think the conviction wrong. The question turns on the meaning of tlie word " receiving," in statutes 7 and 8 George IV.' The true rule for the construction of statutes is stated by Parke, B., in Becke v. Smith.* " It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in wliich case the language may be varied or modified so as to avoid such inconvenience, but no further." Upon the facts which are stated in this case I think the pris- oner can not be taken to have received the goods. The direction of tlie judge Cin only be taken to refer to so much of the circumstances stated as relates to the taking into the stable, and the subsequent facts. And upon these facts it seems to me that Straughan and Williamson had pos- session of the goods as vendors, and therefore, adversely to Wiley, ;ind never intended to part with the goods until the bargain was concluded. Talfourd, J. I think tlie conviction wrong. The possession of the thieves seems to exclude the notion of possession by the prisoner. I think the case only incorporates so much of the transaction as relates to the taking into the stable, and what occurred there. V. Williams, J. I think the conviction right. I think the case made out against the prisoner, if he is proved to have had possession of the goods malo animo knowing them to be stolen. Here the knowledge and the animtis are clear. The only question is as to tlie possession. I think it was only necessary for one of the party to have posscBsion of the goods ; the prisoner was proved to have had a common purpose with the thieves, although he had not the manual possession. They were all agents for each other, and the possession of the thieves was, therefore, in law, the possession of the prisoner. • 1 2 Moo. 0. C. 85. a 2 M. ft R. 219. 3 ch. %, sec. 54. « 3 M. & w. igs ^aU n, V. WILEY. 649 le otlier thief who is I the word potential. o not understand its that there may be a sion by him, money should have and on their return, seriatim. e question turns on 7 and 8 George IV.' stated by Parke, B., he construction of a >rd8 used, and to the ce with the intention te itself, or leads to 3e the language may !onvenience, but no ;ase I think the prls- The direction of the circumstances stated isequent facts. And Williamson had pos- 'ersely to Wiley, ;ind ■gain was concluded, "he possession of the by the prisoner. I asaction as relates to [ think the case made ad possession of the •e the knowledge and > the possession. I have posseision of a common purpose A possession. The_v a of the thieves was, » Platt, B. I think the convictif)n wrong. It seems to me that the goo.ls must have been in such a condition as to be under the dominion of tile prisoner, and exclusive of that of the thief. If they all are to be deemed in joint possession of them, the possession of the thieves would be different in kind from that of the receiver ; for, in him it would be treated, as a receiving, and in them, as an asportation. I think that the thieves have retained the control and possession, and never intended to part with it until after their bargain was concluded. EuLE, J. I think the conviction right on two grounds. First. The prisoner co-operated with the thieves in removing the goods into the stable malo animo, with the intent of bargaining there more securely. If he had actually carried them, there would then have been joint pos- session ; what he actually did was legally equivalent to carrying them himself. If A. steals goods, and B. afterwards assists him in carrying them, B. is not punishable as a tliief ; but if he be not punishable as a receiver either, there would be a failure of justice, arising out of the principles of constructive law. Secondly. I attach a wider meaning than some of my brethren to the word receive. The rules of the crim° inal and the civil law are in many respects different, and have little or no bearing on each other. The state of the common law with regard to receiving seems to show that the word must here be construed in a ilifferent sense to what it might bear in a case of vendor and purchaser. The common law failed to provide for the evil which the statutes vera passed with the express view of meeting. They should, therefore, be construed with analogy to the word harboring at common law in the case of the thief. Here the prisoner must be taken to be the owner of the stable, and he autiiorizes the thieves to deposit the property. It makes no difference as far as his act is concerned that the thieves re- mained there with the property. The earlier statutes did not con- template a bargain as being essential to a receiving. Statute 29 George II.,' makes the crime consist in buying or receiving by suffering any door, window, or shutter, to be left open, or unfastened between sun- setting or sun-rising for that purpose, or in buying or receiving the feoods], or any of them at any time in any clandestine manner from any person or persons whatsoever, etc. a So that evidently the Legisla- ture then contemplated the case of there being no contract of bargain, or any direct communication between the thief and the receiver, Init a mere deposit by the thief in some place belonging to the latter with his consent. In 2 East's Pleas of the Crown,3 it is said : " In order to con- stitute a receiver, generally so-called, it is not necessary that the goods ' Ph. 30, sec. 1. ' Compare Stat. 21, Geo. Ill,, ch. 69, p. 7«5, 650 RECEIVING STOLEN PROPERTY. should be actually purchased by him ; neither does it seem necessary that the receiver should have any interest whatever in the goods ; it is sufficient, if they be, in fact, received into his possession malo animo; as to favor the thief, or without lawful authority, express or implied from circumstances." It has also been twice laid down that there may be a receiving without any profit to be derived thereby to the receiver, i In my opinion the case submitted to this court embodies ail the circum- stances there set forth. Cresswell, J. I agree with V. Williams, J., and Erle, J., in think- ing this conviction right. The direction of the bench is the only thing to be considered. I think that direction must be to be taken to Incorporate all the circumstances set forth in the case. And although I am inclined to agree with the observations of my brother Erle with respect to the meaning of the word "receiving," I ground my opinion on the fact, that the prisoner was clearly co-operating with the thieves. If the goods had been removed by the thieves from one part of the owner's premises to another part of those premises and there left, and the pris- oner had taken them from the latter place jointly with the thief, he would have been jointly liable as a thief. If then he assisted the tliieves in taking them elsewhere, that was a joint taking by him, and as he did it malo animo, he was criminally co-operating with them, and, there- fore, guilty of receiving. Maule, J. I think the conviction wrong. Coleridge, J. I think the conviction wrong, because we must de- cide whether it be so or not upon the direction ; and the direction did not make it the duty of the jury to consider circumstances sufficient to establish the guilt of the prisoner, if all were found against him, and to these we have no right to add anything. If the direction be con- strued strictly, it would limit us to consider only the effect of the facts of leading the two thieves with the stolen goods from the house to the sta- ble, and into it, with the knowledge that the goods had been stolen, and the guilty purpose of buying them. But it is better for the sake of the argument, and, perhaps, more correct to consider it as including also all the circumstances under which the fowls were brought to the house and taken from it to the stable, and all beyond that is excluded. Among these circumstances are not included any previous invitation or consent ; not even any consent is stated. So, considering the facts, the prisoner was guilty of being in the house with the thieves, having the goods in their possession, and help- ing them with the goods still in their possession to a place under his control, with the knowledge that they were stolen, and the guilty pur- I R. V. Davis, 6 C. A p. 178, er Gurney B. ; B. v. Richardson, 6 C. & P. 336, per Taunton, J. ; «. c. 2 RuR8. on Cr. 247. " •- R. V. WILEY. 651 seem necessary the goods ; it is on malo animo; ircss or implied 1 tbiat there may to the receiver.! IS ail the circum- RLG, J., inthink- iho only thing to in to incorporate gh I am inclined th respect to the nion on the fact, thieves. If the ■t of the owner's eft, and the pris- with the thief, he isisted the thieves m, and as he did them, and, there- ause we must de- he direction did mces sufficient to gainst him, and direction be con- ect of the facts of •■ house to the sta- [ been stolen, and or the sake of the as including also ught to the house ;hat is excluded, k^ious invitation or y of being in the session, and help- a place under his nd the guilty pur- & p. 336, per Taunton, pose of buying them, and ho himself acquiring a possession distinct from that of the thieves, on a contingency, wliich never liappened. Until that should happen he never intended to liave a possession, nor is it found, in fact, that he li id, nor did the thieves intend to admit him to any such possession, actual or constructive. No case of joint possession with thom inlerincdiately arises ; it did not exist in fact ; it is excluded by the common intention. Now, I conceive that receiving imports possession, actual or con- structive, and, therefore, that the verdict was wrong. I think it right to add my concuiTcnce in what has fallen from my brother Martin on the great importance of proceeding in all questions on the criminal law on broad grounds intelligible to the common sense of ordinary peo- ple.i Pattesox, J. I think the conviction wrong. I don't consider a manual possession or even a touch essential to a receiving. But it seems to me that there must be a control over the goods b}' the receiver, which there was not here. How far the other circumstances stated in this case migi., affect the question, I don't think we need inquire, for, in my opinion, tliey are not brought before us for consideration. The case as submitted to us, does not put the matter on that ground. How- ever, though I entertained some doubts on that point, I am inclined to think that tliose additional facts would make no difference. Ai.DERSON, B. I agree with the majority of the other judges in think- ing this conviction wrong. I think that there may be a joint possession of goods in a thief and a receiver. But there was no evidence of that here. The case submitted to us does not embody all the circumstances of the transaction. The sack may have been on Straughan's back all the time during the taking into the stables; and it is that part of the transaction alone which I think was treated by the chairman as amount- ing to a receiving, and left by him to the jury as evidence of it. The thieves seem always to have had possession of the goods, and the pris- oner to have had only the intention of receiving them, not the actual receipt. In all these cases boundary lines are matters of great nicety, and seem to unthinking persons to involve absurd and frivolous distinc- tions ; but those who are particularly acquainted with the administration of the law, have daily experience of their necessity, and know that without them acts and principles essentially different from each other in nature and operation would be confounded together, and tliat cases like the present have a peculiar value, owing to their furnishing precise definite rules. 1 The editor is indebted to the kindness of Mr. Justice Coleridge tor a copy of the above judsment. 652 RECKIVINO STOLEN PKOPERTT. P.UKE, B. I think the conviction wrong.' We have only to consider the precise point submittea to us in the case reserved. The taking ' ' as above ivas snid by the chairman to amount to a receiving ; that only nicorporated 80 much of the transaction as relates to the taking of the goods into the stable We must not, therefore, speculate on the question v hether he three prisoners were .all participating in the wrongful act, or what would be the legal consequences to each of their so douig. Receiv.ng must mean a taking into possession, actual or constructu-e, w»"ch I do not think there was here. The prisoner took the tiueves into the stable, but he never accepted the goods in any sense of the word except upon a contingency, which, as it happened, did notarise I tank the posses .ion of the receiver must be distinct from that of the thief, and that the mere receiving a thief with stolen goods in his possession would not alone constitute a man a receiver. Loud Campbkli, C. J. I think the conviction right. I concur in the reasoning of the minority of the judges, and I think that thei^ is a receiving whenever the prisoner, knowing the goods to have been stolen, has possession of them m.lo anirao. I think we need not enterinto considerations respecting the right of property, or the right to bring trespass or trover. I think there need be no manual possession to constitute a receiving. The facts were that the sack was brought into the house, and taken thence to the stable with the knowledge and co- operation of the three prisoners. There was therefore a common crim- inal purpose. Was not Williamson then in possRs--- .. the sack? Straughan alone carried it, but it is agreed that ■ . 3 purposes of larceny, the possession of Straughan was the possession of Williamson. If so why was not the possession of Straughan equally the possession of Wiley' Tliere was a criminal intent in all three at that time ; and a co-operation for the purpose of carrying that intent into execution. What difference can it make that one party alone had manual possession of the goods, when if they all had been on or near the owner's premises, such possession by one would have been clearly in law the mutual possession of them all? That there may be a joint possession in the thief and the receiver I have no doubt. Moreover, I think that on a fair interpretation of the case before us, we are asked our opinion of the whole transaction; and that the circumstances set forth show that the goods were in the possession of Wiley quite as much as in that of the thieves. Therefore, in either view of the extent of the case sub- mitted to us, I am of opinion that there was ample evidence of areceiv ing, and that the conviction was right. J K. V. SCHMIDT. 653 nly to consider the taking "as above" t only incorporated the goods into the lestion v hether the igful act, or what doing. Receiving ructive, which I do ves into the stable, I word except upon I think the posses- e thief, and that the oasession would not right. I concur in think that there is a to have been stolen, need not enter into ir the right to bring anual possession to ,t'k was brought into e knowledge and co- fore a common crim- iRSF-"'- ji the sack? . 3 purposes of ission of Williamson, lually the possession 5 at that time ; and a itent into execution, ad manual possession the owner's premises, f in law the mutual oint possession in the ver, I think that on a asked our opinion of B8 set forth show that Eis much as in that of :tent of the case sub- j evidence of a receiv- RECEIVING STOLEN GOOOS — STOPPAGE IN TRANSITU FROM THIEF TO OWNER — DELIVERY BY OWNER. R. V. Schmidt. [10 Cox, 172.] In the English Court of Criminal Appeal, ISGG. A Passenger's Baggage in Charge of a Railway company, was stolon from the rnllwoy gtation. Afterwards tlio thieves sent a portion of it in ii bumUo, and delivered it to the Piinie riUlway company to be forwarded by them to U., at Krighton. When it arrived ut Brighton, the police olUcer attached to the railway company examined the bundle, and finding It to contain part of the stolen property, directed a porter not to part with it until further orders. The thieves were then arrested and on the following day the bundle was sent by the railway company to B., who having received it. was charged with feloniously receiving it. JJeld.i that the charge could not bo sustained, the property having been obtained by the owners from whom it had been stolen before the receiving by the prisoner.! Case reserved for the opinion of this court by the deputy-chairman of the Quarter Sessions for the Western Division of the county of Sus- sex. John Daniels, John Scott, John Townsend, and Henry White, were indicted for having stolen a carpet-bag and divers other articles, the property of the London, Brighton and South Coast Railway Company, and tlie prisoner, Fanny Schmidt, for having feloniously received a por- tion of the same articles, well knowing the same to have been stolen. The evidence adduced before me as deputy-chairman of the Court of Quarter Sessions at Chichester, for the Western Division of the county of Sussex, on the 20th October, 1865, so far as relates to the question I have to submit to the Court of Criminal Appeal, was as follows : — On the 29th July, 1865, two passengers by the prosecutor's line of railway left a quantity of luggage at the Arundel Station, which lug- gage was shortly afterwards stolen therefrom. On the 30th July a bundle containing a portion of the stolen property was taken to the Augmering Station, on the same line of railway, by tlie prisoner Townsend, and forwarded by him to the female prisoner, addressed, " Mr. F. Schmidt, Waterloo Street, Hove, Brighton." The bundle was transmitted to Brighton, in the usual course, on Sunday morning the 30th. Meanwhile the theft had been discovered, and shortly after the bun- dle had reached the Brighton Station a policeman (Carpenter), attached to the railway company opened it, and having satisfied himself that it contained a portion of the property stolen from the Arundel Station, 1 pw Martin, B., Keating and Lush, J. J. » Erte, 0. J., and Mellor, J., dUsenttentUnu. 654 RECEIVINO STOLEN mOPEUTY tied it up again and directed a porter (Dunstall), in whose charge it was, not to part with it without f urtlicr orders. About 8 p. m. of the same day (Sunday SOth), the prisoner, John Scott, went to the station at Bri Om>'-'<^''^-l--^ orders for tho bundle to bo dollvored to tlie reeoivors. Carlionter was Servant of i^e railway eon,„a„y,who are tUe owners for the purpose S th slndietment, and tbo delivery therefore was by '^-™- ,,^„„„ rEBLi- C J. and Mci-wn, J., were of opinion that tie conv ot on ^1^:: h ,t M° «T,H B., KK-msoand Lusll, JJ., hold the eonv,et,on To,? In eoZrnUo'f tho prisoner having suffered half the term If irnl-ri, nment flninabihty to get hail, and the further unavoidablo dolav tho case was not sent to be argued before all the Judges ] M*«n°T I thinlt that this conviction was wrong on two grounds, the onTsiblotial, the other formal, ' ""^ ""'/t;- fr/a^'X ment founded ou the in.liotment, tliat the property is there laid to be roper^oi tho railway company, is well founded; and it seems to me that Dolan's Case applies to tliis. Eble C J. I ^^m of opinion that the conviction was right The nultln is" wl ether at the time this stolen property was received by the Sr, tT r. tbe property of the London and Brighton Railway Com- Z am if so, whether, when the Policeman Carpenter caused th.de- ve y' to be stopped for the purpose of detecting the part.es im^ catec t thereby lost he character of stolen property. If it had lost the :hi::erVfi^^ -- ^^'^^\:^^i the receiving by her will not amount to felony. But '" *»"««*;« /; ttink that the railway company, when they took this bundle into the r lossesstn were acting asbaUees of the thief, and were innocent agen s rfoZding U to the receiver, and that the things did not ose their llZLr of stolen prope tyby what was done by the policeman. '"^^Z^TTalreLii by brother M.im.that the conviction was wron. T seems conceded, on the authority of Dolan's Case that if the Ine ty had got back again for any time into the hands of the true owner ^heronviction would be\rong. It is said that, in ^^^^^^^^^^^^ mentioned in the indictment, the railway company, were not the rea owners wh.reas in Dolan's Case the real owner intervened But I thTnk tJeis no distinction in principle between this ca.e and that The th nk tnere IS ^ indictment to be owners of the ;::^::^y aT:r.m,ngt^ ean reeogni. no other persons than tbem , t3.™ the owners from whom the property was stolen and it got 5. , 11 ,L,r nossosslou I can sec no real distinction between this '':^^ Dln'r lu °ho reasons given for the Judgment in that case R. V. SCHMIDT. 657 of an innocent lid the innocent ) a recoiver, that r receiving. for dciivery the )entcr then gives Carpenter was 8 for the purpose le owners, attlio conviction ild the conviction ;red half tlie term rther unavoidable ! judges.] T on two grounds, [r. Pearce'a argu- is tliere laid to be id it seems to me II was right. The as received by the iton Railway Com- nter caused the de- parties implicated [f it had lost the red by the prisoner But in this case I is bundle into their ere innocent agents ;3 did not lose their le policeman. ; the conviction was m's Case, that if the is of the true owner, his case, the owners , were not the real intervened. But I 3 case and that. The ,o be owners of the r persons than them ; » stolen, and it got inction between this idofment in that case apply equally to the case of the ownership in this case. The principle I take to be, that when once the party having the right of con- trol of the property that is stolen, gets that control, the transaction Is at an end.and there can bo nj felonious receipt afterwards. I tlnnk the test put by my brother Llsii in the course of the argument, as to the real owner suing tlio railway company for the property after they had -^ot the control of it, is decisive of the matter. Mellok, J. I agree entirely with ray brother Erle, C. J., and think the conviction was right. The indictment riglitly alleges the property to have been in tlie railway company at the time it was stolen, they had the bailment of it from the true owner. Then it Is stolen whde in their custody, and the next step is, the thieves afterwards send a portion of it by the same railway company to be forwarded to the receiver at Brighton. So '.hat the railway company get possession of this part from the thieves under a new bailment. Then the policeman examines the property, and directs it not to be forwarded until furtlier orders ; but this was not done with the view of taking possession of it, or altering its transit, but merely to see whether it was the stolen property. I agree with Dolan's Cim, but in the present case I think, the stolen prop- erty had not got back to the true owner. Lu«.H J I agree with my brothers Martin, B., and Keating, J., and think that the conviction was wrong. I think that the goods had got bacl^ to the owner from whom they had been stolen. UaA the railway company innocently carried the goods to their destination, and delivered them to the prisoner, the felonious receipt w-uld have been complete; but while the goods aie in their possession, having been previously stolen from them, the goods are inspected and as soon as it was discovered that they were the goods that had been stolen the railway company did not intend to carry them on as the agents of the bailor. The forwarding them was a mere pretense for the purpose of finding out who the receiver was. It was not competent to the railway company to say, as between them and the angina bailor, that they had not got back the goods, they were bound to hold them for him. In afterwards forwarding the goods to the prisoner, the company was using the transit merely as the means of detecting tli6 receiver* Mautin, B. I only wish to add, that I meant to say, that I think the conviction wrong in substance in consequence of the interference of the policeman with the property, and this independently of the form of in- dictment. . , Conviction quasnea. 3 Defences. *2 658 RECEIVING STOLEN PROPERTY. RECEIVING STOLEN :G00DS- RESTORATION TO OWNER BETWEEN STEALING AND UECEI VINO— SUBSEQUENT SALE. li. V. DOLAN. [6 Cox, 449; 1 Dtars. 436.] In the English Court for Crown Cases Reserved, 1855. If Stolen Oood« are Reetored to the poBSOsMon of tho owner, and he returns them to the thiol lor the piirposo of cmil.llnK him to Bell them to n third porBOii, they are ..o4ongcr •tolen gooilB. and that third pereon can not be convicted of feloniously receiving stolen goods, although ho received them, believing them to be stolen. Where, therefore, stolen goods were found In the pocket of the thief by the owner, who sent for ii police- man • aud It was proved that iif ler tho policeman had taken the goods, the three went together towards the prisoner's shop, where the thief had proviously sold other stoltu goods : that when near that shop, the policeman gave the goods to the thief who was sent by the owner Into tho nhop to sell them, and that tho thief accordingly sold them to tho prisoner, and then returned with the proceeds to the owner. Htld, that the pri« oner was not guilty of feloniously receiving stolen goods; inasmuch as they wore delivered to him under •.ho authority of tho owner by u i.erson to whom the owner had bailed thorn for that purpose. K. t». Lyons, Oar. & M. 217, overruled. aemblt, per Crkswbll, J.: That the more possession of tho goods by tho policeman would not be equivalent to a restoration to tho owner. The following case was stated by M. D. Hill, Esq., A. C, Recorder of Birmingliam : — At the session held in Birmingham, on the 5th day of January, 1855, William Rogers was indicted for stealing, and Thomas Dolan for receiv- ing certain brass castings, the goods of John Turner. Rogers pleaded guilty, and Dolan was found guilty. It was proved that the goods were found in the pockets of the pris- oner Rogers by Turner, who then sent for a policeman, who took the goods, and wrapped them in a handkerchief, Turner, the prisoner Rogers, and the policeman going towards Dolan' s shop. When they came nearer the policeman gave the prisoner Rogers, the goods, and the latter was then sent by Turner to sell them where he had sold others ; and Rogers then went into Dolan' s shop, and sold them, and gave the money to John Turner as the proceeds of the sale. Upon these facts it was contended on tlie part of Dolan, that Turner had resumed the pos- session of the goods, and Rogers sold them to Dolan as the agent for Turner, and that consequently, at the time they were received by Dolnn they were not stolen goods within the meaning of the statute I told the jury, upon the authority of the case of Re' .yon} and another cited by the counsel for the prosecution, that t juer was liable to be convicted of receiving, and the jury found hin- ilty: 1 C. 4 M. 217. " -- U. V. DOLAN. 6A9 NEU BETWEEN SALE. !, 1855. B returns them to ihe II, they are no longer ugly receiving Btulen , Where, therefore, ho sent (or II police- oods, the three went «ly «ul(l other etokm to the thief who was scorilingly eold them mid, %htit the prlH iniuch BB they wore whom the owner bad I. Ib by tbQ policeman A. C, Recorder t January, 1855, Dolan for receiv- Rogers pleaded 3kets of the pria- m, who took the er, the prisoner lop. When they , the goods, and I had sold others ; em, and gave the pen these facts it resumed the pos- as the agent for iceived by Dolnn jtatute Be' .(/o>i,i itt oner was hiiL lilty: Upon this finding, I roriui'st the opinion of the Court of Appeal in Crimlnol Casi-s on tlie viili'lity of Doluu's cDUviotion. Dolan lias been sent l):ic;k to prison, and I respited jiulgmenl on the conviction against him, until the judgment of the court al.ove shall have been given. . . i O'Brien, for the prisoner. This conviction can not bo sustained. The objection is, tliatwhen llie goods reuclicd the hands of Dolan they were not stolen goods. Tlioy li;id been restored to tlie possctsion of the owner, and tlio sale to the prisoner was with tlie owner's authority. Lord Cami-beu., C. J. Tlicro seems to be great weight in that objec- tion, hut for the authority of tlie case cited. It can liardly be supposed that if goods were stolen seven years ago, and liad l)een in tlie posses- sion of the owner again for a considerable period, there could be a felonious receipt of tlicra without a fresli stealing. O'Brien. Tliat was tlie view talien by the learned recorder; and R. V. Lyons,^ wliicli was cited for tlie prosecution, does not appear to have been a case much considered. Coleridge, J., in tliat case, said, " that for the purposes of the day, he should consider llie evidence as sufficient in point of law, to sustain the indictment, but would take a note of the objection. CoLERiDOE, J. I certainly do not think so, to-day. O'Brien. There is also a slight circumstance of distinction between tliat case and the present. It docs not appear in that case that tlie sl-.len property was ever actually restored to the hands of the owner, nor that he expressly directed the thief to take it to the prisoner. (He was stopped.) . Beasley for the prosecution. R. v. Lyons is expressly in point, and thclearned judge who decided it does appear to have had his attention recalled to the point after the conviction, and still, upon deliberation, to have thought there was nothing in the objection. The facts are thus stated in the marginal note : " A lad stole a brass weight from his mas- ter, and after it had been taken from him in his master's presence it was restored to him again with liis master's consent, in order that he micrht sell it to a man to whom he had been in the habit of selling similar articles which he had stolen before. The lad did sell it to the man; and the man being indicted for receiving it of an evil-disposed person, well knowing it to have been stolen, was convicted and sen- tenced to be transported seven years." The report adds, that after the sentence " the matter was subsequently called to his lordship's attention by the prisoner's counsel, yet no alteration was made in the judgment of the court ; from which it is to be infei-red that, upon con- 1 C. & M. 217. 660 RECEIVING STOLEN PROPERTY. sideration, his lordship did not think that in point of law the objection ought to prevail. ' ' The piesent is, however, a stronger case than that ; because here m truth the master did not recover possession of the stolen good^. They were in the hands of the police ; and what the master did must be considered as dune under the authority of the police. Lord Campbell, C. J. No ; the policeman was the master's agent. Platt, B. And the sale was by direction of the master. Beasley. The statute does not require that die receipt should be directly from the thief. It only required that the prisoner should re- ceive stolen goods, knowing them to have been stolen, and that is proved in this case. In many cases it lias been held that where the owner of property has become acquainted with a plan for robbing him, his con- sent to the plan being carried out does not furnish a defence to the robbers.* Lord Campbell, C. J. But to constitti 3 a felonious receiving, the ieceiver must know that at that time the property bore tiie cliaracter of stolen property. Can it be said that, at any distance of time, goods w'.'ci. had once been stolen would continue to be stolen goods for the purpose of an indictment for receiving, although in the meantime they may have been in the owner's possession for years. CuESSWELL, J. The answer to hat in ttis case seems to be that the* policeman neither restoired the property nor the po&=.-.3ion to the mas- ter ; tiiat the goods were in the custody of tlie law ; and that the mas- ter's preseiwe made no difference in that respect. Beasley. Tiiat is the argument for the prosecution ; and it is mani- fest that if the policeman ha\ dissented from the plan of sending Rogers to Dolan's shop, the master could not have insisted upon the policeman giving up the property to him. Lord Campbell, C J. I feel strongly that this conviction is wrong. I do not see how it can be supported, unless it could be laid dovm that, if at any period in the history of a chattel once btoien, though afterwards restored to the possessior * the owner, it should be received by any one with a knowledge that li had been stolen, an offense would be committed within the statute. I think that that would not be an offense within the statute, any more than it would make the receiver an accessory to the felony at common law. If the article is restored to the owner of it, and he, having, it in his possession, afterwards bails it to another for a particular purpose of delivering it to a third person, and that third person receives it from that bailee, I do not see bow it can, under these circumstances, be feloniously received from that 1 R. V. Egglnton, 2 Bob. ft P. 808. R. V. DOLAN. 661 i of law the objection ■onger case than that ; er possession of the police ; and what the the authority' of the the master's agent, lie master. che receipt should be ,e prisoner should re- en, and that is proved lat where the owner of robbit'g him, his con- rnish a defence to the slonious receiving, the r bore tiie cliaracter of istance of time, goods »e stolen goods for the 1 in the meantime they :'8. } seems to be that the* possession to the mas- iw ; and that the mas- aution ; and it is mani- 1 the plan of sending have insisted upon the lis conviction is wrong, it could be laid dovirn tel once &toien, though ir, it should be received tolen, an offense would ; that would not be an Id make the receiver an le article is restored to iion, afterwards bails it ig it to a third person, ilee, I do not see bow it 3ly received from that bailee. Then what are the facts here? (His Lordship stated the facts as above.) Turner, the owner, therefore, had, I think, as much pos- session of the goods, as if be taken them into his own hands, and with his own hands delivered them to another person for a particular pur- pose, which was perfornied. He was, subsequent to tlie theft, the bailor, and the other person was the bailee of the goods. Then they were carried to the prisoner by the authority of the owner; and I can not think that, under those circum- stances, there was a receiving witliin the statute. As to tlie case cited, I can not help thinking that the facts can not be quite accurately stated, and that there was something more in that case than appears in Llie report; but if not, I am bound to say that I do not agree in that decision. Coleridge, J. I have no recollection of the case cited ; and I have no right, therefore, to say that it is not accurately reported ; but assuming it to be so, I am bound to say that I think I made a great mistake there. AVhat is the case? If for a moment the interference of the policeman is put out of the question, the facts are, that the goods which had been stolen were restored to the possession of the real owner, and were under his control, an'X ul^^^^^^^^^^ of -en-t A^^^^^^^^^ ^^^„ ,^ ,,.. whether The question in the case is then na^t o^v ^^ ^^ ^^^^^^^^ ,^^ defendants received the g^^./;',,^: y" TlL, in our judgment, is owner from again possessing Ins ^^ ^^^ ^^^^ ^,,, uinge. In the turning point upon -^'^^'""^^^.^.^.^er the case first as to the the disposition of the question we wiU ^^^^^^^ ^ ^^^ ^.^ts defendant Aldrich, and b--^;-^^^^^^^^^^^ '.^flerent. relatinossession. We will now consider the testimony as to the defendant Isaacs. He was a pawnbroker, and on the night the goods were stolen he was ap- proached by one of the thieves, and requested to buy the goods. Thia he refused to do, but, having obtained information as to the custody of the goods, he undertook, afterwards, to assist Aldrich in the consumma- tion of his scheme, to obtain the goods and restore tliem to the owner. There was no contract or agreement under which he was to receive any pay, for what he might do in the premises. All that he did was done as a favor to help Aldrich, who wanted the credit of getting the goods returned. Levi, who held $600 to be paid for the return of the goods, handed Isaacs $450, and retained the balance until it could be ascer- tained that all the goods were returned. This sum Isaacs testified he paid over to Bauer, but Bauer swears that Isaacs only paid him $300 promising to pay the balance the next day. Tnis is the only evidence contained in the record tending to show money in the hands of Isaacs as compensation for what he did in the transaction. We do not regard the evielence suflScient. Conceding that the credibility of the two men is equal, which is quite as favorable a view on the side of the prosecu- tion as they could ask, it would leave the matter standing one oath against another, which, under the circumstances of the case, could not be regarded as establishing the fact, beyond a reasonable doubt. Again, if Isaacs had been endeavoring to make money out of the transaction, it is strange he did not avail himself of the opportunity to buy all the goods for the $600 for himself, and say nothing to the detectives in regard to the matter. Ti>is would have been the course he doubtless would have adopted, had ho undertaken to get the goods for his own gain. The fact that he . r*'t>jllSffrfi:s>'i .'M*?' *- g70 RECEIVINO STOLEN PROPERTY. did not take this course is a circumstance tending to corroborate M^^ evidence that all ho did was with..,.t pay or ''^"•«^"^- /^ * \'-°' ^"^'^ received no compcnHation, and had no arrangement under winch he wa to be paid for what he might do, wo perceive no ground "P0« ^;;;«^ U can bo determined that he received the goods for his own gam, o hat he received them to prevent the owner from again possessn.g Ins nop- ertv within the meaning of tlie statute. It m^, however, bo said that as the goods passed through defendant's hamC^W Bhould bo held liable for the shortage of $1 300, and m tins way they received the goods for their own gain. If they retained the lods hat were missing there might bo force in the PO«i"0".j>"^ f-™ fho vidence that was impossible. Isaacs only saw the in-operty on two occasions, first on Sunday, when ho looked it over ,n the presence of Baue who .V-'^ not pretend that Isaacs offered to take any part of the go"d again on Wednesday evening, when the goods wex. earned ^^ Bauer from Fourth Avenue, in packages, to the e.gar store. While Isalcs was in company with Bauer, at the time, it does not appear that he m aly manner Landled the goods. As to Aldrieh his only posses- 8ion of the property was during the ten minutes which it took h.m to cairy he goocfs from the cigar store to the hotel, when the property Z7in pacL..es, and unopened. We can see no ground upon which it Ti 7rom the ev dence, be claimed that either of the defendants can be he d iable for the shortage in the goods. The more reasonable view i, that the missing articles were taken by the thieves and appropriated to their own use while they had the goods in possession. It is, however urged that the fact that the property could have been returned soon 2r the larceny for $500, and the fact that Aldrieh, in i- ^-t ^^- view with Morrow, in substance said it would require $1,400, to obta m the property, the long pendency of the negotiations as to the amount to be paTand the f act tiat $200 more was paid to Aldrieh than was de- manded bv the thieves, are facts which prove motive of gam. As we understand the evidence, the defendants could not at any time have ob- tained possession of the propertyso itcould be ^<^t«'-"«^' 7^^,^"* P^"^ the thieves the amount of money demanded by them. The defendants can not, therefore, be blamed for the delay, as they acted ^ soon as Morrow furnished the money to be paid to the thieves. It ib true Aldrieh, in his first interview with Morrow, expressed the opmion that $1 400 would be required to obtain the property, and this may be le- gaided as a circumstance against him; but his subsequent conduct agreeing to obtain the property for one-half that sum, or as much les afhe could, clearly repels the inference that he --/-^^g;?^;^ any gain out of the transaction. It has been suggested that Levi was a myth -that no such person ever lived. The fact that he was never ^ -^ LEAL V. STATE. (571 orroborate his ;f then, Isaacs • which he was upon which it a gain, or that jsiufj liis "i-op- gh defendant's $00, and in this iy retained the iiion, but from roperty on two lie presence of any part of tlie fere carried by • store. While not appear that lis only posses- 1 it took him to jn the property [I upon which it fendants can be reasonable view nd appropriated It is, however, 1 returned soon n his first inter- >1,400, to obtain to the amount to ich than was de- of gain. As we iay time have ob- 1, without paying The defendants acted as soon as jves. It is true, the opinion, that this may be re- sequent conduct, 1, or as much less I seeking to make d that Levi was a that he was never seen or hoard of after the nigljt the goods were returned looks somewhat suispicious, but we must be controlled liy the evidence in the record, and unless Isaacs, Aldrich, and also the father of Aldrich, are guilty of willful perfury, then Levi was no myth, but was in Chicago at the time of this occurrence, and participated therein, as testified by the de- fendant. We have given the evidence in the record a careful consideration, and the only conclusion we have been able to reach is that it has not been established that the defendants were receivers of the goods for their own gain, or to prevent the owners from again possessing their prop- erty. On the other hand, the only logical conclusion that can reached from the evidence is that defendant undertook on behalf of the owners, to obtain a return of the goods without compensation or reward, and that all the goods that came into tiieir possession were in good faith returned to the owners. If it had been proven in this case, that the defendants hod entered into negotiations with Morrow to secure a return of the stolen goods in pursuance of a prior arrangement or understanding with the persons who had stolen the property with the intent or purpose of making a profit out of the trans- action, we would not hesitate to hold that they were guilty under the statute. A party can not shield himself behind a supposed agency, growing out of an agreement made with the owner of stolen goods for their re- turn, where it appears he is acting in conjunction with the thieves to make a gain or profit out of the transaction. But where the defendants are not actuated by the motive of gain, as they were not in this case, and do not aid in secreting the property, we do not understand that a conviction can be had. The judgment will be reversed and the cause remanded. Judgment reversed. BBCEIVING EMBEZZLED PROPERTY. Leal v. State. [12 Tex. (App.) 279,] In the Court of Appeals of Texas, 1882. Keoelvlns Embezzled Property is not a violation of the penal laws of this State. Appeal from the District Court of Bexar. Tried before the Hon. G. H. NOONAN. (572 RECEIVING STOLEN I'ROPEKTY. The case is sufficiently stated i" tbe <>pi"^°; ^ ,^^, „„ act or Bryan Callaghan, for the «^PPf 7'; /^VLr^^euiawof tholaud.' omission is an offense, unless so '^^^^^^J^^f^^y^'^^reTs follows : - Ti. only P-Uion hcaru^ on^^^^^^^^^^^^^^^ ^^ ';- ^„^, ,,, , Stealing the same would be liable to be P^-^^^^^^^ ^„, ,, .eceiv. The last cited article declares .t *« ^'^^f^.f;";,;*"' vious wrong-doe. or conceal property when the ac,—^^ tbstLte '' word" for ?.r m" tl Z:Z2^^^-^^ -e the same signi.cation. in such manner as that tbe --l-;^ -J^^;;;; „ ,ue degrees of theft, word theft ; " - not, it is «"bm.tted, with n y^^ ^^^^ ^^ ^^^^^ .. .^ ^^^^ but within the meaning of ^^^jo d the ^ ^s that term is employed deprive tb. ov,ner thereof P"°"'"°°"'';,_rtv knowtog It to be Btota It may be »Md ttot reee.vmg .tolen property, Kno b ^^^ ,e taeuied ,n tbeft, .nrt that *« -^^ -'^^ ;V^ . Wh a convietion ^.eee ; therefore It Is contende,. h»t ao »* «- _;„ 'fj^ « „ -:rLrefrr;^9S:=r "'"^'' ~ "Vr "carbe-l^t-Lr-r ;'ro" V -ss there wa, the,. '";r- "emhon a defendant . -^X':::^^''^^'^^^'^' shows that he did not steal the property, but that he Mo g .0,M«..81.ie.«•"• 'Tex. (App.) '"■ , pi.!,. Cr. L.. eec 1191 1 Oueela «.»»». *aBail'«P.C.B63iaEUM.Cr.ai. 4 Xerg. l«i Wilgim>.8>a»,» *•"»•"*• LKAL V. STATE. 678 that no act or aw of the laud.' 'ollows : — ,ch has been ac- jn comes within ive been so ac- ^ law the person ly one to receive ious wrong-doei lite "word" for ime signification, [uired by another e meaning of the degrees of theft, n "theft" in the term is employed ;d: "Tlie wrong- intrinsic value be- the intention to ring it to be stolen jaiise in one count istain a conviction ay that the indict- t the original taker r say that "theft" 5 eludes different de- : rging embezzle- ew the property to !s charge, discloses less there was theft ft, and the evidence e knowing it to have . 4 Tex. (App.) 891; Bland- X. (App.) 627. 5, 4 Tex. (App.) *11- ec. 1095;Ca8eel8 t». SUte, iH>.8Ute,6 Yerg. 18*. heen stolen, did fraudulently receive the same, that he, under proper instructions from the court, might be convicted for receiving stolen property, knowing it to bo stolen.' In tlio cases last cited the indictment charged the greater offense, " theft i" and the conviction was for a lesser offense. The greater of- fense Includes the lesser one, but the lesser does not include the jrn'ater. An indictment cliarging murder will support a conviction for Tigiiravated assault; but the converse of tlie proposition in not true." Enibezzloment is not a degree of the offense defined in article 743 of the Penal Code, and the offense charged in the indictment in this cause, to wit: receiving embezzled property knowing it to be embezzled, is not defined in the Penal Code of tliis State ; and, therefore, tlie defendant lias not violated any law, and the court should have sustained the mo- tion to quasli. D. Coopwood, also for the appellant, filed an able brief and argu- ment. //. Chilton, Assistant Attorney-General, for the State. HruT, J. The appellant was convicted for receiving property which had been embezzled-, his punishment being fixed at two years' confine- ment in the State penitenthiry. The indictment charges that one Con- ception Torres embezzled certain hides ; not only the facts constituting embezzlement are averred, but the offense of embezzlement is charged in terms. It then alleges that the defendant received the hides know- ing them to have been embezzled. Tlie question presented, conceding all this to be true, is, has the de- fendant Leal violated article 743 of the Penal Code, which reads: |' If any person shall receive or conceal property which has been acquired byanotlier in such manner as that the ac^utsttjon comes within the meaning ot tlie term theft, knowing the same to have been so acquired, he shall be punished in the same manner as, by law, the person stealing the same would be liable to be punished." ^Italics ours.) It Torres acquired the hides, and his acquisition was in such manner as to con- stitute the crime of theft, and defendant received them knowing them to have been so acquired, he would be liable. But were the hides so ac- quired? By no means. The allegations in the indictment place this question beyond cavil. The acquisition by Torres was not fraudulent but was legal, a duty, — and did not constitute theft This being the case, receiving them by defendant was not a violation of the Code. While it is true that a majority of this court have held t^at theft in- cludes embezzlement, they have never held that embezzlement includes iParchman «. State, 2 Tex. (App.) 228; Vincent v. State, 10 Tex. (App.) 33t. 8 Defences. ^3 2 Griffin V. Stote, 4 Tex. (App.) 412. 674 RECEIVING STOLEN PROPERTY. theft To thus hold would make the lesser iuclude the greater. But, be this as it may, no person can be legally convicted of receiving stolen goods unless when the acquisition was in such manner as to constitute theft We are therefore of the opinion t. at to receive property whicli has been embezzled constitutes no offense against the law of this State. . ,. • J The judgment is reversed and the prosecution dismissed. Eeversedand dismisaed. RECEIVINO STOLEN PROPERTY -BANK-NOTES NOT GOODS AND chattels. State v. Calvin. [22 N. .''. (L.) 207.] Jn the Supreme Court of New Jersey y 1849. »*«!, Not., are nof'Ctoods and Chattel.." and the receiver of stolen bank-notes "•^n^oJ be i"!cted«nS the statute making It a mlBdem.anor to receive etolen" good. or chattels." This case came before the court from the Passaic Oyer for an ad- visory opinion. The defendaro was indicted for, and convicted of^ receiving a large number of bank bills, amounting in value to $4,000 "of the propercy, goods and chattels" of Drew, Robinson & Kelly, the defendant well knowing said bank-bills wore taken by robbery, etc. , contrary to the statute, etc. ^ d ^ Argued before the Chief Justice, and Randolph, Justice, by Bar/ca- low, for the State, and A. S. Pennington, for defendant. Randolph, J., de'.ivered the opinion of the court. As cboses in action and bank-bills had no intrinsic value at common law, and were not the subject of larceny or robbery,^ the question i8, whether they are included in the statute respecting the receiving cf stolen goods or goods and chattels taken by robbery. The language of the act is,2 - if any person shall receive or buy any goods or chp.t- tels, that shall be stolen or taken by robbery," e -;. In the thirty- fourth, thirty-fifth and thirty-sixth sections of the same act, whicn treat of the crime of larceny, the phrase used is, "shall steal of the money or personal goods and chattels," but in the thirty-seventh sec- 1 1 Hawk. U2; 4 Bla. C- m.2M; Or. PI. 66. ALrchb. 2 Rev. SUtB. J99, sec. 72. , - ua«s*i«»-'M^***"«'*****^ STATE V. CALVIN, (575 the greater. But, of receiving stolen iner as to constitute jive property whicli ist the law of this smissed. edand dismissed. NOT GOODS AND , 1849. Blver of Btolen bank-notes or to receive stolen " gooda saic Oyer for an act- ir, and convicted of. ig in value to $4,000 , Robinson & Kelly, re taken by robbery, I, Justice, by Barka- mdant. Tt. insic value at common bery,^ the question is, jting the receiving cf )bery. The language ly any goods or chp.^ • e •;. In the thirty- tbe same act, which 3, "shall steal of the the thirty-seventh sec- 299,860. 73. tion, which applies to double larcenies, the words " goods and chattels," only are used. Sections 38 and 39 respecting robl'ery, and assault with intci.ti to rob, etc., make use of the words " money, or personal goods and ch.attels," and the forty-lifth section makes the stealing or tiikino- by robbery of any bank-bill or note, bill of exchange, order, etc., a misdemeanor of the same degree and nature as if the offender had stolen or taken l)y robbery " any other goods of like value, with tbe money due on such bank-billfi," etc., "money, wares, merchandise, goods, or chattels " are used iu the fifty-second section, which relates to obtaining goods under false pretenses. The same phraseology is u:.od in all tiie pi-eceding statutes applied to the respective crimes, as is now used in the Koviscd Statutes, they being copied almost literally from the English statutes. Thus tb* 3 Willian and Mary' states that if any person shall, "buy or receive any goods or chattels," feloniously taken or stolen, he sh*il be deemed an accessory ; and 5 Anne,^ George I., 3 and 22 George III.,* all relating to receivers of stolen goods make use of the words "goods" or" goods and chattels" only. "But," says a loarnod author, "it has often been determined that re- ceivers of stolen moi are not within the statutes." ^ In the case of Sadi and Wiilidm Morris,'^ it was directly ruled, by a majority of t .e ten judges, that bank-notes were not within the statutes relating to the re- wiving of stolen goods; one of the judges thought the construction would have been the same, if the act of 2 George II., which first made the stealing of bank-bills felony, had been pnssed prior to tlie act of 3 William apd Mary ; but other judges thought that inasmuch as 2 George II. had rendered tlie stealing of bank-notes felony, it drew after it all the incidents of felony at common law, and therefore included receivers as accessories after the fact ; the majority, however, con- sidered the offense not within the statute, and refer to Cayle'a Case,' and Miller v. Race.^ See also 3 Bun) Justice ^ and 4 Blackstone's Cora- mentaries.'" In Itex v. William and Anne Oaze,^^ who were convicted, the former of stealing and tlie latter of receiving a promissory note, eleven of tlie judges were unanimously of the opinion tha' William Gaze was not rightfully convicted under the statute of T William and Mary. Upon the reason assigned by Justice Ashurst, in Rex v. »S(((;j one? Williavi Morris, that although 2 George II., making the stealing of notes and securities felony, would draw after it all the common-law incidents of felony, and render accessories liable, yet re- 1 ch. 9 ace, 4. 2 cli. 31, eec. 1 3 ch.ll. * ch, 63. ' See 2 EasfB Cr. L. 748. e 2 £ast, 748, and Leacb'a Cr. Ca*. 404. ' 8 Co. 33 ; Jelr. Ml « 1 Burr. 4S7. > TiL Larceny, M. 1" p. 133; note It. II R. ftK. dm. (576 RECEIVING STOLEN PROPERTY. ceivers were not accessories at common law, and were not included. Tbs ainl-s '.0 be the settled construction of the Enghsh statutes, lou^h Xre are some cases not entirely reconcilable with it Thus, m Sv c'one, defendant was convicted of a misdemeanor for rece.v- S a piom^ory note, under the act 23 and 24 of George lU., wh,ch mfntionHnly goods ^nd chattels.^ So there have been several conv.c- Son ?or receilg bank-bills under 12 Anne ^ which mentions money loods or chattels lu Eexy. F,.e,3 the conviction was suslamedony fn those counts which charged the promissory noU. a-o -j^y P^^^^^^^ of stamped paper of the goods and chattels of J. W. These difficulties howe'r, hive all been obviated in England by the P-«Jg« «' - fT rnf%r.eor-e IV ."^ which makes the receiving of bank-bills, prt so y no e^ln^^ther securities a distinct and independent o fen e The case of Bo,dcu,d .o,/-eM^uts the same construction on he New l^ork statute as Be. v. Morris does on the English acts ; and ^.celTat decision tl>e New York statute has been amended. Our stat- ue makes the receiving of goods and chattels stolen or taken by rob- bry a distinct offense, and not as accessory to the larceny or robbery ; and although subsequent sections ronder the steahng or aku g by robbery balbills, as well as goods and chattels, an indictable offense yet these can not draw after them, as a necessary consequence, anothe d St net and independent offense; so that whether common law or stftutorx accessor es are included or not in the principal act under the rrh-Ututrneither can be included under ours, 'or that embac^^ no "such offense as accessory to the larceny or robbery, bu the rece v- fnVis a misdemeanor by the statute, and by that which alone creates th! crime mtt it be defined and specified ; and as that does no in- dudernk-bills, although tl>e other sections of the act do, it is to be ^ZnLd that the Le,nslature never intended that the receivnig of iriank4nllssi>ouUri>e an indictable offense. /» ^^^^ j'f^^' and William Morris (before referred to) the court remark, that bant Tit Iviul no peculiar mark may enter into the currency be passed as sucran"d .^ deceived ; and hence the propriety of including them in the offense f.-r receiving stolen goods is much questioned. The indictment, therefor*- can not be sustained. 1 3 Br. Cr. Ca. 47. s ch. 7. 3 1 Br. Cr. 0». 218. * p. 24. » To be found In 8 City H. Kec. 67. RECEIVING STOLEN GOODS. G77 B not included, uglish statutes, th it. Thus, in mor for receiv- •ge Hi., ■which several convic- lentions money, 3 sustained only so many pieces hese difficulties, passage of the r of bank-bills, xnA independent construction on nglish acts ; and nded. Our stat- or taken by rob- !cny or robbery ; ing or taking by Qdictable offense, jequencc, another common law or ipal art under the For that embraces •y, but the reoeiv- lich alone creates that does not in- act do, it is to be , the receiving of II the case of Sadi •emark, that bank- rrrency, be passed including them in sued. 8 city H. Kec. 67. »NOTFS. § 581. Receiving Stolen Goods — Goods D/f.-- be Stolen. — The goods must be stolen.i §582. Becelvlns Embezzled Property. — Receiving embezzled prop- erty is not within tlie penal code of Texus.^ § 583. Gocos must be Actually m Prisoner's Poasesslon.— This is essen- tial to the criTTj.^ lu CommoinceaUh v. Sheriff,* the prisoner swore that he found his stolen irou upon the prisoner's scales, who with the carter were weighing itTb'.t it had not been delivered to the prisoner. Buewster, J., said: "If tliis had beeu a sale by the lawful owner of the iron, tlie right of property and .{ possession would have remained in the vendor until actual delivery. For aught that here appears, the defemlaut might have refused to complete the bar- g;uu or take the iron. There was a loais pfmitcntia;, very small, perhaps, but still sulllcien*-. to entitle the defendant »o the benefit of the doubt. § :.H\ _ stoppage in Transitu Before Receipt. — So if the goods get back into uift owner's possession, or are stopped in transitu, tlie crime is not com- In li. V. Hancock,* a. lad was detained on leaving his master's premises, and a policeman sent for who searched him, and took a stolen cigar the property of :, :, • vster, from him in the master's presence. In consequence of the lad's .! •. uent, the cigar was returned to him, with five oth« rs which the lad took to tii^ prisoner and gave to hlra. It was held that the case was not distin- guishable from li. V. Dolan,'' and the prisoner could not be convicted. § 585. Knowledge Essential. — The receiver must know that the goods were stolcu.' In It. v. Wood,^ the prisoner was ladicted for receiving stolen poods, knowing the same to have been stolen. The fucts were that a boy had IxL'u convicted of stealing from his employer the silver tops of a whip and two walking siicks. It appeared he had sold them to the prisoner, a "a general cltuler." and he was examined on tlie trial of the Loy, and stated that he gave 3s for the articles, and that the boy had said he got tliem from the coachman, of one B. The value was stated to have been three times the sum which the lirisoiicr gave for them. The boy was now examined, and stated that he had broken up the sticks and taken the sliver mountings in a detached state to the prisoner, and that he had Sivi'u L'd, (Id, and !1 ' for them. On cross-examination it appeared that he liad hvvn iu the service of B., whose man had sent him repeatedly to the prisoner with articles of a very varied character to sell; and that on the tirst occasion the prisoner asked him who he was, and had a note of introduction from B. or I State V. Shonf , 6S N. C. 378 (1873). a t-.sal tt. Stale, 12 Tox. tApp.) 279 n6»l). ■■'■ li. V. Wiley, 1 Ueii. 43 (1050). ' :i Rrew-t. 342 (ISW). It. 11. Sdimiat, 10 Cox, 172 (1866) ; R. f. Dolttii,6Cox,449 (1855). « 14 Cox, 119(1878). ' 6 Cox, 449; Dears. 43G. 8 Wilson V. Stttto, 12 Tex. (App.) 48 (1882). 9 1 F. & F. 497 C1859). G78 RECEIVING STOLEN PROPERTY. his man; and tliat he was never told by the witness that he had left the employment of B. ,, , ^, „..„. Maktiv, B. (to the juryj. If you think that the prisoner did not know tha^ the b >y had left the 'service of B. you should acquit him. For you must not find him quilty if you infer that he had no guilty knowledge. ^ Verdict, lot guilty. Tlie fact that the goods are found on t',o prisoner's premises is not sufficient alone to sustain a conviction.* § 586. Stealer not Receiver. - The stealer of the property can not be cou- Ticted of receiving stolen goods.^ § 587. Principal and Acceaaory. -One of several principals or an acces- sory can not be a receiver.'' 8 588 .. Goods "-Bank-notea. -The receiver of a bank-note Is not n receiver of stolen " goods " within the statute,* and bank-notes are not "goods and cliattels."'-' • I 588a Receiving Property Stolen from Mall. -In United States v. Montgomery <^ it was held that to constitute the guilty receiving cf property stolen from the mail, as defined and punished by section 6470,^ It must appear that the def endaut voluntarily took the property Into his control and possession, or voluntarily had it in nis possession and control, wlivi intent to prevent the larceny or the tliief from being discovered, or the property from being reclaimed by the true owner, or for his benefit; but It need not appear that he received it with intent to make any gain or profit thereby to himself. A guilty concealing also lmplle« that the defendant voluntarily secreted the property or put it out of the way, or in some manner disposed of It with like intent as In the case of re- ceiving To aid ia concealing the stolen property the defendant must do some act with intent to assist the thief or other person, then In the guilty possession of the property, in concealing it, or furtively disposing of It, with a like intent as in the case of receiving. The possession by the defendant of gold coin received at the mint In exchange for gold dust stolen from the mall, will not support an Indictment under section 5470,« for receiving or concealing, or aiding in concealing, property, knowing that It had been stolen from the mall. Dfady, J., delivered the following charge: The Indictment in this case is founded upon section 5470 of the Revised Statutes, wliich, among other things, provides that any person who shall receive or conceal, or aid In concealing, any article of value, knowing the same to have been stolen or embezzled from the mail of the United States, shall be punlsliable l)y a fine of not more than «2,000, and l>y Imp.-isonment at hard labor not more than five years. The reason and necessity of s.ch a statute Is apparent. The post-offlce is one of tlie principal departments of the government. Upon the security and celerity with which the mails are carried and delivered throughout the country depends to a great ex- tent the preservation of the business and social relations of the people. Upon 1 U. r. Pratt, 4 F. & F. 315 (18C5). 2 StiUc r. Honig, 9 Mo. (App.) 298 (1881). • li. V. Coggins, 12 Cox, M7 (1873). < Butherfordt).Com.,2Va. Oas. 141 (1818). B State V. Calvin, 22 N. J. 207 (1849) ; Boyd's Caae, 3 City Hall, Kec. 69 (1818). « 3 Sawy. 3U (1878). ' Ttev. 8t!its. 8 Rev. StatK itt^-rninnrmfmi TiiMwimiBw vwan i ' i l i w i ji».m«i«- ^n wi iiill^ii *nf* ii » a^ig |)^A^^■^^IW>T-^.•^'V- •W,W«l^.*^^?"-'-*W"^^'^ PROPERTY STOLEN FROM MAIL 679 le had left the 1 not know thai r you must not ict, not guilty. is not sufficient can not be cou- pals or an acces- Qk-note Is not n tare not "goods United States v. ing cf property it must appear 1 and possession, nt to prevent the I being reclaimed lat lie received it guilty concealing ty or put it out of In the case of re- mt must do some guilty possession with a like intent ant of gold coin the mail, will not cealing, or aiding the mail, at in this case is long other things, in concealing, any tibezzled from the more than «2,000, The reason and e of the principal ity with which the nds to a great ex- the people. Upon . J. 207 (1849) ; Boyd's 9 (181b). the Ion-established maxim that « a receiyer is as bad as a thief, the statute has alsoin-ovided for the punishment of persons who assist others in s ealing or en'beMling from the mails by receiving the stolen property, or concea ing t, or aid.ng in concealing it, substantially in the same manner as the thief himself. Bv this indictment the defendant is accused, in different modes or counts, of receiving, concealiug, and aiding in the concealing, of three cans of gold dust, o the aggregate value of $1,830, the same having been stolen from the mails of the United States, to the knowledge of the defendant, in October, 1874, near Canvonville. But these seventeen counts only chiirge one crime, that of recc v- ing, concealing, and aiding in the concealing of the stolen dust, under the cir- cunstances stated, and the proof of receiving, concealing, "'^aiding In concealing, is sumcient to establish the guilt of the defendant. To this Indictment the de- fendant has pleaded not guilty, and the effect of this plea is to put n issue or controvert all the material allegations of the indictment. This be ng so, .he burden of proof Is upon the United States to prove to your satisfaction each of Buch allegations, beiore it r.n ask a verdict of guilty at your hands. The de- fendant stands before ycu as a person charged with the commission of a grave crime, and the fact that she is also a woman and a mother does not change the rules of law or the duties of jurors in such cases. In determining the questiou of her guilt or Innocence, you are not to be swerved by any sympathy for her sex or condition, but you are to say truly whether she is guilty or not as charged, irrespective of such con.wMerations or the consequences to her or others that may W.low your verdict. Of course, the fact that the defendant Is a ^voman may be more or less material in judging of her conduct and motives in Heelng the country as she did with Harmison, the party who appears to have stolen tlTis dust and had it in his possession. In considering their reiationsand intimacy, upon the questi -n of whether this stolen dust was received or con- cealed by her, or her aid, you may properly consider the fact of the difference in their sex - that they were traveling and cohabiting together as man and wife, with trunks and other traveling gear in common. The indictment charges that the defendant and Harmison both committed this crime, without alleging whether it was done jointly or severally, and counsel for defendant now insists that neither party can be found guilty of a separate receiving under such a charge Waiving the consideration of that precise question, as not being mate- rial to the present aspect of the case, the fact being that Harmison has been discharged from this indicunent upon his plea of autrefois convict, the defendant is now being tried upon it alone, and may be found guilty under it of commit- ti.,- the crime therein charged, separately. Before the defendant can be found guilty of the charge in the indictment the United States must show that the gold dust in question was stolen or embezzled from its mails. The record of Harmlson's conviction in this court of ti^o crime of stealing three «toilar cans of gold dust from the mails has been innoduced in evidence. This is sufficient evidence of the fact until the contrary appears, it being also shown or proven to your satisfaction that the property mentioned in the two indictments is the same. It must also be shown that the defendant, knowing it to have been so stolen or embezzled, received it from the thief, or concealed, or aided the thief or some one else in concealing It. To constitute a guilty receiving of stolen property by the defendant, it mu.t appear that she voluntarily took it into her control and possession, or voluntarily had It In her possession and control, with intent to prevent the larceny or the thief from being discovered, or the property 680 RECElVINa STOLEN PROPERTY. from beiug reclaimed by the true owner or for his benefit; but it need not appear that she received it with Intent to nialte any ^aiu or profit thereby to litr- self A guilty concealing also implies that the defendant voluntarily secreted this dust, or put it out of the way, or in some manner disposed of it with a lllve in- tent as in this case of receiving. To aid in concealing stolen property, a party must do some act with intent to assist the thief or other person, then in the guilty possession of the property, in concealing it. or furtively disposing of it, with a like intent as in the case of receiving. The possession of property l^y the defendant for which the stolen dust was exchanged- as, for instiince, go d coin for which it may have been exchanged by Harmison at the Philadelphia mint - will not support the charge in the indictment. The possession of such coin would not be the possession of the stolen property, and would not of itsdf tend to prove the defendant guilty of the charge in the indictment. But if the stolen dust was made into coin, this circumstance would not change Its identity, and the possession of such coin would be the possession of the stolen prop- erty But this can not be a material question in this case because it is admitted that if this dust was changed into or for coin by Harmison, it was done at the Philadelphia mint. Now the defendant can not be convicted of the crime char-ed in the indictment upon proof of receiving, concealing, or aiding in con- cealing. this dust or the coin into which it may have been changed beyond this district - without the State of Oregon. Evidence has been given to you in re- gard to the conduct and declarations of Harmison and the defendant beyond this district, during their journey to Texas and back again but only or the purpose of throwing light upon their acts and conduct while In the district It being Incumbent on the United States to show that this dust was stolen from the mails, instead of introducing the record of Harmison's conviction of the theft, in the first instance, the prosecution saw proper, as It had the right to do, to go into the original proof of the fact. In so doing the acts and declara ions of Harmison, both within and without this State, finding to prove that the larceny was committed by him, have been given to you . But you are to remem- ber that this evidence was only received for the purpose of proving the theft of the property, and that the defendant is not to be affected by the acts or decla- rations of Harmison, only so far as it appears the former were known to her or the latter were made to her, or in her presence, and assented to by her. . though you should find that the defondant knew from Harmison, or other^ wiserthat this dust had been stolen from the mails, that itself is not sufflcien to convict her of the crime charged. And, in this connection, It may be material for you to consider the sex of the defendant for the purpose of determiuing whether her flight, and subsequent association with H«™if "' 7** f ^^'^ f^" complice in the crime or his paramour. Proof that the defendant fled he country with the thief as his wife is not sufficient to sustain the charge In the indictment. A woman who deserts her husband and flee, the country with another man who has committed larceny.ought not to complain if a jury finds her guilty of receiving, or aiding in concealing, the property sto en by he paramour, upon circumstances which would be deemed insufficient « the ^.s of an honest woman. But you are not to convict the defendant of he cr ne charged in the indictment because she appears to have been guilty of the crime of adultery. The defendant's illicit relation with Harmison may have afforded her favorable opportunities, and offered strong temptations, to assist bim In concealing the fruits of his crime, but It is not sufflclent of itself to establish PUOPERTY STOLEN FROM MAIL. 681 ; but it need not )ftt thereby to litr- >luntarily secreted ot Itwilhallkein- i property, a party erson, then in the ly disposing of it, Ion of property by for instiince, gold t the Philadelphia possession of such would not of itself tment. But if the change its identity, )f the stolen prop- :ause it is admitted it was done at the cted of the crime ig, or aiding in con- langed beyond this given to you in re- 3 defendant beyond n, but only for the 1 In the district. It St was stolen from s conviction of the had the right to do, jts and declarations ; to prove that the t you are to reraem- proving the theft of ly the acts or decla- ere linown to her or nted to by her. ..". larmison, or other- self is not sufficient n, it may be material lose of determining lison, was as his ac- i defendant fled the In tlie charge in the E>s the country with i.plain If a jury finds iperty stolen by her sufficient In the case feudant of the crine m guilty of the crime an may have afforded )ns, to assist him in t of itself to establish the fact that she did so assist him. But whatever her conduct or condition the law presumes tliat the defendant is innocent of the crime charged against her until the contrary is proven bevond a reasonable doubt. In this respect, and 80 far us the crime charged in the indictment U concerned, she stands before the law as the peer of any woman, however virtuous or honorable. This pre- sumption of innocence is the shield which the law interposis between her and her accusers, and it can not be thrust aside or beaten down except by the force of evidence which shall satisfy your minds, beyond a reasonable doubt of her guilt. A reasonable doubt is a substantial one — not a mere whim, caprice or speculation. It arises out of the case, from some dofect or insufficiency In the evidence which makes a juror hesitate and feel that lie is not satisfied. Mathe- matical certainty is not attainable in criminal trials. If you are morally certain of the defendant's guilt you should say so by your verdict, but unless you are, however you may suspect it, you must say not guilty. You are the judges of the credibility of the witnesses and the weight to be given to tlieir testimony. The evidence of Cardwell, tending to show that the defendant attempted to suborn him to swear falsely on the trial of Harmison, was admitted without objection, but it is my duty to say to you tkat it is not relevant or competent proof of the crime charged In this indictment. It may tend to show that the defendant was willing to run any risk, or even commit a crime, to save her paramour from conviction and punishment, but it does not prove that she com- mitted the crime for which she is on trial. Montgomery, the late husband of the defendant, is contradicted by several witnesses and by the reporter's notes of his testimony ou Harraison's trial. Besides, it appears from his own evi- dence that he knew of the theft soon after it was committed, in October, 1874, and had had the gold dust in his buggy and in his house without disclosing the fact. Besides, Cardwell, a witness called by the prosecution, testifies that Montgomery saw him at Canyonville, about the time the warrants were sworn out for Harmison and the defendant, and urged upon him the necessity of their — that is, Montgomery and Cardwell — making up a good story about the robbery, and sending Harmison and the defendant " up." Upon this trial he testitled that when Harmison left this dust for him at the toll house the defend- ant said he was foolish not to take It, when he spoke of their little child, and said it would ruin tliera. Upon cross-examination he stated that he testified to this conversation on Harmlson's trial, but it appears from the reporter's notes that he did not. The witness was the husband of the defendant, and she deserted him for Harmison. He may entertain unkind feelings towards her on this account, he may desire, as he said to Cardwell, according to the latter's testimony, to " send her up." All these circumstances go to affect the credibility of this witness. What weight shall be given to his testimony you must judge, always remembering that a witness who is Intentionally false in a material part of his testimony ought to be at least distrusted as to the rest of it. The postal agent, Mr. Underwood, who acted as deputy marshal In pursuing and arresting Harmison and the defendant at Seguln, Texas, And bringing them here for trial, testifies to conversations and confessions of the defendant all along the route from there here. This kind of testimony should be received with caution. The witness testified in a very indefinite manner as to the time and place of these conversations — giving them apparently In his own language and not always In the same words. After being on the stand one afternoon, and apparently going over the same subject, he came back the next morning and j»m— MHWW WWWW RECEIVINO STOLEN PROPERTY. 0)82 conversation. Uellrst said «»;«"- ^^^'^V^^Vrifdl^eren^^^^^^ tl.e cense and used ..we "-a cl>anse which ^^^^^'t'';^'^—^^^ eflect o! the admission. I malco tf'';«J"fJ,r'^it„es9%u., that his testl- question or casting doubts upon the "^^Srlty ol ^l^j'^^'^^^^^^^^^ ^^^ ^^^ ;„ony may be received with due ^^'^""^"•^^^PP"^^^^^^^^ the arrest of Har- o. loot by him. and he has since b««" ;7;;.'^ ^^^^^^^^^^ their conviction. n,ison and the defendant and the f"-"' ^.^^jj^^f^^^^^^ ,a the premises and he is liable to ^« "--^^/^^^Jji^^" r^hat he has undertaken. Upon and the very natural d«8lre of success m w , ,,arge, from the subject of verbal conf-^ ons. I read to you as a pa.t of^^^^ 1 Greenleaf on Evidence,' as ^^'^^^'^''.J^ll'XLieB the danger or mistalce guilt, is to be received with great caution. ^°'' "^f ^^ ^^^ ^j^n^^e of the from tixe apprehension of witnesses. '';^\^X^^^LZZlZl it should be party to express his own meaning, and «\«»"™yj"',ed by tlie calamity LoLcted that the mind of the prisoner h'™ «" ^; ^-^^^^^ ^^p, „ fear to of the situation, and that he t-^'^^^-f^^^^''^,^^^^^^ xnake an untrue confession. The zeal, too, ^^^^^ »«f "^ the strong disposl. tect offender., especially in case of g^^^^^^^^^^ tlon in the persons engaged in "'^P^^'^J'/jT^i.^t'roof, together with the of suspicion, which are "'^SS^'^ '^^ 1°'" ^"Xles in cases of secret and character of the P«'««"« °«'^«r'^" ^ *=;"'talurS hU k"nd of evidence, and atrocious crime, all tend to impair the value of this Kin ^^^^ ^^_ sometimes lead to its rejection when, in fj'^^'^.'^^^l^^^^^ celved." The weighty «^--'^;'«"/* f Ji;%*oul of things, to be d's- mind, that this evidence is not. In the ordinary cou ^^^^^ ^^^ proved by that sort ^J "^^ VJi^ eTto t^^^^^^^ -cefving them and be, and often is. «°°«'°"*''**- ./"^'^ 5ha deliberate confessions of guilt are ?=j::;^jin:t-r::^rs^^ and at any place subsequent to the Perj^t-^^; ^l^^ ^^^^^^ ,J,,. vlous to his examination before the ™^f ^'^ ^'^^ ; ,j^,,^ ,,i,ence In the celved m evidence, as '^•"^"g P''^" \«' J"^ f;„J, l^e cLsldered possession of case which brings ^^^J^^^^^^^Z^lX^'^^^^^^^^ '^^'"^^'^^ ^^"'^^ this dust, in Oregon, is that «* M''^"^;^' ^j.^ 15,.^^ In the spring of 1875. the toll-house, near CanyonviUe. whe.a h« «>f things, to be d's- f ot plain facts may receiving them and fessions of guilt are depends on the sup" e presumption that a s Interest and safety, science. Such con- ly moment of time, ;he crime, and pre- at common law re- lirect evidence In the sldered possession of the dust being left at in the spring of 1875. )und his wife, the de- ihe laughed and said: present." He asked m Into the back room, kls hand into the sack, in he said: "It Is that d— d Infernal dust! Give It back to him, and have nothing to do with it." The defendant urged him to keep the dust; but ho declined, saying that it would be the ruin of them, when she promised to return it, and Montgomery never saw it afterwards. Upon this evidence, assuming it to be true, I do not thluk, as a natter of law, that the defendant was then and there guilty of the crime charged in the indictment. A package is brought to the house and left with her for her husband, which she delivered to him, and he refuses to accept it, and directs her to return it to the person who brought it, which she does. This alone, does not make her guilty of recelTing, concealing, or aiding in the concealing of stolen property, even if we assume, as is probable, that she knew these cans of dust had been stolen from the mails. And although It was wrong to advise her husband to take It (If she did), yet she did not hereby commit the crime with which she is charged. Gentlemen of the jury, the case IB now submitted to you, to say upon your oaths, under the law and evidence given you in court, whether tl^ defendant is guilty or not. Take the law so given you, and apply It to the facts, as you may find them from the evidence, and make up your verdict accordingly. Verdict, not guilty. G«4 KOUBEBV. Part V. ROBBERY. BOBBERY -FORCE AND VIOLENCE ESSE5TIAL. McCloskey V. People. In the Supreme Court of New York, 1862. [6 Park. 279.]' oonviclod under Buch a charge, the Judgment wa8 reversed. ,„„«diate will, but la spite ot his resistance. The prisoner was indicted for a robbery, charged to have been com- mitted on Halsey F. AVing, in taking violently from his person four silver coins of the value of one dollar, and one hat of the value of four ^"^Thrprisoner pleaded not guilty, and was tried at a Court of Sessions held in the County of Kings, in March, 1862, before the county judge and the justices of the Sessions. .„ , ^ „ Halsey F. Wing, called by the district attorney, testified as follows: I never knew defendant before the evening in question ; he came into White's drinking saloon ; think it was about 1 1 o'clock p m. ; he came Tw^th a young man and had a drink; he then asked if I couldn t trert- I said I supposed so; took a drink with them; I paid for it; star ed to go ; he said I must go with hhn ; took hold of my arm and putd me U; said he was going down Ryerson Street ; puUed me with him, asked me how much money I had ; said not much ; he said let me see it. I pulled out some change from my pocket, and held it close in my hand; he said I had more money than that; jumped around in front of me, had one arm around my neck, put his handiu my pocket, pulledout a half-dollar and asmaller coin and kmfe ; said 1 couldhavetheknife, and handed it back to me; he called me Belknap- aaid he would be easy with me if I'd give him some money. I askea mmmmm^mmmmmmmmiif^^'' m'closkey v. people. G85 ITIAL. ^62. sr without any Btruggle t oJ the thief, will not nat feloniously takinn ault and battery would le prisoner having been a In fear of Immediate use amount to robbery ty, not only against his to have been com- m his person four if the value of four I Court of Sessions e the county judge ;estifled as follows: ition ; he came into )ck p. m. ; he came asked if I couldn't lem ; I paid for it ; lold of my arm and 1 Street ; pulled me . not much ; he said pocket, and held it than that; jumped eck, put his hand in in and knife; said I called me Belknap ; me money. I asked liiin if ho wanted to rob mo ; I ran up on tlic stoop and rang the bell. He ciiine up, I got hold of his hands and held him, and kicked against the door; I luislied him off the stoop; ho came up at otherwise; he put his hand in my right side pocket ; he stood in front of me at the time ; stoodso, probably fifteen seconds, or perhaps not so long ; we walked along to- gellier ; before that he had hold of my arm ; he took a fifty cent piece and another coin ; don't know what it was ; smaller than fifty cents ; he gave me the knife back ; witness had some small coin in the right hand holding; don't know what was done with the other; remember I broke loose and ran away from him ; I tfied to get loose from him whilst he had iiis hand in my pocket ; tried to shove him away with my left hand 1 think ; am not positive ; I shoved him away with my left or right hand; am not positive 1 shoved liim with the other hand; I stepped back from him or tried to ; ho, defendant took the change out of his, witness' right pocket ; knew a fifty cent piece and some other change remained; don't know how much I had in my hand; left fifty cents and coin in my pocket; didn't want him to know how ranch ; didn't try to prevent his putting his hand in my pocket ; it was there before I knew he intended to do it ; I knew when lie drew his hand out ; lie put it in and took it out in an instant ; don't remember I said any thing at the moment he put his hand in or out ; I turned round and tried to get into the house ; don't know that I stepped in front of him. Q. What were you doing with your right hand while the defendant had his arm over your shoulder, and his hand in your pocket? A. I had some small change in my right hand holding. Q. What were you doing with your left hand during this time? A. I don't know. Q. What did he say to you while he had his hand in your pocket? A. Nothing. Q. What did you say to him ? A. Nothing. I tried to shove him away with my left hand I think ; I am not positive ; I can not say that I did any thing ; he took his arm from my shoulder when he took liis hand out of my pocket ; I am not positive I shoved him with either hand ; I stepped back from him or tried to. Q. Did you do any lai ig to prevent him from putting his hand in your pocket? A. I did not. Q. Did you do anything to prevent him from taking the money out of your pocket? A. No. Q. Did he make any threats? A. No. Q. ja[esiW*iTWWisi MBBBW W»' Qgg RUUUEllY. Were you f rightenc death, and Jenkina, At- rce ; larceny sry a capital former days weapons, or I, and in this e form is still 1 robbed] in n and there, eit the aUega- le prisoner's ice of putting ght not to be necessity to ne nolenter et IS which seem seen a good iry, and I am )f the robbery mocked down eth totally in- )bbery? And [lose the true i his property this doubtless STATE V. JOHN. 089 is robber3\ In cases wher the true man delivcreih liis purse witliout re- sistance, if the fact be attended with those circumstances of violence and terror whivh in common experience, are likely to induce a man to part with his property for the sake of his person, that will amount to a robbery. If fear be a necessary ingredient, the law in odium spolia- toris will presume fear, where there appeareth to be so just a ground for it." In Foster's day, it would not have occurred to any lawyer, that the facts set out in tlie record now under consideration made a case of highway robbery. There was no violence — no circumstance of terror resorted to for the purpose of inducing the prosecutor to part with his property for the sake of liis person. Violence may be used for four purposes: 1. To prevent resistance. 2. To overpower the party. 3. To obtain possession of the property. 4. To effect an escape. Either of the first two makes the offense rob- bery. The last, I presume it will be conceded, does not. The third is a middle ground. In general, it does not make the offense robbery, but sometimes, according to some of the cases, it does. It is neceS" sarj', therefore, to see how the authorities stand in respect to it. After Foster's day, the idea of robbery was extended sa as to take in a case of snatching a thing out of a person's hand, and making oU with it, witliout further violence, but in Horner's Case,^ tried before BuUer, J. and Thompson, B., it was held that snatching an umbrella out of a lady's hand as she was walking the street, was not robbery, and the court say : "It had been ruled about eighty years ago, by very high authority, that the snatching any thing from a person unawares constituted robbery ; but the law was now settled that unless there was some struggle to keep it, and it were forced from the hand of the owner, it was not so. This species of larceny seemed to form a middle case between stealing privately from the person and taking by force and violence." In Lapier's Case,^ an ear-ring was so suddenly pulled from a lady's ear that she had no time for resisting, yet being done with such violence as to iny. re her person, the blood being drawn from her ear, which was otherwise much hurt, it was held to be robbery. So in Moore's Case,^ a diamond pin which a lady had strongly fastened in her hair with a corkscrew twist, was snatched with eo much force as to tear out a lock of hair, it was held robbery, because of the injury to the person. Possibly the ground on which these two cases is put may be questioned, its the injury to the person was accidental, and seems not to have been contemplated ; but they have no bearing on our case. In Davies' Case,* the prisoner took hold of a gentleman's sword, 1 S East's r. C. 703. a Id. 708. 8 Defekces. 3 1 Leach, 335. « 2 East's P. C. 709. 44 «)90 ROBBERY. who, perceiving it, laid bold of it at the same time and struggled for it. This was adjudged to be robbery. In Mason's Cuse,^ the prisoner took a watch out of a gentleman's pocket, but it was fastened to a steel chain which was around his neck. The prisoner made two or three jerks, until he succeeded in breaking the chain. Parke, B., instructed the jury that this was robbery, but doubts being expressed, he referred it to all tlie judges uho were unanimous in the opinion that it was robbery, because of' the force used to break the chain which was around tlie gentleman's neck. This is all the report says. It is short, and to me unsatisfactory, seeming to go back to the idea of robbery that existed before Plunket'a Case. In Gnosil's Case^ the prosecutor was going along the street, the prisoner laid hold of his watch chain, and with considerable force jerked it from his pocket ; a scuffle then ensued, and the prisoner was secured. Garrow, B. : " The mere act of taking being forcible will not make this otfense a highway robbery. To constitute the crime of high- way robbery, the force used must be either before or at the time of the taking, and must be of such a nature as to ow that it was intended to overpower the party robbed, or prevent his resisting, and not merely to get possession of the property stolen. Thus if a man walking after a woman in the street were, by violence, to pull her shawl from her shoulders, though he might use considerable force, it would not in my opinion, be highway robbery ; because the violence was not for the purpose of overj)oweriiig the party robbed, but only to get possession of the property." This decision was four years after Maaoii's Case,^ and I suppose Garrow, was then one of the judges. According to this case, which is the latest that we have met with, our case is not robbery, even if it be admitted to fall under the third head of violence above enumerated. Our case is clearly distinguishable from Davies' Case,* for both parties had hold of the sword and struggled for it. If Davies had let it go, there would have been no necessity for violence ; and his holding on and struggling for it could only be imputed to his determination to take it by force. In our case, the prosecutor did not have hold of the pocket-book ; there was no struggle for it ; but he had hold of the prisoner's arm; so he could not by letting go the pocket- book, have avoided the necessity for violence ; and the struggle, in which the prosecutor fell under the tongue of the wagon, is fairly imputable to an effort on the part of tlie prisoner to get loose from his grasp and make his escape. The only difference between this case and 1 2 UU98. * Ky. 419 (In 1820). 8 1 0. * P. SU; 11 Bng. Com. L. (1824). 1 00 ' $upra. * 2 East's P. C. 709. ^^1 STATE t'. JOHN. 691 gled for it. pntlemar.'s i bis neck, n bieaking bbery, but uho were "tlie force an's neck, itisfactory, B Plunket'a street, the able force isoner was ble will not ne of high- time of the 9 intended not merely Iking after f\ from her 1 not in my ot for the possession oil's Case,^ cording to case is not of violence )m Davies' for it. If p violence ; ited to his tor did not but he bad the pocket- ;ruggle, in I, is fairly ie from his is case and that of Gnosil is that the one succeeded in getting loose, and the other was less fortun.itc. Supi)Ose in the struggle the prosecutor had been too strong for the prisoner, and had succeeded in arresting him, there was a taking of the pocket-book, and an asi'ortacit, so as to constitute larceny In " picking of the pocket; " but would any-one have said it amounted to robbery? Can the nature of the offense be changed by the accident, that the prisoner succeeeded in getting away because the prosecutor happened to fall on the tongue and doubletree, Tbich broke bis bold from the arm of the prisoner? Our case is also clearly distinguishable from Mason's Case.^ The watch was fastened to a steel chain, which was round the neck of the prose- c lor. Had Mason let the watch go, there would have been no neces- sity for violence ; bis holding on and jerking until he broke the chain could only be imputed to a determination to take the watch by force. State V. Ti'exler,'^ was also cited in the argument. That was an in- dictment for forcible trespass. The defendant had taken a bank-note out of the pocket-book of the prosecutor, who tried to get it away from him. He resisted, and a struggle ensued. Seawell, J., arguendo, ex- presses the opinion that the evidence showed force enough to constitute robbery, although the prosecutor did not have hold of the bank-note. This, I suppose, was said to meet what Duller says in Plunket's Case, " unless there was some struggle to keep it, and it were forced from the band of the owner." However that may be, it is sufficient to say that was a mere dictum. It is true, Judge Seawell was greatly dis- tinguished as a criminal lawyer, but a dictum in reference to a capital offense can not be much relied on when thrown out in considering a misdemeanor. After much consideration, I am convinced that the facts set out in this record do not constitute highway robbery. I am, therefore, of opinion that the judgment ought to be reversed and a venire de novo awarded. Nash, C. J., absent. Let the judgment be reversed, and this opinion certified, to the end that the prisoner may have a new trial. 1 mpra. 2 Oar. Law Repos. 90 (6 Am. Dec. S5S). 692 ROBUERY. ROBBERY — VIOLENCE ESSENTIAL — SNATCHING FROM HAND — SUBSEQUENT VIOLENCE. Shinn V. State. (64 Ind. 13.) In the Supreme Court of Indiana, 1878. Honey was anatohed from A.'s hand by B. but wlthont yiolenco to his person, the onlv riolonco useil bolng in proventini; its recovery and struggling to retain it after it was talcen. Helil, tliat such snatching or taking was not such violence as to constitute rob- bery, and timt subsequent violence, or putting in fear, will not make a previous clan- destine taking robbery. NiBLACK, J. The prosecution in this case was upon an indictment contaiiiiag two counts. The first count charged, that Robert Shinn and another person, whose name was to the grand jury unknown, " on the 15tli day of August, A. D, 1878, at," etc., "did then and thci-e unlawfully, forcibly and feloniously take from the person of Ithamar McCart}-, by violence, three ten dollar National Bank bills, of the value of ten dollars each, and of the aggregate value of thirty dollars upon a national bank and na- tional banks to tlie said grand jury unknown, of the personal property, goods and moneys of Jasper N. IMcCart}'." The second cdunt cliarged the same person with stealing, taking and carrying away three ten-dollar national bank bills, describing such bills, in the same manner as in the flist count. Shinti, the appellant, plead not guilty, and, upon u trial by a jury* was found guilty of the robbery charged in tlie first count of the indict- ment. His punishment was fixed at a fine of one dollar and at impris- onment in the State prison for two years. Disregarding a motion for a new trial, the court rendered a judgment of conviction upon the verdict. One of the causes assigned for a new trial was the insufficiencj' of the evidence to sustain the verdict, and that constitutes the principal ques- tion to which our attention has been invited here. Ithamar McCarty was the prosecuting witness, and the only witness as to most of tlie material facts relied on by the prosecuting attorney for a conviction. He testified, that late in the evening of August 14, 1878, he went from Hancock County to the City of Anderson, in the count}' of Madison to sell some flax seed for his brother, Jarper McCarty ; that he received a check for tliirty-five dollars and eighty-five cents, the value of the flax seed, upon a bank of that city ; that next moraing, after he had received SHINN V. STATE. 698 the money on the check, he sat clown on the step at a store door, to look over the money and to see that it was all right; that while so en- gaged, a man came up in front of him and engaged him in conversation ; that this man, was the person designated in the indictment as tlie person unknown to the grand jury, and who was referred to upon the trial as the "padlock man," made some inquiry as to his (witness') future business intentions, saying that he had for sale a very remarkable padlock, de- nominated a burglar-proof padlock, or something of that kind, ami su-r- gesting that he, said McCarty, should become an agent for the sale of this padlock ; that this unknown man, after some further conversation, left witness to get a specimen lock for his examination and further lufornuation ; that after an apparent second effort to fnid a lock, the pad- lock man came to witness at an appointed place with a lock ; that, there- upon, lie and witness went walking together upon one of the streets dunng which time he explained to witness how to unlock this sixecimen lock, claiming that no person not previously instructed could unlock it • that they soon came to the door of a church, where they sat down upon the step in the shade, and continued the discussion of the merits (n the lock; that soon after thoy were thus seated, the appellant, who was a stranger to witness, came up in front of them and inquired when the tram left for Rushville, remarking that his father, who lived in Marion in Grant County, had had two horses stolen, and that he was in pursuit of the* horses ; that the padlock man then handed the lock to the appellant, with a remark that if his father had had such a lock on his barn as that, his horses would not have been stolen ; that the appel- lant, taking the key, made a seeming effort to unlock the lock, but failing, said the lock was a sham; that, being assured by the padlock man that it was a very easy thing to do if he only understood its work- ings, the appellant made another apparent effort to unlock the lock but again faihng, he handed the lock back, saying he would bet fifty dollars there was not a man in the State who could unlock that lock • that witness pulled out of his pocketthree ten-dollar national bank bills,' and holding them in his hands, remarked, that if he was a betting man,' he would bet that amount that he would unlock the lock very easy ; that at that point witness became suspicious that the padlock man was too anxious for him to bet, and was about to return these bills to his pocket when the padlock man snatched them from his hand and handed them over to the appellant, who started off on a run; that the padlock man then took witness by the arms and slioved him over the steps in front of the church; that witness, getting loose, ran after appellant, and caught him by the arm and demanded a return of the money ; that the padlock man again caught hold of witness, about which time the appellant handed back to witness a ten-dollar bill, requesting him to accept it as v.J«'VWiaMMJ*U4W!a»JilgM'J ' tJ, " WR, ' W i l i K''. i I'M ii JH t«'i 694 UOBBERV. comi)romise ; that witness still bung on to appellant, insisting on a re- turn of the remaining twenty dollars, when another tussle ensued, in which all three engaged, but the attention of others being attracted l)y this time, the padlock nin very suddenly disappeared from the ciiy, and the appellant was soon after arrested. This we regard as a fair synopsis of so much of the testimony of the prosecuting witness as is necessary to indicate the character of the transaction^for which the appellant was convicted as above set forth. The synopsis above given embraces the substantial portions of the testimony which went most strongly against the appellant. It is said that the principle of robbery is violence, but it has been held that actual violence is not the only means by which a robbery may be effected ; that it may also be accomplished by fear, which the law considers as constructive violence.^ With respect to the degree of actual violence necessary to constitute a robbery, more than a sudden taking or snatching must be shown. Archbold's Treatise on Criminal Practice and Pleading gives several illustrations in support of this rule, and concludes: " So that the rule appears to be well established, that no sudden taking or snatching of property from a person unaware, is sufficient to constitute robbery, un- less some injurv be done to the person, or there be some previous strug- gle for the possession of the property, or some force used in order to obtain it. "■•^ The taking must not precede the violence or putting in fear. In other wordsrthe violence or putting in fear will not maKe a precedent taking, effected clandestinely or without either violence or putting in fear, amount to a robbery. =' Applying the well established rules of law thus enunciated to the the cause in hearing, it is manifest that a case of robbery was not made out against the appellant, on the evidence.^ The evidence tended to show the fraudulent and felonious obtaining of money from the prosecuting witness by means of a previously ar- ranged trick or contrivance, but did not sustain the charge of robbery contained in the indictment.^ The judgment is reversed, and the cause remanded for a new trial. 1 DoimftUy's Case, 1 Leach, 229; Long v. Stale, 12 Ga. 2ii3. 2 vol. 2, p. 1290. See, also, 2 Whar. Cr. L., sec. 1701. 3 2 RU88. Cr. 108 ; 2 Archb. Cr. Pr. 4 Plead. 12S3. < Brennon v. State, 26 Ind. 403 ! Hart v. State, 57 Iiul., 102. » Uuber v. State, 57 Ind. 341. COMMONWEALTH V. GALLAGHER. 695 listing on a re- sale ensued, in g attracted l)y n the ciiy, and stimony of the aracter of the re set forth, ortions of the t. )iit it has been a robbery may which the law ry to constitute be shown, ig gives several o that the rule or snatching of itc robbery, un- previous strug- sed in order to ig in fear. In aKe a precedent le or putting in undated to the •y was not matie )nious obtaining a previously ar- large of robbery or a new trial. fchb.Cr.Pr. APlead. 2S Ind. 403 ; Hart v. Ind. Ul. ROBBERY — WITH INTENT TO MAIM OR KILL WITH DANGEROUS WEAPON. Commonwealth v. Gallagher. [t] Mctc. 50C.] In the Supreme JmUcial Court of Massachusetts, 1842. An Indictment. Which Alleges that the defendant assaulted and robbed A., and boln» armed will, a dniiKorous weapon, did strike and wound hlni. is not proved, as to the wounding, l.y evidence that the defendant innde a slight scratch on A.'s faw, by rup- turing the cuticle only, without separating tiio whole skin ; nor as to the striking, by evidence that the defendant put hli arms al)0ut A.'s uock, and threw him on the ground, and held him Jammed down to the ground. An indictment was found against the defendants, on section 13 of chapter 125 of the Revised Statutes, which is in these words: "If any person shall assault another, and shall feloniously rob, steal and take from his person any money, or other property whicli may be tiie subject of larceny, such robber being armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed, or if, being so armed, he shall wouna or strilte the person robbed, he shall suffer," etc. The indictment alleged that Thomas Gallagher and John Burns, on the 24th of February, 1842, with force and arms, at Tewks- bury, in the county of Middlesex, " in and upon one Chauncy Cook, feloniously did make an assault and sundry bank-bills, current," etc., " of the- value of thirty dollars, of the money and property of him the said Cook, from the person and against the will of him the said Cook, then and there feloniously and by force and violence, did rob, steal and carry away ; and that they, the said Thomas Gallagher and John Burns, at the time of committing tlie assault and robbery aforesaid, were then and there armed with a certain dangerous weapon, to wit, with a pis- tol, and being then and there armed as aforesaid, they, the said Thomas Gallagher and John Burns, him the said Cook then and there feloniously did actually strike and wound, and with force and violence did then and there feloniously throw him on the ground, against the peace," etc. The defendants were tried in the Court of Common Pleas, before Cummins, J., on the testimony of said Cook, which, so far as it related totlie point now in question, was thus: "I asked the robbers what they wanted, and they replied, that they wanted my money, and if I did not deliver it, they would blow me through ; and one of them drew a pistol, as I thought, and I turned and ran. They overtook me imme- diately, put their arras about my neck and threw me on the ground. ■ - - JliWaMaiMBAWi i JW . ' - 696 ROBllERY. One of them held rac jammed down to the ground, while the other opened my vest. I felt stiff tlic next day. Tiierc was a sliglu scratch on my face the next day. IIow it came there I do not know." The counsel for the defendants objected that there was no sufficient evidence of an actual striking and wounding, to support the allegations in the indictment. The judge overruled the objection; but the ques- tion being, in hin opinion, so important and doubtful, as to require the decision of the Supreme Judicial Court, he reported the case, as above, pursuant to the Revised Statutes.' This case was decided at October term, 1842. B. F. Duller, for the defendants. Under tlie section of the statute on ^hich this indictment is founded, the striking and wounding must be with the dangerous weapon with which the robber is armed. In Rex v. Harris,^ tl»e defendant was indicted on statute 9 George IV. ,3 which enacts that any one, who " shall unlawfullj' stab, cut or wound any per- son, with intent to maim, disfigure or disable such person, etc., shall be guilty of felony." The proof was, that the defendant bit off the end of the prosecutor's nose. It was held that this was not n wounding, within tlic statute, which meant that the wounding should be inflicted by some instrument, and not by the hands or teeth. But in the present case, there was neither a wounding nor striking. To constitute a wound legally or medically, the whole skin must be rup- tured.'' To strike is, *' to make a quick blow or thrust," which is not done by putting onc':^ arms about another's neck, throwing him down, and lR)lding him jammed down. Austin, Attorney-General, for the Commonwealth. The case of Com- momvealth v. Martin,^' shows that the striking need not be with the dan. gerous weapon. Striking with such weapon shows an intent to kill or maim. But it is not necessary to show such intent, in order to convict the defendants. Hence, it is not necessary that there should have been a wounding of Cook, and it might be conceded that the evidence did not prove a wounding. But there was a wounding, within the meaning of the statute. The Englisih cases, cited for the defendants, were under statutes against stabbing and cutting. Where the word " wound " or " wounding " has been introduced, it is true that break- ing a collar bone, or biting off the end of -a finger or a nose, has been held not to be wounding under those statutes. Wounding is there con- nected with stabbing and cutting. But in Regina v. Smith, cited on the other side, Lord Denman and Mr. Justice Park, held that where the I ch, 138, sec. 13. * 7C. *P.446. 3 cb. 31, sec. 12. * Reg. V . Smith, and Reg v. McLoughUn 8 0. A P. 173, 636 ; Rex v. Wood, 4 C. & P. 381 ; (. c. 1 Moo. Cr. Cae. 278. ' 17 Mass. 363, 364. rliile the other I Blighc scratch low." IS no sufficient the allegations but the ques- to require the :ase, as above, '. the statute on nding must be id. In Itex V. ye IV. ,3 which round any per- ], etc., shall be t off the end of t n wounding, uld be inflicted g nor striking. in must be rup- " which is not ring him down, le case of Com- e with the dan. intent to kill or rder to convict -e should have at the evidence ing, within the he defendants, rhere the word rue that break- nose, has been ng is there con- »<». '"""""tute the offense the property taluir If it L h »■■ ''yr »","•»■• !>? violence and putting 1„ fear of life or bodVly ment andi iwli r V""T*' ""•* """'"^^ "»^««'-™''y Oo omitted In the indict- ment, and if by violence and putting in fear, assault may be omitted. ^ *th^?!??." ^•''Ifd'ot^'ot Charw. by " assault and putting In fear of bodily injury" IIX '"J'cfnent would be good on the ground of assault (treating ''puttin^a crvrHon'"'"' "'T,^'""" "* "' '" '"'' «»««. ">o ground of assault be abandoneXe conyiction can not be sustained on the other ground, because of the omission of the necessary descriptive term " violence " in the indictment omission of the 3. Bvldeaoe Hold In.uffloleat to sustain a conviction for robbery by means of aasanU. Appeal from the District Court of Gaudalupe. Tried below before the Hon. E. Lewis. The opinion discloses the nature of the case, and sets out the char yol.2,p. S4,3ded. > Seo 1 Hawk. P. C, cli.33, sec. 12; 2 East. r. O., ch. 16, sec. 96, p. 660. 3 Dbfkncbs. 45 3 2 p. C. 713. * 2 East's P. O. 729. ' a East's P. C. 709. 706 ROBBERY. purpose, carried off the goods in Merriman'3 absence. That must h.ve been considerea to have amounted to robbery, otherwise the plaintiff could not have recovered against the hundred. Hanixay. In Ilex v. Knewlaiid,' it was held that to obtain money by a threat to send for a constable, and take the party to prison, is not rob- bery ; for the threat of legal imprisonment ought not so to alarm any mind as to induce the person to part with his property. Eble C. J. In Gascoigne'x Case;' it was held to be' robbery if a bailiff handcuff a prisoner under pretense of carrying him to prison with greater safety, and by means of this violence extort money. Hannay. Section 45 comes after sections ^ relating to robbery and assaults with intent to commit robbery, and is intended to provide for cases not within the preceding sections. Erie C.J. Sections 40 to 43 relate to robbery. Section 44 relates to the offense of sending letters demanding property with menaces. Then comes section 45. It would rather seem that the statute is pass- ing from cases of robbery, and coming to cases where money is de- mandcl with intent to steal it. Mei LOU J. The prosecutor followed the prisoner to a gm shop, and gave them the money there. Surely he was not then under the influ- ence of fear. Wilde, B. It all comes to this that the prisoners say. We have a right to distrain, and will distrain, if you do not give us money." Hannay. Further, it is not less a demanding because the money is actually given ;* It is also submitted that the transaction docs not amount to an obtaining by false pretenses but to a larceny. The pros- ecutor did not part with the money in consequence of the false pre- Wilde, B. There may be an obtaining by false pretenses, whether the victim parts with property, from a hope of benefit, or from a fear of detriment. , ^ j.j ^ Blackburn, J. It can hardly be said that the prosecutor did not part with his property willingly, seeing that a poUceman was present to whom he might have appealed for protection. V. Blackburn, in reply. The cases cited on the other -ide are all cases of threat to do some injury to person or property. Here there was nothing more than a threat to put legal process in execution. The prosecutor followed the prisoners to another place, and paid them the money there. The menaces must be such as would avoid a deed ob- tained thereby. In Shephard's Touchstone.s a ig gaid: "If I be I 3 Leach, 0. 0. 731. • 1 Leacb, C. C. 280. S BecB. 42, 43. * Beg V. Morton, 8 C. A. P. 671. i vol. 1, p. til. n. V. WALTON. 707 imprisoned at one man's suit (l)c tlio cause just or not), and beinc in prison I make an obligation or any other deed to a third man ; this shall not be said to l,e by duress, but is a ffoo,! deed. So if on^ threaten me to take away ray goods, burn or break my house, enter upon my land kill or wound my father, mother, etc., or ,lo in.prison anv of them,' and thereupon I seal a deed; this is good and shall bind me. So if one distrain my beasts, to compel me to seal a deed, and will not deliver tliera unless I do so, and threaten me that if I take the beasts a-ain and not seal the deed he will kill mo, and tliereupon I seal the ,1 "ed • this IS a good deed and shall bin.l me." A-ain, in Comvn's Dicrest i It IS said : - So, ;,./• minus. And menace of life, member, mayhem, o'r imprisonment, is sufHcient to rvoid a deed. But menace of battery is not sulHcient to avoid a deed ; nor menace of burning his houses Or taking or destroying his goods; for he may recover damages for them " Cur. adv. vuU. The judgment of the court was delivered on the 31st of January lo()3, by •" Wilde, B. The question in this case turns upon the proper con- struction of the 24 and 25 Victoria.-^ The section is in these words- • Whosoever shall with men.icea or by force demand any property' chattel, money, valuable security, or other valuable t\nnly this principle to the present case, a threat or menace to execute a distress warrant is not necessarily of a character to excite either fear or alarm. On the other hand, the menace may be made with such gesture and demeanor, or with such unnecessarily violent acts, or under such circumstances of intimidation as to have that effect. And this should be decided by the jury. Now, in this case there was evidence very proper to be left to the jury to raise the above question. But the chairman left no such question to them, and di- rected them as a matter of law that the conduct of the prisoners (if believed) constituted a menace within the statute. Our judgment, that this conviction can not be sustained, is founded entirely on this ground. Conviction quashed ROBBERY— LARCENY FROM THE PERSON. Fannino V. State. [66 Ga. 167.] In the Supreme Court of Georgia, 1883. Slatlnotion Between Bobbery and Larceny firom Person. — To constitute robbery as distinguished from larceny from the person, tliere must be force or intimidation in the act ; therefore, where a thief slipped his hand into the pocket of a lady and got his linger caught therein, and she felt the hand, and, turning, saw him unconcernedly looking at the houses, and caught him ))y the coat, which was left with her in making his escape, htld, that the crime is larceny from the person, and not robbery, though the lady's pocket was torn in extracting his baud. Appeal from conviction before Judge Sisimons, Fulton Superior Court. Fran B. h Jack fendant from a the han purse Ti and whe hoi'ses I tlie coat sion. A The 8' ceny fro The ci tlie lady. can not I hie, or pi the effoi-t and triec open viol Under and violej other by Tiiero wa lence as ■mictions J from the tiic person out violeni case was p lady, exce thief, and the capture There b< timidate tt take the pn it, and the is always ai case was, ii elude that t hut of larce 1 Code, s FAN'NIXO V. STATE. 70& Frank A. Arnold, for plaintiff in error. B. II. im, Solicitor-General, for the State feZr:ni>^Ai.'i;:at;:at^/"^^ •" '''- ^^^^ -- ^^^^^thede. from a purs of no i; Befo,- to ' '7T' ""' '"'^"'^ *"^'^*^-«- purse was eone In ,.vf,.,. f . I ' ""' ^"ccceded and the l.oi's.a on Whitehall Sirce si , , ' ""™'"«"'«%»t the '|.e coa. Which, In M^ :;;;«X ^'Tas'';".::' """f" "'■" "' «.. ..ot be eo„siac„.c, ,„ ,ivate ami furtive. Tho me™ fac , . , n ^ ''" ""' ''"■'^'• 11.0 eitort toget the ft.rti.e Inn „ri^,h ^, """"^ "»' '""■ '» ..Ki trio,, ,o',oi.e it, -sZ z^::^^'::^ '"Vf' "•" " 01.™ violonco, a, makes the orimo „; rohbery '""' ''"■•'' '"'' antil;: «::ro,°lon:/tror'''7 '^ ';'"'° "™'"'"'- '--^^-^ from the person is tho IV ! '^'^^'"'^^tioa is, that larceny ontiioience and f 0;^: :rin:i::: I ^'rat7mrrr f: ""''■ wise was private and tl,^ ^«»,i , -^°® attempt and intent in this .-., e^e^t ir r tif rmX ;t ;r;"r r ""^'^ °' '"- ■Uof, and then »ith the knowleerely snatching an ar icle from ':.otllr;um.t robbery' So force only suftlclent to turn the party's pockets '""T^aiHTZ^^X asked D. what o'clock it was, and B. took out his watch to 1 M loUllng it loosely In both his hands. A. caught hold of the Illn and kevauached'to the watch and snatched it from B. and made off "'^: «.':n:^« r:r ^r was .ndlcted for a highway ,j>bbery. Th. r;:ir;v voM^to'onstUnt fhe oB^nse of highway r^^^-^y'^^^J^^^ JjZZLr before or at the time of the taking, and must be such a nature ::: l ov ^t ;; ;;: mtended to overpower the party robbed, am. prevent is Je'slstu... and not merely to ^^ ^-^:^ ^J^ZS^:!!^::^;:^^ rmrrsiLr: z:;:^ ;: r^i^e^rstdrbie force. it\vouid not. m rvli Jon brM^hway obberv. because the violence was not for the purpose 7^::::^:^^ p-y robbe. hut only to ^^^^;--::^- "^rz: :e^rs:oTisr=Xt^^r:sr::s:^^^^ 1 Plato's Case, 2 City Hall Rec. 7 (1817). 2 Norris' Caee, 6 City Hall Rcc. 86 (1821). 3 Wilson V. State, 3 Tex. (App.) 64 (1871). 4 People V. Hall. 6 Park. 614 Il8(i5) ; Shlnn t,. State. 04 Ind. 13; Boneall v. State 35 Ind. 460 (1871) ; State v. John, 6 Jones. 163 (1857) ; Andereon'8 Oas.. 1 City Hall Rec. 163 (1816) ; McCloBkey v. People. 5 Park. 299 (1861). 6 Brennanv. State, 25 InU. 403 (1865). «2C. &K.214(1845). 7 C. &P. 304 (1824). 8 24 Hun, 62 (18il). ^M FORCE MUST HE USED. 711 th« uie of be put In Urn tn fear o the force not simply irticle from y's pockets ok out bis hold of tlie d made off ibery. The Walsal, the ', jerked his ras secured, this offense y, the force ich a nature prevent his Thus, If a ill her shawl ?auld not, In the purpose ;he property. Tceny only. that on Jan- , wife of one »x of catarrh for the raed- in the book ; et-book from rlnty grabbed >ut doors and Id him he had ,t there were irty cents for Rec. 163 (1816) ; . 299 (186»). 403 (1869). the book, and that the money and wallet were his) that the defendants and Mrs. McGlnty were In the bar-room. Lkarnkd, p. J. The court charged : " If you come to the conclusion that the force which was used in taking this po<;ket-book from the hand of Guy Swallow was rtiiinclent, under the clrcumslanci's, to tieprlvo lilm of his property, and If you find that the Intent was feloniously to steal the property, then I charge you, as a matter of law, that within that clement of the statute the charge Is made out." The prisoner excepted. Again, the court charged that the taking by violence means a taking l)y force which is sulllclent to take the property against the owner's will. Again, the prisoner rccjuestud the court to charge that the striking of the pocket-book from the hand of tiie complainant, as testified to by him, does not constitute robbery. The court refused and charged that If the jury believed his testimony, that makes out the element of robbery. The pris- oner excepted. The testimony of the complainant was that he went into a saloon kept by Mrs. Ginty; that slie and the prisoner, McGin.y and Kinseila were present, and no one else; that he took out his pocket-book; that McGlnty knocked It out of his hands upon the bar; that Kinseila picked it up; that McGlnty grabbed the defendant and put him out of doors; that he demanded his pocket-book and McGlnty told him he had better go away, he would never see the pocket-book again. The point is whether the court properly submitted the question of violence to the person to the jury. Even if we assume that the forciljle turning of the complainant out of doors might be properly considered as characterizing the act of the prisoner, the question still remains wliether the court adopted the proper rule as to what constituted violence to the person. The court charged that if the force which was used was sufficient to deprive complainant of his property against his will, that would be sufficient to constitute the violence to tlie person, which is a necessary element of the crime. Here, we think that the court erred. The language used would Include any larceny from the person. The pickpocket who steals a handkerchief uses sufficient force to deprive the owner of his property, and his taking is felonious and against the owner's will. "The mere snatching of any thing from the hand of a person without any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery." i The violence contemplated means more than simple assB'ilt and battery. " It must be sufficient to force the person to part with his property not only against his will, but in spite of his resistance." i* Now the present case was only like the snatching of a pocket-book. The complainant was not struck or held, nor was any resistance overcome on his part. The pocket-book was only knocked from his hands, just as It might have been snatched away from them. The court below drew this distinction, that ii the violence was only the result of the taking, then the crime was not robbery; but if the taking was the result of the violence, then It was robbery. There Is, perhaps, some force In this distinction if It were properly qualified. But we think that the error was in holding that aiiy physical act to the person of the complainant which resulted in the taking was violence within the meaning of the statute. 1 MoCloskey v. People, 6 Park. S«99; to the same effect, People v. Hall, 6 Park. 642. • McCloBkey v. People, ut mtpra. 712 ROBUKUY. It is not easy, uor perhaps is it best, to attempt to make an exliaustlve defini- tion of violence as useil in tlie statute; but we may say tliat it generally implies the overcoming, or attempting to overcome, an actual resistance, or the prtv vcnting sucli resistance through fear. It may include restraint of the person, as in Muhnney v. People,^ where the complainant was held around his neck and by his arms. And it generally implies that the acts tuiul to produce terror and alarm in the person on whom the violence is committed. And it out;ht not lo be held that every assault and battery, even the most trivial, which results in the talving of property from the assaulted person, constitutes that element of violence which is mentioned in the statute. The penalty is severe; the crime arrived at is grave; and we should be careful not to magnify a less offense into one which has, and deserves so severe a punishment. In my own opinion, the facts of the present case are not sulllcient to show the defendant to be guilty of this crime. The judgment and conviction must be reversed, and the cause remitted to the Court of Sessions. BoAKDMAN, J. I concur in the conclusion of the presiding justice that the charge of the judge was erroneous and was likely to mislead the jury. As this will lead to a new trial, I desire to add that the seizure of complainant, in con- nection with getting his pocket-book and forcibly putting him out of the house, may by possibility, upon a new trial, furnish that element of force, overcoming resistance or inspiring fear, which is necessary in robbery. In this respect I think our decision should not be deemed to be conclusive of the case, or to require the discharge of the plaintiff in error from l he indictment. BocKEs, J. I concur in the opinion of my Brother Lear.nkd, as regards the error in the charge of the crurt on the trial. I am also of the opinion that the facts proved do not make out a case of robbery under the statute on which the indictment Is found. The cases cited in the fifth and sixth Parker show, as j think, very clearly the insufficiency of the proof to establish the crime charged, as regards violence to the person. Judgment and order reversed and cause remitted to Bssex County Sessions, new trial granted. § 502. Fear Must be ot Personal Violence — Threateniner to Proseout* on False Cbargre. — Obtaining money or p^'operty by threats of a criminal prose- cution is not robbery. In JBritt v. State,'^ Reese, J., delivering the opinion of the court said: "FlaintifC in error was iudictod and convicted in the Circuit Court for Roane County, for the offense ol robbing from the person of Robert L. Phillips, the prosecutor, by violence, and putting him in fear of his life, or great bodily harm, a sum of money and a horse. Without detailing the iniquity and crimes of the plaintiff, which the record discloses, it is sufficient to state that on the trial the prosecutor swore, that he gave up the money to the prisoner, solely on the ground of the prisoner's threat to prosecute him for having passed to prisoner a five dollar note, which prisoner alleged was coun- terfeit; and that he was not alarmed or afraid of violence at any time while with prisoner, or apprehended bodily danger or violence to his person. "The court charged the jury, • that if the prosecutor was pus; f u fear of con- finement in the penitentiary, so that he gave up the money or property to the defendant by reason of the defendant making falsely a threat to prosecute him for passing a counterfeit bank-note, the punishment for which would be con* 1 3 Unn, 203. 3 7 Humph. 45(1846). rUTTlNU I\ FKAR. 713 exhaustive deflni- geuerally implies tiiuce, or tlie pr«- liut oi the person, ouud his neck and iroduce terror and .nd it oiiiiht not lo 1, which results in IS that element of severe ; the crime a less offense into y own opinion, the laut to be guilty ol jd, and the cause Qg justice that the 1 the jury. As this jmplainant, In con- m out of the house, E force, overcoming r. lu this respect I e of the case, or to tment. NED, as regards the he opinion that the itatute on which the th Parlier show, as i 1 the crime charged, ex County Sessions, tenlns to Prosecute of a criminal prose- erlng the opinion of ivicted in the Circuit from the person of ng him in fear of his V^lthout detailing the •ses, it is sufficient to 1 up the money to the to prosecute him for ler alleged was coun- nce at any time while o his person, as put iii fear of con- iiey or property to the reat to prosecute him which would be con- 45(1846). flnement in the penitentiary, that the defendant would be guilty of robbery. But If the prosecutor actually passed to the defi'ndant a t-ouiitL-rfcit note it would not be a robbery, but a mure eorapoundlug a felony, and they ought „c acquit the defendant. The principle of the charge iu l)rluf is thai if one ex- cites the fear of an innocent man, try falsely charging him witii th o^nunlssioa of a felony, the punishment for which is connueiueiit in the peniteujary anl threatens a criminal piosecution, and thus induces liini to surruiiati money or otlier valuable tilings to the person accusing and threatening, such person is guilty of rf''>.ery. This charge is erroneous. It has been settled upon much consideration, by judges of England in more than one case, that threatening to prosecute an Innocent man for any crime whatever, except ouiv the crimen in- nominatum, and by the fear arising from such threat, to compel he surrender oi' money or property, does not amount to robl)ery. The fear constituting an ele- ment of the crime is fear of present personal peril from violence offered or impending. The fear of being arraigned before those tribunals, whoso func- tion it is to protect and vindicate Innocence as well as to ascertain and punish crime, sliould not shake a firm mind of conscious rectitude so far from its pro- priety, as to induce the surrender of money or otlier valuable thing to the base accuser; and it is not the fear, except in the single instance indicated, which connects Itself with the legal Idea of robbery. The reasoning on which the single admitted exception is made to rest, turns upon the overwhelming and withering character of the charge and damning infamy, so well calciilut'ed to unman and subdue the will and alarm the fears of the falsely accused. It is evident that the courts of England felt, that even this exception looked ex- tremely anoma' JUS, and they strive, while permitting it to stand, to place it on ground unapproachable by any other case of f .ar of prosecution, as if deter- mined hereafter it 8houl<; have no associate in the offense of rot)bery. " Our statute creates no change in this respect. Indeed tlie definition of the offense therein seems to have been made studiously with a view to exclude the idea of any appreliension than that of bodily danger or impending peril to the ,.erson. The judgment must be reversed and a new trial awarded." Obtaining money from a woman by threatening to accuse her husband of aa indecent assault is not robbery — the element of fear not being present.^ § 693. Threat — Threat of Legal Imprisonment not a Putting In Fear. — In R.v Kneiland' it was held that to obtain money by a threat to send for a constable and take the patty before a magistrate and from thence to prison Is not robbery, for the threat of legal imprisonment ought not to alarm any one. "The force and terror " said AsnuRs., J., " necessary in contemplation of lawr to perfect this species of crl-ne being wanting. Terror is of two kinds ; namely, a terror which leads tlie mind of the party to apprehend an Injury to his per son, or a terror which leads him to apprehend an injury to his cbaractfjr The first kind of terror is that which is commonly made use of on the commission of this offense, and Is always held sufficient to support an indictment of this description. But the second species of terror has never beeudeemed sufficient, except In the particular case of exciting it by means of insinuations against, or threats to destroy, the character of tlie party pillaged, by accusing him of sodomltical practices. The fears unavoidaI)ly excited by Uiese means, have on » B. ». Edwards, 5 C. & P. 518 U833). 3 2 Leach, 833 (179«). 714 ROBBERY. several occasions, been aetern.nea .y tUe j^tLfc^rXV^'^- "- the crime of robbery; but it is ^7"»f^J° ^^.^^^^^^^^^ nodomy, is of of being thought addicted to so odious and ^^^*^f ^7^/^'^"„j„,.t, ^„a advaut- ^^-" r^t'lZS^ r;:t,^S\:;u V:,=^:iionandreaiity terbysuch an imputation '^-''1- /^/ /^^ ent cas^the thread vUich the taining other personal injury But in he present ^^^^^^ ^^ prisoners made .as ^^^^^^^'^^^ o'JthV jndges, is not sui«- Ne^vgate; a species «* ^hreatjl ucl ^l i^ ^^ constitute the crime of cieut to raise such a degree of terror "Y»-» ^ ^ j ,^ ^n inno- complex idea annexed to ^1- term ' robbery,' U^ ^Tho'vev^r the prisoners onensc. A d«ma»d, l.owcvCT, may b» °»''«^>"™ ••,,„! „„' 1,|9 h.t Into „„„ „.ho .. deal ...d <';™V:S,n7£ . P Sr»^^^^^^^ .1.. ..he,, .r ,be carriage wM 0„» Hand, wUlle ''''^»f';'™ ,,.<,,,.,,>. impor. a demaud. "",;;r„; :::r ::rrii'»trr diid .^e p,o,ecu.or. .0.. was made. § 695. ^o^^-y-^r^cf f rrTo'eT, r iuT'>^^^^^ l-tmcted as follows, the prisoner being indicted for '"^^'^^ >;^\'^^^^^^^^^ appropriate the thing taken " The talcing must be fraudulent and ^Uth '"Jj"* '^ j] 'j'^^^^ ^aken by assault to the use or beuetit of the Pe-on Uk^g. J^ -^^^^^^ ; ^ ^^j.^y Intended or by Violence ^V"' 't 'alnTor a resUn' a pe "^ without aJthority, or a „y violence "^^ ^^^^^^ ^ " ,:;rr^^^^^^ It the mind. It is for you to sense of shame or «th«^ di«agreea ^^^^ ^^^ ^^^^ ^^ ^^„. decide in this case ^^fll'^'Jlll^^\,,,, ,ou are authorized to look to straint by the defendant, and to ^etermue i ^^ ^^ ^^ ^^^^^^ what capacity ^l^f ^^^^f^^ SdC^uTnJohron under constraint or fear of ;^;:;^rn;u:;^rdrh:rryto\'i5;:Lneyasai.^^^ 1 1 Leach, 23. 2 12 Tex. (App.) 240 (18S2). ble V. state, Id. 420 (1882) AndsoeKim- iMl PUTTING IN FEAR, 715 o constitute le bare idea odomy, is of and advuut- II and reality )sing charac- If, or of sus- ttt vliicli tlie om thence to , is not suffl- llie crime of aw ; an inno- inger. 3cr prisoner, e prosecutrix her until she it part of the i be complete the prisoners icy can not in t,i It appeared is coach along pistol at him \A not appear of Parliament ; constitute this speech ; as If a ut his hat Into n the other, or port a demand, ecutor's money lliams V. State,^ ited as follows I the thing taken taken by assault injury Intended , authority, or a It is for you to It in fear or cou- )rized to look to if as an officer, ralnt or fear of all the other evi- 9S2). AndBoeKim- ) dence in the case ; and decide under this charge whether the^defendant is guilty of robbery or not guilty," etc. At the request of the defence the court gave a further instruction to the jury, but it also authorized them to convict whether the taking was by assault or by violence and putting in fear. HiRT, J. The appellant Williams was convicted of robbing one Calvin Johnson of §5. The indictment charges that the appellant Williams did make an assault upon one Calvin Johnson, and then and there put him in fear of life and bodily injury, and S5 in silver coin money, from the said Johnson's possession and against his will, then and there unlawfully, fraudulently, vio- lently and with force and arms did seize and take," etc. The code deflMcs robbery as follows: " If any person by assault, or by vio- lence and putting In fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to her own use, he shall be punished by confinement In the penitentiary not less than two nor more than ten years." Under the code it will readily be seen that to constitute robbery the taking of the property must either be by assault or by violence and puttiug in fear of life and bodily injury. (We are now treating of the other elements.) If the property is taken by assault, the person from whom taken need not be put in fear of life or bodily Injury. But if by violence, the person from whom the property is taken must be put in fear of life or bodily injury. It follows, therefore, that an indictment that charges the taking by assault need not allege that the person assaulted was put in fear of life or bodily injury. On the other hand when the charge In the indictment is based upon the other clause or phase, the Indictment must allege that the tak- ing was by violence and putting In fear of life or bodily injury. We are aware that in Wilson v. State,^ it was held that in either event, whether by assault or by violence, there must be a putting in fear of life or bodily Injui-y. This opin- ion was under the statute before the change. The statute then read : " If any person by assault or by violence and putting in fear In life or bodily injury." The difference being that in the former there was no comma after assault. The indictment in this case charges the assault and putting in fear of life and bodily injury, but does not charge violence and putting in fear. Hence, the evidence must support the charge of an assault to sustain the indictment. Do the facts support the charge? The evidence is as follows: Green McArver, witness for the State, says: «< I was in Troupe, Smith County, Texas, some time In January last. I saw the defendant there, and also Calvin Johnson. The lat- ter had sold a horse there that day, and he came along by defendant, who was sitting down on the railroad, when defendant said to him, ' Young man, j'ou have got yourself into quite a scrape, if you only knew it, by selling that horse here this evening without license. I am town marshal here, and it is my duty to arrest you and put you in the calaboose, and then take you before the mayor and to-morrow morning take you to Tyler jail.' Defendant then figured, or pretended to figure a little on a book he had with him, and then he said : ' But, young man, if you pay me five dollars you can go and I will not bother you ; oth- erwise, I will have to arrest you and put you In the calaboose, and take you to Tyler jail to-morrow.' Calvin Johnson then pulled out five dollars, and gave to defendant, and defendant told him to go down to the store and get his budget and come back up there, which Calvin did. When Calvin came back 1 3 Tex. (App.) 63. Bl 716 ROBBERY. With his l)uiullc tlefcndant said : ' Young man, that live didn't quite settle up what was against you. I've llgured up and And it will talie one dollar more to settle it up straiglit; so you had better pay this, or I wili put you in tlie cala- l)oosc, and talce von up to Tyler jail to-morrow.' And Calvin then paid him one dollar more. Defendant then said to Calvin : ' Now take the railroad here and ■,'o on to Jacltaonvllle, and if anybody asks you about Troupe, tell liim you don't know anythin;^ about Troupe.' Calvin then went on down the railroad in tne direction of Jacksonville. All this occurred in Smith County, Texas. I Tyler jail, amount he es of Amer- ;. I let him e was going d it of me. railroad to dad been in from some d ))ack, aud, le defendant 1, but at the me, or tried •ed me. He 3 to be Joha rial." y the charge ose that the d putting in ined by the ire of bodily an injury to ontained the ry," still we t these alle- ig robbery, a mnecessary ; ested by the ; a new trial se remanded. I remanded. ELEMENTS OF CRIME OF KOBUERY. 717 § 590. Intent to Steal at Tin e Necessary. — So if one attacking another snatches a pistol from the liand of tlie prosecutor who lias (h-awn it against Ids assailant, simply to prevent the proseouor's from using it against lilm, without Intending at tlie time to appropriate ii , he is not guilty of robbery though he afterwards takes it away and sells it.^ § 697. Subsequent Use of Violence. — If the property is taken without violence or putting in fear, the subsequent use of violence to retain it does not make tlie taking robbery.!* " The force necessary to constitute robbery must be em|)loyed be'fore the property is stolen. If the stealing be tlrst and the force afterwards, the offense is not robbery, but stealing from the person." '■^ § 598. Taking Must be In Prosecutor's Presence. — The goods must be taken in the presence of tlie prosecutor.* §699. Bobbery— Property Must be In Possession ot Party Robbed. In n. V. Fallows,'' A. ami H. were walking together, B. carrying A.'s bundle, when C. and D. came up and assaulted A. B. threw down the bundle and ran to the assistance of A. when C took it up and ran off. It was held that C. and D. could not be convicted of robbery. "Tlie bundle," .'said Vaughan, B., «age,^ The principle enunciated was" J Itlf tl . T' u """' "' ^^^^ ^• article taken, it will be sudlcient to cons'tluue L oV ' ,'? *" ''""^'^^ ^^e to serve the prisoner or any other person th./""" °' ^"""'"y' " <^«no The case was this: the i-risonei to «.,,.' '^^ ""' *" » Pecuniary way • stealing a horse, broU In Hi '^^oS^ 1 ^^.TP"?' ^^^ -- '".iSodTor which he backed Into a coal-i.it and ki^w T^" T '""'^ '"""'^ ""« """e. this was larceny. At such a decision we Ire" not ^T'.'"' *"^ J"''«^« ^"<='''«^^^ oxclalmlng, in 1838, when that ca e wis C d In hT" "' '" ""' ^"'^' ^^'"«t<"> to that J ' "'* "^"^ <^"«d »n his presence, • I can not accede tJit;:7r fortr.' 7,:r:VZTl *^ ^- - ^-^^ decided on the a«. master, by means of a falsrk;^ «nd ±,.?"'""'''V"''^"*''' »"« S™"»ry of their -ster's horses, m adc.ltion to tJ^Ctltran" '^' "' "^''"^ '"^ «'- »° »»>«'' l^^rceny. Someof the judges aLsed^mh^ T"*' ""^ " ^"« ^eld to be ^liramish the work of the Tn who had tn. ^ '^,'"''"*'''"*""'y«' beans wouW ;.t.on ,„ their labor was ZZtlT. ZTLT it'T?' "'' '''' •^'™'- t e /„cr. causa wa.s nought for and discovered Tuthat Is ?*"^^°^«« ^'»h which ."Stringency of the rule which requires It as In 'cf, ff '" "^''^''^ P''«°' «' the larceny. This case is referred to by a decent wh"/'' '"^""^"* '" *"« ""~ <>' point.' 3 Such it undoubtedly is as in lttZ\7\ ! ''" " ' ""S"'*'" ^*«« «° t^s •-d existed from au ancient peIod,etwt!rwT' *'"' ''«""''"°° ^^Ich With some of the judges, deU thriven" oT'tCz ''""""' ""'^^'^ "« ^»». Looking Into the cases last cited and ^1 , ^"'" '*""'« *" ^^at case we deem the observations made in , f f,^'^^""^'^ «° ^^ich they were decided Alabama not Inappropriatr^Jt apnea s^ '^/i'"" '^ ^'''^ «"P-™« ^o-rt « notbeconsldered'as'auth;r.ty nXsco 1;: ^''^rV!""' "'^^^ ^^-^--^ ag'nary distinctions upon which they rest ar»,. ^'^''dowyand almost im- ^^•ScirrnrdTr ^-^^^^^^ '''''-'- "^ and An,er.ca;%re i; X' CdCd? h "'"T^ ^"^''°''"-' ^"« 't existed at the time of the eS on of o- «n'T ""^ *'' ^•"""'°" '''^ «« we can not recognize modmcationsrecenUyrdeTth" '° '"' '^"""^'y' *«"» as controlling this court. If an author v^^Jm V k'"'"°° ^'*^^°' England from an American court adopting tW 1. k ^'"'^ ""^^ '"""^^ emanating could not have eluded therer:oV?h:;r'otsior' '^^"°^"°"«' '* "'***"'* tiot ll^h^lttr •°''"°" ^' *^« ^-' - «- you. gentlemen, the .nstruc. 1. That if you believe from tbe evidence th«t fj,« ■ away the arms, with the Intent to approprTate 11 /"'°"^ *°°' "^ "'"»«" h.s own use, or permanently deprive thonl„ .J "^ *"^ P*"""""" "' them, to 2. But if you Shan believe tha he did n^r.^k.r'""'^' *'^° ""' " ^»"^y' appropriating them, or any part hereo to his ""' '""■ *^^ P"P"«« <" pose of preventing their being us d on Jlmsel o7hl"''' '^' ""'' '''' "'« P"' oner is not guilty. """'^'' °' ^^^ associates, then the prls- Verdict, not guilty. » 1 RU88. A R. 292. ' I Buss. A R. S07. 3 Defences. 46 ' Archb. Cr. L., ad. 1853. * s Port. 465. 722 ItOUBEUY. _ . v>^ viniancfl —The owner o! property, en- 5 602. — 0.ttiB» Of-0-;,7, uwy violence ami puttln. In fear. Is not titled to lt8 possession, though taKliU' it "Y moiuui- guilty ol robbery .> i„,ii,.t„,i for robbery of one Eden of a ,„ n. V. Hennino,^ the P[ ^^'JJ^^^^" '^'^^^^^^ ... Inn. Cheque and some n.oney,wthv^ on- to ;^^^^^^^^^^^ J^ ^ „^.,,^ „„.,,,, keeper at Wlncbelsea, and Ivlen. t"« P-^"^^^'" '' ^ , ^^ t, he was promised to pay him £6 when he rece ved "^^^y^^XTmou.y. TM.e prisoner at the prisoner's Inn drinking, and «»'-ved that he had """^y ^ ,,,^^ ^ pressed h..n for I^^^-'^ ^^^ ^ ^^^ ^Td ^ 1^, -elar.d that he private room, and there, after r^-P*^"""- , ^ j^ j,, take It from ^vould have it, knocked him down and knelt upon hi w ana t^^^^^^ ^^^ ^ him. The prosecutor said If he wou d et ''l^lfl\ZXho..Jr, repeated cheque for £4 he h:ul about him, and did '*»^- J'^ J/'J^''^^^^ according to the his iemand for money, and doc ared he ^""j , f '^^^/i'J., him np by the heels prosecutor's evidence, knocke.l '••-•'•-^/Xd";^ •• M mul " Tnd his money Latmg his head against the «--"J'' ^''^;^'- ^^^ ':;,, ^ known, as It was not dropped out of his pockets, but ^^ '^'^ V'^^*^*™'' ° '", „ p j g^ld he thought the found, though searched for Upon J^-^^-^^lJ^^^obbery It -^ rather an jury could hardly convict the prisoner ^ '^'^^^^^^^^^ ^ebt, an unlawful Lsanlt by a creditor on a ^'^''tor J" ^ "^^'^ 7hresence of the offense now ss:;:^^ t^ ^r ::rtr i:: iiw j;^ po«- to .nd upon the. facts. Verdict, not guilty. .. Tf ft nerson with menaces demands money from § 603. — ;' ^-«;t", -."t^enThls Jo session, and Intending only to ob. ' ^T::^'Z:rlZ'i::::X^^ .J.e^^u..^. P-Perty wUh menaces within the sUtute.^ § 60*. — "Public Hl«bway."-A railroad track Is not a ..public high, way.". § COB. — Time of War. - It Is not robbery for a soldier to take. In time of war, the weapon of a captured enemy.' 1 Barne. v. State. 9 Tex. (App.) 128 (1880). 8 4 F. 4 F. 50 (1804). 3 K. V. Kdwardi. 6 C. 4 P. 515 (1834). 4 State V. John.on, PhUl. I.. 140 (1867). 5 HumBond V. State, 8 Cald. 129 (1866). ^^m property, en- In lear, is not one Eden of a ner was i>;i Inn. debt, and had August, he was The prisoner vltli him Into a leclurod that he to take It from iild give hlrn a wever, repeated :cordlng to the up by the heels ' and his money ,vn, as It was not I he thought the It v;r.8 rather an ebt, an unlawful the offense now find upon these •diet, not guilty. inds money from mdlng only to ob. ty with menaces t a '• public high- to take. In time of ?hlU.I..140(1867). , 8 Cald. 129 (1866). CHAPTEK YIII. CRIMES AGiUNST THE PERSONS OF INDIVIDUALS. Part I. ABDUCTION — SEDUCTION abduction for "purposk of prostitution." State v. Stoyell. [54 Me. 24.] In the Supreme Court of Maine, ISGG. 1- Abduotion for the Purpoae of Sexual Intercourse in not abduction for tho"pur- poao o( prostitution." i- The Defendant, by False Sepreaentationa, persunclcil a girl to go with liim to a neighboring town, where lie took lior to ii liotel untl miiJo lier partly drunlc, wlion lio hud intercourse Willi her during soTcrnl days, mui, that ho was not guilty of ubducting her " tor the purpose of prostitution " within the statute. The case camo before the full court on tlomnrrer to the evidence. It was proved that the unmarried female named in the indictment, wa^, on March 2, 18G6, residing in her father's family, in this county; that she then went to the railroad station to meet her music teacher, where she met the defendant with whom she had a slight acquaintance ; that the defendant urged her to go with him to the cars, then about starting to a neighboring town for a ride, promising her as an induce- ment, that he would bring iier back in a carriage in two hours ; that, suspecting no intention on the defendant's pai-t, and having none her- self, other than the avowed one of taking a ride, she consented to ac- company him. When they arrived at the station in the neighboring town they took a carriage to a hotel, when he engaged a private room and conducted her to it, that, when they had entered the room, he locked the door and put the key in his pocket ; that she at once asked to go home, and demanded a fulfillment of his promise to take her home, but that she was quieted with assurances that she should be returned in a short time ; that the defendant then left the room, locking the door (723) 7H CKIMKH AGAINST THK I'KHSONS OF INDIVIDUALS. """'• r"'?"u, ' u' i,r t k,„„v La the ll,,,ml «:.., ln,t that it w«s oH.MOil; tliiit .lit 111.1 i»» «• i,„l,,,.,.<\ her to drink a „,.,,,„,„ , „ ,„,,,ee o, ;.*•*« I^, tJ::; ' ,lr ; thiit .i,e i.i., ,„„ r.,,nenil- r «'" " ,„„ „„,,,„|„„t proimscl to got a oar- ".'"""r:;: : r.t r :> ii" .ief™.i-t thi-t ii. u. n,„r„ii,,shc ^ ^L':;;;.: tvI.rK.ii* „. her then p ...t co,,..it,,.; that « r P e "' -"•'. »"•' > "";t: ;; :r;;:,;,;:;'J:-rriit .;.,»rt, that "r """" h ":: n, t.^ - . the private room, gave her more f-l 3 : 1 ll m-tio„ with hen that, after re„eateH re.,„e«, tr It h Iro -h the interposition ot a young man whom they on licr part. In uiroii,.i i ,,|,,.|,„„. „„,! drove witli her together w.nt to «ee, procure, a ^ - - - 1 =^^^ ^^ ,^^^. . ^^^.,.^^ ,^ *^ ^'" ff T ; ^;:u ^; > ' .^ n e ana ho told her she could fabn- account to her vaunts for u ^^^^ ^^^^^^,^ cate a «tory thut won . a . ^ -- ^ ^^J^j;,,,, , ,,,, ,,« told the late at u,ght and fouu.K ''--^'''^ ''""'"= ^^^^^ ,,, g^^ui she must defend.nt .he - a -d to , ^2:^^:^, „„,,,,„, ,, do, but return to thevr hotel wh c Ue ^ ^^^^^.^^^^ j^^^,^ ,^ ,„,,, while she was talkui-, he tu ued f''^^J^^^' *- ^^^,31^ to oh- hotel wlu-re they an ved af or '- ' f ;; ^^^^''^ J,,,, «,„,u,ed ad- tain aduuttance to then- »- f '/^ ,;';\;;;^^ /,,,, ,,„« bed ; that, in mittauce; took a ro.wn ^^S^^^''^^^" ^^^j" ^^^^^^ again bad connection X ff ? :;::: t::t:z:^^^^^^ — ed by c.s; with her; <^l»^V" *''^ 'J. ^ . „^ ^j^h him to Portland and stay a few ^:^t;;r:"r 2mi%':'X h„ng.or asheep a. a lamh, hnt '1tt::lr;ro::;uLT:o,a.ontN„v.mher,oUowin,*ega« to a living child. ^ j^ j^ aforesaid ; :er "lonThan the defendant had any connection with her wh.le ai. tZL home with him, and that no pay was given to her. rii* y a servtint tired where- to think of (I lior; that drunii wluit , but that it to driult a tlmt she did ifii ; that she to get a car- •ning she bad at he replied ,vhile be took upport; that ivo lier more ated requests .n whom tliey rove with her er inability to a could fabri- ,t her father's it she told the gaid she must ing to do, but I back to their ! unable to ob- •, obtained ad- bed ; that, in lad connection irned by cars ; and stay a few as a lamb, but 'y she gave birth larch aforesaid ; that on being nd of his would id would like to , but her father >peared that no th her while ab- her. STATE V, STOVKLL. '•25 Tlio ovidenee was reported to the full court, wiio nere to determine whether the tacU proved constituted the offi'n>*o alleged ; if they did, till' case was to stand for trial ; if not, a 710II.' prosequi to 6e entered, J. A. Peters, Attorney-GenenU, for the State. //. L. Wiiti-omb and Dauis A Dr,niimon(l, for defendant. An-hKTo.v, C. J. Tiio defendant i. indicted for a violation of chap- ter 1, section 1, of the acts of IHC.I. By Revise.l Statiili-s, iHoT,' " if an unmarried man commits fornica- tion with an unmarried woman, they shall each be ])iinislic(l by impris- onment not more than sixty ilays and fined not exceediuff one hundred dollars." By chapter 4, section 1, of the acts of ISC.l, "whoever fraudulently and deceitfully entices or takes away an unmarried female fnjiu her father's house, or wherever else she may be found, for the purpose of prostitution, at a h )Uso of ill-fame, assignation, or elsewhere, and wiioever aids and assists in .sucii abducti )n or secretes sucli female for such purpose, shall bo punished by imprisonment in the State prison not loss than one nor more than ten years." Tlieso sections are for different purposes, they create different offenses and impose different punishments. A person may be guilty of one offense and not of the other. He may commit fornication with a female without intending to induce such female to become a prosti- tute. He may entice one away from her father's house for the purpose or prostitution, lie may induce her to become a prostitute without commit- ting fornication with her. Indeed, personsof either sex may entice away females for the purpose of supplying brothels and houses of ill-l. me. The offense set forth in the statute under which this indictment is found, is the fraudulently and deceitfully enticing a married woman from her father's house or wherever she may be found, for the purpose of prostitution, at a house of ill-fame, assignation or elsewhere, etc. Worcester defines prostitution thus: "To offer to a common, le.vd use; to make a prostitute of; to corrupt; 'Do not prosti- tute thy daughter.' Leviticus xix:29." A prostitute is a female given to indiscriminate lewdness for gain. In Its most general sense, prostitution is the sotting one's self to sale ; or of devoting to infam- ous purposes what is in one's power. In its more restricted sense, it is tiie practice of a female offering her body to an indiscriminate inter- course with men; the common lewdness of a female.* In Com. v. Oook,^ a statute similar in its language and its object to that of this State now under consideration, received a judicial construction and it , was there held, that it did not apply to the case of a man's enticing a 1 ch. 124, sec. (!. 2 Carpenter v. People, 8 Barb. 603. s 12 Mete. 03. 726 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. woman to leaving bcr place of abode for the sole purp.se of ilUcit sexual intercourse with him. I appears in proof that the defendant, by false representations, pro- cur d The complainant to go with him to Bath and then, ha^.ng induced partial intoxication, had repeated sexual intercourse w. h her^ Sexual ii tercourse, the evidence showed, was the whole object he had fnXl Nothing Indicates a design on his part to make her a common prostitute. His "only purpose was sexual S^^'^'^^f^^\.J'rZZ Lous the conduct of the defendant -however deserving o pumsh Lent he may be, he can not be legally convicted of, or l--^^^^^^^^^^^ crime he has never committed. Tne evidence on t .e pa t of the govern- L nt fails to sustain the allegations of the indictmen^ while it abun- dantly proves him guilty of another and different offense -that lo, *° The' facets on the part of the government are uncontradicted. No further evidence is attainable. To send the cause to a jury would only delay its decision without changing the result. By the agreemen of partL the case stands as on a demurrer to tl-;vidence-a^^ form of procedure, though sometimes recogmzed, as in ktate v. Hoper urn the facts, .s proved, the defendant can not legally be convicted of the offense for which he is indicted, and the County Attorney may Terv properly enter a nolle prosequi. Kent, Walton, Dickinson, and Danfouth, JJ., concurred. ABDUCTION FOR PROSTITUTION-PROSTITUTION-ILLICIT INTEB- COURSE. OsBORN t'. State. [52 Ind. 526.] In the Supreme Court of Indiana, 1876. course only. Worden, J. The appellant was tried, convicted, and sent to the State prison upon the following indictment, its sufficiency having been ^'?!The grnd jurtr's7etc7 " in the name and by the authority of the State of Indiana, upon their oaths present and charge that on or about 1 16 Me. is33. iMi DUALS. purp /se of illicit rcsentations, pro- .ncl then, having ?rcourse with lier. ole object he had ike her a common on. However in- serving of punish- or punished for a ,)art of the govern- jnt, while it abun- offense — that ia, contradicted. N^* a jury would only y the agreement of ence — an obsolete in State v. Soper,^ igally be convicted unty Attorney may incurred. r — ILLICIT INTEB- 976. roe, and not illielt inter- nbduction for the purpose I purpose of sexual inter- 3d, and sent to the Hciency having been the authority of the rge that on or about OSBORX V. STATE. 727 the 15th day of January, A. D. 1875, at and in tlie county of Franklin, and State of Indiana, one James T. Osborn unlawfully and feloniously enticed away one Alvaretus Faurote, a female of previously chaste character, from said county of Franklin, in the State of Indiana, to the city of Jeffersonville, in the county of Clarke, in said State of Indiana, for the purpose of having illicit sexual intercourse with her, the said Alvaretus Faurote, contrary to the form of the statute," etc. The indictment is based upon the following statutory provisions, viz : "If any person shall entice or take away any female of previous chaste character, from wherever she may be, to a house of ill fame, or elsewhere, for the purpose of prostitution, and every person who shall advise or assist in such abduction, shall be imprisoned in the State prison not less than two nor more than five years, or may be imprisoned in the county jail, not exceeding one year, and be fined not exceeding five hundred dollars ; but in such case the testimony of such female shall not be sulHcient, unless supported by other evidence, corroborat- ing to the same extent as i"! required in cases of perjury as to the prin« cipal witness." ^ It will be seen by the indictment that the appellant is charged with having abducted the female " for the purpose of having illicit sexual intercourse with her ; " and not " for the purpose of prostitution," as is provided for by the statute. The question arises whether the facts charged come within the statute. We are of opinion, upon an examina- tion of the authorities, that they do not. The first case to which our attention has been called is that of Com- monwealth V. Coolc.^ There Cook was indicted under a statute quite similar to our own. The court say, m speaking of the point here in- volved: 3 "The court are of opinion, that the offense made punishable by this statute is something beyond that of merely procuring a female to leave her father's house for the sole purpose of illicit sexual inter* course with the individual thus soliciting her to accompany him ; that she must be enticed away with the view, and for the purpose, of plac- ing her in a house of ill-fame, place of assignation, or elsewhere, to be- come a prostitute, iu the more full and exact sense of that term ; that she must be placed there for common and indiscriminate sexual inter- course with men ; or at least, that she must be enticed away for the purpose of sexual intercourse by others than the party who thus en- tices her, and that a mere enticing away of ,a female for a personal sexual intercourse will not subject the offender to the penalties of this statute." 1 aG. AH. 441. Bee. 16. > 12 Mete. 93. 5 p. 98. < 8 Barb. 603. 728 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. The next case is that of Carpenter v. People. ' In that case, Carpen- ter was prosecuted under a similar statute, and the court came to the same conclusion as that arrived at in Massachusetts, tliough the Massa- chusetts' case is not therein mentioned. The court say,i " We arc en- tirely clear that by the expression in question" (prostitution), "as used in the statute, it was intended that in order to constitute the offense thereby created, the abduction of the female must be for the pur- pose of her indiscriminate commerce with men. That such must be the case to make her a prostitute, or her conduct prostitution, witiiin the act." , , Following these cases is that of State v. Ruhl.^ The latter was also a prosecution under a similar statute, for enticing away a female for the purpose of prostitution. Tliere was evidence of a purpose on the part of the defendant " to seduce and enjoy the body of the said Matilda (the female), " and that he had taken her away, in order to have carnal intercourse with her, and did so enjoy her person; but there was no testimony that he purposed that she should be carnally enjoyed by others, nor that she should be devoted to promiscuous carnal intercourse, nor that he took her, or proposed taking her, to any house of prostitu- tion." On these facts the defendant asked the following instruction, which was refused, viz. : — •,,,11 «' If the defendant only intended to obtain the body of 'said Matilda, for his own personal carnal enjoyment, and no more, then the act did not amount to her prostitution, in the sense of the law." It was held that the charge should have been given, that the word "prostitution" means common, indiscriminate, illicit intercourse, and not sexual intercourse confined exclusively to one man. To the same effect is the still later case of State v. Stoyell.^ In view of these authorities, we think it clear that the indictment does not charge the abduction of the female " for the purpose of prostitu- tion," within the meaning of the statute. The judgment below is re- versed, and the cause remanded, with instructions to the court below 10 sustain the motion to quash the indictment. The denk will give the proper notice for the return of the pris- oner. 1 p. 611. 3 8 Iowa, 4i7. 3 U Me. 24. UAL8. PEOPLE V. RODEBIGAS. 729 t case, Carpen- iirt came to the (Ugh the Massa- ,1 " We arc cn- istitutiop), "as I constitute the ,t be for the pur- t such must be stitution, within c latter was also a female for the pose on the part J said Matilda " >r to have carnal it there was no ally enjoyed by rnal intercourse, )use of prostitu- ring instruction, of 'said Matilda, then the act did Q, that the word intercourse, and lu. To the same i indictment does 30se of prostitu- ment below is re- ,he court below to urn of the pris- sUMe.24. ABDUCTION FOR PROSTITUTION — " CHASTE CHARACTER"— EVI- DENCE. Lyons v. State. [32 Ind. 42G.] In the Supreme Court of Indiana^ 1S76. A Statute Affainat the abduction of fomales of " previous chaste character " meaua, of actual personal virtue in distinction from a good reputation. On the trial of an indict- ment founded on that statute, it is admissible to prove previous particular acts of Illicit intercourse on the part of the female abducted. Downey, C. J. This was a prosecution for abduction, under section 16.^ The defendant was convicted and sentenced to the State's prison. The refusal of the court to quash the indictment, and the overruling of the defendant's motion for a new trial, are assigned as errors. We see no valid objection to the indictment. There is a little surplusage in its allegations, but it is good, notwithstanding. On the trial, the defendant proposed to prove acts of illicit sexual intercourse on the part of the prosecuting witness prior to the alleged abduction, but the court rejected the evidence. We think this was an error. In such a case the female must be of " previous chaste character." This hag been held to mean that she shall possess actual personal virtue in distinction from a good reputation. A single act of illicit connection may, therefore, be shown on belialf of the defendant.* The preceding section relating to seduction is different. It only re- quires that the female shall be " of good repute for chastity." The authorities cited by the State do not bear on the exact question under consideration. The judgment is reversed, and the cause remanded for a new trial. The clerk will certify to the warden of the State nrisou as reouired by law. abduction — proof — seduction. People v. Roderigas. [49Cal. 9.] In, the Supreme Court of California, 1874. 1. An ladlotment for Entlolnsr an Unmarried female to a hense of Ulfame for ,ur- poses of prostitution must allege and the prosecution muit prove, on the trial, that ■ucn female was ol previona chaste character. ip. UI,2G. AH. • Blsh. Stat. Cr., sec. 689< Carpenter ». People, 8 Barb. 603; Kenyon v. People, 26 M. Y. 203 ; State ». Shean, 82 lovra, 88 ; Andre ». State, 5 /d. 38e ; Boak v.SUte, Id. 430. 730 CRIMES AGAINST THE PERSONS OF IITOIVIDUALS. 8 Proof in such Case that the female was of previous chnste character need not be made ^evlderce directly upon the point, but may be shown prima /acU. by presumption from other facts. S Beduoinir a Pemale.-To seduce a female Is not an offense within the meaning of the *two hu^l*.T.!r»ixly..ixlh section of the Penal Code, which make« .t a "ime to pro^ cur. any female to have illicit carnal connection with any man The act refers to on. who procures the gratlflcation of the passion of lewdness In another. Appeal from the County Court. Santa Clara County. The facts are stated in the opinion. John J. Love, Attorney-General, and James H. Campbell, for the ap- pellant cited, Crozier v. People ^ and People v. Kane.^ C. V. Terry, for the respondent. By the Court, Wallace, C. J. The indictment in this case is founded upon the act of March 1, 1872,3 ^hich act for the purposes of this case may be considered as identical with section two hundred and sixty-six of the Penal Code. The indictment alleges that the defendant willfully and feloniously, and by false pretenses and fraudulent repre- sentations did, on a day therein mentioned inveigle and entice a certain unmarried female, in the indictment named, under the age of eighteen years, to wit, of the age of sixteen years, from her home in the city of San Jose to the town of Santa Clara, for the purpose of prostitution, and did on said day, at a certain hotel, in the said town of Santa Clara, by and through his false pretenses and fraudulent representations pro- cure the said female to have illicit carnal connection with himself, the said defendant, contrary to the form of the statute, etc. The defendant interposed a demurrer, which having been sustained by the court below, and the prisoner discharged, this appeal is prose- cuted by the People. The grounds of the demurrer were, that it is not alleged in the indictment that the female therein mentioned was of pre- vious chaste character; that the facts stated do not state a pubUc offense ; and " that the complaint does not state facts sufficient to con- stitute a cause of action." , XU 1 To entice a female into a house of ill-fame, or elsewhere, for the purposes of prostitution, is not an offense under the two hundred and sixty-sixth section of the Penal Code, nor under the provisions of the act of March I, 1872, " unless such female was of previous chaste char- acter Character in this respect is a fact, and one which must be al- leged in the indictment, and established by the prosecution, in order to a conviction of the accused. It need not, however, be proven by evi- dence given directly upon the point, but may be shown prma facte by presumption from other facts and circumstances attending the trans- action ; as, for instance that the unmarried female - the subject of the 1 1 Park. 453. a UAbb. Pr. 16. sstati. 18tl-if,p.l84. «p. 880. JALS. PEOPLE V. RODERIOAS. 731 : need not be mftde ' presumption from the meaning of the ( it a crime to pro- lie act refers to on« )hell, for the ap- 1 this case is ;he purposes of ro hundred and A, the defendant ludulent repre- entice a certain age of eighteen Qe in the city of of prostitution, I of Santa Clara, esentations pro- ith himself, the : been sustained appeal is prose- jre, that it is not jned was of pre- it state a public sufficient to con- Isewhere, for the ;wo hundred and provisions of the ious chaste char- rhich must be al- ution, in order to )e proven by evi- lown prima facie ;ending the trans- the subject of the injury — was at the time residing with her parents, or other relatives, or her guardian, or in some respectable household, or by \)root of other like circumstances consistent with, and the usual concomitants of, rhaste female character. But by whatever evidence it may be proven in the case, the fact of previous chaste character must be alleged in the indictment. It is not a presumption of mere law, to be indulged against the counter presumption of the innocence of the prisoner on trial upon a charge of crime committed. We are of opinion, therefore, that the indictment in question, omitting as it does, to allege that Car- lotta Lopez was a female of previous chaste character, is insufficient under the first clause of the statute. 2. Nor do we think that it can be supported under the last clause of the act referred to. The facts stated in the indictment in this respect (even assuming Carlotta Lopez to have been of previous chaste character) amount to a charge of seduction, and do not import a crime under that clause. To " procure a female to have illicit carnal connection with any man," is the offense of a procurer ot procuress — of a pander. This is the natural meaning of the words — the fair import of the terms of the statute — and in our opinion this construction effects the objects had in view by the law-maker in its enactment. The argument for the People is that, as a seducer is a person who prevails upon a female, theretofore chaste, to have illicit carnal connection with himself, he is thereby brought within the mere words of the statute, and so made liable to the punishment it inflicts. But we think that this view can not be maintained by any rule of fair interpretation. The statute uses the word "procure — procures." The recognized meaning of this word in the connection in which it appears in the statute refers to the act of a person " who procures the gratification of the passion of lewdness for another." This is its distinctive signification, as uniformly understood and applied. The subsequent words " with any man " (" procures any female to have illicit carnal connection with any man"), therefore, so far from being inconsistent with this construction, lend it support. It would be to utterly disregard the relations which these words bear to the remainder of the sentence in which they occur, and to indulge in a most latitudinarian construction, should we hold that they include and apply to the defendant in this case. He can not, under the facts stated in the indictment, be considered to have been both procurer and seducer at the same time, and in one and the same instance, without utterly confounding distinctions and definitions well established and universally recognized. It results that the court below correctly sustained the demurrer and its judgment must be affirmed. So ordered. Mr. Justice McKinstrt did not express an opinion. ii.-„ iiMiiriliiHiiil«i 782 CRIMES AOAINST TEE PERSONS OF INDIVIDUALS. SEDUCTION -GOOD REPUTE OF FEMALE MUST BE PROVED. Oliver v. Commonwealth. [101 Pa. St. 215.] In the Supreme Court of Pennsylvania, 1SS2. 1. In an Indictment TTr.der the Statute for seducing a female of good repute under twenty-one year, of a^-c, under i.rom.Bc of ma.ringe. the Commonwealth must pr.re nfllrmatively the good rc-,m.e of the female. The proper practice in Buch case is for the Co.nmonweal.h to call witnesses to prove that the general reputation of the pro secutrix for chastity in the neighborhood in which she has lived is good. 2 It ia Error for the conrt to charge the 'jury tliat they may infer good repute from the ' general evidence offered by the proeacution, not adduced lor that purpose and having scarcely the slightest tendency in th-jt direction. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Stei^"' ■ ind GuKKN, JJ. V ;.. ti-e Court of Quhrter Sessions of Jefferson County ; of Oc- tob-- ;.-.!. .^82. Indictment of John T. Oliver, for seduction under promise of mar- riage of Annie ^Vhitmore, " a single woman, of good repute, under the ageof t\vL ,y-o,,i .eiirs " Plea, not guilty. On the trial ihu Caiainonwealth's counsel called the prosecutrix who testified. » * * " In November, 1880, when he proposed what he did, I refused him. I says, ' no sir, not till I am your wife.' I says, ' wait till you marry me, and not till then.' He says, ' you know we will be married in a few weeks. I am just the same as a husband, and you a wife.' At lost, I gave up to him." * * * Between Novem- ber and March he had connection with me frequently, in consequence of which a child was born on the 30th of October, 1881. No evidence was offered by the Commonwealth for the express pur- pose of proving that the girl was " of good repute " but in the course of the trial it appeared that she had always resided at home with her parents and both she and her mother testified that she " had never had any gallant or beau but the defendant." The defendant presented the following point: — •'That as the Commonwealth has offered no evidence to show that the prosecutrix was a woman of good repute, there can be no convic- tion for seduction. " Answer.— We do not remember of any direct evidence going to show that this was a woman of good repute. We instruct the jury that if the Commonwealth has failed to show this good repute, or what is its equi\ alent, that there could be no conviction. After reflecting upon the question presented in this point and obtaining all the light we can ^ttm LS. PROVED. io(> repute under iallli muBt prv~o J Buch rase is for tation ol the pro- d. i repute from the rpoBe and having )N, Trunket, junty ; of Oc- •omise of mar- ute, under the •osecutrix who posed what he wife.' I says, you know we , husband, and tween Novena- n consequence le express pur- t in the course lome with her had never had B to show that . be no convic- i goinf; to show lie jury that if , or what is its reflecting upon he light we can OLIVEB V. COMMONWEALTH. 733 from the books furnished, wc add this further instruction bearing upon the question presented in this point. To constitute the offense of seduc- tion under the act of H>th of April, 184:5, tlierc must be illicit connection and the female must be drawn aside from the path of virtue which she was honestly pursuing at the time the defendant approached her. Tlie law does not presume the previous chastity of the female, such a pre- sumption being inconsistent with that of the prisoner's innocence; but such chastity must be proved by the government, it being essential to the offense charged. Taking the authorities therefore and the reasons upon whicli they seem to proceed, we think ourselves justified in stating the law and leaving you to determine under the evidence whether the prosecution has come up to the point the law requires. We believe that if it is affirmatively proved that the prosecutrix has always main- tained a consistent character for chastity — if the evidence showed that she had never been approached by any other man ; that she had never kept company with any other man ; and if the evidence showed that the defendant was the first person who had illicit intercourse with her, and had drawn her aside from the path of virtue ; if this be proven wc believe that the requirements of the Act of Assembly would be met so far as the proof of good repute is concerned. And we add further that it is always necessary to the prosecutor's cause to make out the fact that the prosecutrix had always maintained a good character for chas- tity. One or the other of tliese is necessary to maintain the prosecu- trix's case. And their existence may be inferred from general evidence offered by the prosecution. We think in the statement we have thus made of the law upon this branch of the case, we will be fully sustained by the reason of the thing and by the weight of the authorities. We thus answer the point put to us by the defendant. Verdict, guilty, and the defendant was sentenced. An allocatur hav- ing been obtained from a judge of the Supreme Court, the defendant took this writ of error, assigning for error, inter alia, the answer of the court to defendant's point as above. White (with him Scott and Corbett) for the plaintiff in error, cited West v. State,^ Commonwealth v. McCarty.^ Jenks iClark with him), for defendant in error. The legal pre- sumption of fact is always in favor of " good repute," and moreover there were ample circumstances proved from which good repute could be inferred by the jury. The girl was only eighteen years old, lived with lier parents and worked in the household, went to church, never before had any beau or gallant, no aspersion ever made as to her char- acter for chastity before the defendant seduced her under promise of 1 1 wis. 209; Whart. Cr. L., sec. and note. 8673 3 2 Pa. L. Jour. 136. ■IP 734 CHIMES AGAINST THE PEKSONS OF INDIVIDUALS. marriuge. "Good character being presumed, evidence to support it will not be received until it lias l)«'en assailed." ' " Chaste character is presumed and need not be proved." a In Pennsylvania it has been expressly decided that : " The rule is well settled that witnesses on part of plaintiff can not be examined as to general character of the e duced for chastity until evidence of general bad character has l)een adduced by defendant. "3 It is therefore not only unnecessary, but it would be improper to offer direct evidence of good repute until the presump- tion is rebutted by evidence offered by defendant. Even then direct evidence is not essential, if circumstantial or presumptive evidence is clear. " Chaste character in the person seduced may be inferred from the general evidence offered by the prosecution when not expressly tes- tified to as an independent ingredient of its case." •• Mr. Justice Steuuktt delivered the opinion of the court. The statute under which the plaintiff in error was indicted declares " that the seduction of any female of good rei)ute, under twentyrone years of age, with illicit connection under promise of marriage," shall be a misdemeanor. 5 The " good repute " of the female alleged to have been seduced is thus made an essential ingredient of the offense, and hence it was not only necessary that it should be specially averred in the indictment, but it was incumbent on the Commonwealth to prove the fact alHrmatively by such evidence as would justify the submission of that question to the jury. The ordinary presumption of her good reputation for chastity, without more, was insufficient for that purpose." This was conceded by the learned judge in his answer to defendant's request, requesting him to charge, "that as the Commonwealth has offered no evidence that the prosecutrix was a woman of good repute, there can be no conviction." It was also conceded in the same con- nection that there was no direct evidence on the subject of good repu- tation ; but the point was refused, and the jury were instructed, inter alia, that if the Commonwealth failed to show "good repute, or what is its equivalent," there could be no conviction. It must be shown " that the prosecutrix was a person of good repute," or that she " had always maintained a good character for chastity. One or the other of these is necessary ; and their existence may be inferred from general evidence offered by the prosecution." In thus instructing the jury and submit- ting the question to them on insufficient evidence, we think there was eiTor. It is " the good repute " of the female seduced, and not eome- thing else that may be regarded by the jury as "equivalent" tnat is 1 Whart. Cr. Ev. (8th ed.), sec. 50; Snyder V. Commonwealth, 85 Pa. St. 519. State V. IIigdon,32 Iowa, 262; State v. Wells, 48 Iowa, 671. 3 WU8on 17. Sprottl, 3 P. A W. 49, 53. * Whart. Cr. L. (8th ed.), sec. 1757. <> Purd. 826, pi. 6«. • West V. State, 1 Wis. 199; 1 Bish. Or. Pr. 1106. ALS. 1 to support it tte character is a it has been nesses on part )f the e .ducetl I l)cen adduced but it would 1 the presump- 'cn then direct ive evidence is I inferred from ; expressly tes- urt. tiicted declares dcr twentyrone larriage," shall alleged to have lie offense, and ally averred in realth to prove the submission n of her good that purpose." to defendant's monwealth has )f good repute, the same con- of good repu- Qstructed, inter pute, or what is be shown "that le " had always ither of these is eneral evidence iry and submit- think there was , and not aoine- valent ' ' tnat is cl.))Sec. 1757. .199; 1 Bisb. Cr. Pr. CARrENTEU f. PEOPLE. 73: made an element of the offense. Tlieie is no doubt whatever an to the meaning of that expression as used in tlie statute, antl neitlier court nor jury has a riijht to determine " what is its eciuivalont." Tlie testimony introduced by tiie Cominonwcaltli tended to prove otlicr ingredients of the offense; but it was not offered for the purpose of pri)ving reputa- tion, nor had it scarcely the sliglitest tendency in tliat direction. Tiiere is a well recognized mode of proving general reputation and the Com- monwealth should not be permitted to ignore it without cause, especially incases lil««» chaste and pure In conduct aud prinaiple. up to the time of the commission of the offense. 73«) CUIMRH AOAIN8T THB PEUSONS OF INDIVIDUALS. C„„„t,,u„c,cnuc -;-!';; ;,„r:e7:C"> «... «.» .,e,cn„.nt passea March 20, 1848 lue i unlawfully ami feloniously in- lua, on the 20th day of ^uj,- t H- •) unla j ^^_^^^.^^ ^^ ^ ^^^^^^^ veigle, entice and *f -;yj;;,^ e'" rLo«isa M. Sawyer, from the of ill-fame, assignation or elsewnere o ^^^ ^j^^ Uouse of JosephSawyer her ^^;J^^ ^"^^^ chaste charac- thesaid Louisa being an ""™* f,~^^^^^ ^.^ainst the peace, etc. ter, and under the -g'',^'.;!^" ^^^ .^^^.gl.bstantially tl.e s^^ -:rt:d=r^^25^ ^:ZZ:Z ::r:^:S^: - -need to t.o .ar. impris. onracnt in the State prison at Auburn. ^^.^^ j^j Upon the trial evidence was g.ven to show t^^^^^ the « ^^^^^ ^^ Sawyer left her father's -^f^ ^^^^^^^^^^^ and that June, 1849, by an arrangement ^^'^^^TLh him, first at the house of she immediately went to hve and cohabit '''^h him ^^^^ one Aviline West, in the town of >apl s - ^^^^^'^^ ,,„y. jt .as afterwards in the town of Hume in '« ^^jy.^*^^ „=„di„g and co- proved that after she ^^f^^^^^t .h^^^^ that she had habitingwith the defendant, ^"*/j;.\7^ ^^j^^r person than him. It cohabited or had illicit if ^^f .^^^^ iX habit of visiting the said appeared that the defendant »;;^dj>; -J^; ^^ ^^^ ,^,, ^.^e as afore- Louisa for a considerable length of time b^fore^ intercourse with said, and that up to the time «' f ';^^^^^^^^ , but the witnesses the defendant, her reputation '^^jj^^ ^^^^^^^^^^ ^ the time she left testified that her reputation after that and ^ow ^^ ^^^^.^^^ ^^^^ home in June, 1849, was not good J^e «^™« J ^^^^,. ^.^ ealled they never knew of her reputation «r ^^/f ,^^^^^^^^^^ At the close of in question, except in ^^^ Veo^l ^^^^^^^^^^^^^ the defendant the evidence on the part of the ^^^i^^^^e ^^^^^ .oved for his f^^^'^^^'^^^^Zf^^^^^^^ ^^« -^ there was no evidence that at the ti™^ °; * ^ ^ ^1^^^ on the con- Louisa was in fact a l^^ f ^.^/^^^^^^^^^^^^ bad at trary there was evidence tha ^^^^J^ that the female should be rr^ay ^^ r ::;« f -^^ -a?r ir\:^^ l^rfM UALS. her livliBcrtmlnale twliliintlioBtalute- sions of Ontario tion as ft crime," I tbe defendant 1 feloniously in- ution at a house awyer, from the ja then was ; she us chaste charac- i the peace, etc. antially the same )t guilty, and the Id in May, 1850, wo years' impria- e said Louisa M. ntario County, 'n ifendant, and that •St at the house of ty of Ontario, and illeghany. It waa , boarding and co- lence that she had srson than him. It of visiting the said left home as afore- id intercourse with ; but the witnesses to the time she left nesses testified that jhastity being called nt. At the close of bI for the defendant g other things, that I abducting, the said but that on the con- chastity was bad at the female should be a house of ill fame, hat she went for the at did not sustain the CARPENTEK V. PEOPLE. 737 requirement of the statute in that respect. The motion was denied, and each of tiie points overruled by tlio court, and the defendant's counsel excepted. Evidence was then givou on tiie part of the defend- ant for the purpose of showing tiiat in the ^-oar IHKi, and before her acquaintance with the defendant, the said Louisa had illicit intercourse with a young man, and also that she had repeated acts of illicit inter- course with the defendant before tlie alleged al)duction in June, 1849, and during the year 1H48, and that when she left homo in June, 1849, she went voluntarily, and not at the instance or request of the defend- ant, and that she had since lived and cohabited with him, and with no one else. The evidence sho'^.'d that the said Louisa was about twenty- three years of ago at the titi.cshe left home in June 1849. After the case had been summed up bj' the counsel for the defendant imd the coun- sel for the People, the court charged the jury at lenftu upon the various questions of law and fact in the cause ; upon which charge the defendant's counsel took a variety of exceptions. Such parts of the charge excei)ted as are material to be stated appear in the following opinion. After judgment in the Sessions, the defendant brought error to this court. E. G. Lapham and H. It. Seldeti, for the plaintiff in error. S. V. R. Mallory (District Attorney of Ontario County), and A. Warden for the People. By the court, Welles, P. J. The statute under which the defendant was indicted and convicted, declared an act to be a misdemeanor and highly penal, Avhich was not recognized by the common law as a crime against the public. By all rules of construing statutes of that charac- ter, it should not be held to extend to oases which are not clearly within its meaning and objects. The statute is in the following language : — " Any person who shall inveigle, entice or take away any unmarried female of previous chaste character, under the age of twenty-five yeani, from her father's house or wherever she may be, for the purpose of prostitution at a house of ill-fame, assignation or elsewhere, and everj' person who shall aid or assist In such abduction for such purpose shall be guilty of i^ misdemeanor, and shall upon conviction thereof be pun- ished by imprisonment in a State prison, not exceeding two years, or by imprisonment in a county jail not exceeding one year. Provided tlat no conviction shall be had under the provisions of this act on the tp (i- mony of the female so inveigled or enticed away, unsupported by other evidence, nor unless an indictment shall be found within two years after the commission of the offense." ^ 3 Defences. I Sesa. Laws of 1848, ch, 106, p. 118. 47 738 CHIMES A0AIN8T THE I'EKSONS OF IXUIVTDUAL8. Upon the foiuliision of the evidence the court be' w chargecl the jury, " tliiit tlio term ' take away ' used in the act in question does not mean an actual manual caption, or personal assistance, or forcibly ; but it must be construed in connection with the other parts of the section and with reference to the words ' inveigle ' and ' entice ' which imme- diately precede it, that a person may come within tlie act who in any manner aids or assists the female in going away, oven if slio persuades him to assist, and he does so for the purposi's menti(jnc'd in the a( is within the meaning of tlie term ' take away.' " The offense described in the statute is the inveigling, enticing or tak- ing away of an unmarried female, etc. , or aiding or assisting therein. It is in the same section called " abduction." In the legal sense, that word signifies the act of taking and carrying away of a child, ward, or wife, etc., either by fraud, persuasion, or by open violence. In one view, the ftuse would be within the statute, where the party accused aids or assists in the abduction of the female for the purpose of her prostitution, although she consents thereto, or even when slu^ persuades him to take her away. He might in such a case, aid or assist in the abduction as really and actually, as if she should be taken away against her will ; and he can not excuse himself by the plea that he was per- suaded to commit the offense. These remarks, however, must be understood with this important qualification ; that the aid or assistance by the person charged, is rendered to some other, who is guilty r 'le same offense, the very words, aid and assist, imply another a( agent. When one person renders aid or assistance, it is to some o^. -v. He is regarded as an auxiliary, acting in subordination to a principal. Thus, if one person by inveigling or persuadmg, obtains the consent of the female to go away for the purpose of prostitution, and she there- upon at the request of, or by uniting with her seducer, persuades another person to take her away for the same person, such other person is guilty of aiding and assisting in her abduction. But if the female of her own accord, decides to go away for the purpose mentioned, and a person at ber request and upon her persuasion furnishes her with the means of going, or carries her away, it can not, I apprehend, be said that he is guilty of aiding or assisting in her abduction, for the reason that in such case there would be no abduction within the meaning of the act. It does not appear by the bill of exceptions, that any one besides the defendant and the female in question, was engaged in the supposed abduction in this case. It appears that evidence was given on the part of the defendant, to show that when she left her father's house in June, 1849, she went voluntarily, and not at the instance or request of the defendant. This might all be, and the defendant be guilty of her ArfM UAL8. w charged the cation (toes not )r forcibly ; but I of the section ! ' which imme- act who in nny f siio persuades d in tlie a( enticing or tnk- isisting therein, egal sense, that child, ward, or )lcnce. In one I parly accused purpose of her n she persuades or assist in the en away against hat he was per- 'ever, must be lid or assistance is guilty r 'le nother a( s to some ov. ./. n to a principal. IS the consent of 1, and she there- ucer, persuades iich other person if the f cmalo of lentioned, and a hes her with the irehend, be said Q, for the reason 1 the meaning of r one besides the in the supposed ;iven on the part 's bouse in June, ir request of the be guilty of her CARPENTER V. I'EOri.E. f.'MJ abduction by hia previous acts of inveigling and enticing. Evidence was given to show, that when she left her father's house, nt tiie time mentioned, it was by arrangement with the defendant. If the jury so heli.^vcd, and that her consent to go was procured in the manner and for the jturpose mentioned, the indictment was sustained in rcs[)e(l to tlie defendant's instrumentality in lier abduction. So far as the charge on this point is applicable to the prouf in the case, 1 tiiink it unobjectional)lc. If the language was unguarded, or tiie views of the court even erroneous upon an abstract question, it can not be a ground for reversing the judgment. With respect to tlie character which the female must possess, in order to constitute the statute offense by the individual taking her away, tlie court below advised the jury that the t*. !. '• previous cliaste character," in the act, did not relate to or mean actual jersonal virtue ; that if the female was known as a person of chaste diameter and reputation at the time of tiio abduction, thougii it siiould turn out on tlie trial that she had, several years previous to the alleged abduction, been guilty of a single instance of unchaste intercourse, it would constitute no defence. In this part of the charge, and particularly wherein the jury were instructed that the terms " previous chaste character " did not relate to or mean actual personal virtue, we think the court erred. Character is defined by Webster to be " tlie peculiar habits iiuiircssed by nature or habit on a person, which distinguish him from others ; " these con- stitute real character, and the qualities ho is supposed to possess, con- stitute his estimated character or reputation. Evidence has been givsn to show that the female in question had illicit intercourse with a j'oung man in the year 1846, and before her acquaintance with the defendant. Under the charge given then the jury would have been justified, as far as respects this particular question, in convicting the defendant, although, they believed, from the evidence, that the female had been in the constant habit of unchaste intercourse, without the concurrence of the defendant, up to the time of the alleged abduction ; provided it had not become sufficiently known to affect her reputation. We think the words referred to, do mean actual personal virtue — that the female must be actually chaste and pure in conduct and principle, up to the time of the commission of the offense. Not that this must be the case up to the moment of taking her away for the purpose men- tioned, but that it must be so up to the commencement of the acts of the party accused, done with purpose indicated, and which result in such taking away. Tlie process of inveigling and enticing may be the work of time, and when commenced, the female must be of chaste char- acter in the sense above defined. Tlio word " previous," in this con- nection, must be understood to mean immediately previous, or to refer »,,,«»ef»»*l,ia«a««- la , .4 ** " ^ -33 740 CRIMES AGAINST THE rEUSOXS OF INDIVIDUALS. to a period terminating immediately previous, to the commencement of the -uiltv consent of the defendant. If tiie female has previously fallen from virtue, but has subsequently reformed and become chaste, there is no doubt but that she may be the suV)ject of the offense declared m the statute. If the charge had been thus qualified, it would have been unobjectionable in this respect. Tlie evidence tended to show that this female had thus fallen, and the charge made the question to turn upon the fact, not of her repentance and reformation, but of the discovery by the community of her sin. The statute uses the expression " pre- vions chaste character," not previous cliaste reputation. The charge substitutes reputation for character. Reputation may be good evidence of character, but it is not cliaracter itself. I do not see why it would not be a consistent and logical inference from the ruling of the court that a female perfectly pure in heart and life, but who at the time of the abduction, through malice and falsehood, sustained a bad reputa- tion could not be the subject of the abduction punished by the statute. Indeed, this would seem to be the inevitable consequence of the doctrine of the charge. , ^.i *. • The court below, among other things, instructed the jury that in recrard to the purposes for which the female must be taken away, the statute means the same as though the words -for the puipose of pros- titution " only had been used, without the addition of the wordb, " at a house of ill-fame, or assignation, or elsewhere," the term, "or else- where," neutralizing the effect of the terms " at a house of lU-fame or assignation," and leaving the effect of the law the same as though the expression, " at a house of ill-fame, assignation, or elsewhere," had not been used. . , .... u- u This view, as to the interpretation of tliat part of the statute to which it relates, may be strictly correct, and I can hardly agree with the learned court by whom it was pronounced, without some qualification and explanation. I think it will hardly do to say that the words, " or elsewhere" have the effect to neutralize entirely the previous words, « ' at a house of ill-fame or assignation. " I think the latter expression has an important meaning, and serves as a key to the evils against which the act was intended to operate. It may be that the act should receive the same interpretation as if the indication as to where the purposed prostitution was to take place had been omitted. It is frequently the case that certain words may be left out of a statute without changing its meanin^r; and at the same time by retaining them, the meanmg of the Le-nsirture is more easily and certainly ascertained. Such is usu. ally the object and use of recitals to statutes. In the present case, I think the words in question may be referred to as indicating the kind of prostitution which it was intended to prevent. By the word pros- ^^i tVIDUALS. le commencement of has previoHsl}- fallen eoonie chaste, there 3 offense declared in , it would have been led to show that this uestion to turn upon but of the discovery he expression ' ' pro- itation. The charge lay be good evidence not see why it would c ruling of the cou^t t who, at the time of tained a bad reputa- lished by the statute, [ueuce of the doctrine ted the jury that in it be taken away, the the puipose of pros- a of the wordb, " at a ' the terra, "or else- a house of ill-fame or le same as though the )r elsewhere," had not )f the statute to which lardly agree with the out some qualification y that the words, " or y the previous words, le latter expression has le evils against which the act should receive ;o where the purposed . It is frequently the itute without changing them, the meaning of srtained. Such is usu. In the present case, I 3 indicating the kind of t. By the word pros- CARrKXTER V. TEOPLE. 741 titiition in its most general sense, it is the act of setting one's self to sale, or of devoting to infamous purposes what is in one's power, as tlie prostitution of talents or abilities, the prostitution of tliij press, etc. In a more restricted sense, the word means tlio act or practice of a female offering her body to an indiscriminate intercourse with men ; the comnion lewdness of a female. The introduction of the words, " at a house of ill- fame or assignation," in the connection where they are found in the statute, leaves no doubt as to what kind of probtiiution was intended. And although, as before suggested, the meaning would have been sufficiently plain without tliem, yet it was well to introduce them in order to prevent cavil or doubt. The statute, by declaring that in order to constitute the offense, the female must be taken away, etc., for the purpose of jirostitution, at a house of ill-fame, assignation, or elsewhere, has plainly indicated that tiie prostitution which the Legislature had in view was that of the female to the lustful appetites of men at any place where prostitution of the character common at houses of ill-fame or assignation, is practiced. I have bestowed more attention upon this branch of the charge than it otherwi«r 'vould have demanded, for tlie reason that I regard it the starting pui III of error in the court below, which led to a misconstruc- tion of the statute, and resulted in the conviction of tlie defendant. The jury were instructed that the}' were to judge in regard to the mean- ing of the term " prostitution," and ihat they were to give to the ex- pression *' for the purpose of prostitution," its proper signification. In this, the court casts upon the jury a responsibility which does not ap- pertain to them. The idea which has become somewhat current in some places, that in criminal cases the jury are the judges of the law as well as the facts, is erroneous, not being founded upon principle or sup- ported by authority. Courts of record are constituted the sole judges of the law in all cases that come before them. The court below, so far as they intimated an opinion as to the mean- ing of the word "prostitution," as used in the act, gave the jury to understand that it was not necessarily the indiscriminate intercourse of the female with men, but that it might be understood as equ.valent to a state of concubinage, or the condition of a kept mistress. These terms are not employed in the charge, but its language can leave no otlier impression upon the mind. The jury was left at liberty to understand the word in that sense. This, we think, was the great eiTor of the court below. All lexicographers agree substantially with Mr. AVebsterin his defini- tion of the word prostitution, as heretofore stated. It is uniformly' de- fined as being t'.ie acts or practice of a female offering her body to an indiscriminate intercourse with men. A prostitute is a female given to 742 CRIMES AGAINST THE TEUSONS OF INDIVIDUALS. »f A« a verb, its definition is to offer IndUcrimiDate lewdness, « '"T '";' .„f ' J,;^;! As m adjective It >"^^^;^ e*e, cea. u,at .^^ ^:^::::^'Z '^.2 rt:r::rra":=^^^^^^ tlie act. . ^ „„^ r.liairrr;rt:tr"°th^ ,»„« c t^. .w, and ..^. *^'^-t n :::*!::: : rderint:::i'tha. ^e „.d s,nce tarily and not at the instance oi t ^^ ^^^^ ^^.^^^ Uved and -babij^^ -^\'\" ^f,^^^^^^^^^^^ And of her alleged abduction -^^ JJ "^^^^j;^^^ °^,„ty to convict the defend- yet the charge of the court left the ^""'l^^^^^J i„ t^r abduction. L, although that -^-^^^"f;^:r^^^^^^^^ We think the objects of he ^^''^"f """' ^^^ ^^^ to arrest, as far tect females of the «i-«"P^-^",^"^;\tse a^s oJ iniqu^y and poUu- as might be, the evils <^!^-^^^^ ^^''^nZ^ towns are infested. tion with which our cities and ^^^^ °* ^T ' „f.. _ ^ff one essential called houses of ^-^^^^f^J^ in its nature. source of supply of victims that it ^» * '* .j already within designed the more ^^^^'^^^''yj ZZ'^^^^^^ a private char- its vindictive cognizance; and not to pumsn ^ithaview acter however great its enormity which --^J^^^^^^^^^ ^^^ that its to promote a practice previously recognized *«^ «'""«' . ^ ,^, principal ultimate aim was ^^^^^^^^^^^1 J^oUble. We granted. •UAL8. ANDRE V. STATE. 743 nition is to offer 8 an adjective it ess or infamous jtion, as used in tute the offense or the purpose of That such must restitution within ■ names which are luise between the live in a state of becoming a pros- I law, and without ven to show that 1819, wentvolun- that she had since :hat was the object I the statute. And convict the defend- e in her abduction, itation were to pro- ind to arrest, as far ' iniquity and pollu- towns are infested, [ig off one essential lative in its nature, evils already within ;e of a private char- nmittcd with a view I crime ; and that its ctic - which " e law ind indictable. We rsed, and a new trial SEDUCTION — MEANING OF "PREVIOUSLY CHASTE CHARACTER." Andre v. State. [5 Iowa, 389; 68 Am. Dec. 708.] In the Supreme Court of Iowa, 1857, 1. " Character " In Seduction statute prescribing that woman be " of previously chaste character " signillcs that whicli tlie person really is, in distinction from that which she may be reputed to bo. To est.iblish unchaste character of unmarried female on trial of indictment for seduction, it is not necessary to prove that she has been guilty of prcvions sexual intercourse, it Is sufllcient to show that she has been guilty of obscenity of language, indecency of conduct, and undue familiarity with men and the like. 2. " Previous Chastity " in the Seduction statute would signify mere actual chastity or freedom from sexual intercourse, but " previously chaste character" does not signify merely this, but also purity of mind and innocence of heart. Indictment for seduction, under section 2.586 of the Iowa Code which reads: "If an y person seduce and debauch any unmarried woman of previously chaste character he shall be punished by," etc. Tlie defendant was cpnvicted and now appeals. The opinion states the case. Cook, Dillon and Lindley, for the appellant. Samuel A. Rice, Attorney-General, for the State. By the Court, Woodward, J. The first error assigned relates to the instruction that " unchaste character, as understood in a case of this kind means sexual intercourse." And this presents the principal ques- tion in the cause. In the cases cited by counsel and to which we shall have occasion to refer, there is considerable inaccuracy of language and a confusion of terms, which it is desirable to avoid as far as pos- sible. Thus the words " character " and " reputation" are sometimes used as sj-nonymous. There is a real difference of meaning between them and in it case of this kind it is important to preserve the distinc- tion. According to Webster, " character " signifies the peculiar quali- ties impressed by nature or habit on a person, which distinguish him from others ; these constitute real character and the qualities which he is supposed to possess constitute his estimated character or ' ' reputa- tion." And then he defines reputation to be good name ; the credit, honor or character which is derived from a favorable public opinion or esteem, and character by report. It is very true that the word " char- acter" is often used colloquially in the same sense as rep'itation; and so it sometimes is by writers not aiming at accuracy of expression, but such is not its true signification. And in so important an instrument as a statute defining a crime, it must be presumed the Legislature used the term in its true sense, unless the context renders another necessary. h 7-14 CRIMES AOAINST THE I'EUSONS OF INDIVIDUALS. In the instance of the present statute, the consequence might be too serious to allow this confusion of terms ; since one who had done another one of the greatest wronjis might escape his just punishment upon the strength of a mere slander, and that, too, possibly origmatmg with ^'wfthink the statute intended to use the term - character " in its accurate sense, and as signifying that which the person ready is, in dis- tinction from that which she may be reported to be. But the quest on made in the first assignment of error is whether this word mvolves the Ttual commission of the unchaste act. There are dimculties on bo h "des of the question, and it is not easy to find a satisf^vc- ory cone usion But, after a fair examination of the question, we are of the opinion that the court below erred in holding that the words mean "--^J -;- course " - by which the court meant that in order to acquit the defend- ant the jury must believe that Catherine Falloon had previously been guilty of the unchaste act itself. Besides the above expressions used I gfve definiteness to the words, the court said : ''By previous chaste character the code means personal chastity - actual character. Bu Z the use of the expressions "sexual intercourse" and ' personal chastity" it might have been doubtful whether the court intended to carHe definifion so far, for the term ''actual character" does no Lithe mind; and in another portion of ^be instructions t.e court says: " The general reputation of persons in the neighborhood where they reside is good evidence as to character," etc. And again: "The defendant may, however, show that the prosecutrix was not of previ- o:X Iste cLacter, either by proving an actual want of chastity o„ her iart or by showing her general bad reputation for chastity ; and TZm not be easy t"o suppose that the court means that reputation could be received to prove the criminal act Itself. ^ ^., „ The language of the statute is not, a woman of " previous chastity but such we should suppose, should have been its language had t^s been the meaning intended. We suppose the word " character was desfgned to have" its proper force, and that -«-^;°g *V^ rthf^ nification. If the statute is understood to require actual chastity, then rwoml guilty of lewd conversation and manners - guilty of lascnn- ou9 acts and of indecent familiarity with men - is an object of its pro- tection equally with one who is pure in mind and mannera ;«°^) blithe pilmptL Arising from the commission of the act would aUach o L defendant in the one case as strongly as in the other. We can not think that a female who delights in lewdness- who is guilty of every indecency, and lost to all sense of shame, and who may be even themistress of a brothel-is equally the object of this staUite (if she has only escaped actual sexual intercourse) with an innocent and pure JALS. ! rnigbt be too id done another nishment upon originating with liaracter ' ' in its really is, in dis- iiit the question n-d involves the Rculties on lioth ;tory conclusion, the opinion that 1 ' ' sexual inter- jquit the defend- previously been expressions used r previous chaste haracter." But ' and " personal ourt intended to L-acter" does not ictions the court ghborhood where ^nd again: "The vas not of previ- mt of chastity on r chastity; " and IS that reputation revious chastity" language had this ' ' character ' ' was ing to its true sig- tual cliastity, then - guilty of lascivi- i object of its pro- kuuers ; and all the ct would attach to le other. We can — who is guilty of I who may be even this statute (if she innocent and pure ANDRE V. STATE. 745 woman ; and that a man is equally liable under the law as well in the one case as the other. The statute is fur the protoL'tion of the pure in mind, for the innocent in heart, who may have Ijeen led astray, si'duced from the path of rectitude; and the jury are the sole judges iu each case wlio comes within this description. Under this construction of the " statute obscenity of language, indecency of conduct, and undue famil- iarity with men, have more weight thim under the other view. They serve to indicate the true character ; they become exponents of it ; and a defendant is not punisheil for an act with one whose conversation and manners may even have suggested the thought and opened the way to him, as he would be for the same act with one innocent in mind and manners. But we de.«Te to guard against a conceivable wrong inference. Whilst the demeanor, the acts and conduct, with the conversation of a woman, may be sliown and considered in order to arrive at her character, and are the usual means where she is not sliown to have committed the act of unchastity, still the jury are the sole judges of the actual cliaracter of chasti.„ . No particular amount or degree of such manners of con- versation can be set down as conclusive evidence of an unchaste char- acter, but the jury must determine whether, uuder the facts shown, the real character be thus. It is not every act of impropriety, nor even indecency, that should alQx this stain upon a female and deprive her of the protection of the law. Persons differ in their manners and tone of conversation, in tlieir education, and in their manifestation of character. Some are much more free and unrestrained than others, whilst we have no more doubt of their purity in the one case than in the other. Some are quite free with their acquaintances and intimates, and at tlie same time are above suspicion of wrong. It becomes, therefore, one of the highest and most solemn, as well as the most delicate, duties of a jury to judge of the proofs of sucli acts and words with tlie utnioit intelli- gence, care, and freedom from bias, that a female, innocent in truth, and of actual purity of mind, may not suffer as a guilty one, from a few light and inconsiderate words or acts which may be consistent with an invincible purity and integrity of heart. And it will not be improper to cnjom it upon the juries of our State to examine with extreme caution into q^uestions of this nature — not to judge hastily nor lightly, but to guard with ever a jealous care the reputation of those whose reputation is their all. Finally, it seems to me that if tlie Legislature intended as argued by the prosecution, it would have used tlie phrase " a woman previously chaste," or " of previous chastity," or tlie like, which are the directly natural words to express the idea of actual chastity, or chastity in fact. These words seem to us very simple and natural for the purpose and to 74(1 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. be free from ambiguity, and we can not avoid the conclusion that the statute intends something different by the use of the word " character." In this view we are supported as we think by the case of Carpenter v. People.^ The case of Crosier v. People,'^ coincides with the views above 'expressed, insomuch as it says : "That it is a question of character, not of reputation." But it appears to raalie the word "character" call for actual chastity ; and yet it cites Carpenter v. People,^ as supporting the view there held. This case of Crozier v. People,* is at the best, ambiguous. The case of Sofford v. People,'^ so confounds tlie meaning of terms, and is so peculiar in its reasoning that we would not venture to cite it as an authority sustaining either view. In conclusion upon this point, we are of the opinion that the District Court erred in the meaning given to the expression " chaste character." The second error assigned is to the instruction that in the absence of proof chastity will be presumed. We think the court did not err in this, especially in view of the sense which it gave to the foregoing words. Neither do we conceive it to be error when regarded in the sense which this court attaches to tlie phrase, "chaste character." To determine this question of presumption it becomes necessary to choose between two rules and define which is applicable to such a case in such a state. One of the rules referred to is that one which requires the prosecution to prove all those facts, circumstances and qualities which go to make or constitute the offense. The other rule is that which calls for a presumption of innocence, rectitude and gorr: acter generally. The defendant argues that to presume in favor A *i.e character of the woman in this case is to presume against his innocence. But, to our minds, this is not so. He will be presumed innocent of the fact — the act charged — whilst the presumption may be in favor of the rectitude of her character. And there seems to us no inconsistency in applying these presumptions in this manner. If the prosecution were held to show such a character in the first instance, the lightest amount of evi- dence would be sufficient to make a prima facie case, and the burden would still be on the defendant ; and there does not seem to be much weight in the argument which is satisfied with this merely formal com- pliance with the rule, whilst on tlie other hand, there is a substance in the presumption of innocence and uprightness, which requires a force of evidence to overcome. The above cited cases from New York are placed upon the same ground, applying the assumption to chastity in fact, and arguing that chastity is the general law of society, and a want of it the exception.* And the same argument a,>plie8 with equ force 1 8 Barb. e03. a 1 Park. Cr. 4S7. > iupra. • $upra. s 1 Park. Cr. 474. • See Crozier v. People, 1 Park. Cr. 497. [JALS. lusion that the 1 " character." )f Carpenter v. Ihe views above f character, not ;haractcr" call 3 as supporting is at the best, ids the meaning uld not venture oncUision upon irt erred in the 1 the absence of , did not err in ) the foregoing regarded in the iliaracter." To jssary to choose h a case in such ich requires the qualities which that which calls acter generallj-. character of the ce. But, to our if the fact — the of the rectitude ency in applying ion were held to ; amount of evi- , and the burden seem to be much rely formal corn- is a substance in I requires a force m New York are ion to chastity in ciety, and a want with equ force )ple, 1 Park. Cr. 457. ANDRE V. STATE. 747 to chastity of character. It does so, of course. They arc the same thing in substance when regarded in relation to this rule. It is our opinion that the presumption of a '' chaste character " extends to the woman in the case, anil that the contrary is to be shown. The third error alleged in the instructions " that the corroborating evidence contemplated by the statute ^ is not confined solely to the proof of the fact of illicit intercourse, but extends to proof of other mate- rial facts, such as the illegitimacy of her child, the regular and frequent visits of defendant to the female, his being alone with her at late hours of the night, and his confessions made to others on the subject," etc. This instruction is supported directly by Crozier v. People,^ and we con- cur in the view taken. This point requires no enlargement. Facts showing intimacy, opportunity and inducement (if we so say) certainly tend in some degree to corroborate the witness just as truly, though it may be, not in the same degree as proving an alibi at the time sworn to would go to discredit her. The weight and value of such evidence is for the jury to consider, and it is for them to draw their conclusion accordingly. The matter of the third assignment is embraced in the fourth with a possible shade of difference. The court declined giving the second in- struction precisely as asked but modified it somewhat. That requested to be given related to section 2999 of the Code, and was that— " this corroborating evidence should be of a character that goes directly to the commission of the offense." The court struck out the words " to the commission of " and instead thereof inserted these : " to strengthen and corroborate the testimony of the injured person and to point out the defendant as having committed " the offense. The language of sec- tion 2999 on this point is : " unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense." The aim of the defendant's counsel undoubtedly was to require the cor- roborating evidence to point and connect with the commission of the precise act itself — the act of debauching — whilst the view of the court seems to have been that the corroborating evidence need not point directly to the act, but might in its direct aim point to the circumstances surrounding the parties, as to the intimacy, the opportunities, and to any facts which " tended to connect the defendant with the commission of the offense ;" which last is the language of the statute. We should say that in the second instruction asked the counsel looked principally to the act of debauching, whilst the court looked to the whole offense, which consists of both seducing and debauching ; and the latter we think the more correct view and nore consonant with the intention of the statute. The fifth assignment of error relates to the refusal of the court to give the eighth instruction requested by the defendant which so far as I 860.2999. 8 1 Park. Cr. 4M, 748 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. it is needful to refer to it for the present purposes wns that " no chaste antl virtuous girl would allow a man to take improper liberties with her person without resenting it at once ; where an unnmrricd femnle so far forgets what is due to her sex as to take improper liberties with a man such as unbuttoning his i)antaIoons and tlirusting her hands ir.io and upon his privates, or allow a man to feel of her breasts and legs, she ceases to bo chaste and virtuous, in contemplation of the law under wiiich this indictment is found." The instruction then proceeds to ask the court to charge the jury that the defendant is entitled to the bencflt of any reasonable doubt ; and therefore, if they have a fair doubt of her chastity tliey must acquit. There are two objections to this instruc- tion, ( 1 ) It takes too much from the jury, and makes it matter of legal sequence; and (2) It unites several kinds of matter in one charge so that it i* difficult to separate them. That part of the instruction which relates to certain supposed instances of conduct was matter belonging to the jury, and tlie court could not lay down, as a sequence of law, the proposition therein contained. That part of the instruc- tion which refers to a doubt on the mind of a jury might have been given, had it not been so interwoven with other and objectionable mat- ter. Therefore, on account of the error contained in the first instruction, the judgment of the District Court is reversed, and a venire de novo awarded seduction — undep promise of marriage — proof necessary. People v. Eckert. [2 N. Y. Cr. Rep. 470.] In the Supreme Court of Netv York, November, 1884. , The Defendant at the time of the Alleged Seduction was about sixteen years of age, and the prosecutrix was about six years olUer, anil a woman of very considerable experience with men of lier own age, and had known defendant from his boyhood. It Bp|>eared that the illicit intercourse was not confined to one occasion, but was deliber- ately permitted from time to time till within two months of the biMh of the child. It also appeared that prosecutrix had had confidential relations with many men to whom she had permitted unbecoming familiarities, and had conducted herself in a manner indicative of great laxity of moral obligation. Btld, on the whole case, that as the evidence was strongly against the prol)ability of the alleged promise to marry, and against the purity of character of the prosecutrix, a new trial must be granted. . Upon the Trial of an Indictment for seduction under promise of marriage, the defendant, who lias testified In liis own behalf, may be asked on cross-examination, for the purpose of affecting his credibility, if ho has had sexual Intercourse with a person other than the prosecutrix, and in no way connected with the action. Km'iiMW.imHtirrinirfc- ifv ■ '■■' i^^k /VLS. at "no chaste ?rti(>s with her fenifllu so far OS with a man ands ii:io and ami legs, she the law under rocecds to ask 1 to the bencflt fair doubt of o thisinstruc- iiiatter of legal one charge so le instruction jt was matter as a sequence )f the instruc- ght have been ictionable mat- 'st instruction, venire de novo F N£C£SSARY. 1884. It sixteen years of t very considerable m liis boyhood. It >n, but was deliber- til of the child. It many men to whom lersclf in a manner a case, that as the lise to marry, and le granted, se o( marriage, the iSB-esamination, for >ar8e with a person TEOPLK V. ECKEUT. 749 3, Defendant on Crosa-examinatlon, on the trial of nn indictment for Reduction, was, ill »ub«tiiiicc, nskt'cl if III! Iiud not sniit tn tlio fiitliur of tlio prdxccutrix that his own father hud uiilruthfully ^uid thiit he (tlio dufeiidant) would rut in ]nil licfore lie would marry proHucutrlx, aiicl liu deuied having so said. Held, that evideueu m coiitritdictiou of said denial wx coinpeleut. Appeal bj' defendant, George Eelvcrt, from a judgment i-oiivicting biin of the oriiiiu of seducing an unmarried female of pievioiis chaste character, under promise of marriage. Tlie defendant was indicted in tlie Coui't of Oyer and Terminer of Ulster County, November 24, 1882, the indictment charging the com- mission of said crime on Ma\' 13, 1881. The indictment was tiled in the Court of Sessions of said county at the June Term, 1883, before Hon. William Lawton, county judge, with associates, inula jury, and defendant was found guilty and sentenced to pay a fine of $425, and to imprisonment in the county jail till said fine was paid, imt for a period not to exceed one year. The following is tlie substance of the testimony taken at the trial : — Sarah Osterhoudt, the prosecutrix, sworn for the People, testified: I live in the town of Marbletown. Have known defendant fourteen yeai-s. I will be twenty-three years old the 24th of October next. Eckert, the defendant, will be nineteen this fall. He visited me at my father's house. Began to come and see me two years ago last March and came to see me until a j'earngo July. He asked me if I thought enough of him to marry him. I told him I thought he was too young. He <)aid no he was not. He said he was very nearly as old as his father and and mother were at the time of their marriage. I said I would marry him if be thought enough of mc. After that he asked me to have con- nection with him. It was in May, two years ago last May, I had con- nection with him. He said he did not believe he could. I said I did not want him to. He said he would. He asked me more than once to have connection with him bef oie ^ I did have. It was after midnight. Between the time he came to see me and the time the connection took place he was trying to overcome me. He asked me if I would have con- nection with him. I said I did not want to. He said he would ; that he would marry me and never go back on me. That is all he said. He had connection with me that night, and after that, up to until two months before the baby was born, which was a year ago last July 24th. Told him I was pregnant and asked him to marry me. He went away. He has never married me. I never had sexual intercourse with any other man. The child I had hereto-day is Eckert' a child. Cross-ex- amined : I was born in October, 1860. I was close to twenty-one and he to seventeen when he first came to see me. I had kept company there with gentlemen four or five years. I had beaux that paid atten- tion to me and took me out evenings. Would spend evenings with me •^a^s^^m^^m^^m&:;9^m^ssm^^^^^s^sm:^^^ .a 7.^0 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ::,„ Victor Chamber., «'-■ l'^'''""-,; '''^^ lit Iue"om k„„.„ Eokerfince he "-''"'' ^ .Ire ^i^ lie »rst erne Um. Went in company » f™' "J^' ^^^'^^'J,'" „„ „ay.- J arounfl me and 1 nau mine ■"t,;., Lr^laia"Le";,,o,.rt..»t night. Then be .ronn.1 him. f"""-' » „ ,„„ ,„e ,„„,■ times before he began ra:trrn.''-rtt i^Ai.,,. «•«......-.' »^^--- 1 was a bed n t « »«°^- j^ ^ .ji he had been trying to rcor;ie;:rr.na;to„'e vi^n. .^-rr-xr:.: „.,c,. .-J,;::^'^ - :t;X: .- o?;;:m'hrMsU me ana haa on some of the "'''" Z"^' /^^^ „„,, foited to me .l>out tliinlting . '■'"'VZl 7mf He G» ge Ilea me if 1 thought enough of Inm Tmnr^; l"ia him he L too young ; tijat i,i. father a^i mother trZ about it, ana he saia it m^e ^J^^;'^^i:ZT^Zl: :rre^:.^igrra-L-J^i^-^^^ "" r r«ta: rCa^mT her: ulTa.'*.. • ».>a .he "'"•-r^S™i:^^^s:m^:fra-^^^^^ riia":.t^.."HrarrS;nbri/.^eof .-year th^^^^^^^^ - "*- UALS. iny ft few times r ; once ft little n Vleet. They any a few times if a boy. Have »out a mile from He first came tayed until mid- ina connection, a kissed me. I lin in the middle id about marry- thfc next Sunday and I had mine night. Then he i before he began ly person and un- m come after he tried to force me »n with me first in !ry low, and there e had talked about ad been trying to •ce me. Only one bcrs. I have sat kissed me and had 16 about thinking a Tht enough of him father and mother e about them. He to have connection hatever. I did not r not. He said he t night. I said the my mind to marry me that night. The uil he got me nearly ten o'clock until af- was just overpower- of hours afterwards. 1 year that I was in ♦ Re-direct : The he would marry me, PEOPLE V. ECKERT. 7')1 and never go back on me, before he hftd connection witii me. I believed him. Have never been married. After I became pregnant he brought me medicine to take, and I took five drops of it. Be-crosa : I said I wa.H afraid he would not marry me. Didn't know whether he would or not. I was afraid first and then believed he would. I did consent to have connection with him in words. George went to school a few weeks the next winter after he came to see me. Joseph Osterhoudt, sworn for the People, testified: "Am Sarah's brother. • • • After I was informed she was pregnant George asked me about it. Told him I didn't know; hadn't seen iier in quite a wlille. He told me if it was, he would marry her. I found out it was so, and called him one side and asked him if he was going to marry her. He said he would not, unless he had to. It further appeared in behalf of the prosecution by the testimony of the parents and brothers of the prosecutrix, and otlicrs, that defendant had visited prosecutrix at her parents' house, and elsewhere, very often during the period referred to by her — as often as once a week — asking for her personally, and that upon such occasions he was generally alone with her. It also appeared that his visits ceased shortly before the birth of the child. Prosecutrix's father testified: "John Pk'kert, George's father, in October, 1881, came there (witness' house) and told the boy he would take him out of the house, dead or alive. He said it was time to break up the match ; th.it is the first I beard him say anything about his opposition to his coming tiiere." A witness for the prosecutiou '•'s < testified that defendant, prior to his indictment, left his place of residence and went to Pennsylvania, through fear of arrest for seduction ; that he returned in a few weeks. Defendant's refusal to marry the prosecutrix was also proved. Rufus Palen, sworn for the defendant, testified: "Lire in Rosen- dale ; am a quarryman. Have known Sarah Osterhoudt about six years. Knew Victor Chambers ; was with him and Sarah at McMullen's house ; the girls and their brothers keep the house. I think it was in 1876 ; it was in the night time ; we got there between nine and ten in the even- ing; staj'ed until towards morning. Tlie fore part of the evening Dhambers and Sarah sat on chairs. After that, they laid down on the bed in the same room. They lay there two hours, I should think. This was in the sitting room. The light was turned very dim. Do not know that she had any of her clothing off. Think he had his shoes, off. May have had his coat off. I don't know whether he did or not. Have seen him go with her from church different times. I don't know as I ever saw them go together except on thct occasion. Cross-ex- amined: I was there with a young lady. She was, as I supposed, a friend of Miss Osterhoudt' s. Supposed this was an ordinary case of 'i<«^^0Siii^it^»im^i'i^- 752 CKIMK8 AOAIX!*T THE I'EUSOXS OF INDIVIDUALS. country c-ourtins. I »lon't know as it struck uie that there was anything harmful about it. Wiieu I wan a youn^' man 1 courted tJmt way. I saw no impropriety, more thai. that. The other young la.ly and I were in the room at that time. In that regi.m of tlie co.uitry I have ofion turned down the li-ht myself. Tlic other hxdy and I lay on the sofa. George Eckert, sworn in his own bclialf, testified :— " I am the defendant. My father and mother are living. I live at home with them and always have. I was eighteen years old the 30th of last December. In March, 18^1, I wa^ sixteen. Was attendmg the district school that year and the next. Have known Sarah since I can remember. She told me she was twenty-two when I was sixteen. Knew Victor Chambers. I knew of his paying attention to Sarah. Saw them together in bed, at my father's house. Chambers and I slept to»■"«»« °'"' ::rra:?u:^:-/5'~^^^^ "=SeH'r ra^=.e • kept her co,npany after Ch»nbe«we^t J ^ ^_^^ ^ ^^ ^^^^ about uiidrnght. /»"%"°°\J^i^d,„ the room. Never took We didn't got on the bed. There was a Deo „„„„ection any liberties with he^ « -| f -'• ..^f, » ^'d herself liUe a with her Crojs-e™.™....^- f«'';'^„'™;3„„„ewhere about twelve ''^j'^r :%!■, w; w;„. toThX^^^^ ^-■«-'-- -f"' «"; "^' iTa/arne w^K her I fooled ,1th her to have Intercourse „th ""nannnh M. Hornbeok, sworn for defendant, testifled: I am a sister .T^brLkert Sarah has worked for me at different t,mes. Millard %^r^ to see her once, until «- -^Jf-f;; J^?: f^rm^rrXl.T.ri^uTe'rmelehadgotrldo. it • that she was two montl ; ^one. ??St^r^far»s:rrh.;^i ,atbe%.fh. would rotL ,all before ^' ^".^^^^ 'f^'^^J^f^ ^ ., fViot liw father was a damned liar :" i^ounsei lur S.:ro"erdr.hrgrr;;th.t . U a oonater., ma„er and .». material, and 'the People a-e concluded by the answer of „eorg.. Ob- Lotion overruled. Defendant eicepte. A. He did. )IV11)UAL8. iher 1 had connection 5 prosecution, denied d: Live in Marble- on lier. I decline to Cross-examined: I , lady in my prasence. because I didn't con- answer under atjy cir- Know Sarah. Have have been together each one sitting on a remained in the room together. There were )eople. Nothing more brace her as I saw and een alone together. I [ staid until somewhere sat alongside of her. the room. Never took never had connection )ehaved herself like a somewhere about twelve r. Be-direct : The first to have intercourse with testified : I am a sister [ifferent times. Millard fter midnigb*. George larab told me she was in Id me she had got rid of •pie, testified: • • * said that he had told his lid marry Sarah, and did nedliar?" Counsel for collateral matter and im- answer of George. Ob- He did." PEOPLE V. ECKERT. 755 Witnesses \;ere offered by the district attorney to prove the previous character and reputation for chastity of Sarah Osterhoudt, in her neigh- borhood, and the evidence was excluded, under exception. Ann Osterlioudt, re-called for the People, testified: Sarah lived at home in spring J 881. She was under my eye all the while. There were no indications of pregnancy. I did be washing. There was no discoloration of underclothing that would indicate miscarriage or abor- tion. Schoonmaker & Linson, for the prisoner, appellant. T. The con- viction is an absurdity. There was plainly such prejudice as should nullify the verdict. The testimony to which attention has been called shows the character of t'le complainant. Sha had been receiving for years the attentions of men much older than the defendant, some of whom, at least, had attempted to take undue liberties with her, and three of whom refused on oath to say whether or not they had sexual intercourse with her. She had known the defendant ever since he was a baby. He was a mere boy at the time she says he committed ' 3 Clime charged in the indictment. It seems impossible that any canc-id person can read the evidence and resist the conviction that she was the seducer. The jury convicted ; but they convicted the prisoner of being a bad boy, and not of the statutory offense. The former im- peachment he did not deny, and that was enough for the jury. They did not propose to sanction such irregularities within the boundaries of the virtuous county of Ulster. The fact that tiie sexual intercourse was not the crime, they never cared a whit for. They would have rv'ndered the same verdict had the charge been rape or incest. II. Both the statute in force at the time of the alleged seduction,^ and that which obtained at the time of the trial,® provide that there shall be no conviction upon the testimony of the female complaining, not supported by other evidence. The Court of Appeals has held that the corroboration to which it lofers, is as to the promise of marriage, and the carnal connection. It is respectfully submitted that in no case has a conviction been sustained in such testimony as was given in tbia case. 3 A. T. Clearioater, District Attorn' y, for the People. The prosecutrix was corroborated upon the questions of promise of marriage by all the testimony, and as to the intercourse by the de- fendant himself, who testified on bis cross-examination that he had had sexual intercourse with her. This was all the corroboration required by the statute, it not being necessary that she should be corroborated 1 L. 1848, ch. 111. i Penal Code. sec. 286. 8 Armstrong ». People, 70 N. Y. 44. CHI misjix 766 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. either as to chastity or as to being uumarried.i it was not necessary the corroborative testimony should be positive in its character ; circum- stantial evidence of corroboration was sufficient. 2 B...KKS J. The defendant was charged by indictment with the crime of seducing one Saraa Osterhoudt an '''^^^'''f^^''^f;;;^^JZ vious chaste character, under promise of marriage.3 On tl e trial the prosecutrix testified to the material facts constituting the offense charged, and that she became enceinte because of the ^^^^'^^onvso he- twee^ herself and the defendant. The fact of the birth of the child was undisputed. Evidence was also given of opportunity and proba- bility, such as the frequent meeting of the parties, when they wou d be alone together, and generally of the seeking by the defendant of pr- vate interviews, anl also of the besto.al by both of personal attention . Th^defenlantgave evidence in his own behalf , directly in conflic, on all material points, with that of the prosecutrix. His evidence f credited, would establish his innocence of the offense charged. Thus his credibility became a subject of groat, if not of controlling signifi- cance On his cross-examination, and with a view to this point, he was asked the question whether he had "been having sexual inter- course with Emma Sclioonmaker,"-a person i'\ ""^r^^y/^^^f^^.^^^ with tlie case. The question was objected to by the defendant s counsel, and the objection being overruled by ihe court, he answered "Yes " It is urged that such ruling was erroneous. But according to the very late decision by the Court of Appeals in People v. Irvmg it affords no just ground of complaint.^ The question here presented was carefully and fully considered in Irving' s Case in the light of the previous decisions in this State, and the evidence under the circumstances then and here existing, was held to be admissible within the discretion of the trial court. We need therefore only to refer to that case as decisive of the point there urged as ground of error. . ^ ^ , , On further cross-examination the defendant was, in substance, asked if he had not said to the father of the prosecutrix, on a certain specified occasion, that his own father had untruthfully said, that he, the defend- ant, would rot in jail before he would marry the prosecutrix; and he denied having so s.id. Proof in contradiction of such denial by he defendant was offered on behalf of the prosecution, and was admitted against objection. In this, we think there was no substaiitial error^ The evidence had a bearing upon matters in issue, in this : it bore upon 3 Law8 ol 188*. ch. Ill; Penal Code, »ec. 1 Kenyon *. People, 18 N. Y. 203 ; Crozler V. People, I Ptrk. 463 ; Armstiong v. People, 70 N. Y. S8. a Kenyon ». People. 26 N. Y. 203 ; Boyce v. Faople, 6fi N. Y. 014. 284 4 9S N. Y^. Ml ; 2 N. Y. Crlni. Bep. 171. 6 See aUo People v. Hooghkerk. 96 N. T 150 ; 2 N. Y. Crlm. Bep. 204. M«a DUAL.8. ras not necessary laracter ; circum- ictment with the id femtileof pre- On tlie trial the utiiig the offense le intercourse be- birth of the child tunity and proba- hen they would be defendant of pvi- lersonal attentions, iirfcctly in conflict, His evidence, if 36 charged. Thus controlling signifi- ' to this point, he ,ving sexual inter- no way connected y the defendant's court, he answered it according to the eople V. Irving,* it here presented was light of tlie previous circumstances then in the discretion of that case as decisive in substance, asked in a certain specified that he, the defend- prosecutrix ; and he ' such denial by the n, and was admitted 10 substantial error, in this : it bore upon ch. Ill ; Penal Code, sec. ! N. y. Crlrn. Bep. 171. pie V. Hooghkerk, 96 M. T Im. Rep. iiM. PEOPLE V. ECKEKT. 757 the question whetlier the defendant had made to the prosecutrix a prom- ise of marri.nge. It was, it is true, somewhat remote, but not entirely remote and disconnected with the issue and irrelevant to the offense charged as to preclude its contradiction. But the case is not, as wc think, without serious difficulty on the proof submitted. It is certainly a very peculiar one in some of its leading features. The facts, taken as a whole, must, to say the least, admit of strong suspicion as to the real existence of the imputed crime. Tlicy invite well-grounded criticism. The defendant was at the time of the alleged seduction under promise of marriage, a mere lad, a stripling, a schoolboy, but little more than sixteen years of age. The prosecutrix was nearly six years his senior, a woman of cumparativcly mature years, and according to the proof, of very considerable experience with men of about her own age. It can but be observed that seduction of the lad migiit probably be quite as readily accomplished as could be the seduction of the mature, reflecting, experienced woman. She had known the young man almost, or quite from his infancy ; must have known and appreciated the fact that any proposition of marriage from him or agreement with him to marry was of questionable propriety. She was not entirely untutored in the ways of the world, for, as she states, she had accepted the attentions of men while he was yet a " htlle bit of a boy." She was certainly qualified to give him good advice against wrong-doing, and well able in her maturity to resist vicious importunity, even under circumstances of stronger temptation. And this would be naturally expected, rather than that she should accept from one so young a proposal of marriage, and under a protestation of faithfulness to his promise to join him in the commission of crime. Nor was the illicit intercourse confined to a single occurrence under stress of circum- stances, but was deliberately permitted from time to time, even con- tinued, as she testifies, from " that night and after that, up to until two months before the baby was born." Is the case free from well grounded suspicion as to the integrity of the charge? If a seduction, it seems to have been a seduction with contin- unndo — a seduction regularly effected, in view of her maturity and of his immaturity; and most strange i, continued. The line of conduct as testified to by her, beginning witii the alleged promise of marriage, followed by continual intercourse for a considerable time, and indeed permitted long after pregnancy had ensued, seems inconsistent with any idea of the woman's seduction, holding in mind the provisions of the stat- ute which makes seduction a punishable offense. ' The crime denounced by the law is the seduction of a female of chaste character under piom- 1 See Penal Code, eec. 284. 768 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ise of raariiare. The law contemplates infraction of purity in thought and conduct. Now in tlie outset we are confronted with the unusual cir- cumstances of persons contracting marriage under an almost ludicrous disparity of acre, having in mind the nature of the offense cliarged ; the male just turning the period of pubescense, and the female ,i woman, as has been stated, of mature years and very considerable experience in the ways of the world, with knowledge, as we must infer, of usual moral and social observances, and of what are universaUy regarded aa the proprieties attending a matrimonial alliance. Besides these considerations, how stands the further and other proof bearing on the alleged contract of marriage, and purity of character both of which are necessary to the establishment of the crime charged in the indictment? It is in proof that the prosecutrix accepted atten- tions from and had confidential relations with various men ; not with one or two only, but with many. She permitted them unbecoming familiarities. Beyond dispute, she was free and easy with them to an extent indicative of great laxity of moral obligation. These statements as to the proof leave out of view the testimony of the defendant, and also that of the witness, Chambers, who was undoubtedly effectually impeached. But it may be noted, as it was proved by several witnesses, that the plaintiff w.as particularly and peculiarly intimate with this man who was shown to be lecherous and vile. The case on the reliable evi- dence bears hard on the probability of the alleged promise to marry, and of the purity of character of the prosecutrix. Before the defend- ant could be legally convicted, a case should be made against him on al material points beyond a reasonable doubt. We are of the opinion that no fair minded man can carefully and thoughtfully read the evidence here submitted without entertaining great doubt as to the defendan s guilt of the offense charged. We are dissatisfied with the verdict of the Turv We must conclude that they either misunderstood the provisions and requirements of the law applicable to the case, or that they gave the evidence undue force through inattention or misapprehension. We can not in conscience permit the conviction and judgment to ** Conviction and judgment reversed; new trial granted, and case re- mitted to the Ulster Sessions. Learned and Landon, JJ. .concur. ' "fJWW DUALS. RICE V. COMMONWEALTH. 759 lurity in thouglit h the unusual cir- almost luilicrous use charged ; the female .i woman, ible experience in t infer, of usual sally regarded as 2r and otlier proof iritv of character, the crime charged is accepted atteu- 119 men ; not with them unbecoming jy with them to an These statements ihe defendant, and ibtcdly effectually ' several witnesses, nate with this man )n the reliable evi- promise to marry, Before the defend- } against him on all of tlie opinion that read the evidence , to the defendant's h the verdict of the jtood the provisions J, or that they gave r misapprehension. 1 and judgment to ranted, and case re- seduction — corroborative evidence of woman's story — insufficient proof. Rice v. Uommonwealth. [100 Pa. St. 28.] In the Supreme Court of Pennsylvania, 1882. 1. In Order to Warrant a Conviction for seduction under a promise of marriage In accordanco with the provisions of the act of March 31, 1860,> there must be evidence to corroborate the prosecutrix, in regard to the promise of marriage. 2. The Fact that a Defendant charged with seduction is now allowed to testify in hit own behalf, docs not alter the law, in regard to the necessity of evidence corroborative of that of the prosecutrix, as to the promise of marriage. 3. What Ciroumatancee do and what do not constitute sufficient corroborative evidence to warrant a conviction in such case, considered. 4. Where In such Oaae there is some proof that the defendant admitted the promise to marry, it Is not error for the court to refuse to withdraw the question of seduction from the Jury. 5. Where the Court in ita Charse to the Jury states the same proposition of law twice, the first time correctly, the second time Incorrectly, it will be inferred that the latter statement is likely to have made a lodgment with the Jury and, in some instances, the judgment will be reversed on this ground. Before Sharsvvood, C. J., Gokdon, Paxson, Stekkett and Gueen, J.J., Mercur and Trunkey, J. J., absent. Error to the Quarter Sessions of Lackawanna County ; of January term 1882. Indictment against Frederick Rice, for the seduction under an al- leged promise of marriage of Margaret Robertson, under twenty-one years of age. On the trial before Handley, J., Margaret Robertson testified, on behalf of the Commonwealth that she was twenty years of age and had always resided with her parents in the village of Dunmore ; that she became acquainted with the defendant in 1878, and that for more than a year thereafter he " kept company," with her, generally meeting her at church on Sunday evenings and walking home, and remaining with her afterwards until after ten o'clock. That on three occasions the defend- ant went into the house and saw Mrs. Robertson, but they gener- erally remained outside near the gate. That in September, 1880, defendant invited her to take a walk, about nine o'clock in the evening, which they did, and that during their absence they had sexual inter- course, and that this was repeated about four weeks later. She gave birth to a child May 28th, 1881. Her testimony in relation to the alleged promise of marriage, prior to the seduction was that on both the occasions referred to the de- 1 sec. 41, Fampb. L. 394. mm mmmm imummmi M:- 760 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. fencHnt " went clown upon his knees and promised to marry her if she wo^d let him do what \e did do , " and that she would uo^hav. i^er- lutPd it otherwise. This testimony was not corroborated. Thei e was "Tber'o'w., no evidence indicative of an intenlion of ■"«"i»8= °" */ ,Jt of tT,e defendant other than the fact that he would meet her onceor ?:LI "rekand wallc with her, etc., witl, herparcntB^ Itnowledgc and "r":tcUrSed, Q. Te.,wh. the repn«,.n of ... ,.r. U r;i: rirof^oor :L"r;,r;t:;rnro. th. " regnUr ' ,n Dunnore ; I don't believe .1 went wita her over two or ''^f^rS Mirr..=-(the prosecutor,, on cros.e..u>iua. "TZZ'^'^^' « yo"' ^-^r «-,r t,T I hate .•re^lar" iuDunmore? A. No, >ir i I never did. ^«; "' ' J »''° hea^tk but have no certainty of it, and thc« «e the ch.r«=tera " AtCcll of the Commonwealth's ease defendant's counsel moved the 0^ to^ke "on. the jury the question of seduction and submU to *em no other question but that of fornication and bastardy. Motion "Tcourt'cSlTthe jury, i,ue.alia. "The prosecutor aU^» .hr;rl a U- of^Lrla," made to - a.u^. - t r:rt;rifi;'prri^.thi.y.n.^^^^^^^ r:r;^.r:trorr.tiy::-™.:-^^ ^ ?r« to h! found bv you from th« evidence in this case, before requisites to be '°«°^jy / • * * That therefore leaves but two nectiou take place because of the promise «' "^"""fS;?^^ , ^ ^y^^ - It is contended that this case requires the essentials so far as tne „*.l^S>«>,.>^"».«-K'»5»-««l~l*«>«'»«*""^'^"*'**"- QALS. larry her if sbe lI not have per- !(1. There was ■(Is said to Mrs it he had done ; jroriiisod to be mt denied such marriage on the meet her once or ' knowledge and on of this girl is \. I heard said the name of the her over two or 1 cro88-examiua- the name of the Yes, sir ; I have re the characters t*8 counsel moved ion and submit to lastardy. Motion jrosecutor alleges lughter before this dant says that he ly, but admits that nee of course con- isecutor. Now the a case of this na- taining the promise ! made out by posi- ne of the essential in this case, before fore leaves but two presented to you: , did the illicit con- kge? entials so far as the RICE V. COMMONWEALTH. 761 making of presents, writing of love letters and all of such things tliat pass between young people, to make out this case. But we liavo long passed that d.ay, so far as courtship is concerned. There is no doubt but that in the early history of these cases when the defendant was not permitted to go upon the witness stand and not allowed to testify, that there should be corroborative evidence to sustain the charge made by the young lady of the promise of marriage ; but in our day and gener- ation when a defendant may go upon the witness stand and testify equally as well as the prosecutor, tlien of course these essentials are not absolutoly necessary, although they may yet appear in the case. The proper way to dispose of cases of this kind is to take each case as it stands on its own four legs, take the case as the parties built it up, keeping in mind their standing in society and their immediate manner of courtship. " One man may desire to court the girl he desires to make his wife in a secluded place or he may desire to keep it quiet ; another may be in the habit of keeping company with a young lady and appear upon the public highway from time to time so that uU may see him ; hence there is no standard, each case must stand on its own four legs as the parties built it up. " Now, in this case it is for you to say whether the meetings of these parties, which continued for over a year, was merely for the purpose of having illicit connection, or whether it was for an honorable purpose on the part of the defendant — that is, for tlie purpose of making the young lady his wife. " Now it is for you to say from all of the evidence, and the surround- ing circumstances of this case, whether the original meeting was honora- ble, or whether, if he made a promise of marriage, it was made for an honorable purpose, and not for the purpose of deceiving the young lady, and gaining her affection, so tliat he might have illicit connection with her." Verdict, guilty in manner and form, etc. The defendant was sen- tenced to pay the costs of prosecution, and a fine of $500, and to sepa- rate and solitary confinement in the Eastern penitentiary for one year and six months. The defendant having v,btained a special • of the offense > this court for :9 of the learned liird. je to corroborate no longer neces- 'here is no doubt efendantwas not lowed to testify, the cbarge made our day and gen- tand and testify se essentials are car in the case, alvc each case as rties built it up, imediate manner rch, 1860,1 which that the promise ! testimony of the her circumstatial } now allowed to ion of the act of by the previous ject was correctly point ruled both it, and, therefore, not say it did no •ror, and the very on of the promise intended that this •esents, writing of young people, to ly so far as court- RICK V. COJIMONWEALTH. 768 ship is concerned. • » • One man ma}- desire to court the yirl he desires to inalre necessary by reason of the equivocal character of Mrs. Rob- ertson's testimony as well as that of her daughter. The Commonwealth demands justice, not victims. This belongs to a class of cases where the whole truth should be brought out, if possible. Upon so vital a question as whether at the interview referred the plaintiff admitted a promise of marriage prior to the seduction, the neglect by the Common- wealth to call the father of the girl, who was presi. -.^ at the interview and heard all that was said, would have justified the jury in drawing an inference seriously unfavorable to the prosecution, and the court below would have been at least justified in saying so. If the plaintiff in error has been guilty of fornication, of which there seema little doubt, he may be convicted of that offense under this bill. • The judgment is reversed, and it is ordered that the record, with this opinion, setting forth the causes of the reversal, be remanded to the court below for further proceedings. ■•r^.:^^''«'-'^-^-:Vh-^i^^l'-Ji^*'.^'y.'^:t^^'<' »JS-^^l^Vi-rt."-o ;i*S!«!i«H(t»-.i-E [Ai^ ^itm^m CROOUAN V STATE. 767 AL8. US protniae to Ich shows that ad (lone nnd a And wlien we [uination thcru ng here upon I scintilla, and ntilla. 1 by the testi- ation with the ) settle it, and ' It would be to the promise was evidently ; indeed, the not pass wlth- th to call the I have referred r. The prose- Neither was evidence in re- atiug her upon ase, it was the icr. This was ' of Mrs. Rob- Doramonwealth of cases where Ipoii so vital a tiff admitted a r the Common- t the interview ' in drawing an he court below of which there ider this bill, e record, with e remanded to SEDUCTION— WHEN WOMAN DOES NOT CONSENT, NOT SEDUCTION. Croghan V. State. [22 Wis. 444.] 7)1 the Supreme Court of Wiaconain, 1868. 1. Where the Woman does not Conaent to the intercourae the crime ii not ledactlon, 2. The Court OharKed the Jury tliiit " If the wonmii ultlmattily conRontod to the illicit iDteruourso tlio crlmu wan F>LMliirtion, thoiiKh eho consented partly 'Urougb fear and parUy becau«e the defeudunt hurt her." Held, error. FiRRon to the Circuit Court of Marathon County. S. U. Pinney and E. R. Chase, for plaintiff in error, cited Wright v. State,^ State v. BierceJ • The Attorney-Oeiipral and W. C. SUverthorny for the State, cited Revised Statutes, ^ Wliarton's Criminal Law,'* 15 Greenleaf's Evidence,'"' 5 Sneed," 3 Zabriakie,'' 29 Connecticut,^ 1 Halstead,' Commonwealth v. Parr.^^ Cole, J. This was an indictment under section 5," for seduction. The prosecutrix in her testimony states the circumstances under whicii the sexual intercourse took place. It appears that she was between fifteen and sixteen years of age at the time, and was living with the defendant, who had married her aunt. The girl's parents lived in Min- nesota, and the defendant in Marathon County. The girl states that one night the defendant, during the absence of his wife, came into her room after she had gone to bed and insisted upon getting into bed with her — that she resisted and he choked her — that he finally had inter- course with her, and threatened to kill her if she told of it ; that at another time, in April, 18G5, in his own house, he seized her — said he would have what he wanted, or he would choke her — that he threw her across the bed-rail, and had intercourse with her. The girl said that she yielded to him, partly on account of his threats, and partly because he hurt her. The court charged that there was but one offense charged in the indictment, which was that of seduction ; that it was necessary he should define the difference between seduction and rape ; that if they found that the woman ultimately consented to the illicit inter- course, the crime was seduction, although she consented partly through 1 4Hnmph. m. 2 27 Conn. 320. 3 eh. 164, sec. 89. * 1>. 1141. ' p. 210. « p. 881. 'p. 80. » p.23i. > p. 829. 10 6 W. & S. 349. 11 ch. 170, B. I. ^ j ggjjai lj BIBtaiW^biti l it;.W»ata^^ tWJy ■ J flltiWJ ..'J K*.!^ 768 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. fear and partly because the defendant hurt her ; but that if she did not consent, and the offense was commuted by force, it would be rape, and the defendant should be acquitted. The counsel for the defendant excepted to that part of the charge which defined the offense of seduc- tion ; and the correc^tness of the i nin« on that point is the 0T.ly ques- tion we have to consider. The crime of seduction is not to be confounded with the higher and more atrocious crime of rape. Tue latter crime is defined to be the carnal knowledge of a woman by a man forcibly and unlawfully, against her will.^ The element of force forms a material ingre- dient of the offense, by which the resistance of the woman vio- lated is overcome, or her consent induced by threats of personal violence, duress or fraud. For, unless the consent of the woman to the unlawful intercourse is freely and voluntarily given, the offense of rape is complete. But the word " seduction " when applied to the conduct of a man towards a female, is generally understood to mean the use of some influence, promise, acts, or means on his part, by which he induces the woman to surrender her chastity and virtue to his embraces. But we do not suppose that it must appear that any distinct promise was made to the femalfr, or any subtle art or device employed. It is sufficient that means were used to accomplish the seduction and induce the female to consent to the sexual intercourse. Perhaps the motive of fear on the mind of the female is not to be excluded — not the fear of personal violence and injury unless she consents to the connection, but a fear that the mar may in some way injure her reputation or standing in society, unless she yields to his importunities. But the woman must be tempted, allured, and led astray from the path of virtue, through the influence of some means or persuasion employed by the man, until she freely consents to the sexual connection. But if the circumstances show that this consent was obtainea by the use of force, and the woman's will was overcome by fear of personal injury, then the crine becomes one of a higher grade. Now it appears to us • that the ; rror in the charge of the court consists in holding t'at if the woman ultimately consented to the illicit intercourse, the crime was seduction, although such consent was obtained partly through fear, and partly ttecause the defendant hurt her. The ultimate consent of the girl might have been gained solely because the defendant hurt her, and through threats of further personal violenr \ And if this were so, then it is very manifest that the crime is not seduction, but one of greater atrocity. But notwithstanding the defendant treated the girl roughly at first, and actually threatened to kill her, yet if she after- 1 2 Bouv. L. Die, " Rape." fiijiiiiiiliiiJiiMWMirl ■WW Mi W [V1DUAL6. ; that if she did not !, it woulJ be rape, el for the defendant le offense of seduc- int is the OT.ly quea- with the higher and is defined to be the ly and unlawfully, a material ingre- of the woman vio- tbreats of personal of the woman to the I, the offense of rape plied to the conduct d to mean the use of part, by which he irtue to his embraces, any distinct promise 'ice employed. It is seduction and induce Perhaps the motive iluded — not the fear its to the connection, re her reputation or importunities. But istray from the path persuasion employed 1 connection. But if itainea by the use of ir of personal injury. Now it appears to us in holding t'at if the ourse, the crime was rtly through fear, and timate consent of the fendant hurt her, and And if this were so, seduction, but one of idant treated the girl her, yet if she after- ABDUCTION. 769 wards freely consented to the sexual intercourse, being enticed and persuaded to surrender her chastity by menas employed by him, then the offense is seduction. There are circumstances attending this case, as presented upon the record, which are well calculated to excite feel- ings of the liveliest indignation towards the defendant ; but we for- bear to comment on them at this time. The case must go back for a new trial on account of the error in the charge before alUulcd to. For it is probably as important for the protection of female character that the true distinction between the crime of seduction and rai)e should be maintained, as that criminal justice should be properly administered in th' 8 case. The judgment of the Circuit Court is reversed, and a vinire de novo awarded. NOTES. § 606. At) otlcTi not a Crime at Common Law. — Abduction is not a crime in tlie a. nee of a statute, i.e., at common law.i § 607. Abduction — Man not Bound to Return Girl. — A man is not bound to return to her parent's custody a girl wlio witliout any inducement on iiis part has left home and come to him.^ § 608. Abduction — Olrl must ba In Cbarge of Parents. — In R. v. Miller,'* the prisoner was indicted for talving Sarah Ann Buckley, a girl fourteen years old, out of the possession and against the will of her fatlier. The girl testified as follows: " I am unman ;ed and am fourteen years and nine months old, and am the daughter of George Buckley, who lives at Seven Oaks, Cheshire. On Sunday, October 10, 1875, 1 was in service at Mr. Edgesley's, Budworth. I linow the prisoner. On the Thursday before the 10th Octol)er I saw him, and told him I was going to see my father on the Sunday. Prisoner used to come to see me at Edgesley's, but rny mistress told him not to do so. I u>^d, however, to see him when he came. On Sunday, the 10th, I left about half-pcTr, eight in the morning to go and see my father. I passed the prisoner's housb "^nd called in and waited for hira. We went tostether in the direction c uiy father's house, eight miles off, but prisoner left me about a mile or so ijtiore we got tl ere. I had leave to stay with my father till the next night, and prisoner knew this. I stayed at my father's till the Sunday afternoon, and then told him I was going back to Edgesley's that night — he did not know that I had li'ave to stay till the Monday. My father let me go, and I then went to meet the prisoner, as we had arranged before ho left me in the morning. We walked afxiut, and then went to my master's at Ebern at night, but did not go in; and prisoner said " Uon't 1 state V. Sullivan, 85 X. C. 806 (1881). 3 B. v.Ollfler,10Cox,402 (1866). 3 DEFENCEd. 3 13CoJl,179 (1876). 48 mui wi lltii HJMMWlWWIMliiBwrlliW 770 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. go In, it's too late ; come with me." I therefore went with him, and we passed the nlghv, together in an out-house near his father's. Next morning he told me to go to his parents' house, and I did so. I started to go back to my master's In the afternoon, and prisoner went with me, but I did not like to go In, and prisoner again Induced me to return with him, and I remained at his father and mother's till Thursday, when I accidentally met my father, and he took me back to Mr. Edgesley. I only passed the Sunday alone with the prisoner. I might have gone back to my master's any time I liked after the Monday night. Though I had leave to stay away till the Monday night, I never intended doing so. Pris- oner used to come with his concertina to see me In my master's garden." Dunn, for the prisoner, contended that there had been no abduction In the case — no taking the girl away from her master, as contemplated by the Act of Parliament, and that the girl had permission to be away at the time the offense (if any), was committed; and further that there was no attempt to keep her away from her service on the following day.i Williams, further submitted that the girl might have been taken froD. her lather's possession as she was on > visit to him, and he in effect only let her i to return to her master. Dunn, on the other hand, cited Terrj v. Hutchinson,^ and Begina v. Mycock,^ as showing that the girl was in the constructive care or charge of her master, as she had the intention of returning to him. Lush, J., said that the present was not such a case as the statute was in- tended to meet, and the cases cited by the prisoner's counsel were in point. He should, therefore, direct the jury that there was no evidence of the prisoner having taken the girl out of her father's or her master's possession, and there was no abduction ; that is, no taking and keeping the girl away, such as the law required to sustain a conviction under the statute. Verdict, not guilty. § 609. Abduction — Taltlnfir out of Poaaesslon of Father. — In B. v. Ghreen,* Green and Bates were indicted that tliey did take one Susannah Robinson, an unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father. The girl was under fourteen, and lived with her father, a fisherman, at Southend. On the 23d of June, the prisoners saw her In the streets of that place, by herself, and invited her to go with them, giving her drink to induce her, which made her dizzy and sick. They took her to a lonely house which was undergoing repair, and then Green had criminal Intercourse with her, keeping her there all night. Next morning the child was found there crying, and this charge was preferred. On the opening of the case, — Martin, B., said there must be a taking out of the possession of the father. Here, the prisoners picked up th<» girl in the streets, and for anything that ap- peared, they might not have known that the girl had a father. The essence of the offense was taking the girl out of the possession of the father. The girl was not taken out of the possession of any one. The prisoners, no doubt, had done a very Immoml act, 'lut the queiJtlon was whether they had committed an illegal act. The criminal law ought not to be strained to meet a case which did not 1 Reg. V. OUlfer, 10 Cox, V. C. 402. • 18L.T. Rep. (N. 8.) 621, B97. 3 UCox.C.U. 28. 4 8 F. ft 7.374 (1862). UALS. n, and we passed irning he told me k to my master's like to go in, aud at his father and : he took me back risoner. I might y night. Thongh 1 doing 80. Prls- '9 garden." I abduction in the ited by the Act of a time the ofiense tempt to keep her n taken f rooi her !ct only let her /. Una V. Mycock,^ as of her master, as he statute was in- 3el were in point, ce of the prisoner session, and there ,y, such as the law rdict, not guilty. — In B. V. Cheen,* jannah Robinson, of the possession !r, a fisherman, at :he streets of that ir drink to induce y house whict was I with her, keeping ire crying, and this ision of the father, r anything that ap- ir. The essence of thev. The girl was > doubt, had done a mmitted an iUogal ;ase which did not ABDUCTION — "PURPOSE OF PROSTITUTION. 771 come within it. The act of the prisoners was scandalous, but It was not any lejriil offense. He had told the grand jury so, and advised them to throw out the bill. He should direct the jury to acquit the prisoners. The formal verdict of not gu'.it. was then taken, and the prisoners were dis- charged. §609a. Abduction — Intent to Marry. — To take a girl under eighteen from the custody of her parents with the intention of marrying her is not within the California statute. > § 610. Abduction — "TalElntf or Caualngr to be Taken " — Fraudulent De- coying rot Within the Phrase. — In li. \. Meadows,^ M. was indicted under a stati'te for fraudulently " taking or causing to be taken au unmarried girl under sixteen out of the possession aud against the will of her father." It ap- peared that a girl who was In service as she was returning from an errand was asked by M. If she would go to London as his mother wanted a servant and would give her £5 wages. The girl and M. went together to London where they were arrested. It was held that this was not within the statute. § ';il. Abduction — "Taklnsr" for Purpose of "Prostitution" or "Oon- cublua'. .■."— lu People v. Parshall,^ the court. In reversing the conviction, say : • I J eviilence of the girl fell short in several respects of being s ifflcient to produce a conviction under that count; and first, as to the taking away. The evidence of the girl in question does not show that she was taken away from any one according to her testimony. The first she ever saw of the defendant was on Clinton Street, in the city of Rochester; that a little girl, Mary Broch, was with her after Christmas, 18G1, In the morning, eight or nine o'clock or at noon; they had no conversation. She states, «we girls laughed at his long beard.' He turned round; the next time the said Hannah Naughton saw him was on Buffalo Street about a month after that; she w.->8 alone; defendant passed by her and then came back and said to her he thought he knew her. She told him he was mistaken In the person. He told her he had seen her be- fore; she then said to him she had seen him in Clinton Street. Then follows a long statement of conversations and meetings between her and the defendant, and transactions between them tending to show a brutal desire on the part of the defendant to have carnal Intercourse with the girl, and a gradual yielding on her part, which resulted in his attempt to consummate his design, but which, according to her account, failed of success. In all of which there was no com- pulsion on his part, nothing but coaxinfe and persuasion, to which she appears to have voluntorlly yielded; she was during thosf transactions living with her sister, Mrs. Quine. It does not appear that the defendant was ever at Mrs Qulne's; all the meetings he had with her were in the streets. His conduit shows an attempt to seduce her, and the testimony of the girl does not tend '.o show that there was any taking of her In the sense of the statute, which coo- templates some positive act to get the female away from the person having the legal charge of her; nothing of that kind appears. " Second. There is an entire absence of evidence tending to show either of the purposes mentioned In the act to characterize the taking, If there had been one. 1 People V. Marshall, 59 Cal. 386 3 1 C. .4 K. 398 (1844). » 6 Park. 139 (1864). -ovf^nsnaoMKH 772 Cn?MES AGAINST THE PERSONS OF INDIVIDUALS. It l8 impossible to believe from the testimony of the girl, that there was a pur- pose of her prostitution, as that term is to be understood in the statute. In Carpenter v. People,^ we had occasion to consider carefully the sense in which the same word was used in a cognate statute, and we then held that it meant the practice of a female offering her body to the indiscriminate intercourse with men; the common lewdness of a female — we think the word was used In the same sense lu the statute under which the defendant was convicted. " Was there a purpose of concubinage? a purpose to malce her his concubine? Such an inference from the girl's testimony it seems to me is preposterous. The defendant was a married man, living with his wife, and keeping house In the city of Rochester, and the girl under fourteen years of age, too young and physically too uudevelopod, as her evidence shows, to 'ie able to afford him any of that gratification which the presumed motive for such a relation implies ; and, when finally, he discovered this fact, in an attempt .o have sexual Inter- cours-e with her, and failed for that reason, he abandoned Lis pursuit, as it does not appear that he met or saw her afterwards. «' Third and last. W.s there a purpose of marriage? This question is too plain for argument. There is not a syllable of evidence to warrant the ex- istence of such a purpose " § 612. Abduction — "Purpoae of Prostitution." — ''Purpose of i.rostltu- tion" does not mean iu.ercourse with one man, but means for the purpose o* common indiscriminate intercouriSe.i' This was held In State v. Stoyell,^ following Commonwealth v. Cook. In Commonwealth v. Cook,*' the defendant was inUcted under the Massachusetts statute of 1845,° which enacts that " any persou vvlio shall fraudulently and de- ceitfully entice or take away any unmarried woman, of a chaste life and conver- sation, froru ho;- father's house or wherever else she may be found, for the purpose of prostitution, at a house of ill-fame, assignation or elsewhere," etc., " sliall be punished," etc. The trial was In the Court of Common Pleas, before Wells, C. J., wliose report thereof was in substance as follows: — The evidence tended to prove, among other things, that from November, 1844, to September, 1845, the defendant and Emily Forest (the female whom the indictment charged the defendant with enticing away), lived In the same house, she being seventeen years old, and residing in her father's family, and the de- fendant occupying another part of the house ; that Emily, during this period, lived sometimes in the family of the defendant, assisting in the work of the family when the defendant's wife was sick; that while she was bo in his family and afterwards, he attempted to seduce her, and persuade her to go away with him; that he endeavored to make her discontented with her parents and dissat- isfied with being under their charge; that she flnal'y consented to go off and live with him under a promise that she should not live with him as his wife, and that her chastity should never be violated without her con- sen:: that she left home voluntarily, and that the defendant never exercised ovei her any coercion or restraint; that they went to Philadelphia, vhere he hired a single room with only one bed in It, and that they rem«ined there nine days, sleeping in the sfime bed; that he repeatedly solicited her chasi ty, 1 8 Barb. 603. • State V. Ruhl, 8 Iowa, 447 (18S9). * M Me. 24. « 12 Mete. 93 (1846). ' ch. 216, tec. 1. ^f^^-s^M-^ tjgS^$SSli^SSS^i^^i^ti^^iA^i'ttJ&ai^ik >UALS. ABDUCTION — "PURPOSE OF PROSTITUTION. 773 It there was a pur- lu the statute. In the sense in which held that it meant ninute intercourse word was used in 1 convicted, her his concubine? li is preposterous, i Iceeping house in age, too young and e to afford him any a relation implies ; I have sexual inter- ) pursuit, as it does lis question is too to warrant the ex- rpose of i.rostitu- i for the purpose o^ wealth V. Cook. In the Massachusetts •audulently and de- iste life and conver- T be found, for the )r elsewhere," etc., ramon Pleas, before ws: — at from November, :ie female whom the 1 in the same house, family, and the de- during this period, in the work of the ivas so in his family her to go away with ■ parents and dissat- onsented to go off it live with him as 1 without her con- mt never exercised Philadelphia, vhere they remained there liclted her chasi ty^ iSi:&^£ltiii^JtJ&6t^i was angry at her for not yielding, and twice pushed her out of bed, and once pinched her arm to punish her for not complying. The counsel for the defendant contended that by the term "prostitution," in the statute 1845,' was meant not only illicit iutercor,ise and cohabitation with a single individual, but an intercourse on the part of the female abducted with many individuals, or common prostitntion ; that the statute offense could not be committed l)y an individual's fraudulently and dcce'.tf ully enticing or taking away a female, for the purpose of living with him in a state of illicit Inter- course; such being merely a purpose of seduction, and not the purpose con- templated by the statute. But the court ruled, among other things, "that If the design of the defendant was to take the person abducted to some plnco for the purpose of there living with her in a state of illicit intercourse, sticli con- duct was a violation of the statute, although he had no purpose of causing or inducing her to have Illicit Intercourse with any one else." The jury found the defendant guilty, and he alleged exceptions to the ruling of the court. Dewky, .T. Wp are called upon to give a legal construction to the statute of 1845,3 upon questions reserved in a case presenting painful details of grossly immoral acts, and pen violations of the divine law. Such cases are not the most favorable for a dispassionate consultation of questions of law, the decis- iou of which Involves the question whether the party shall be punished, or be discharged as not guilty of any offense cognizable by our laws. But cases of gross Immorality do fror:, time to time, oocur, in which the court feel cod- Etrainel to say tliat the acts complained of are not punishable criminally by any "statute law of the Commonwealth; and the Inquiry which meets us in the present case, involves precisely that point. Are the acts of the defendant pun- ishable by the statmo above mentioned? Dealing with the present case lu It* most agsravated UAL8. tray an unmarried idlvldual thus en- )y this statute, the ;c;ravated crime of a for houses of ill- nalcs to meet such alyf'istinguishable the Legislature in- sea of mere seduc- )ervaded this com- 3us petitions which prnylng for further the journals of the lug with Ilea vypcn- et been aanctioned ictmenta. Difflcul- apon the subject of e the enactment of Eis gone no further ;t of consideration, ting a new criminal t, a strict construc- he Legislature have ;l8lature have used court can only give ute is that of fraud- ied woman from her ill-fume, assignation tiou!" We can not lable by statute, and Itnown common-law acter of the offense jfluitious of the term jt being the subject jrefore, resort 'o the uiile. If we re.er to of setting to sa'e ; " "a hireling; a mer- son defines a prosti- to expose upon vile t or practice of offer- ." Prostitute is "a rostitutiug is " offer- 1 be seen, all apply to Te, an Indiscriminate i such is the meaning ase of Commonwealth 1 against a party who 3 3 Pick. 26. ABDUCTION — «* CHASTE CHARACTER. 775 was alleged to have leased a house to one B., with the Intent that the business of prostitution should be carried on there. The case throughout assumes that prostitution means common indiscriminate sexual Intercourse In distinction from sexual intercourse confined exclusively to one individual. It la true, aa stated by the counsel for the government, that th« terra "prostitution" has been sometimes used lu a more loose and general sense, and that Instances of such use of the word may be found in reports of judicial decisions.^ But we are rather to Inquire what is the appropriate and well authorized meaning of the term, and to assume that the Legislature, in using the terms in describing the offense created by the statute. Intended to use the word In its proper accep- tation. We can not, therefore, give to the word " prostitution " the broad and extensive application contended for on the part of the government. Such a construction of the statute would, to some considerable extent, make it applica- ble to cases where the real offense is seduction. The court are of the opinion that the offense made punishable by this statute is something beyond that of merely procuring a female to leave her father's house for the sole purpose of illicit intercourse with the individual thus soliciting her to accompany him; that she must be enticed away with the view, and for the purpose, of placing her in a house of ill-fame, place of assignation, or else- where, to become a prostitute. In the more full and exact sense of that term; that she must be placed there for common and Indiscriminate sexual Inter- course with men; or, at least, that she must be enticed away for the purpose of sexual Intercourse by others than the party who thus entices her; and that a mere enticing away of a female, for a personal sexual intercourse, will not subject the offender to the penalties of this statute. This decision, while in one respect it narrows the application of the statute, and excludes cases of mere seduction, or illicit Intercourse with the individual enticing, leaves a large application of It to cases of a more aggravated charac- ter, and will embrace all of either sex who shall fraudulently entice away females for the purpose of supplying brothels and houses of ill-fame, or with a view to induce them to prostitute their persons for money or hire. As the view we have taken of this statute differs from that taken at the trial, the exceptions are sustained, and the verdict set aside. In Osbom v. State,^ the Supreme Court of Indiana held that the offense of abduction for "the purpose of prostitution" meant for tlie purpose of common Indiscriminate intercourse with men, and not with one man only citing the earlier cases of Comwnnimlth v. Cook," Carpenter v. People,* State v. Buhl,* and Slate v. Stoyellfi § 613. Abduction — "Previous Ohaate Character." — The statute as to abduction of females of '• previous chaste character " means of actual personal virtue as distinguished from a good reputation and a single previous act of illicit intercourse on the part of the female Is a defence.' §614. Seduction — "Previous Chaste Character." —" Previous chaste character " means actual personal chastity « as in the statutes as to abduction. 1 1 W. Bl. 619; 3 Burr. 1589; 13 8. A B. 82. a S2 Ind. 6-26 (1876). 3 12 Mete. 9r>. * 3 Barb. d03. > 3 Iowa, 447. < M Me. 24. \ I Lyons v. State, 52 Ind. 428. See People V. UodcrigaB,49Cal. 9 (1874). « Croiler v. People, 1 Park. C. C. 4S3 (1853) ; Safford v. People, 1 Park. C. 0. 474 (1864) ; People v. Kenyon, 6 Park. C. C. 254 (1862) ; Carpenter ». People, 8 Barb. 00% (1S60) ; Andre v. State, 6 Iowa, 389 (1857). 776 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. § 616. Seduction — " Purpose of Proetltutlon." — And as In the statutes as to abduction " purpose of prostitution " means for the purpose of cohabiting with men generally.* § 616. Seduction —Woman Mtist be Ohaate to Time of Seduction. — The woman must be of '• chaste character " up to the time of the seduction — It will not do that she was chaste before the promise to marry or previous to the day on which the seduction took place.^ § 617. Seduction — Promise of Marriage Necessary. — The promise of marriage is an essential element under the statutes .» And the promise must be clearly proved.* And It must be shown that some artifice, promise or deception was resorted to by the defendant to induce the girl to have connec- tion with him.' In People v. Clark,^ the court, in defining and describing the statutory crime of seduction, said : " Illicit intercourse alone would not constitute the offense charged. lu addition to this the complainant, relying upon some sufficient promise or Inducement, and without which she would not have yielded, must have been drawn aside from the path of virtue she was honestly pursuing at the time the offense charged was committed. Now, from her own testimony it would seem that the parties had illicit intercourse as opportunity offered. « Such is the force and ungovernable nature of this passion, and so likely Is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man's judgment can resist the conclusion,' that where parties thus Indulge their criminal desires, it shows a willingness upon her part that a person of chaste character would not be guilty of, and that although a promise of mar- riage may have been made at each time as an Inducement, It would be but a mere matter of form, and could not alone safely be relied upon to establish the fact that she would not have yielded, had such a promise not been made. We do not wish to be understood as saying that, even as between the same parties, there could not be a second or even third act of seduction; but where the sub- sequent alleged acts follow the first so closely, they destroy the presumption of chastity which would otherwise prevail, and there should be clear and satisfac- tory proof that the complainant had in truth and fact reformed, otherwise there could be no seduction. The object of this statute was not to punish illicit co- habitation. Its object was to punish the seducer, who, by his arts and persua sion prevails over the chastity of an unmarried woman, and who thus draws her aside from the path of duty and rectitude she was pursuing. If, however, she had already fallen, and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity offered, the mere fact of a promise made at the time would not make the act seduction. Nor will Illicit Intercourse which takes place In consequence of, and In reliance upon a promise made, make th« act seduction. If this were so, then the common prostitute, who is willing to sell her person to any miin, mlgl.t afterwards make the act seduction, by proving that she yielded relying upon the promise of compensation made her by the man, and without which she would not have submitted to his embraces. 1 Carpenter ©.People, 8 Barb 603 (1880). a State v. Gates, 27 Minn. &3 (18S0). 3 Cole V. State, 40 Tex. 147 (1874). • Elce V. Com., 102 Pa. 81. 408 (1883) ; Uico Com., 100 Pa. St. 28(1882). s Stater. Crawford, 34 Iowa, 40 (1871). e 33 Mich. 112. inmimniriitiiwmi JALS. n the statutes as >8e of cohabiting leductlon. — The •auction — it will evious to the day The promise of le promise must iflce, promise or to have counec- e statutory crime titute the ofleuse a some sufficieul ave yielded, must lestly pursuing at own testimony it lort unity offered, ind so likely is Its 1 once yielded to, langed before any ties thus Indulge c that a person of a, promise of mar- It would be but a in to establiisb the ; been made. Wo I the same parties, lut where the sub- he presumption of clear and satisf ac- id, otherwise there a punish illicit co- is arts and persua id who thus draws ling. If, however, path, but willingly i fact of a promise 1 illicit intercourse t a promise made, prostitute, who is I the act seduction) peusation made her id to his embraces. Pa. St. 408 (1883) ; Rice (1882). ,U Iowa, 40 (1871). SEDUCTION — "PROMISE OF MARRIAGE. 777 Illicit intercourse, in reliance upon a promise made, is not sufficient, therefore, to make the act seduction. The nature of the promise, and the previous char- acter of the woman as to chastity, must be considered. And although the female may have previously left the path of virtue on account of the seductive arts and persuasions of the accused or some other person, yet if she has re- pented of that act and reformed, she may again be seduced. We do not say that there may not have been a reformation in this case; Indeed, there may have been many, but they were unfortunately fleeting. Had a reasonable time elapsed between the different acts, a presumption in favor of a reformation might arise, but we think no such presumption could arise In this case, and that the burden of proving such would be upon the prosecution." § 61 8. Seduction — Promlso of Marrlsse — Married Man. — A married man, known to be such by the woman, can not be guilty of seducing her under "promise of marriage." In Wood v. State,^ the court cay: "The statute says by persuasion and promise of marriage or other false and fraudulent means. In this is implied that the promise must also be a fraud, one calculated to deceive, one that may win the conildence and allay the suspicion of an artless and un- suspecting maiden. Can a promise of marriage made by a man having already a 'vlfe, with whom he is at the time living, and this well known to the woman receiving the pledge, have such an effect? Can a woman of ordinary sense, who has allowed such a promise to win her confidence, claim to have been seduced by acts and persuasions into the sin oi foraication. Can she be said to be a victim if she has trusted to the vows of a married man that he would marry her, knowing as she does that he can not and will not marry her? We think not. The woman who listens to such a promise is either a fool or she is a bad woman already. The confidence of no good woman could be acquired by any such promise. It could not be the means of seduction. It is upon its very face a warning to beware. It is a promise so improper in Itself, so contrary to all notions of delicacy, true virtue and good morals that any girl of even ordinary chastity must Instead of confiding In, be shocked by it. No reasonable human being could confide in such a promise or be betray ad by it Into confidence In the man who made it. The girl who listens to such a promise is not betrayed, and such an excuse as that she toys and is finally a criminal, she is not seduced, but has run, of her own lusts, into sin. In People v. Alger,* it was held that where the prisoner was a married man at the time of tho promise of marriage, tlie woman who was seduced knowing this fact he could not be indicted. The Indictment contained three counts. The first count charged that the defendant under promise of marriage seduced and had illicit intercourse with the female, she being unmarried and of previously chaste character, following the language of tlie act, without setting out the promise or averring any mutual promise on her part. The second count alleged that the defendant promised to marry the female, and under such promise of marriage seduced, etc., as in the first count without alleging any mutual prom. ise on her part. The third count was substantially like the first. The defend- ant pleaded not guilty and also a special pica, which alleged that at the lime of committing the acts charged in the indictment, he was, and for five years pre- vious had been, a married man, having a living wife and family, with which wife ana family he was then living, all of which at the time of the alleged promise 1 4S Ga. 192 (1873). a 1 Park. C. C. 1333 (1851). 778 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. and seduction was well known to the Bald female. To this spec al pea a demurrer was Interposed. By request of the defendant's counsel and with the consent of the counsel for the People, the defendant's plea of not pul Ity wa. stricken out, and the law was argued upon the demurrer to the special plea. Johnson, J., delivered the opinion of the court. The special plea admits the matters alleged In the Indictment to be true, as the demurrer does those set up In the cpeclal plea. , , ^ - „„„ If the indictment can strictly be n-gardcd as setth.g out the existence of any promise of marriage as a matter of fact, It must be held to impart an absolute unconditional one, as contradistinguished from a promise depending upon some condition or contingency. The case presented by the pleadings therefore, Is that of a married man cohab- ItluK with a lawful wife, promlslna unquallfledly and unconditionally to marry an unmarried female, she knowing and understanding his situation, and under such a promise, seducing and having Illicit Intercourse with her. Is this the kind of promise of marriage contemplated by the act for the pun- ishment of seduction as a crime? . „ , a However criminal and offensive the act may be In the light of religion and morality It is the statute alone which gives It a criminal character in the eye of the law. It is to be observed that the act Is not, as Its title might seem to impart, an act to punish seduction generally as a crime, but only when t is accomplished under certain circumstances, when the parties stand in a particular relation to each other. Three facts must concur to render the seduction a crime under the act. The female must be unmarried, .he must b^ or must at all times previously have been, of chaste character, and there wudtbe a subsisting promise of mar- ""'Tall these concur, then the seduction, by whatever means accomplished. Is a crime and punishable as such, but in no other case and under "ootl^r cir- cumstances. It is not necessary that the promise of marriage should be made or used as the Inducement to the consent of the female, It Is enough If the parties are under promise. The framing of the act seems to have assumed that under such circumstances th« consent of the female might be much more readily obtained. That she, con- flding in the promise of future marriage, and relying upon it, ^ould be more liable to yield to the solicitations and temptations of the man under this obll- gallon to her, than otherwise. Hence the statute was confined to this partlcu- far class of cases. It was to protect females really standing In such a relation to a man, and confiding in his promise, from the employment of f ''"««ve acts aUnst them by the man, and to punish him who, under such circumstances, sSuTd be guilty of violating and betraying and disappointing tjat confidence to the disgrace and ruin of the female, and the Injury and scandal of society, that the statute was chiefly enacted. But must the promise of marriage be mutual to bring the case within the statute? It is clear that to constitute any valid promise of marriage the prom- ise must be mutual. Unless the obligation be reciprocal it Is a nullity. It is contended by the counsel for the People, that the statute does not require this, that if the man Is under promise to the female It is immaterial whether suo has ever consented or ever expects to marry him or not. The statute, it s true, taken literally, is broad enough to admit of this Interpretation. And U might be carried still farther. Because, taken literally. It is not necessary that the man should be under promise of marriage to the woman he seduces. Accord- WSfSBBP? S-W-yjftKtilLlila'^lwS hSjVlfi'B j*?^K.r¥£.<; ',\fSii^.x.):Xf_% ; 'IDUALS. J this special plea a counsel and with the ea ot not guilty was ) the special plea. ctment to be true, as t the existence of any to Impart an absolute depending upon some a married man cohab- londitlonally to marry i situation, and under 1th her. )y the act for the pun- e light of religion and character in the eye of ts title might seem to B, but only when It is les stand in a particular ne under the act. at all times previously sting promise of mar- neans accomplished, is ind under no other clr- irrlage should be made lie, it is enough if the der such circumstances talned. That she, con- ipon It, would be more he man under this obll- onflned to this particu- Qdlng in such a relation ymcnt of seductive acts acr such circumstances, >ointlng that confidence and scandal of society, ring the case within the e of marriage the prom- )cal it Is a nullity. It is te does not require this, aaterlal whether sua has The statute, It Is truei pretatlon. And it might i not necessary that the an he seduces. Accord- 8EDUCTION — " MARRIED MAN. 779 Ing to this, every man who was under promise of marriage to any woman. If he should seduce an yunniarrled female, would fall within the act. But this obvl- ou»ly is not the spirit and meaning of tlie statute. It must have a reasonable construction, so as to meet the mUchlef it was intended to remedy If suscepti- ble of it. Tlie promise nlUi^t not only bo to the female seduced, but there must be a correspoiullug one from htr Unill the obligation Is mutual his declara- tion that ho would marry the female, or was willing to marry her, is a mere declaration, or offer and no promise, in any legal sense. The statute is to be taken as Intending a promise in its legal signification, and not a mere declaration or offer by way of temptation or allurement. This Is apparent from the language employed " under promise of marriage." That ts, after having entered into and while under engagement to marry. Again, must it be a promise of n lawful marriage to bring the case within the act? It Is contended on behalt oi the People that this Is not necessary. It may be that In a case where a married man represented himself to the female as unmarried, and under such circumstances under promise of marriage should seduce her, the case would come wlthli> the act, although the marriage, should It be consummated, would be void. I have no ^oubt that it would, if the female was Ignorant o! the fact of his marriage, and was under a mutual engagement to hlra. Even a marriage under such circumstances, although it would be void, would not be criminal on her part. But take the promise presented by the pleadings, an agreement between a married man and an unmarried female to marry forthwith, at any time, without reference to the present marriage of the man, she knowing him to be at the same time lawfully married. Is this the kind of promise the Legislature had In view! It can not be. It was an undertaking which, If carried out, would sub- ject both parties to punishment In the State prison. The law. Instead of up- holding it as a marriage, would treat it as an infamous crime. To call such an engagement a promise of marriage would be a flagrant perversion of all legal sense and reasoning. The promise, I apprehend, required by the act, if It be not a promise of a marriage in all respects legal and valid, when It shall be consummated according to the Intention, must at least be such a promise as the law would presume the female, from the facts within her knowledge, to regard, and rely upon as a valid marriage. Females, as well as males, are presumed to know the law. It is, therefore, impossible to hold or to admit from the facts here presented that this female regarded this as any promise of marriage, or could have relied upon it as such. The law presumes that every person intends the necessary and natural consequences of his or her acts and agreements. But it is urged that this may have been a conditional promise on the part of the d .*endant to marry the female seduced, -when he should obtain a divorce, or upon the death of his wife. That such a promise would be void as against public policy I have no doubt whatever. But it is sufficient for the purposes of this case to remark that no such ques- tion arises here. No such promise could be proved under this indictment. The promise set out is absolute and unq'ualifled. The facts, therefore, set up in the special plea, and which are admitted by the demurrer to be true, iu my judgment take the seduction entirely out ot the statute, however much they may deepen the shades of its moral turpitude. It is not a question whether such an offense as here stands confessed ought to be uunishable by law, but whether the Legislature In the act before us made It so. 780 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. CourtH are to expound and administer, and not mulie laws. I am inclined to tlic opinion that a inutuai promise of marriage should be alleged in tlie indic-t ment, and that it should bo substantially set out, so that the court can see that It is a valid promise. The promise of marriage is somewhat in the nature of a condition precedent to the existence uf the offense. It is clearly matter of sub- stance. I have preferred, however, placing the decision In this case upon the interpretation of the statute, rather than the construction of the pleadings. And I am clearly of the opinion, upon the substantial facts admitted, that no offense under the act has been committed by the defendant. Judgment for the defendant on the demurrer, § G19. No Seduction Where Force la Uaed. — Where the woman does not consent it is nut seductiou.i In State v. Lewis," the court say: The com- plaining witness testified that the defendant had sexual intercourse with her on two occasions, once on thu nlglit of the 7th of October, 1876, and again in two vieeka after that time. She stated that on both occasions she resisted the de* fendunt all dhe could and he overpowered her. The defendant asked the court to instruct the jury as follows : " If the inter- course was against the will of complainant and accomplished by force, then the offense charged is not established, and you must acquit." The instruction was refused. We think it siiould have been given. If the intercourse was accom- plished by force and against the will of the prosecutrix, the crime was rape, and not seduction. It is true the witness, in other parts of her testimony, stated that she let defendant have connection with her because he teased her, and she loved him, and they were engaged. But her last utterance while on the witness St: id upon this suliject was that she resisted all hhe could and was overpowered. When the witness made two statements as to the manner of the criminal con- nection so utterly at variance, it was the right of the defendant to have the jury iustructed upon the effect of that statement which was iavorablo to him. We find nothing in the instructions given liy the court which covers this point. It is true the jury were instructed as to the necessary evidence to constitute seduction, but we think as there was evidence wlilch showed that the act was not seduction, but rape, the instruction asked should have been given. Reversed. So a guardian is not guilty of tbu statutory crime of defiling his female ward where it was done by force.* § 620. — Marriage of Parties. — Marriage of the prisoner and the woman is a bar to the prosecution, though the husband Immediately after the ceremony desert her.* § 621. JeduotlonbyOuardlanot Female — Who nota "Ouardlan." — On at indictment under a statiUe punishing the defiling of a ward by a guardian, in appeared that the father telling the girl to go and help the defendant plant corn did not render the latter punishable under the statute — he havmg had carnal knowledge with her while she was so assisting him.* " Allowing the girl," said the court, " to go and work for the defendant in helping him to plant corn, wos not confiding her to his care and protection, within the meaning of the statute. 1 Croghan t'. State, 23 Wis. 444 (186S). a 48 Iowa, 578 (1878). 3 State V. WoolaTer. 77 Mo. 1(C (1> . , * Com. V. Elchar, 4 Clark (Pa.), 326. <• State V. Arnold, 53 Mo. 90 (1874.) IMAGE EVALUATION TEST TARGET (MT-3) V. /. A% /- /A^. Il % 1.0 ■^921 12-5 I.I l*^ 1^ U 11.6 11.25 Photographic Sciences Corporation ■y 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historlques i^^ SEDUCTION " INSUFFICIENT PROOF' 781 The statute declares, that 11 any guardian of a female or c her pfivson, to whose care and protection phe tihall have been coutided, shall co..:nilt the offense, he shall bo punished, etc. The guardian is specitlcally named, and then any other person to whose care and protection the female is confided Is mentioned. The statute here certainly contemplated, that the other person alluded to, should occupy a position similar to that of guardian, or stand In some attitude In which a peculiar or confidential trust was reproved. It would not be necessary that he should be the legal protector of the female, but It would be necessary that she should have been committed to his especial care, with the expectation that he should exercise a supervision over her. The defendant stood in no such attitude. The female was allowed to go and assist him In laboring for one day, but there is no evidence that she was specially confided to his protection and care, as designed by the statute, however reprehensible his conduct may hare been, there was no evidence to convict him according to the provisions of the statute, under which he was Indicted. §622. Seduction — Evidence held InsufQolent to Convict. — In State V. Hawea,^ the court reversed a conviction on the ground tliat the evidence was insuflJcient, Seevers, C.J. , delivering the following opinion: "A reversal of the judgment of the court below is sought, for the reason, as claimed, that the verdict is not supported by sufficient evidence. The defendant and the prose- cutrix were both unmarried, and the latter at the time of the alleged seduction and for some time previous thereto, made her home at the house of the parents of defendant, but in what capacity does not appear. The prosecutrix is about twenty-two years old, and the defendant is presumed to have been several years older. If any false promises were m.ide, or seductive arts or influences used amounting to seduction, it will be found In the following portion of the testi- mouy of the prosecutrix: 'When we were returning from meeting defendant said he heard me remark that I never intended to get married, and he wanted me to promise to marry him, if anybody. I had a proposal from a widower; de- fendant wanted me to promise not to marry him, and I told him I did not intend to marry any way. • ♦ • There were a'.out three evenings we sat and talked after the family went to bed. In November, 1870, he came to my room door and said he wanted to kiss me; I told him it was no time for him to say anything to me, that It was midnight, and for him to leave my room; I got up and dressed. ♦ * • He took nie home one time from the cars, and on the way said his mother thought I would make as good a companion as Webster Haven's wife. He used to say to me I was the only one he ever met he cared anything for, and he Intended some day to get married, and when he did he wanted I should be his wife. February 16th, 1871, my birthday, we had our pictures taken together, he and I and an acquaintance of ours, in one group. • * • On the night of the 7th of July, 1871, he came to my room, and as I woke up he was in bed. He grabbed me as I turned over; I said, • O, my Lord, Norman,i am a ruined girl.* He said to keep still or I would be hurt. 1 said, ' 0, Lord.' He said I ought to know him well enough that he would not deceive me. He put his hand on my face and kissed me, and said for me to keep quiet. I had Intercourse with him that time. He was not there but a few moments. I told him to leave; he said he would hardly. • • * 1 43 Iowa, 181. And see People v. Eckert, SN.Y.Cr. Rep. 470(1884). 782 CRIMEA AGAINST THE PERSONS OF INDIVIDUALS. He ^as In bed but a few minutes, about five or ten. I recollect his telling me I need not be uneasy, that he would not forsake me, that I ought to know him. 1 did not tell him I was not afraid at all; only a few words passed. It was about midnight. When he took hold of me he grabbed me In his arras; I dldn t mean that he hurt me. I tried to puU away from him. The second time he was in my room about midnight. The night of July 7th he did not promise to marrv me; no promise was made, because I never came out a"^^*"'*^/'™ 'J.^^*; marry him until I wrote that letter from mother's. I told hmi at first I didn't intend to marry anybody; afterwards I told him I should never rnrrry any one but him; since this happened, but not before, I told him I would marry him. It is perfectly natural, and to be expected, that the prosecutrix should as far as possible, shield herself, and cast the blame, if any there was, on the defendant. There should not, therefore, be any strained construction put on her language, in order to sustain the verdict. On the contrary, as the defendant is entitled to the benefit of all reasonable doubts there may be as to his guilt, the language of the witness shoula receive no other construction than its fair and natural meaning should entitle it to. The material inquiry is, was there a promise of marricge existing between the prosecutrix and the defendant, or did the latter use any arts, false promises, or seductive influences, whereby or by reason whereof the prosecutrix was induced to yield herself to the embraces of the Je- endant? We think the fair and reasonable construction of the evidence is there was not To make such out, a strained or unnatural construction must be placed on the language of the witness. This the jury were not warranted in doing In order to convict. The verdict is not, therefore, supported by sufficient evidence. " Reserved." ^* DUALS. lect bis telling me I ught to know him. •ds passed. It was 1 his arras; I didn't second time he was )t promise to marrv 1 told him I would him at first I didn't lever mrrry auy one would marry him.' rlx should, as far as i, on the defendant, ut on her language, elendant is entitled 1 guilt, the language its fair and natural I there a promise of nt, or did the latter ereby or by reason embraces of the de- ;he evidence is there Qstruction must be e not warranted in ;)ported by sulBcient " Beserved.'' PEOPLE V. LILLEY. Part II. ASSAULT AND BATTERY. 783 ASSAULT — ELEMENTS OF THE CRIME. People v. Lilley. [43 Mich. 521. J In the Supreme Court of Michigan, 1880. 1. An A«ault is an Inchoate Violence to the person of another, with the present meaTTof carrying Iho Intent Into effect. Tltreat* are not sufficient; there mnst be proof of violence actually offered, and this within sach a distance as that harm might ensue if the party was not prevented. , ... » -k .- 2 miere ia no .uch OfTen.e as an assault with intent to commit raanslaaghter. Sunh an offense requires a specific intent; a specific intent requires deliberation, and in man- slaughter there can be no deliberation. For the plaintiff, Otto Kirchner. For the defendant, F. J, Atwell and J. J. Van Riper. Marston, C. J. The respondeat wa3 tried upon an information which charged him with having made an assault upon one Horace Mc- Kenzie, with intent, then and there, etc., to kill and murder him. Ufl- der instructions the respondent was found guilty of an assault with intent to commit manslaughter. The case comes here on exceptions before judgment, and while quite a large number of exceptions were taken, and have been presented in this court, but few will be consid- ered, as they reach the merits. A difficulty had arisen, between the person claimed to have been assaulted and the father of respondent, as to the proper division of cer- tain wheat, then being threshed, and which led to blows. It appears the respondent was struck on the head by McKenzie, and he thereupon "retreated" or walked toward the straw stack, some ten or twelve feet distant. , There is some conflict in the evidence as to what thereupon took place, but as respondent was entitled, as a matter of right, to have the case submitted to the jury under instructions applicable to the evidence, favorable as well as unfavorable to him, we mast, for the present pur- pose, consider the charge as given, and the refusals, in view of the evi- dence, most favorable to the accused. After respondent reached the straw stack he turned around, took a knife out of his pockets, made 784 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. 80me threat, and advanced towards McKenzie. After he had advanced one or two steps he was caught by a liystander, and there is some ques- tion a^ to whether the knife, at this time, was open or not, and wit- nesses testified that he was then ten or fifteen feet distant from McKenzie — the person assaulted — and that respondent '.hen put the knife in Lis poclcet. Tliis practically ended the matter. The court, as requested by the prosecuting attorney, instructed the jurj-: "An assault is an attempt or offer with violence to do a corporal hurt to anotlier; an offer to inflict bodily injury, by one who is rushing upon another, is an assault. Although the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of or- dinary firmness to believe tiidt he is in immediate danger of receiving such threatened injury, any intent to commit violence, accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance. And, in this case, if Lilley, being within ten, fifteen, or twenty feet of McKenzie, drew his knife from his pocket and commenced to open the same, and started towards McKen- zie in a violent manner, threatening that he would do him bodily injury, and after advancing towards him a f • steps, and while rushing towards McKenzie, he was stopped by DillL. n, Lilley would then be guilty of an assault." The court declined to charge — Sixth. *'An assault in law is an offer to strike or cut within striking distance, and if the prisoner started to strike or cut McKenzie, and be- fore he got within striking or cutting distance stopped and voluntarily abandoned his purpose ; or if, before coming within striking or cutting distance, was stopped by others and then abandoned bis purpose, it would not constitute an assault in law." Sevejith. '* In order to constitute the crime of assault with intent to murder, the attempt to strike or cut must be within striking or cutting distance ; and if the prisoner started to strike or cut McKenzie, and be- fore he got within striking or cutting distance was stopped by others, and then abandoned his purpose, it would not constitute an assault in law." Eighth. '• In order to constitute the crime of assault with intent to murder, the attempt to strike or cut must be within striking or cutting distance ; and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance stopped and volunta- rily abandoned his purpose, or before coming within striking or cutting distance was stopped by others, and then voluntarily abandoned his purpose, it would not at law constitute an assault with intent to mur- der, as charged in thhe information." PEOPLE V. LIT^LEY. 785 Ninth. "If the jury find that the prisoner took out his knife, but did not open it, or, if opened l)y him, lie did not attempt to cut McKenzie with it ; or if they find that tlie prisoner, before coming within striking distance, voluntarily closed the knife, or surrendered it toDillman, there was no assault, and the offenses charged in the infoitn- ation were not committed." The instructions given, and those refused, raise the question as to what in law constitutes atabnshed, it need not be by direct evidence, as of threats. It may be drawn as an inference from all the facts. 3 In a case of this character we have only to deal with voluutoiy man- slaughter. This " often involves a direct intent to kill, but the law reduces the grade of the offense, because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason."^ "Manslaughter, when vol- untary, arises from the sudden heat of the passions ; murder, from the wickedness of the heart." Manslaughter is "the unlawful killing of another without malice, either expressed or implied," ^ The offense is one that is committed without malice and without premeditation ; the " result of temporary excitement, by which the control of the reason 1 3 Green). Et., see. 83; S Greenl. Et., see. 59; 1 Biah. C. L., see. 419; 3 Bia. Com. iao, nota S. 3 WUfon V. People, 24 Mich. 410. 3 People V.Scott, 6 Mich. 296; Potter «. People, 6 iiioh. 7. * People V. Scott, «tipra. > t BU. Com. 191; 3 Greenl. Et., eec. 11% . ^ niVIDUALS. lit ma}' be made upon the fact nt the time. ;hc person of another, [feet. Threats are not •ffered, snd this within ty was not prevented.' f the court as to what guarded, and had a ill the evidence in this li and eighth requests conflict as to the dis- 1 stopped, and of the re may have been evi- pondent was stopped, he was bo near as to jury would have been naitted ; yet there was d, and in view thereof s State, there is such ntent to commit man- two things are neces- ault, coupled with an nstances that the ac- 1 should ensue. The se, and raise it above Qust be o£>tabnsbed, it t may be drawn as an 1 with voluutory man- t, to kill, but the law king at the frailty of ufficient to excite the inslaughter, when vol- ins ; murder, from the he unlawful killing of ed," 5 The offense is ut premeditation; the control of the reason BOtt, 6 Mich. 296; Potter v. 7. BOtt,«tipra. , 191; 3 Greenl. Ev., Bee. 11% PEOPLE V. LILLEY. 787 was disturbed, rather than of any wickedness of heart, or cruelty or recklessness of disposition." The true general rule is, " that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair avernge disposition, liable to act rashly, or witiiout due deliberation or reflection, and from passion r:ither than judgment." * Where tiie provocation falls short of this ; or if tiierc was time for the passion to subside and blood to cool ; or if there is evidenee of actual malice ; or if the provocation be resented in a brutal and ftrocious manner, evincing a malignant disposition ; in all such cases, if death ensue, tlie offense would be murder. To reduce the offense to man- slaughter all tliese things must be wanting, and the act must be done while reason is obscured by passion, so that the party f»ets rashly and without reflection. As was said in Xije v. People,- it would be a " per- version of terms to apply tl»e terra ' deliberate ' to any act which is done on a sudden impulse," under such circumstances. Is, then, an intent thus formed, without malice, deliberation or reflection, but rashly, and while the reason is obscured by passion, caused by a sufficient provocation, such as the law contemplates in cases of assault with intent to commit a felony? An examination of our statutes will show that a punishment is pro- vided for those who shall maim or disfigure another in a certain man- ner, as well as those privy to such intent.^ Also any person wlio shall assault another with intent to maim or disfigure in any of the ways mentioned.'* Attempts to commit the crime of murder and assaults with like intent are provided for.^ Assaults made in connection with rob- bing, stealing and taking from the person, such robber being armed with a dangerous weapon, witii intent, if resisted,, to kill or maim, or being so armed shall assault another with intent to rob. So assaults with like intent, where not so armed, are provided for by sections 7524-5-7. Malicious threats, with intent to extort money, or any pecuniary advantage, or with intent to compel the person threatened to do any act against his will ; assaults, with intent to commit the crime of rape ; kidnapping, witli intent to sell, etc. ; poisoning food, with in- tent to kill or injure any person, or willfully placing poison in a well, etc., with like intent; enticing away a cliild, with intent to detain or conceal ; administering medicines to any woman pregnant with a quick child, with intent thereby to destroy such child ; administering stupe- fying drugs, with intent, while such person is under the influence thereof, to induce him to enlist — are all provided for in the same chapter — 244 of the Compiled Laws. ' Maher t>. People, 10 Mlcli. 220. i 35 Mich. 19. ■■ lec. 7S20. * sec. TS21. 5 Bec«. 7522, 7523. 788 CHIMES AGAINST THE PEK80N8 OV INDIVIDUALS. In each aiul any of these cases it will be seen the intent is a deliber- ate one. K(» in section 7^)o7, uniler which it is claimed this case comes, " if any peison shall assault anotlicr, with intent to commit any bur- glary, or any othe felony," here the assault being with tlie intent to commit the buiglary, the intent is a deliberate one. In uone of these eases can tlie intent be one formed under such circumstances as would reduce a voluntary homicide to manslaugliter. When, therefore, in a chapter and section devoted entirely, in so far as it speaks of offenses committed with a particular intent, such intent is a deliberate one, must not the general language, refering to assaults with intent to com- mit any other felony, in like manner have reference to cases of deliber- ate intent.^ Had the assault been committed in this case and death had ensued, the intent miglit have been inferred from all the circumstances ; the liomicido, if not excusable, would have furnished evidence of the in- tent. In eases of assault wiili intent to commit a felony, a speciflc intent must be found to exist, aiid it is very difficult to imagine how such a specific intent can be found to exist in the absence of reflection and deliberation. When once it appears that the assault was made with intent to take life, under circumstances where the killing would not be lawful or excusable, then, if under such circumstances death should ensue, tlie party would be guilty of murder. It seems like a eonti**- diction of terms to say that a person can assault another with intent to commit manslaughter.'^ As this case now stands the respondent may be convicted of an as- sault, and a new trial must therefore be ordered. The other justices concurred. assault — elements of the crime — shooting at window of person's house — law of nations — house of foreign minister. United States v. Hand. [2 Wash. C. C. 435.] In the United States Circuit Court of Pennsylvania, 1810. 1. An Assault is an Offer or an Attempt to do a corporal injury to another, as by strik- ing liira with llie hand or witli a stick or ehaking the flst at him or presenting a weapon within such distance as thut a liurt iniglit be given or brandishing it in a menacing manner, with intent to do some corporal huit to another. 1 McDade v. People, 29 Mich. SO. 2 See, also Wright v. People, 33 Mich. SOI. ^1* )IVIDUALS. le intent is a deliber- med tliis caae comes, to corarait any bur- []g with tlie intent to e. In iione of these •cumstanccs as would iVhen, therefore, in a it spealo of offenses is a deliberate one, ts with intent to com- e to cases of deliber- nd death had ensued, e circumstances; the 1 evidence of the in- i a felony, a specitlc Hcult to imagine how absence of reflection assault was made with Q killing would not be istanccs death should t seems like a conti'a- anoiher with intent to DC convicted of an as- OTING AT WINDOW lOUSE OF FOREIGN sylvania, 1810. njury to another, as by strik- liim or presenting a weapon randishlng it in a menacing rright V. People, 33 Micl>. SOI. UNITED STATES V. HVN'I). 789 2. Firing a Pistol at a Tranaparenoy exhibited at a windnw of a person's house 1» no an assault on such person. 3. By the Law of Nations an attacic on the property of a foreign minister is an nssnult on him. But to <;ony offering violence to the person of the minister. Here again, the difficulty recurs, which has been noticed under the first count. How can an attack upon the house of the minister, without an intention to injure the person of the minister, be an offer of violence to his person? Upon common law principles, such evidence would seem inapplicable to such a charge. But the act of Congress refers us to the law of na- tions for our test ; and if the act amount to the offer of personal vio- lence, by that law, the charge is supported. That law, with respect to offenses committed against ambassadors, etc. , identifies the property of the minister, attached to his person or in his use, with the person of the minister. The expressions of Vattel are very strong: "His house, carriage, equipage, family, etc., are so connected with his person, as to partake of the same fate with it. To insult them, is an attack on the minister himself, and upon his sovereign. It is an insult to both." * All this is a legal fiction, for the purpose 1)f rendering the protection to which the minister is entitled full and complete, and to guard him as 1 1 Bac. Ab. tit. AsBattlt, 242. 2 Vattel, 618, 716, 719, etc. ^^i DIVIDUALS. counts, or charges, refore consider them jter, against the pro- of an assault,^ is an another ; as if one Lick, and misses him ; oh is an offense of a 1 or present a gun, or t miglit be given ; or tg manner. But it is t to do some injury hould be to do a cor- I the evidence in the y was, to destroy, or, lieated mind had con- was a member. His not to do a personal n the smallest degree ill he was guilty, must be punished ; but it minister, which is the nt. Upon this count, ing the law of nations, ter. Here again, the ihe first count. How ithout an intention to ■iolence to his person ? uld seem inapplicable 's us to the law of na- offer of personal vio- it law, with respect to ntiftes the property of with the person of the strong: "His house, with his person, as to u, is an attack on the I an insult to both." * jring the protection to and to guard him as 716, 719, etc. UNITED STATES V. HAND. 791 well against insults, as real personal injury. It is not more extrava- gant than the fiction which considers tlie minister, his house and prop- erty, out of the country, for the purpose of ousting tlio jurisdiction of the tribunals of tlie country over him. Nor is it more strange than that which once prevailed in our law, though long since overruled, that provoking words alone would amount to an assault. Moreover, it sccma pretty clear, that offenses of this sort were intended to be covered by the general expressions of the twenty-seventh section of tlie law to pun- ish crimes. The preceding part of the section had specified four dis- tinct offenses, the lowest of whicli is an assault ; and it is difficult to imagine any directly against the person of the minister, which ran be lower. But cougress knew that there are many other injuries which might be offered to a puljlic minister, and wliich the law of nations con- sidered as being indirectly attacks upon his persoi , f\ad, wltliout at- tempting a further specification, covered under gcnerul expressions all such as were deemed by the law of nations to be offenses against the minister. Witliout such a construction, it wr-'d be liffloult, •■<" not impossible, to imagine cases of violence asraiust the porson, to satisfy the gi. 1 ral words, which are not included in those that . e specified in this and the two preceding sections. But to constitute this an offense against the law of nations, the de- fendant must have known that the house upon which the violence was committed was the domicil of the minister; or otlierwise, it is mcioly an offense against the municipal laws of Pennsylvania ; and this is the only point of consequence for you to decide. Without giving any opinion upon the evidence, I shall content myself with presenting it fairly to your view. It is always difficult, and frequently impossible, to bring home to any man the knowledge of the fact by positive proof ; and therefore, it may fairly be collected from circumstances. But these circumstances sliould be legally proved, and should be sutflciently strong to satisfy the mind that the fact was known. In favor of the defendant, his declaration, immediately after the outrage was perpetrated, that he did not know that it was the house of the minister, made in a state of mind when caution and reflection were not to be expected, and that, at diflcient times afterwards, confirmed by similar declarations, have been much relied upon by his counsel. The denial of the accused is certainly the lowest species of proof ; but it may be sufficient to repel slight evidence to fix him with a knowledge of the fact. On the other side, the defend- ant lived in Philadelphia ; and if he had not obtained by this means a previous knowledge of the residence of the minister, the occasion which drew him to the spot, the novelty of the sight, the appearance of a crown, the general irritation of the crowd, and the defendant in particu- 792 CRIMES AGAINST THE PEUSOX8 OF INDIVIDUALS. lar, at its position, were all calculated to excite inquiries, which it ;s prov-'d by the witnesses could at once have been answered. It appears that some of those who went there ignorant that this was the house of the minister, sooned gained information of the fact. One of the gentlemen from the house had addressed the crowd, and explained to them the occasion of the illumination, and the impropriety of their con- duct upon the occasion. If it had been proved that the defendant was one of tiie crowd at this time, the evidence against him would be com- plete. But it seems very probable that soon after his first coming to the place, and possibly before tbis explanation was given, he had gone away in pursuit of his pistols; and it is in proof that almost immediately upon his return he fired them. It is possible, also, from the state of intoxication in which he was, that he did not wait to make inquiries. As to this fact, upon which the cause turns, the jury must judge. II they arc satisfied, upon tlie evidence, that he knew this to be the resi- dence of the minister, they ought to acquit him under the first count, and find him guilty under the second. If otherwise, find him not guilty, geneia y. Verdict not guilty. ASSAULT AND BATTERY- -ASSAULT MUST BE ON PERSON OF PRO. SECUTOR. KiRLAND V. State. [43 Ind. 146; 13 Am. Rep. 387. ] In the Supreme Court of Indiana, 1873. Xb a Prosecution for Assault and battery, the court instructed the jury that il snder cir cumstances mentioned in the charge," the defendant struck or beat the prosecutini witnesB while he was gathering corn in the field; or, while he wag driving his team ii the ileld, in the ac*, ol gathering corn, the defendant struck and beat the horses of th prosecuting witness in a rude and angry manner with a stick, the defendant is guilty o •n astanlt and battei-y." mid that as there was evidence tending to prove that th defendant did strike the horses when being dri-'sn, the instruction was calculated t mislead the jury to the conviction that such striking the horses was an assault an battery upon the driver, which it was not in any legal or logical sense, the driver him self not having been touched directly or indirectly, and hence such instruction wa erroneous. From the Marion Criminal Circuit Court. J. W. Gordon, T. M. Broton, B. N. Lamb, and J. N. Kimball, fo appellant. J. C. Denny, Attorney-General, for the State. BcsKiRK, J. This was a prosecution for an assault and battery con meoced before a justice of the peace. The affidavit charges the appel ^att INDIVIDUALS. cite inquiries, wiiich it ;s en answered. It appears ; tliat this was the liouse of the fact. One of the ! crowd, and explained to impropriety of their con- ed that the defendant was ;ainst him would be com- fter his first coming to the i given, he had gone away that almost immediately le, also, from the state of wait to make inquiries. , the jury must judge. If knew this to be the resi- lim under the first count, otherwise, find him not Verdict not guilty. 3E ON PERSON OF PRO- 187. ] ina, 1873. itructed the jury tbat if «ndercir. I; struck or beat the prosecuting while he was driving bis team in [truck and beat the horses of the a stick, the defendant is guilty of idence tending to prove that the the instruction was calculated to g the horses was an assault and I or logical sense, the driver him- and hence such instruction was ,b, and /. K. Kimball, for ate. ,n assault and battery com- affldavit charges the appel- KIRLAND V. STATE. 793 lant with having at Marion County, on the 28th day of February, 1873, unlawfully, and in a rude, insolent, and an^i-y manner, touched, etc., Cliarles Bien. The appellant was tried and found guilty by the justice. The case was appealed. It was tried on appeal in the Marion Criminal Court, where the State again obtained a verdict. The appellant moved for a new trial, which was overruled, and the judgment was rendered on the verdict. The error assigned is the overruling of the motion for a new trial. A reversal of the judgment is asked mainly on the ground that the court gave an erroneous instruction to the jury. The instruction complained of as erroneous is as follows : — " 2. To constitute a battery, tie touching need not be of great force ; a mere touching is sufficient if it be unlawful, and be done in a rude, or an insolent, or an angry manner. But this touching must be unlaw- ful. A man may defend'the possession of his estate and of his chattels by such reasonable force as may be necessary to that end ; and if in this case you believe from the evidence that at the time of the alleged assault and battery, Charles Bien was trespassing upon the lands of the defendant, and engaged in carrying away without right the corn ol the defendant, the defendant had the right, after requesting Bien to de part, and a refusal on his part to leave the property and premises, to use such reasonable force as was necessary to eject him from the prem- ises and protect his personal property ; and if the defendant, in thus protecting his property and possessions, touched Bien, or assaulted him only so much as was reasonably necessary to secure the object aforesaid, he is not guilty and you should so find. But if the jury be- lieve from the evidence that the defendant rented the field referred to in the evidence, no certain time being fixed for the termination of the lease to Charley Bien, to be cultivated in corn, upon the shares, to be gathered by Bien, one-half to be delivered to defendant, and the other to be retained b> the renter or tenant for his share. The mere fact that an agreement was made in the fall after, by which it was agreed that the tenant (Bien) take for his share of the corn the south field, and the defendant the north field as his share, except three acres in the south field, this would not terminate the lease of itself, unless it was agreed between the parties that the lease should terminate. Nor would such facts authorize the defendant to forcibly eject Bien from the field because he was gathering more corn for his own use than he was enti- tled to by such agreement ; and if, under such circumstances, the de- fendant struck or beat Bien while he was gathering corn in the field, or while Bien was driving his team in the field in the act of gathering the corn, the defendant struck and beat his horses in a rude and 794 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. angry manner with a stick, the defendant is guilty of an assault and battery." The statute says: " Every person who, in a rude, insolent, or angry manner, shall unlawfully touch another, shall be deemed guilty of an assault and battery," etc.* It is quite clear, therefore, that no assault and battery can be committed unless one person touches another person unlawfully, and in a rude, or insolent, or angry manner. The affidavit charges that the appellant thus touched Charles Bien. To sustain this charge the evidence must show the unlawful touching, etc. , of Charles Bien. The charge excepted to, however, instructs the jury that if the defendant struck Charles Bien's horses with a club, in a rude and angry manner, while Bien was driving his team, in the act of gathering corn, etc., the defendant is guilty of an assault and battery. In this instruction the court deems the touch- ing of Bien wholly immaterial and unimportant ; to strike Bien's horses is "to strike him, that is, if they were struck with a club, and it was done while he was driving his team in the field, in the act of gathering corn. True, if the blow touched both Bien and his horse, the touching would be an assault and battery on Bien ; not because of the touch- ing of his horse, however, but for tlie reason that it touched him. And if the appellant struck and drove Bien's horse, or any other horse, against him, violently, unlawfully, and in a rude, etc., then he would be guilty, not because he struck the horse, but for the reason that he struck Bien by running or pushing the horse against him. If Bien was so connected with his horses when they were struck that the blow took effect on his person as well as that oi the horses, then the person strik- ing the blow would be guilty. Bishop, in his work on Criminal Law, in section 72,^ says: "The slightest unlawful touching of another, especially if don? in anger, is sufficient to constitute a battery. For example, spitting in a man' s face, or on his body, or throwing water on him, is such. And the in\ iolability of the person, in this respect, extends to everything attached to it." Russell on Crimes,^ says: "The injury need not be effected directly by the hands of the party. Thus, there may be an assault by encour- aging a dog to bite. * « * And it seems that it is not necessary that the assault should be immediate, as where the defendant threw a lighted squib into the market-place, which, being tossed from hand to • hand by different persons, at last hit the plaintiff in the face and put out his eye ; it was adjudged that this was actionable as an assault and battery. And the same has been said where a person pushed a drunken man against another." 1 2 O. ft H. 459. S TOl. 2. • vol. X, p. 161. ^t^ IVIDUAL8. y of an assault and !, insolent, or angry leemed guilty of an ry can be committed y, and in a rude, or at the appellant thus evidence must show charge excepted to, truck Charles Bien's lile Bien was driving jf endant is guilty of irt deems the touch- I strike Bien's horses lub, and it was done it of gathering corn, horse, the touching icause of the touch- iiat it touched him. , or any other horse, etc., then he would r the reason that he 5t him. If Bien was jk that the blow took hen the person strik- en 72,* says: "The if don^ in anger, is ttingin a man's face, And the inviolability liing attached to it." t be effected directly Ein assault by encour- it it is not necessary le defendant threw a tossed from hand to in the face and put ble as an assault and ion pushed a drunken KIRLAND V. STATE. 795 Greenleaf on Evidence, in discussing the question of battery, says : "A battery is the actual infliction of violence on the jyjrson. This averment will be proved by evidence of any unlawful touching of the person of tlie plaintiff, whether by the defendant himself, or by any sub- stance put in motion by him. The degree of violence is not regarded in the law, it is only considered by the jury in assessing the damages in a civil action, or by the judge in passing sentence upon indictment. Thus any touching of the person in an angry, revengeful, rude or inso- lent manner ; spitting upon the person ; jostling him out of the way ; pushing another against him; throwing a squib, or any missile, or water upon him; striking the horse he is riding, whereby he is thrown ; taking hold of his clothes in an angry or insolent mauner, to detain him is a battery. So, striking the skirt of liis coat or tlie cane in his hand is a battery. For any thing attached to his person partakes of its inviolability." Blackstone defines a battery as follows: "3. By battery, which is the unlawful beating of another. T^ie least touching of another per- son willfully or in anger, is a battery ; for tlie law can not draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it ; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." i Note four, by Judge Cooley, on same page, reads as follows : "A bat- tery is the u awful touching the person of an )ther by the aggressor liimself, or any substance put in motion by him.* Taking a hat off the head of another is no battery.^ It must be either willfully com- mitted, or proceed from want of due care ; ■* otherwise it is damnum absque injuria, and the party aggrieved is without remedy ; ' but the absence of intention to commit the injury constitutes no excuse, where there has been a want of due care.^ But if a person unintentionally push against another in tlie street, or if, without any default in the rider, a horse runs away and goes against another, no action lies.' Every bat- tery includes an assault ; ^ and plaintiff may recover for the assault only, though he declares for an assault and battery." ^ Counsel for appellee have referred us to the following adjudged cases as supporting the instruction under examination: Bespublica v. De Longchamps,^^ State v. Davia,^^ Marentille v. Oliver,^^ United StcUes v. Ortega.^^ B. 1 3 Cooley'i Blackstone. 2 1 Saund. 296, n. 1 ; lb, 13 and 14, n. S. > 1 Saund. U. « Stra. S96; Hob. 134; Plowd. 19. > 8 Will. 303 ; Bac. Abr. Aisault & BaKery « Stra. 696; Hob. 131; Plowd. 19. T 4 Mod. 405. • Co. Litt. 283. » 4 Mod. 40S. 10 1 DaU. 111. 11 limi (S. C.),46. H 2 N. J. (L.) 379. V 4 Wash. 0. 0. Sal. 796 CKIMES AGAINST THE PERSONS OF INDIVIDUALS. The case referred to in Dallas was a prosecution under the law of nations, for an assault and battery upon the Minister of the French government, resident iu this country. It was proved, upon the trial, tl^atthe de- f endant struck with a cane the cane of the French Minister. 1 he court sav "As to the assault, this is, perhaps, one of the kin.l .n which the insult is more to be considered than tlie actual damage ; for, though no ^reat bodily pain is suffered by a blow on the palm of the han.l, or the skirt of the coat, yet these are clearly within the legal ddnnt.on of an assault and battery, and, among gentlemen, loo often mducc duel- in- and terminate in murder. As, therefore, anything attached to the pe"rson partakes of its inviolability, De Longchamp's striking Mon- sieurMarbois' cane i. a sufficient justification of that gentleman s sub- sequent conduct." The case referred to in Pennington,i ^^^ a civil action for a trespass committed by the defendant on the property of the plaintiff, by strik- ing with a large club the plaintiff's horse, which was before a carriage in which the plaintiff was riding. The court say: "To attack and strike with a club, with violence, the horse before a carriage in which a person is riding, strikes me as an assault upon the person; and if so, the justice had no jurisdiction of the action. But if this is to be con- sidered as a trespass on property, unconnected with an assault on the person I think it was incumbent on the plaintiff below to state an in- urv done to the horse whereby the plaintiff suffered damages; that he was in consequence of the blow, bruised or wounded, and unable to perform service ; or that the plaintiff had been put . ^ expense in cur- ing him, or the like." , The above case, being an action of trespass for an injury to the horse of the plaintiff, and not a prosecution for an assault, or an assault and battery upon the person of the plaintiff, we think that but little impor- tance should be attached, or weight given, to the loose remark of the ludge, that the striking of a horse attached to a carriage was an assault upon the person riding in the carriage. Tlie case of State y. DavW was a prosecution for an assault upon an officer in releasing from his custody a ne.rro. The facts will sufficiently appear from the quotation which we make from the opinion of the court. The court say: " The general rule is that any attempt to do violence to the person of another in a rude, angry, or resentful manner, is an assault; and raising a stick or fist within striking distance, pointing a gun within the distance it will carry, spitting in one's face, and the like, are instances usually put bv way of illustration. No actual violence is done to the person m any one of these instances ; and I take it as very clear that that is not J fupra. i lupra. V^IDUALS. !r the law of nations, rench goveriimont, e trial, that the de- iuistcr. The court e kiivl In which the uge ; for, though no of the liand, or the ! h'gal definition of ) often induce duel- ing attached to the op's striking Mon- it gentleman's sub- iction for a trespass e plaintiff, by strik- ,'as before a carriage r: "To attack and a carriage in which e person ; and if so, t if this is to be con- •ith an assault on the below to state an in- fered damages ; that inded, and unable to it \ > expense incur- in injury to the horse lit, or an assault and that but little impor- loose remark of the irriage was an assault of State V. Davis,^ in releasing from his ar from the quotation rhe court say: "The the person of another It ; and raising a stick within the distance it instances usually put lone to the person in clear that that is not KIRLAND V. STATE. 71*7 necessary to be an assault. It has, therefore, been held that beat- ing a horse on which one is, striking violently a stick which he holds in his han.l, or the horse on whi^'h he rides, is an assault, —the thing in these instances partaking of the personal inviolability.^ What was the case here? Laving the right of proi)erty in the negro out of the ques- tion, the prosecutor was in possession, and, legally speaking, the de- fendant had no right to take him with force. As far as words could 3 instruc- tion to the jury in a criminal case can not be corrected bj another in- struction which states the law accurately, unless the erroneous instruction be thereby plainly withdrawn from the jury.'' " 1 Soman v. Fampbrey, S4 Ind. 231. 2 Bradley *. SUte, SI Ind. 491. ^rfi [VIDUAL8. mpport the position itire accord with the (attery that we haTe Jen adopted by most I unlawful touohing any other substance sscntial prerequisite ssor himself, or any be a touching of the connected with the , as part of the per- assaulted. >rcs all these things, ! the striking of the lecessary, according d have been in the ^tached to the horses I gathering his corn that the touching of He may have been, } pile of corn to an- agon or having hold first charge given to ! justified in finding beyond a reasonable rude, or an insolent, nplained of, it is our ime subject; and if irrectly, and are not judgment. On the ea.ch other ; if they ir if thi^y must have i <,hc : ^- ••'» Rpplica- iho:;' r :■■■• vJN.irsod.* in .;i'," -.iwes. The Lnt!" iousinatruc- ectcd bj (mother in- irroneous instruction ite,SlInd.49a. KIRLAND V. STATE. 799 Construing these charges together, how do they stand? The jury are first told that, to justify a finding of guilty, they must be satisfied beyond a reasonable doubt that tlie defendant touched Charles Bien ; and then, in the second charge, the court continues, "that the defendant might lawfully employ reasonable force," etc., in defence of his possession or property but that under circumstances hypothetically put by the court, Charles Bien had the right to be on the defendant's premises gathering corn, "and if under such circumstances, etc., while Bien was driving his team in the field in the act of gathering the corn, the defendant struck and beat his horses in a rude and angry manner, with a stick, the defendant is guilty of assault aud battrery." Plainly, then the charge is, that the evidence must show the touching of Charles Bien by the defendant, but that if Bien is driving his team, etc., and the defendant strikes his horses (tliat is Bien's horses) with a stick in a rude and angry manner, then such touching of the horses is, in law, a touching of Bien, and the defendant is guilty of an assault and battery. LCgically the cliarge states the law thus : Generally, to sustain a charge of assault and battery on A., it is essential to prove a touching of A. by the defendant ; but under certain circumstances, such as if A. is driving his team, etc., and the defendant touches the horses of A. , then in that case, such toueliing of the horses is a touch- ing of A., and if such touching of the horses is imlawfully done, and was made, etc., then the defendant may be found guilty of an assault and battery on A. There was evidence tending to prove that the defendant struck Charles Brien. He and his two sons, Edward and Frank, so swear. The defendant swears he did not. The following is briefly the evidence tending to prove the assault and battery upon the horses. Charles Green testified: "He hit my horses on the head with a big club about three feet long. * * * He struck my horses two or three times. * * * He was mad. * « • I was loading corn out of the piles ; was loading up corn when he struck the horses. ' ' Same witness, on cross-examination testifies: "When he struck the horses, he struck them on the head, and they stopped, etc. Don't know who held the lines. Maybe my little boy held one and me the other. * * * He struck the horse next to me. « » « The team was made to stand when defendant struck the horses. * * • I was in the wagon when he struck them." Edward Bien testified: "Kirland hit the horses on the head and they stopped. We were just going to drive out. My father was then standing on the ground near the wagon. Defendant put his hands on the horses to unhitch them from the wagon ; tried to unhitch the traces. 800 CRIMES AGAINST THE PEUSOXS OF INDIVIDUALS. Ju8t before tlmt he struck the horses, when father was standing on the other aide of the wagon." Frank Bien testified: "At the time the horses wore struck fatlier was in tlie wagon." The defendant tostidod tliat he "didn't touth the liorses, except tliat he attempted to unliitch them from t)'e wagon." It is apparent that there was evidence in tlie case to wliich the second instruction was applicable. Tlie verdict being general, we are unable to determine whether he was convicted for touclilug the person of Bien or for striking his horses. It may be that the jury found tlie defendant guilty of striking the horses of Biun, for the defendant admitted that he attempted to unhitch the horses from the wagon, and, consequently must have touched them, while he positively denies that he touched the person of the prosecuting witness. Besides this, there was evidence tending to impeach the character of Bien. The jury may, therefore, have doubted, reasonably, the guilt of the defendant in the striking of Bien, nnd found him guilty only of having " in a rude and angry man- ner struck the horses of Bien with a stick," while " he was driving his team in the act of gathering corn." The second instruction was inapphcable to the evidence, and was calculated to mislead the jury, and being erroneous, the judgment should be reversed. The judgment is reversed ; and the cause is remanded for a new trial, in accordance with this opinion. ASSAULT -ACTION EXPLAINED RY WORDS -RESISTING TRESPASS. Commonwealth v. Eyre. [1 S. & R. 347.] In the Supreme Court of Pennsylvania, 1815. 1 If a Man Balse bi« hand Against another, within striking di»tance, and at tlie same time say, " If it were not for your gray hairs, etc.," it U no assault; because the words explain the action, and take away the idea of nn intention to iirikc. 2 A Justice of the Peace, who has an imperfect view of persons nt work on Sunday, can not forcibly enter the premises of another, for the pun)08e of getting a better view, In order to convict the offenders.i This case, which came before the court on a motion of the defendant for a new tilal, was an indictment against Franklin Eyre, containing two counts. The first charged him with an assault and battery upon Joseph Grice, Esq., as a justice of the peace, in execution of his office. 1 See Commonwealth v. tilUam, 8 S. & B. SO. tmm^ ^^m riUUALS. COMMONWEALTH V. EYRE. 801 as standing on the [vcrc struck fatlier he " didn't toufh I from t)>e wagon." to which the second :rnl, we are unal)le the person of Bien ound llie defendant lant admitted that and, consequently !8 tliat he touched there was evidence ry may, therefore, it in tlie striiiing of ide and angry nian- ' he was driving his evidence, and was ous, the judgment ided for a new trial, 5ISTING TRESPASS. , 1815. distance, and at the same ssault ; because the words iirikc. ns nt work on Sundaj-, can of getting a better view, In ion of the defendant lin Eyre, containing lit and battery upon ecution of his office. 50. The second, with an assault and battery upon Grice, without regard to his olUcial condition. The material facts, reported by the judge be- fore whom the indictment was tried, were as follows: — Tlie defendant was a shipbuilder, and some workmen In his employ- ment were at work in his yard on Sunday. 5Ir. Gricc, who was a jus- tice of the peace in the Northern Lil)ertics, in company with two other justices, went to the yard, and remonstrated with the defendant on the impropriety of his conduct. Warm language ensued between Eyre and (Jrice, during which Eyre raised his hand, and said, "If it were .-"Ot for your gray hairs I would tear your eyes out," but did not strike. (Irice, with the two justices who accompanied him, went away, intend- ing to proceed against the defendant the next day for a breach of the Sabbath. Soon after, however, Grice returned, thinking it is his duty to interfere further. An altercation again took place bi-tween him and tlie defendant, whose yard he attempted to enter in 0|)position to the will of the owner. The cause was tried the 2.'5d of January, 1815, at nisi priiis before Judge Yeates, wL j charged the jury that Mr. Grice, as a justice of the l)eace, had no right to force an entry into the defendant's yard, in pur- suit of testimony ; that, therefore, the opposition was lawful, and was not an assault and battery. As to what occurred when Grice first went to Eyre's yard, the evidence was contradictory, and the judge left it to the jury to decide whether an assault and battery had been proved. As the opinion of the court turned principally on the first point, a detail of the evidence in relation to the last is unnecessary. The jury convicted the defendant. TiujiiMAN, C. J., after briefly reviewing the facts, proceeded thus: The right of the justice to enter on the defendant's land, against his will, was the point principally contested on the trial, as it has been in the argument here. I shall, therefore, confine my opinion to that point, barely remarking, as to the rest, that if the jury founded their verdict on the circumstances of the defendant's raising his arm at the first en- trance, they were wrong, because, according to the evidence as reported by the judge, the action of raising the arm was accompanied with words which showed that the defendant was determined not to strike. It has been contended on the part of the Commonwealth, that the justice had a right to enter the defeneant's yard for two reasons: 1. Because there was a breach of the peace. 2. Because the justice had a right to convict those persons who were breaking the Sabbath on his own view. To prove that there was a breach of the peace, it is said, that by the constitution of Pennsylvania, all indictments must conclude against the peace and dignity of the commonwealth. But this is mere 3 Defbncbs. 51 mmmiimmsmi mm iiiJWiS 802 CRIMES AOAIN8T THE I'EKSONS OP INDIVIDUALS. matter of form. Before the revolution, the conclusion was against the peace of tlie king, his crown and dignity. Under a change of circum- stances, it was necessary to have a change of form, but not a cliange of substance. There was no necessity for enlarging the circ'e of cases, in which it is lawful to break the doors of a man's house; for where there la a breach of the peace, doors may be broken. At first view, it may seem extraordinary, that a man should be protected in his own house against legal process of any kind. But long habit has at- tributed a sanctity to this domestic asylum, which ought not to be vio- lated without good cause. It is a privilege which is dear to the people, perhaps it tends to make them more attached to their homes, and if so, it is a feeling which deserves to be cherished, because It is in the nar- row circle of home, that the foundation of morals is laid. The viola- tion of the Sabbath is a crime which deserves punishment. But when the violation consists of work, without noise or disorder, there is nothing in it like an actual breach of the peace, mthing of so pressing a nature as to require an immediate and forcible remedy. The serving of legal process on Sunday, tends to disturb the quiet of that day, which it is the object of the law on which this proclamation is founded to protect.^ Tlierefore, it is that the serving of all legal process, is forbidden by another act,^ except in cases of treason, felony, or breach of the peace. And there is as much reason to apprehend disturbance from an entry for the purpose of making a conviction, as from the serving of process. It is on the ground of a conviction, on the view of a justice, that the attorney-general rests one of his arguments. The act of Assembly, says he, authorizes a conviction on view, and therefore, it authorizes all the means of conviction, one of which is, an entry into the place where the breach of the law is committed. If the premises be true, the con- clusion is fairly drawn. But I do not perceive, that where the justice views the offense, an entrance is necessary. What he sees, he may re- cord, and convict the offender on the evidence of his own senses. But the argument for the Commonwealth goes to prove that what he does not see with sufficient certainty, he may remedy by an entry for the purpose of getting a better sight ; but that is outrunning the act of Assembly which provides for two modes of conviction, one on view of the justice, the other in the usual way by proof of witnesses. The jus- tice may take his choice ; if his view afford sufficient evidence to satisfy his conscience, he may convict without further proof, but if not, he must prove the fact by witnesses. In the present instance, his view was in his own opinion, not sufficient, and therefore he wished to enter. In that he was wrong ; he should have summoned the offenders next 1 Act of 22d April. 1794, 3 Snn. Laws, 177. » 1 Sun. L. 25, Act of 1705. A^ VIDUAL8. COMMONWEALTH V. EYRE. 803 on wofl np^ainst the change of circum- I, but not a change the circ'e of cases, i house ; for where 1. At first view, it otectcd in his own ong habit has at- ught not to be vio- dear to the people, r homes, antl if so, use it is in tlic nar- is laid. The viola- shment. But when ler, there is nothing lo pressing a nature 'he serving of legal hat day, which it is 'ounded to protect. ^ !ss, is forbidden by ireach of the peace. )ance from an entry serving of process. ? of a justice, that lie act of Assembly, are, it authorizes all into tlie place where ies be true, the con- it where the justice he sees, he may re- is own senses. But re that what he does )y an entry for the trunning the act of tion, one on view of (ritnesses. The jus- fa evidence to satisfy roof, but if not, he it instance, his view ) he wished to enter, d the offenders next Ct of 1705. day, and proceeded against them in the usual manner. But it is said, he did not know them. If ho did not Ivuow tliem liimstlf he should have resorted to those who did know tliem. Not many offenders will escape for want of being known. It is jiossible that a few may, and if it should so Inippen, it will be ijetter tlian that an important privilege should be broken down in order to get at them. I am of opinion, tliat the verdict was against law, and therefore there sliculd bo a new trial. Yeates, J. The question which was agitated upon the trial of this indictment, before me, is of great impctance to the community. It was strenuously contended on tlie part oi the Commonwealth, that the prosecutor, Joseph Grice, Esq., as a jistije of the peace, had a legal right to force his entry into the defendants premises against his will, under tlie circumstances of the case as disclosed iu the evidence. Two men were seen working on shore, in the defendant's ship-yard upon Sunday. Nine or ten others were seen working on board a vessel, which was then building. In order to ascertain who the persons were who were guilty of a breach of the Sabbath, Mr. Grice deemed it his duty to enter the shi[)-yard, wiiich was enclosed by a fence, although opposed therein by tiie defendant. Independently of the defendant's resisting the force attempted by Grice, at that time, the great bulk of the testimony did not show any breach of tlie peace committed by the defendant. So tliat the question on this part of tlie case was narrowed to a single point, whether the forcible entry of Grice was justifiable or not? I gave it in charge to the jury, that a justice of the peace had na right to force himself into the possessions of another in quest of testi- mony against the will of the owner ; that in ce/tain specified cases, as treason, felony, pending an affray, where a dangerous wound had been given, for breaches of the peace, or for surety of the peace, a house might be broke open, with or without a warrant, but I knew of no prin- ciple of the common law, or any injunction by act of assembly, extend- ing this power. Although Sabbath breaking was the violation of a divine as well as a human law, I did not consider it as an actual breach of the peace. If such compulsory domiciliary visits, to search for offenders, or testimony to convict them, might be made, a man's house would soon cet ^e to be his castle of defence, and the greatest disorders must arise therefrom. I, therefore instructed the jury, that the entry of Mr. Grice, was not justifiable, and that it was of no moment, whether the yard gate was open or shut, if the defendant opposed his entry. I see no reason whatever, for changing the opinion I delivered to the jury. But it has been urged, that the defendant might well be convicted of an assault on Grice in the execution of his office, from what passed at the first interview, when the two other justices were present. That 804 CHIMKH AGAINST TIIK PERSONS OF INDIVIDUALS. matter wiis n..t much urged ot tbo trial, nor do I think tlio ovidcnco warranti-a the vt-rdict, and more particularly when it in considered, that tliouKli the words of the defendaut were rude and imi)r()i.er at the time, yet they were iiccomi)anied by cxuressioUH explanatory of his intentioUH, Which, altlioujjli (irice eonii)lained of, ho Uid not suggest to the other justices, that an assault had been committed on him. 1 concur in set- ting aside tiie venlict and awarding a new trial. BKACKKNuiixiK, J., delivered an opinion to the same effect, which the reporter has not been able to procure. Xew triul granted. ASSAULT -TAKING HOLD OF PERSON WITHOUT INTENT TO INJURE NOT. People v. Hale. [I N. Y. Crim. Rep. 633.] In the Supreme Court of New York, 1883. 1 The Taking hold of a Person', arm in the Oonadenoe of exlHtlng Jrlendshlp. tmit- ^•i7ri^'..o «.,uirca by H su,.,.o«c.l mutual kind feeling, doing no injury, and with no wrongful intent, is not a criminal act. a. Woon the Trial of a Charge of Assault and Battery, it appeared that the defendant ^,'na tie ,^ecut;ix.«l>o were acquaintanc- -"nd on friendly relat.ons, were walk ng ogether upon the .treet. when the defendant tool, nold ot prosecutrix'* arm. the testi- mony for the pro.ecution being that thi- wa. done with violence, and for the defenso. r«t It was done without violence, and with no intent to injure or '7"'' ••^^^""f' The act remained uncomplained of for four months. The Jury returned »» t^elr verdic . ..tlm* while we find the prisoner guilty of an assault, we do not deem hln, B" 'ty of crimina assault or intent to Injure." The court refused to entertain the verdict and S jTy tl ereupon found a verdict of guilty with a recommendation to mercy ; where- upon uL defendant was sentenced. Held, error; that the first verdict was. in legal •Sect, an acquittal, and should have been entertained. Appeal from judgment of the Court of Sessions of Rensselaer County, Hon J. Forsyth, County Judge, presiding, affirming the judgment of the Police Court of the city of Troy, wherein the defendant was convicted of the crime of assault and battery, and sentenced to pay a fine of $^0, or in default thereof, to be confined at hard labor in the Rensselaer county jail, for the period of sixty days. The alleged offense was committed on June 24, 1882 ; the complaint was made, and the trial had, four months thereafter. The trial was by jury and on the rendition of the verdict, the following proceedings were had- "The jury retired and after deliberating, returned into court with the following verdict: 'That wliile we find the prisoner guilty of assault, we do not deem him guilty of a criminal assault, or Alia »IVIDUAL8. I'EOrLE V. 4IALE. 805 [ think tlic ovidi'Dco it in cunsitli.'ii"l, tlmt itupropt-T at tlie time, ory of Ills iutt'iitioUH, suggest to the other im. 1 concur in set- ime effect, which the jVcjo triiil granted. INTENT TO INJURE , 1883. il existing trlendahip, tmit- {, doing no Injury , and with kppeared that the defendant idly relations, were walking prosecutrix's arm, the testi- lolence, and for the defensu, njure or Insult prosecutrix, iry returned as their verdict, lo not deem lilni guilty of ii 1) entertain the Tcrdict, and nondation to mercy; where - e first verdict was, In legal of Rensselaer County, ning the judgment of gfendant was convicted id to pay a fine of $30, ibor in the Rensselaer I, 1882 ; the complaint fter. The trial was by following proceedings jerating, returned into we find the prisoner a criminal assault, or Intent to injure.' The court refused to entertain the verdict, and directed the jury to again retire. Tlie jury again returned li.to court, and reml.red a verdict of guilty, and recommended tlie prisoner to the nieicy of the court." Thereupon the court pronounced judgment as above stated. Furtlier facts appear in the opinion. William H. Hale, defendant and appellant in person. L. W. Rhodes, District Attorney, and Lewis E. Orifflth (assistant), for the People, respondent. Tlie magistrate did not err in refusing to entertain the verdict as first presented by the jury. There are only two forms of verdict known to criniinal practice : a fjeneral verdict, which must be either guilty or not guilty, or a special verdict by which the jury finds the facts alone and leaves the judgment to the court.' The magistrate did not err in directing the jury to reconsider their verdict, as it was neither a general or special one.* BocKES, J. The point is taken that the first verdict was, in legal effect, a verdict of acquittal, and this, whether it be <'.eemed to he a general or a special verdict; that in either case, there was an express finding against the commission of a crime, which in as- sault and battery, necessarily involves a criminal intent, an in- tent to commit an act of violence upon another, by way of injury and insult, one or both, productive of a breach of the peace. The act complained of was the taking hold of the arm of a young woman, Miss Dewar, when walking in the street with others, her associates, male and female. The defendant and Miss Dewar were acquaintances, and to the time of the occurence, held friendly relations with each other. Miss Dewar and Mr. Crutchley, with whom she was walking, and who it seems was not on friendly terms with the defendant, testified that the defendant violently seized hold of her arm ; whereas two others, disinterested witnesses, who were present, put the act more mildly, saying that they saw him take hold of Miss Dewar's arm ; and the defendant, not denying that he tooli hold of Miss Dewar's arm, testified that " it was not with the intent to assault or insult her," on this proof , the jury rendered theJr verdict; and it was for the jury to say which version of the transaction should be adopted as the true one. The jury had the right to conclude, especially in view of the former friendly relations which had existed between the defendant and Miss Dewar, undisturbed until Mr. Crutchley came between them, that the defendant simply took hold of Miss Dewar's arm, with no "intent to in- sult her;" and the jury did so find that the taking held of Miss J 1 Code Cr. Pr., »ece. 437, 438. a i6. , sec. 448 i People v. Bush, 3 Park. W2 ; People V. Graves, 6 lb. 134 ; Nelson v. People, S lb. 39. 806 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. Dewar's arm was not a " criminal assault " or with " intent to injure." Was not this verdict a perfect acquittal? If the assault was not crimi- nal, there was no crime. The jury found the defendant not guilty of a criminal assault ; that is they found that the defendant took hold of Miss Dewar's arm, but with no criminal intent. This was good as a special verdict, which need not be in any particular form, if it presents intelli- gently the facts found by the jury.^ It was a finding of the facts. It presented the conclusions of fact as established by the evidence, as con- strued by the jury.^ It was not an imperfect or defective verdict, but covered the entire case ; nor did it contain &o.y suggestion of mistalie, so People V. Bush,^ Nelson v. People,* and People v. Graves,^ have no application. The defendant was charged with a criminal act. The jury found that the act on which crime was predicated, was not crimi- nal ; and they might so find, if they found the facts to be as claimed and proved on the part of the defendant. What are the constituents of the crime of assault and battery? It has been tersely laid down as follows: "An act done, with criminal intent and injury to the public or disturbance of the public peace. " It should be held in mind that wc are considering the case of an alleged crime, not the right of private action for damages because of a trespass upon the person, in which case intention is not m-terial except on the question of damages. Here w( are treating with the subject of crime ; so to make the act criminal, ii must be committed with criminal intent ; an act — an assault— withoul such intent, does not constitute a crime, Greenleaf says, the Inten. tlon to do harm is of the essence of an assault ; and again, in the cas( of a mere assault, the quo animo is material ; and again, it is said, th( law judges not only of the act done, but of the intent with which it ii done ; thus, to make an act criminal, there must be vicious intentioi and criminal design. Infants, idiots, and persons of unsound mind are held to be irresponsible for their acts, otherwise criminal, becaus( Incapable of felonious or criminal intent. Lord Kenyon, speaking upoi this subject, says the intention and the act must both concur to const! tute the crime. In Hays v. People,^ the intent was looked upon a necessary to the offense; so it is said in Russell on Crimes, tha whether the act shall amount to an assault, must in every case be col lected from the intention, citing the remark approvingly that it is th quo animo which constituted an assault, which was a matter to be lei to the jury, as above suggested. We are here considering the subjec in its criminal aspect, not as in personal actions of trespass vi et ormii Then has a crime been committed? Was there culpability, viciou Code Crlm. Proc, sec. 4 10 a Code Crim. Pro., sec. 438. 3 3 Park. BR2. * B lb. 39. » B lb. 134. • 1 Hill, 331. INDIVIDUALS. with " intent to injure." he assault was not crimi- ! defendant not guilty of f endant took hold of Miss lis was good as a special arm, if it presents intelli- , finding of the facts. It :1 by the evidence, as Con- or defective verdict, but suggestion of mistake, so jple V. Graves,^ have no ith a criminal act. The )redicated, was not crimi- lie facts to be as claimed lat are the constituents of )een tersely laid down as and injury to the public d be held in mind that we , not the right of private the person, in which case on of damages. Here we ) make the act criminal, it ict — an assault — without Jreenleaf says, the Inten- It ; and again, in the case and again, it is said, the he intent with which it is must be vicious intention (ersons of unsouud mind, herwise criminal, because rd Kenyon, speaking upon lust both concur to consti- tent was looked upon as Russell on Crimes, that must in every case be col- approvingly that it is the ich was a matter to be left ?re considering the subject )ns of trespass vi et nrmis. there culpability, vicious PEOPLE V. HALE. 807 intention, criminal design, designed disturbance of the public peace? The jury found, and so rendered their verdict, that the defendant was not guilty in this regard — that the act complained of was not a crimi- nal act, did not involved any element essential to crime. They had the right to find, if they deemed the facts proved to justify the finding, that the taking hold a person's arm, in the con.idence of existing friendship, trusting to a license acquired by a supposed mutual kind feeling, doing no.njury, with no intent to do a wrong, bj, insult or otlierwiae, is not a criminal act. Such an act is an innocent one, in the sense that it does not constitute a crime. It is, too, of some significance, as bearing on the legal views above expressed, that the act remained uncomplained of for four months, and, as counsel stated on the argument — and this was not disputed, — until after trouble had arisen between the defendant and Crutcliley, with whom Miss Dewar was walking at the time of the occurrence. Again, the record, as it now stands, presents a strange anomaly. It contains two verdicts, one not guilty; the other, guilty. The first verdict was not taken back by the jury ; nor was the second one an amendment of the first. Each was perfect of itself, not defective or suggestive of mistake ; the first, being complete of itself, and declaring that tliC act complained of was not criminal, that the defendant was not guilty of crime in doing it, — should have been accepted as final. It follows tha'. the judgment pronounced by the Police Court was errone- ous. This conclusion renders it unnecessary to examine other ques- tions raised on the appeal. The judgment of the Rensselaer Sessions and of the Police Court should be reversed, and the defendant discharged. Learned, J. [concurring]. Simply to find the prisoner guilty of assault, was to find him guilty of a criminal intent, simply to find him not guilty of a criminal assault was to acquit him. The difficulty ia to say what the jury meant by their verdict, inconsistent on its face. If they iceant to acquit, then it was error not to entertain the verdict, and to direct the jury agai o retire. If it had been explained to them that, on this criminal prosecution, there could be no assault without an intent to injure, then they might have stated what they intended ; ^ but this was not done, so far as appears, as they distinctly found that there was no criminal assault and no intent to injure. I am, on the whole, of the opinion that by the words " guilty of assault," they must have meant sim;r if after a calm, con- )n both sides, you still ect, the defendants are uitted. • • • [If an offlcer proceeds to '.aalce an uriest for an offense committed iindcr his eye, without a wf.rrant, he is bound to give to the party arrested, clear and distinct notice of his purpose of malving the arrest, and also of the fact that he is legally qualified to maice it, or is an ofl3cer of the law ; and failure to do this on the part 'of tlie officer, may make him guilty of an assault upon the i)erson arrested, while under other circumstances — if pi'oper notice liad been given — he would not be guilty of an assault, and in tliis connection we may say to you further, that something more is necessary than merely to show a star, or badge, insignia of office.] (Second assignment of error. ) Verdict, guilty on the second count. The court sentenced Shovlin to pay $50 and costs, and Tammany and Rhoades each to pay 8100 and costs. The defendants took this writ, assigning for error the portions of the charge above inclosed in brackets. T. It. Manin, John T. Lenahan and Q. A. Oates, for plaintiff in error. Bowser was engaged in the commission of an offense which rendered him liable to arrest on view of an officer, and hence, no notice was necessary."^ But conceding that a criminal detected by a constable in the actual and flagrant violation of our laws against certain kinds of gambling, can not be legauy arrested without having clear and distinct notice from the officer of his intention to arrest him, it is not necessary, as stated by the learned judge, that something more in the way of giving notice to the party to be arrested should be done, than by showing a badge or star, insignia of offices.* Jolm McGahren, District Attorney {Henry W. Palmer with him), for the Commonwealth, defendant in error. The authorities relied on by the plaintiff in error only affirm the principle that a known officer of the law, acting in his own district, need not show his authorit}'. A party has the right to resist, unless the officer and cause of arrest are known to the offender. ^ But an officer, if resisted, is not bound to exhibit his warrant. If not resisted, and there is no well grounded reason to expect resistance or escape, he should, on request, exhibit the warrant.* Mr. Justice Sterrett, delivered the opinion of the court. After prohibiting various forms of gambling, prescribing penalties therefor, etc., our crimes act of March Slst, 1860, declares: "It shall or may be lawful for any sheriff, constable, or other officer of justice, with or without warrant, to seize upon, secure, and remove any 1 People V. Pool, 27 Oal. B78; 3 Whar. Or. L., sec. 29-24; Rex v. Davis, 7 C. A P. 7S7: Act March 3, 1860, sec. 60 ; Cora. v. Cooley, Gray, 360; Stale v. Townseud, 5 Har. (Del.) 487, 438; Arnold v. Steeves, 10 Wend. 314. S IBlBh. Cr. Pr., sec. 192; 3 Whar. Cr. L., sec. 2924. 3 Wolf f. State, 19 Ohio St. 248; Com. f. Hewcs, I Brews. 348. * Com. V. Hewes, 1 Brews. 348. 812 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. device or machinery of any kind, character or description wliatsoever, used and employed for tlie purpose of unlawful gaming as aforesaid, and to arrest, with or without warrant, any person setting up the same." It is not seriously questioned that Bowser, the person on whom the alleged assault and battery wjs committed, was openly engaged in violating both the letter and spirit of the act ; indeed, it is very evident from the testimony that plaintiffs in error were as fully authorized, by the section above quoted, to seize the gambling apparatus and arrest the proprietor thereof, as if they had been armed with a warrant for that purpose. The question, therefore, was not whether they were guilty of an assault and battery in making the arrest, but whether they were guilty of the offense for which they were indicted by reason of their having used more force tlian was reasonably necessary under the circumstances; and, in the main, that question was fairly submitted to the jury. The first assignment of error is not sustained . In charging, as therein specified, the learned judge expressed a decided opinion, as to the effect of the Commonwealth's testimony; but, the jury could not have been unduly influenced thereby, for the reason that in the very next sentence he said to them: "If, on the other hand, you believe the evidence of the defendants and their witnesses, that they exercised no more force than was necessary to vindicate the law and protect them- selves from injury, they should be acquitted." The question of fact was thus left to the jury without anything more than a mere expression of opinion as to the effect of the testimony if believed. One of the questions involved in the second specification is, whether an officer, authorized to arrest without warrant, is bound, before doing so •' to give the party to be arrested clear and distinct notice of his pur- pose to make the arrest, and also of the fact that he is legally qualified to make it; " in other words, may the officer be convicted of assault and battery, for making the arrest, without first g ving such notice? While in most cases it may be prudent for the officer to give the notice before making the arrest, it is going too far to say, in effect, that he is required to do so ; and, therefore, wo think that the learned judge erred in charging the jury as he did on that subject. In considering the question, as presented by the undisputed facts of this case, it is fair to assume the constable and his assistants, plaintiffs in error, were authorized to make the arredt; that the authority with which the con- stable was expressly clothed by the act, was at least equivalent to a warrant. It is doubtless the duty of an officer, who executes a warrant of arrest, to state the nature and substance of the process, which gives him the authority he professes to exercise, and if it is demanded, to exhibit his warrant, that the party arrested may have no excuse for A^i )IV1DUAL9. scription whatsoever, ffaminff as aforesaid, setting up the same. ' ' person on whom the » openly engaged in ed, it is very evident I fully authorized, by apparatus and arrest i with a warrant for b whether they were Bst, but whether they indicted by reason of ' necessary under the 18 fairly submitted to ;n charging, as therein d opinion, as to the e jury could not have that in the very next and, you believe the ;hat they exercised no law and protect them- The question of fact lan a mere expression ieved. (ecification is, whether s bound, before doing tinct notice of his pur- he is legally qualified 5 convicted of assault t g ving such notice? leer to give the notice ly, in effect, that he is ;he learned judge erred t. In considering the [ this case, it is fair to intiffs in error, were ty with which the con- least equivalent to a rho executes a warrant le process, which gives if it is demanded, to ly have no excuse for PEOPLE V. CAUYL. 813 resistance.! On the other hand, as is said in Commonwealth v. Cooley et ill.,- '• the accused is required to submit to the arrest, to yield him- self immediately and peaceably into the custody of the officer, who can liave no opportunity, until he has brought his prisoner into safe custody, to make him acquainted with the cause of his arrest, and the nature, substance and contents of the warrant under which it is made. There are obviously successive steps. They can not all occur at the same instant of time. The explanation must follow the arrest ; and the exhibition and perusal of the warrant must come after the authority of the officer has been acknowledged, and his power over his prisoner has been acquiesced in." The general principle, thus stated, is equally applicable to arrests, withot warrant, under authority of the statute. The second assignment of error is sustained. Judgment reversed, and it is ordered that the record, with copy of the foregoing opinion, setting forth the cause of reversal, be remitted to the Court of Quarter Sessions, of Luzerne County, for further pro- ceeding. ass^iult and battery — common carrier- ejecting passenger- People V. Caryl. [3 Park. C. C. 326.] In the Supreme Court of New York, 1857. 1. A Oonduotor on a Bailroad Is ju«tlfled In ejecting a paesenger from a c»r who uiet grossly profane and indecent language on tlie car. 2. So also on the Bafoaal of the passenger to obey the reasonable regulations of the company. Certiorari to the Court of Sessions of Westchester County. The defendant was indicted for an assault and battery, alleged to have been committed on one Thomas Elliott, and pleaded not guilty. The indictment was tried at the Westchester Sessions, where the de- fendant wa« convicted. On the trial Thomas Elliott was called as a witness, and proved that he took passage on the New York and Harlem Railroad at the city of New York, for Tuckahoe, Westchester County, and purchased a ticket for that place; and that he was violently ejected from the cars at 1 1 Chit. Cr. L. 81. a 6 Gray, 360, 366 814 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. Hunt' 9 Bridge, before reaching Tuckahoe, and nearly four miles distant therefrom ; that just after leaving William's Bridge, a station three miles from Hunt's Bridge, the conductor called on Elliott for his ticket, which he refused to surrender up to him. The defendant's counsel offered to show that Elliott's conduct throughout the whole trip was noisy, disgraceful and disorderly, and such as to annoy the passengers in the cars, and to interfere with their repose and comfort. This testimony was objected to by the district attorney, and excluded by the court so far as it tended to show disorderly conduct before the arrival at Williams' Bridge, on the ground that conduct below that point could furnish no pretense to defendant to put EUoitt out of the cars at Hunt's Bridge ; to this decision the defendant excepted. James Dusenbury, a witness for the prosecution, was asked by the district attorney what was Elliott' s general character for sobriety. This was objected to by the defendant's counsel ; but the objection was over- ruled, and an exception taken. The witness then testified that Elliott was a sober, quiet and inoffensive man. The defendant offered to prove that the regulation and custom of the New York and Harlem Railroad had always been for the conductors to collect tickets for all stations up to Tuckalioe, immediately after leav- ing Williams' Bridge. This was objected to by the district attorney, who claimed that such usage, if it existed, did not affect the complain- ant, nor deprive passengers, who insist on their legal right to a ticket, from retaining it until they reach the station next before leaving the cars. The court sustained the objection and excluded the evidence, and the defendant excepted. The court, among other things, charged the jury that a conductor on a railroad had no authority to eject a passenger from the car for mis- conduct, except when the conduct of the passenger was such as to dis- turb the peace and safety of the other passengers in the car, to which the defendant also excepted. The defendant made a bill of exceptions on which the writ of cer- tiorari was issued. Robert Cochran, for the defendant, cited 6 Cowen,* 1 Starkie on Evi- dence,2 5 Cowen,^ Angell on Carriers,'' Jenks v. Coleman,^ Common- wealth v. Power,^ 1 American Railroad Cases,^ Statutes of 1850,8 TFt7- leta v. Buffalo and Niagra Railway Company.^ Edward Wills, District Attorney, for the People, cited Holliater v. 1 p. 670. • p. 186. S p. 320. « Bees. 629, 630 b * 2 Snmn. 22. • 7 Mete. 601. ' p. 380. 8 cb. 140, sec. 8S. • U Barb. 688. I^Kte VIDUALS. y four miles distant ge, a station tliree i^lliott for his ticket, b Elliott's conduct and disorderl}', and interfere with their )mey, and excluded conduct before the conduct below that at EUoitt out of the ,nt excepted. 1, was asked by the • for sobriety. This ; objection was over- testified that Elliott •n and custom of the 'or the conductors to nediately after leav- ]e district attorney, affect the complain- igal right to a ticket, t before leaving the eluded the evidence, r that a conductor on 'rom the car for mis- r was such as to dis- in the car, to which lich the writ of cer- en,* 1 Starkie on Evi- Coleman,^ Common- atutes of 1850,8 Wil- lie, cited Holliater v. PEOl'LE V. CARYL. 815 Nowhn,^ Cole v. Goodwin,^ Roscoe's Criminal Evidence,'' General Rail- road Act,'* Wharton's Criminal Law."' By the Court, S. B. Strono, P. J. Whatever may be our opinion, from the evidence, as to the guilt or innocence of the defendant, we are bound to award hira a new trial, if improper evidence was admitted against him, or competent evidence offereil by him was rejected, or the court incorrectly ruled any question of law against him, at any rate in a matter material to his defence. The defendant based his defence for forcibly ejecting the witness Elliott from the car upon two allegations : First, tliat he had conducted himself during the passage, and up to the time of ills removal, in a violent and disorderly manner, so as to seri- ously disquiet the other passengers ; and, secondly, that he improperly refused to surrender his ticket when reasonably requested to do so. As to the first ground of defence, the defendant's counsel offered to show that Elliott's conduct throughout the whole trip, was noisy, dis- graceful and disorderly, and such as to annoy the passengers in the cars, and to interfere with their repose and comfort. Tlie court refused to receive evidence' of such misconduct antecedently to the arrival at Williams' Bridge, distant about three miles from Hunt's Station, where Elliott was ejected. Why this place was assumed as the limit does not appear. At any rate, it was improperly adopted. It was competent for the defendant to give evidence of misconduct during the entire passage, as it was a short one, if it was apparent that the disposition and feeling which prompted it continued and influenced Elliott's con- duct up to the time of his removal. A slight ebullition of passion, or a trivial irregularity at the moment, might not have justified the expul- sion. But if it was indicative of a continuance of previously outrageous conduct, justice to the other passengers, as well as to the railroad com- pany, might have called for such a remedial measure. The charge of the court, upon this point, was also too strong. It was that the conductor had no authority to eject a passenger from the car for misconduct, except when it is such as to disturb the peace and safety of the other passengers. According to this, a passenger can not be removed for profane or indecent language, however gross it may be, or however it may offend the delicacy or sense of propriety of the other, and especially female passengers. That is not reasonable nor can it be law. The court improperly rejected evidence to prove that the regulation and custom of the company had always been for the conductor to col- lect tickets, for all stations up to Tuckahoe (which was to be the ter- 86. 1 9 Wend. 837. i Id. 204. >96,ed. 0I18M. « sec. S4. ' pp. 8U, 812. ■i vi HH 81fi CRIMES AGAINST THE PEHSONS OP INDIVIDUALS. mioRtion of Elliott 's passage), immediately after leaving WilHama' Bridge. Tliat would have shown that the defendant was not influenced by any hostile motives when the ticket was demanded, and would, unless undue violence had been used, have justified his conduct, if the regulation had been a reason.-vble one ; and whether it was or was not would have been a [jroper consideration for the Jury. If the regulation for the collection of the tickets is a reasonable one, and essential for the interests of the cop ,iany, and a passenger refuses to comply with it, he may, I think be required to leave the car, and if he refuses to go, be ejected without unnecessary violence. He has no right to a seat in the cars, whQe refusing a compliance with a reasonable regulation of the proprietors. The charge of the court to the contrary was, I think, erroneous. It was wrong, too, for the court to receive evidence of the general temperance and sobriety of the witness. His conduct on the pasage in question was alone in issue. The conviction should be set aside and a new trial granted. ASSAULT AND BATTERY — SUPERINTENDENT OF POOR-HOUSE. State v. Neff. [68 Ind. 616.] In the Supreme Court of Indiana, 1877. Th« Saparlntendent of » County Poor-HouM has a right to u«e genUe and moJerate phyBioal coercion toward the inmates so far as may be necessary lor the purpose ol preserving quiet and subordination among the inmatei, and is not guUty ol assault and battery in so doing. NiBLACK, J. This was an indictment for an assault and battery. The substantial part of -the indictment says : — "The grand jurors for Boone County, in the State of Indiana, • • * present, that John Neff, on the 1st day of January, A. D. 1877, at the county and State aforesaid, did then and there in a rude, insolent and angry manner, unlawfully touch, strike, beat; braise and wound one Elizabeth Wyatt." The defendant pleaded specially to the indictment, as follows : ^— " Comes now the defendant, and for special plea herein says actio non, l)ecause, he says, that at tlie time and place of the alleged assault and battery mentioned in the indictment, he was the legally appointed cus- todian and superintendent of the county asylum for the indigent and ^rfta NDIVIDUALS. ftcr leaving WilHams' ilant wa» not influenced demanded, and would, fled his conduct, if tbe lether it was or was not jury. ets is a reasonable one, ind a passenger refuses to leavo the car, and if Y violence. He has no liance with a reasonable »e court to the contrary or the court to receive sty of the witness. His issue, trial granted. STATE ?'. NEKF. 817 ST OF POOR-HOUSE. to, 1877. ;bt to aae gentle and moderate I neecBsary for the purpose ol and la not guUty ol assault and issault and battery. 1 the State of Indiana, ; day of January, A. D. then and there in a rude, strike, beat^ braise and tment, as follows : - — )lea herein says actio non, t the alleged assault and le legally appointed cus- lum for the indigent and poor of said county of Boone, and that tlie said Elizabeth Wyatt, the person upon whom said pretended assault and battery is ciiaigcd to have been perpetrated, was, at the time and place uuntioned, a pauper and an inmate at the aforesaid county asylum, duly and lejjally admitted therein, and under the care and custody of the dtfendant, and as such custodian and superintendent of said county asylum ; that the said Elizabetli Wyatt, at the time of the alleged perpetration of the assault and battery charged in the indictment, was cross, stul)born, ill, dis- obedient and ungovernalde, and was fighting and scolding other paupers and inmates of said asylum, and tliat the lieating and striking alleged in tlie complaint was simply moderate and gentle coercion, adminislercd to and upon her by the defendant, as the custodian and 8Ui)erintendent of the county asylum aforesaid, without anger, inso- lence or rudeness upon the part of tlie defendant, but for the purpose of preserving quiet and subordination among the inmates of said asylum, as he lawfully had the right to do, and no more." The prose- cuting attorney demurred to this plea for want of sufficient facts to constitute a defence. The court overruled the demurrer, and rendered judgment discharging the defendant. The State brings the cause into tlP"* court by appeal on tlie question of law involved in the overruling of the demurrer to the plea. Bicknell, in his Criminal Practice,* in summing up well established defences to charges of assault and battery, says: " It is a good defence that the battery was merely tlie chastise- ment of a child by its parent, the correcting of an apprentice or scholar by the master, or the punishment of a criminal by the proper officer ; provided tlie chastisement be moderate in the manner, the instrument, and the quantity of it ; or that the criminal be punished in the manner appointed by law.' The same rule applies, substantially, to keepers of alms-houses and asylums for the poor, so far as necessary to preserve order and to enforce proper discipline in their establishments. =» The facts set up in the plea, we think, were sufficient as a defence to the indictment. The prosecuting attorney, by demurring to the plea instead of taking issue upon it, admitted the truth of the facts thug set up. We see no error in the ruling of the court on the demurrer. The judgment is affirmed. 1 p. 296. s I'.utler's N. P. 12. See, «!»o, Pnmeroy's Notes to 1 Arclib. Cr. L (8tU ed.), p. 923; Wbart. Cr. L., sec. 1259. 8 State V. HuH, S4 Conn. 132; Forde v. Skinner, 4 O. A P. 494; Regina «. Uercar, « Jnr. 243. 8 Defences. C2 :t3i^>?«jf(^v^?;>,i^4i4^^-#'-i;i^f.^'^- -A ■ 818 CRIMES AUAIN8T TIIK I'EBSONS OF INDIVIDUALS. ASSAULT AND BATTERY — DANGEROUS WEAPON — ARREST. DoERiNo V. State. [49 Ind. 60.] In the Supreme Court vf Indiana, 1^74. 1. What !• a Danveroua Waapon la a Queitlon of fact and not of law, and it l» arror (or the court to instruct that h puliceman's m«ce Is a Uangeroua weapon. g. A PoUoamon may Arraat Without a warrant one whom he bat reasonable cauie %» (uspect of II felony, and may Justify an assault on one endeavoring to assist such per> son to escape. BcsKiRR, C. J. This was «n indictment against the defendant for an assault and battery upon the body of one Thomas Green. There was a trial by jury, a verdict of guilty, assessing a fine of one cent. There was a motion for a new trial, which was overruled, a motion in arrest of judgment, which was also overruled, and the court rendered Judgment on the verdict. The defendant was a policeman, of the city of Evansville, and as such, was informed that a brother of tlie prosecuting witness, Jim Green by name, had stolen a box of cigars. Upon that information, he ar- rested said Green. He was taking the prisoner to the city prison, and on his way there, passed the house of the prosecuting witness. The prisoner expressed a desire to see hla brother, the prosecuting witness and was told by the defendant that he could see him outside the house. All the persons present agree in their testimony, that the prisoner at- tempted to either go Into the house or escape, and that the appellant knocked him down twice with his mace. In the scuffle that ensued, the appellant a..d the prisoner got around the corner of the house of the prosecuting witness, about ten feet from the corner. At this point of time, the prosecuting witness heard the noise and went out and placed his hand upon tb ' sh julder of the appellant, and turned him around to the gas-light. 1 ae f hfory of the State is, that the prosecuting witness heard the noise and weiii out to stop it, without knowing who the par- ties were, and that h.-t gently laid his hand upon the appellant and turned around to the gas-light to see who he wa?i. On the other hand, it is contended that the prosecuting witness knew who the par- ties were, and went out to aid his brother in escaping. All the witnesses agree, that he laid his hand on the officer before he was struck. The appellant struck him over his head with a mace. It is further argued that it can make no difference wliat the real purpose of the prosecuting witness was, it the appellant had reason to believe, and did believe^ i»^ );UIV1DUAL8. DOERINO V. STATE. 81U BAPON — ARREST. , 1S74. nd not of law, and tt it •rror sroui weapon. 1 he hat reasonable cauie to deavorlug to asaist such per- nst the defendant for rhomaa Green. There ing n fine of one cent, overruled, a motion in and the court rendered of Evansville, and as ;ing witness, Jim Green Irnt information, he ar- to the cit3' prison, and scouting witness. The Lhe prosecuting witness him outside the house, y, that the prisoner at- and that the appellant scuffle that ensued, the ler of the house of the )rner. At this point of ad went out and placed 1 turned him around to the prosecuting witness t knowing who the par- pon the appellant and be wa3. On the other ness knew who the par- ping. All the witnesses re he wai) struck. The 3. It is further argued pose of the prosecuting elieve, and did believe^ that his purpose was to aid in the I'scapc of his brother. The prisoner dill, in f.ict, UKiko iiis iseaiie. Couiiacl for appellunt contend that the second instruction was erro- neous, because the court told tho jury tiiat the weapon used was a (hingerous one, when the question Hhould have been eubmitted to the jury to determine, ns a fi'U'stion of fact. The instruction was in these words: "In coming to u conclusion in tliis case, it is important that you sliould consider the character of tlie weapon used. Custom seems to sanction the use by police establislimcnts of pistols, maces, and otiier dangerous and deadly weapons, but they oiiglit to use such weapons prudently. There can be no doubt, and as to this the jury and counsel for the State and defendant will fully agree with me, that the weapon used by the defendant in tins case was a dangerous weapon. Did he use it recklessly or cruelly, or did he use it prudently?" It is the duty of the court to charge the jury as to all matters of law applicable to the facta proved. It is the province of the jury to ascer- tain the facts. The question of whether a particular weapon was or was not dangerous, was a question of fact, and not of law, and hence should have been submitted to tho Jury for ascertainment.' It is also claimed that the court erred in giving the following instruc- tion: " If the defendant made the arrest of James Green for a felony, on information and not on view, he made it at his own peril ; and in order for him to justify the assault upon Thomas Green, the prosecut- ing witness, when it becomes a matter of inquiry, it devolves upon the defendant to show that the party under arrest was guilty of the crime for which he was arrested." In our opinion, the instruction was clearly errone*. us. It never was necessary, under the law, for a peace officer to "show tliat the party under arrest was guilty of a crime for which he was ar- rested." A peace officer has a right to arrest without a warrant, when he is present and sees the otf ense committed. He has a right to arrest without a warrant on information, when he has reasonable or probable cause to believe that a felony has been committed ; and herein there is a distinction as to the extent of his authority. In cases of misde- meanor, the officer must arrest on view or under a warrant ; in cases of felony he may arrest without a wai-rant, upon information, where he has reasonable cause. And the reasonable or probable cause is an absolute protection to hijc, " when it becomes a matter of inquiry," and in no case is he bound to establish the guilt of the party arrested. * In Holley v. Mix,^ the court held : " If an innocent person is arrested 1 Barker v. State, 48 Ind. US. 1 1 itiUiard TortB;49 Ind. (2d ed.) US, 231, 235, aud notes. 3 3 Wend. 350. -.V^ICJSSffitKiKJia^ 820 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. upon suspicion by a private individual, sucli individual is excused if felony was in fact committed and there was reasonal)le ground to sui pect the person arrested. But if no felony was oommitted by any om and a private individual arrest without a warrant, such arrest is illega though an otHcer would be justified if he acted upon information froi another which he had reason to rely upon." In Samuel v. Paine,^ Lord Mansfield held that if any person charj anotuer with felony, and desire an ottlcer to take him in custody, 8U( charge will justify the officer, though no felony was committed. In a MS. note of a case of Williams v. Dauson, referred to by cou: sel in Hobbs v. Branscomb,^ Mr. Justice BuUer laid down the law, th " if a peace officer of his own head takes a person into custody on su picion, he must prove that there was such a crime committed ; but th if he receives a i)er3on into custody, on a charge preferred by anoth of felony ov breach of the peace, then he is to be considered as a me conduit, and if no felony or breach of the peace was committed, t person who preferred the charge alone is answerable." In Hobbs v. Branscomb,^ Lord EUenborough, in speaking of the n laid down by Judge Duller, said: "This rule appeared to be reaso able, and that very injurious consequences might follow to the publ if peace officers, who ought to receive into custody a person charg with a felony, were personally answerable, should it turn out that point of law no felony had been committed." In 1 Chitty's Criminal Law,* the law is stated thus: " Constables i \)ound, upon a direct charge of felony, and reasonable grounds of si picion laid before them, to apprehend the party accused, and if upoi charge of burglary, or other felony, he be required to apprehend > offender, or to make hue and cry, and neglect so to do, he may be dieted. And a peace officer, upon a reasonable charge of felony, n justify an arrest without a warrant, although no felony has been cc mitted, because, as observed by Lord Hale, the constable can not ju< ■whether the party be guilty or not, till he come to his trial, which ( not be till after his arrest ; and, as obser\ed by Lord Mansfield Samuel v. Paine, if a man charges another with a felony, and requi another to take him into custody, and carry him before a magistrate would be most mischievous that the officer should be bound first to i and, at his peril, exercise his judgment in the truth of the charge ; that makes the charge should aljne be answerable ; the officer does duty in conveying the accused before a magistrate, who is author! to examine and commit, or discharge." 1 1 Doug. 3S9. a 3 Camp. 420. 3 tupra. * p. 22. iF INDIVIDUALS. I individual is excused if a rea3onal)le ground to sus- i/Fas committed by any one, •rant, such arrest is illegal, ted upon information from 1 that if any person charge > take him in custody, such ony was committed. ncson, referred to by coun- Uer laid down the law, that person into custody on sus- crime committed ; but that liarge preferred by another i to be considered as a mere ! peace was committed, the swerable." jgh, in speaking of the rule rule appeared to be reason- might follow to the public, } custody a person charged should it turn out that in i» atedthus: " Constables are 1 reasonable grounds of sus- lart}' accused, and if upon a 3 required to apprehend the rlect so to do, he may be in- lable charge of felony, may ^h no felony has been com- , the constable can not judge come to his trial, which can '.wed bj' Lord Mansfield 'in r with a felony, and requires y him before a magistrate, it should be bound first to try, the truth of the charge ; he swerable ; the officer does his magistrate, who is authorized DOERINO V. STATE. 821 The law applicable to arrests by a private person is stated with great precision and clearness by Tllghjuan, C. J., in Wakely v. Ilart,^ where, after quoting a provision of the State Constitution and commenting thereon, it is said : " I'ut it is nowhere said that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon, who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. So althougl' not seen, yet if known to have committed a felony, and pursued with or without a war- rant, he may be arrested by any person. And even when there is only probable cause of suspicion, a private person may without warrant, at his peril, make an arrest. I say at his peril, for nothing short of prov- ing the felony will justify the arrest. These are principles of the com- mon law, essential to the welfare of society, and not intended to be altered or impaired by the constitution." We think the instruction under examination, when applied to arrests by a private person, expresses the law correctly, but when applied to arrests by peace ^-^fflcers, is clearly erroneous. It is, however, insisted by the Attorney-General that there is nothing in the record showing that the appellant possessed the powers of an ordinary peace officer. The city of Evansville is governed by a special charter, which does not define the powers of the police force. The charter confers on the common council power "to establish, organize and maintain a city watch, and prescribe the duties thereof," and " to regulate the general police of the city." The ordinances of the city, defining the duties and prescribing the powers of the police force, were not read in evidence. It is earnestly claimed that we can not, under these circumstances, indulge the pre- sumption that the appellant possessed the powers of a conservator of the peace. We take notice of the existence of, ar d the powers conierred by, the city charter, and that Evansville has a city government. It was proved that the appellant was acting as a policeman in such city. We think we should indulge the presumption that the police force of such a city possessed the ordinary powers of peace officers at common law, but we do not think the presumption should be carried beyond the powers possessed by conservators of the peace at common law. A full and accurate statement of the powers and duties of the police force, under the general act of incorporation of cities, will be found in Boaz V. Tate.- The judgment is reversed, with costs ; and the cause is remanded for a new trial, in accordance with this opinion. Judgment reverted. pra. 22. I 6 Blnn. ^16. 1 43 Ind. 60. 822 CRIMES AGAINST THE PEKSONS OF INDIVIDUALS. ASSAULT -LAWFUL USE OF VIOLENCE - SCHOOLMASTER. DOWLEN' V. StaTR. [U Tex. (App.) 61.] In the Court of Appeals of Texas, 1S83. 1. The Court Charged the Jury as Follows: 1. When an '.njury is caa.od by vio- lencc to the i)ei-.-ic)ii, the iiiteut to injure is presuuiea, nn.l it rests upon the person inflicting tlio injury to show accident or innocent Intention. The injury intended may bo either bodily i>ain. constraint, a sense o( shame or other disagreeable emotion of the mind. 2. When violence is permitted to etfect a lawful purpo.sa, only that degree of force must be used which is necessary to effect such purpose. Beld. arroneous applied to the present case. a. Se« this Case for Special Instructions requested which, embodying correctly the law applicable to the faci;s, were improperly refused on the trial of a teacher for chastis- ing his pupil. Appeal from the Count}' Court of Collin. Tried below before the Hon. T. C. GooDNER, County Judge. The county attorney of Collin County, Texas, presented an infor- mation in the County Court of said county, on the twenty-seventh day of February, 1883, under article 49(5, Revised Criminal Code, based upon tiie wiitten affidavit of one Lafayette Wisdom, charging that appellant did, on the thirteenth day of February, 1882, unlawfully commit an aggravated assault and battery upon the person of D. H. Wisdom, with intent to injure him; that said D. H, Wisdom was then and the 16 a child, and appellant was an adult male person. The trial resulted in the conviction of the appellant, and his punishment waa assessed at a fine of ten dollars. D. H. Wisdom was the first witness for the State. He testified in substance that he was thirteen years old. He attended a school taught in the Farmersville Academy l)y the defendant, in January, 1883. Witness and Edgar Clifton got into a fight on a Monday in January, 1883, and on the next day, Tuesday, the defendant whijiped the wit- ness with a bois d'arc switch about five feet long and as large around at the butt as the witness' third finger. The defendant said that he disliked very much to whip the witness, but felt constrained to do so as a matter of duty. He struck the witness twenty-two licks over the shoulders, back, hips and thighs, cutting the blood from the thigh and two holes in the witness' pants. Witness was sore on tiie shoulders, hips and thighs for two weeks thereafter — so sore that it was painful for him to turn in bed. The defendant did not appear angry at the time, but on the contrary talked kindly to the witness, and even shed tears, and said that he hated to do the whipping. He whipped Edgar Clifton at the same time. Witness called Edgar a liar, and Edgar JIVIDUALS. DOWLEN V. STATE. 828 CHOOLMASTER. 1883. ,n '.njury is caasod by vio- 1 it rests upon the person ion. The injury intended lier disagreeable emotion of l)uri)09e, only that degree o( e. Held, urroueous applied h, embodying correctly the rial of a teacher for chastis- ried below before the I, presented an infor- le twenty-seventh d»y Criminal Code, based isdom, charging that ary, 1882, unlawfully a the person of D. H. H, Wisdom was then ale person. The trial lI his punishment was State. He testified in tended a school tauglit at, in January, 1883. i Monday in Juauary, idant whipped the wit- ig and as large around defendant said tliat he constrained to do so as jnty-two licks over the Qod from the thigh and sore on the shoulders, }ore that it was painf"! lot appear angry at the ivitness, and even shed J. He whipped Edgar Igar a liar, and Edgar called witness a d— d son of a b— h. Witness thereupon struck Edgar with a ball of mud, and they went to fighting. Witness knew that it was against the rules of the school to swear dr use profane language on the play ground, or to scuffle and wrestle, but did not know that it was against the rules to fight. Witness told his father of the whipping when he went home, and his father examined his person. Jim Church examined witness on Wed- nesday. Doctor Nethery, John Utt and Joe Binkley examined the witness one day that week. John Rike, Frank Rikc and Mr. Grimes also examined the witness. The witness remained at school all day the Tuesday of the whipping, and was there next day and on Thursday, and would have attended school on Friday but for the rain. Lafayette Wisdom, father of the injured boy, testified, for the State, that on being told by his son that the defendant had whipped him, he examined his person, and fousd sixteen scarlet, red and dark marks on his person. These marks were all long except two places on his right thigli, wliere there were two holes ns large as the end of the witness' finger, and looked as though they might have been made by gunshots. The scarlet marks were black by morning. The witness found blood on his son's drawers. His son complained of soreness for some time, and said that it pained him to turn in bed. Witness took the boy to 'Squire Rike on Tliursday morning. Bickley, Nethery and Utt, trustees of the school, examined the boy on Wednesday after the whipping. Bickley and Church testified, for the State, that they examined the boy, the first at noon and the other at night of the Wednesday after the whipping. They described the marks and abrasions of the skin on the boy's person as severe. Church counted as many as thirteen stripes ex- tending from the boy's shoulders to a point down on his legs. Bickley was a trustee and patron of the school. Dr. A. H. Nethery testified, for the defence, that he was a trustee and patron of the school. He, with Bickley and Utt, examined the boy at noon on Wednesday. He found five or six marks on the boy's rump and legs. He saw two small circular marks, about the eighth of an inch in diameter, on his hips. These were the severest wounds. Serum, the watery clement of blood, had exuded and formed such a scab as forms over a slight scratch. The defendant's general charac- ter in the community is good, and he sustained the reputation of a kind, humane teacher. The testimony of Trustee Utt was substantially the same as -hat of Dr. Nethery. The third special instruction asked by the defendant, and which was refused, reads ns follows: — " If you find from the evidence that the defendant did chastise D. 824 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. H Wisdom, but that at the time the defendant was a school teacher^ and said Wisdom was his pupil, and that the chastisement was admin- istered to him by defendant because said Wisdom bad engaged m a fight at school with another pupil, or had used improi)er r nd unbecom- ing language, or had in any other way violated the rules and regulations of the school ; and that such chastisement was inflicted by the defend- ant upon said Wisdom for the purpose of correcting him, and in good faith and without any intention on the part of the defendant to injure said Wisdom, and without any passion, spite or ill-will towards said Wisdom, then you will find the defendant not guilty, even though you should find from the evidence that the chastisement administered was more severe than was actually necessary." The fourth refused special instruction reads as follows : — •' In order to constitute an assault and battery, it is necessary that the violence used should have been done with the purpose and intention of inflicting an injury ; but when an injury is caused the law presumes that it was inflicted with the intent to injure, which presumption of law may be rebutted or contradicted, by the person inflicting the injury showing that his intention was innocent, and that his purpose was not unlawful, which innocent intention and purpose may be shown by the acts, con- duct, manner and declarations of the person inflicting the injury, made at the time when such injury was inflicted." The motion for new trial raised the question involved in the opinion, and denounced tlie verdict as unsupported by the evidence. J. A. L. Wolfe and Gamett & Mttae filed an able and exhaustive brief for the appellant. J. H. Burts, Assistant Attorney-General, for the State. White, P. J. This prosecution was by an information which charged appellant with an aggravated assault, he being an adult male, com- mitted upon the person of one D. H. Wisdom, a child. Appellant was a school teacher and D. H. Wisdom one of his pupils; and it appears by the evidence that the castigation was inflicted on account of a viola- tion of the rules of the school by the pupil. By the first bill of exceptions it is shown that the prosecution 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. The evidence was inadmissible, because the statements were made too long after the infliction of the injury. Mr. Wharton has discussed this subject in one of his standard works. He says : '• The character of an injury may be explained by exclamations of pain and teiTor at the time the injury is received, and by declarations as to its cause. When, also, the nature of a party's sickness or hurt is in litigation, his instinctive ^rfi DIVIDUALS. was a school teacher^ stisemcnt was aduiin- m bad engaged in a proper r nd unbecom- I rules and regulations flitted by the defend- ing him, and in good e defendant to injure ill-will towards said lilty, even though you lent administered was roUows : — y, it is necessary that irpose and intention of I the law presumes that esuraption of law may ng the injury showing jose was not unlawful, lown by the acts, con- cting the injury, made ivolved in the opinion, ) evidence. •le and exhaustive brief ;he State. ormation which charged r an adult male, com- L child. Appellant was pupils; and it appears [ on account of a viola- lat the prosecution was three nights after the it he could not rest or liim to turn over in bed. tements were made too arton has discussed this : "The character of an n and teiTor at the time » its cause. When, also, litigation, his instinctive LOWLEN V. STATE. 825 declarations to his physician or other attendant during such sickness may be received. Immediate groans and gestures are, in like manner, admissible. But declarations made after convalescence, or when there has been an opportunity to think over the matter in reference to pro- jected litigation, are inadmissible. - * • But where such subse- quent declarations are part of the case, on which the opm.on of the physician as an expert is based, they have been received. Isot coming within any of the exceptions pointed out, it was error in the court to admit the testimony. Complaint is made, in the second bill of exceptions, of the charges Riven by the court at the request of the county r^torney, in the follow- ing terms, viz: "1. When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind. 2. When violence » per- mitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose." The proposition announced in the first paragraph, though unques- tionably correct in the abstract and declared as law in terms by our statute Ms not applicable, without further explanation, to cases such as the one under consideration. It has direct application only to acts of " unlawful violence," in the first instance, such as are essentia to constitute the assaults and batteries defined in article 484, Penal Code. But " violence used to person " is not unlawful, and does not amount to an assault and battery in the exercise of moderate restraint or correction given by law to the parent over the child, the guardian over the ward, the master over his apprentice, the teacher over the scholar." 3 In all such cases the law presumes, from the relation of the parties, an entire absence of any criminal or unlawful intent to in- jure; and in order to effect lawful purposes, permits the parent, guardian, master, or teacher to restrain and correct the child, ward, ap- prentice and scholar. When the teacher corrects his scholar the pre- sumption 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 intention." Neither is it any criterion of his act or intention that "bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind" is produced. He has the right, under the law, to inflict moderate corporal punishment for the purpose of restraining or correcting the refractory pupil. But " where violence is permitted I Whar. Cr. Ey. (8th ed.). ••c Wl. • Penal Code, art. 4SS. > Fcnal Code, art. 490. 826 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. to effect a lawful purpose, only that degree o' force must be used which is necessarj- to effect such purpose." ^ established that appellant was an adult male — that Wisdom, the i)arty 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 charged in the information, the main qu.istion to be deter- mined was, " was the correction or whipping moderate or excessive? " If it be shown chat the force is excessive, then, indeed, the rule aa to presumed intention may apply ; but this presumption of the law is not conclusive even then. Upon this supposed state of the case, the thud and fourth requested instructions of the defendant, which were refused, presented the law most aptly and fully, and the court erred in not giving them. " If the correction was moderate defendant was not guilty of an assault and battery at all. If it was not moderate, but - ->^sive, he was guilty of an aggravated assault and battery, by IV : - exceeded the boundary of his legal right as teacher, and placed uiii.siif 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 9.'^ olar. nnr la it practicable to do so. Whether it is moderate or ex- ct!3.^i^e TvuL'c nficfssarily depend upon the age, sex, condition and dis- position of the scholar, with all the attending and surrounding circum- stances to be judged of by the jury, under the direction of the court as to tl»e law of the case." ' It was error to give the instruction we have discussed and to refuse the third and fourth special instructions ; and the charge as given, which was also excepted to, did not properly and sufficiently present the issues and law of the case. For the errors pointed out, the judgment is reversed and the cause remanded. Beversed and remanded. MAYHEM -INTENT MUST BE FOUND BY JURY. State v. Bloedow. [46 Wis. 279.] In th€ Supreme Court of Wisconsin, 1878, 1 Wbenaflp«iial Intent, Beyond the Natural consequences of the thing done. Is •..ential toVhe crime charged, such special intent must be pleaded, proved and found. 1 Fenal Code. arts. 490, 491. 1 Stanfleld v. SUte. 43 Tex. 167. KMtMWMHWaMI nVIDUALS. e must be used which Bale — that Wisdom, Id — that the former whipping took place question to be deter- erate or excessive? " iideed, the rule aa to tion 0? the law is not of the case, the third , which were refused, a court erred in not e defendant was not 13 not moderate, but lult and battery, by u teacher, and placed the law has not laid [awful correction of a it is moderate or ex- 5x, condition and dis- surrounding circum- lirection of the court iscussed and to refuse the charge as given, id sufficiently present eversed and the cause rsed and remanded. STATE V, BLOEr W. 827 » BY JURY. t, 1878. ences of the thing done, is I pleaded, proved and found. . SUte, 43 Tex. 167. 1. Where Defendant had Destroyed the eye of a, Perion by throwing a Btone at him. the inJormatioii for mayhem charged Iho maliciom intent in the words of the statute. Verdict that defendant was " guilty as charged in the information, with the malicious Intent as Implied by law." Htlil, that this does not And the malicious Intent as a fact with sutncient certainty to sustain a JudRment for mayliem. 8. But the Information charging an assault and battery, the verdict wiU sustain a Judg- ment for that offense. Reported by the judge of the Municipal Court of Milwaukee County. Defendant was tried upon an information, the third count of which charsied that, " on," etc., said defendant, " contriving and intending the said John Mennier to maim and disHgure, in and upon the said John Mennier, unlawfully, willfully and maliciously did make an as- sault, and that he, the said Cliarles Bioedow, with malicious intent, then and there to maim and disfigure the said John Mennier, the left eye of him, the said John Mennier, unlawfully, willfully and maliciously then and then did put out and destroy." The verdict found defendant " guilty as charged in the third count of the information, with the ma- licious intent as implied by law." The judge of the Municipal Court reported the case to this court, under tlie statute, for a determination pf the question, whether, upon the verdict, any punishment could lawfully be inflicted on the defend- ant. James Hickox, for the defendant. F. W. Cotzhausen, of counsel for the State. Ryan, C. J. Tlie defendant was charged with mayhem. The stat- ute defining the crime requires the assault to be made with malicious intent to maim or disfigure. Maiming, without intent to maim, is not within the statute. The information charged the malicious intent in the words of the statute. The verdict found the defend- ant guilty, as charged in the information, with the malicious intent as implied by law. And the question certified here by the court below is, whether the defendant can be punished upon the verdict. Generally, the law will imply an intent to do the thing done. But, in criminal law, when a special intent, beyond the natural consequences of the thing done, is essential to a crime charged, the special intent must be pleaded, proved and found. The intent may be proved in va- rious ways. Surrounding circumstances generally go far to show it. Sometimes the very act itself does. Thus, if one slioot another with a rifle in a vital part of the body, the act raises a presumption of intent to kill, unless the circumstances under which it is done go to repel the pre- sumption. So, if one throw a stone at another, the act raises the presumption 828 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. Of intent to iniure generally, unless repelled by the circumstances under which it is done. But the law will not presume a special intent beyond the natural consequence of the act done. The special malice or intent is a fact which the jury must find, to warrant judgment on their ver- diet. i t* 4. The difficulty with the verdict in this case is, that the jury, in effect, find the act, but leave the s|.ecial intent or malice to implication of law ; that is to say, they find the defendant guilty of the act charged, but leave the intent of the act to the judgment of the court. The verdict is very vague, but this appears to be its true construction. And even if this be°not, the verdict is too uncertain to support a judgment for mayhem. .... 4. * ^ The facts in this case go far to illustrate the rule as it has been stated. The defendant threw a stone at another. The stone destroyed an eye. But the mere throwing of the stone, itself, indicates no intent to inflict the natural injury, or any special injury. Such an injury is not a natural consequence of the assault committed. If as has happened to the disgrace of humanity, one engaged in a fight gouge out his adver- sary's eye, the act— unexplained by circumstances — may be sufficient proof of the malicious intent to maim. But the mere throwing of a stone is generally not sufficient evidence of an intent to maim, merely because it does maim; for that result, though possible, must be rare, and may happen without the intent or with it. Generally, such a re- sult would be merely accidental. The information charges an assault and batttery. The verdict clearly convicts the defendant of that, and for that the defendant may be punished.* .« j u v The answer of this court, therefore, to the question certified by the court below is, tliat the defendant may be puhished upon the verdict for assault and battery, and for that only. ASSAULT WITH INTENT TO MURDER. Hairston V. State. [64 Miss. 689.] Jn the Supreme Court of Mississippi, 1877. \ One who Polat. » PUtol »t Another, who is attempting unlawfully to .top hi. team, audThrtrteu. to .hoot him unle». he desi.U from hi. attempt, may properly be con- 1 BuUivan v. SUte, U Wi*. N6. JIVIDUALS. I circumstances under 4pecial intent beyond I'cial malice or intent dgment on tlieir ver- at the jnry, in effect, o implication of law ; tlie act charged, but e court. The verdict struction. And even port a judgment for as it has been stated, one destroyed an eye. tes no intent to inflict h an injury is not a If as has happened to gouge out his adver- es — may be sufficient le mere throwing of -a Qtent to maim, merely ossible, must be rare, Generally, such a re- )atttery. The verdict hat the defendant may lestion certified by the shed upon the verdict HAIR8TON V. STATE. 829 TBDER. ypi, 1877. g nnlawfally to (top hia team, kttempt, may properly be con- Vieted ot an awault. but iuoh cvi.Jonro will n<.t .u«Mn a ronWctlon for awault with Inte" to commit murder. To conHtUute ll... latter ..rten.c there muHl exut au actual .nd .bVo!ut™Tntent to kill, wlurl. the coudUlouul threat doe» uot tend to prove, but which, on the contrary, It negative.. i Persons Eng»«ed In AsaUting Another In a lawful net. can not be held «"'"?«» '• 1rr«ulfS"^Uted by l.n„. u>.le«H tbe.o U ev.aen.e ten,ln,K to <^^'"^-^2TioZw .piracy or present participation In that uot. or «<.mo other evidence tending to .how that they were present to aid and aesUt in any unlawful act he might do. Chalmers, J. , delivered the opinion of the court. Wilson Hairstoii, in company with others, attempted to remove the personal effects of a laborer from the plantation of his employer, Rich- ards In defiance of the latter's orders. Richards, having made ad- vances of money or provisions to the laborer, forbade the removal of his household furniture until he was repaid. In disregard of these or- ders Wilson Hairston was driving the wagon containing the furniture, from Ricliards' plantation, when the latter attempted to atop tlie wagon, saying to Hairston that tlie laborer, Charles Johnston, must not move until he had settled the debt, at the same time reaching out his hand, as if to take hold of the mules. Hairston drew a pistol, and pointing it at Richards, said: " I came here to move Charles Johnston, and by G-d I am going to do it, and I will shoot any G-d d-d man who at- tempts to stop my mules," urging his mules forward as he spoke. His manner was threatening and angry, and his voice loud and boisterous. The persons accompanying him, some of whom were armed with guns, pressed towards and around Richards, as if to aid Hairston. Deterred by the apparent danger, Richards forebore to stop the mules, and the waeon moved on. Upon proof of these facts, Wilson Hairston and two of the men ac- companying him, James Hairstoii and Edward ProweU, were convicted of an assault with intent to commit murder, and sentenced to two year s imprisonment in the penitentiary. Is this conviction sustained by the proof? It is insisted by counsel for the plaintiff in error that there was no assault, because the threats were conditional; and reliance is had upon the old familiar cases, in one of which the assailant, laymg his hand upon his sword, said : " If it were not assize time I/o^ld "O* take such language from you;" and, in another, the defendant raised his whip, and said: "Were you not an old man I would knock you down •" and other like cases, in all of which it was held that there was no assault, -^hese were not conditional threats, properly so-called, but rather declarations that the speaker did not intend to strike, be- cause of an existing fact over which neither party had any control. They were expressions of a wish to strike, but a statement that he would not do so, by reason of existing facts. The case at bar is an offer to shoot, with something done towards accompUshing it, accom- i iiMin mV«*m»*M»aai^5M|J»«-aWsl«iaaW*»«9H^ 830 CRIMES AGAINST TUB PERSONS OP INDIVIDUALS. paniecl by a threat to shODt, unless the opposite party complies with a certain dcraaiul, or forbears to do a ce-tain thing. It tliercforc presents a case of an intentional offer to commit violence, with an overt act towards its accomplishment, based upon a conditional threat. Does this constitute an assault? Hairston had a right to forbid Richards touching his mules. Ricliards had no right to retain the furniture of his laborer in order to compel payment of the debt due. The laborer had the right to remove, and Hairston had the right to assist him. When the latter forbade Richards touching his mules, he simply forbade the commission of a trespass on bis property. A man has the legal right to protect his property against trespass, opposing force to force. If, therefore, the offer had simply been to commit a common assault, as by declaring he would strike with his hand, or with some implement or weapon not dangerous, Hairston would have been guilty of no of- fense. If a man talvcs my hat, or offers to do so against my will, and I, drawing back my hand, declare that I will strike if he does not for- bear, I only meet the trespass by an offer to use such force as may be appropriate and necessary. But I can not at once leap to an assault, with deadly weapons, and a threat to kill. If I were to kill under such circumstances, the killing would be murder ; and hence I have made .in assault which, if I carried into a battery with fatal results, would con- stitute the gravest crime. As no trespass upon property will primarily justify the taking of life, 80 an offer to commit a trespass can not justify an assault with a deadly weapon, accompanied by a threat to kill, unless the party desists. The means adopted are disproportioned to and not sanctioned by the end sought. We think, therefore, that Hairston might well have been con- victed of an assault.^ But he was indicted for and convicted of an assault with intent to commit murder. Does the evidence warrant such conviction? The intent in this class of cases in the gist of the offense. It is the intent, rather than the act, which raises it from a misdemeanor to a felony. It was held in Jeff's Case,^ that the intent might be inferred from the act; but that the facts were wholly different from those pre- sented by this case. In Jeff's Case there was an actual and well-nigh fatal stabbing with a weapon proved to be dangerous. Here there was only a conditional offer to shoot, based upon a demand which the party had a right to make. While the law will not excuse the assault actually committed in leveling 1 Morgan's Case, 3 Ired. 186; Mcyerfleld's Case, Phil. (N. C.) 108; Smith's Case, 39 MlBS. 621. 1 39 Miss. 321. DIVIDUAL8. party complies with a It therefore pres'^nts ce, with an overt act litional threat. Does rht to forbid Richards »in the furniture of Lis ue, rston had the ri^ht to touching his mules, he his property. A man inst trespass, opposing mit a common assault, r with some implement been guilty of no of- against my will, and ;rike if he does not f or- 3 such force as may be ice leap to an assault, ivere to kill under such [ hence I have made nn ital results, would con* stify the taking of life, in assault with a deadly the party desists. The sanctioned by the end ght well have been coa- a assault with intent to eh conviction? f the offense. It is the 1 a misdemeanor to a ntent might be inferred ifferent from those pre- 5h fatal stabbing with a was only a conditional irty had a right to make. ly committed in leveling ;ai. IIAIR8TON V. ^tl'ATK, S31 the pistol within shooting distanco, it can not, from this fact nlono, infer an iiitint to minder. The intent must be atlual, not conditional, and tHpecially not conditioned upon uon-complinuee with a proper demand. Tiie law punishes the assault because it was committed. It can not punish the inti-nt, because tliat did not exi>*t ; and, as shown by the declaration of tlie party, would not ariao. except upon the happening of a certain event, to wit, the commission of a trespass by the other party. So far from the jury being allowed to infer an intent to murder, we think that the existence of such intent was, by the eviden(re, clearly ni'gativt'd. In a somewhat extens.-o examination of tiie books, we have found no case of a conviction of assault with intent to kill or murder, upon proof only of the leveling of a gun or pistol. It follows, from these vii'ws, that wliile Wilson Hairston might properly have been convictod of an assault, the higher grade of crime was not made out against him. Whether James Hairston and Prowell were guilty participants in Wilson Hairston's unlawful aft, we think doubtful under the testimony, especially so as to Prowell. If present only for the purpose of assist- ing in the removal of Johnston, they were guilty of no offense. If, in doing this, they were riotous, disorderly and threatening violence, they were guilty of a riot ; but they can be held guilty of the asaault com- mitted by Wilson Hairston only upon testimony tending to show pre- vious conspiracy or present participation in that act, or upon testimony from which the jury could rightfully infer that they were present to aid and assist him in any unlawful act he might do. Judgment reversed and new trial awarded. ASSAULT WITH INTENT TO MURDER — INTENT ESSENTIAL People v. Keefer. [18 Cal. 087.] In the Supreme Court of California, 1861. K. WM Indicted for an AsmuU with Intent to murder E, The court charged the jury that i( " a loaded gun was presented within shooting range at W. or E. or at the dog, under circumsUnces not Justified by law, and under circumstances showing an aban- doned and malignant heart, and the gun was fired off and inflicted a dangerous wound upon E., then the crime of an assault with a dea«^^^y the assault, the weapon and the intent, -as if A. snaps a loaded pistol at B within striking distance, the offense would be no more under the clause of the statute if the shot took effect. It could scarcely be con- tended, if a man shot at another's dog or chicken, when such shooting would be a trespass and wholly illegal, that the trespasser was guilty o this crime of assault upon a man with intent, etc. , merely from he fact that the owner of the animal was near by and within range of the shot, or the shot went through his hat or clothes; and yet the reason of hold- incr thus in that case is as great as in this. So, if a man carelessly mwiwMWi niVIDUALS. SIMPSON V. STATR. 833 , tlierc being somo dispute heao men, or one ot thom: ! suUlcieutly stated in ppellant. )Oll trespasser was guilty of tc, merely from the fact within range of the shot, ad yet the reason of hold- So, if a man carelessly handling hrlcks on the roof of a house, Hhnuld throw tiiem into the street below, though he ml^lit be liable, civilly and criminally, for injJiry done t ) persons thereby, he could not bo guilty of the statutory offense of assault with intent to kill. The words of the statute, " with intiiit to do great bodily Imrra to a person," » arc not merely formal, but they arc substantial, they constitute the very gravamen of the offonsi' ; and tlic statute, like all other penal laws, must bo strictly construed. It is nothing in this view, that the defendant is guilty of some crime ; ho must be guilty of the very crime charged, which can not Ito unless the elements of the crime, as defined by the Legislature, ai)i)ear. This U the universal rule applicable t^- ijninal j^roceedlngs, and It Is 'is pltiiuly supported by common se iso as by technical law. Wo can not iiiiike the proposition plainer by illustration. If the defendant is con- \ i.ted under this charge of the court, it would seem that he might be convicted of an assault upon a dog with a deadly weapon, with intent to do a great bodily injury to a man ; or of the offense of assaulting a man with a deadly weapon, with intent to do that man great bodily luirm, when he had no such intention. We know nothing of the facts of the case, and intimate no opinion as Lo the merits of the controversy. Judgment reversed, and cause remanded for a new trial. ASSAULT WITH INTENT TO MURPER— SETTING SPRINO-GUNS. Simpson v. State. [69 Ala. 1; 31 Am. Rep. 1.] In the Supreme Court of Alabama, 1877. It Id UnUwAU for the occupant •! lands to set gprlng-guns or other mlsehlerous weapons on his premises and If the same cause death to any trespasser it is a criminal homicide. But to authorize a conviction of assault with Intent to commit a murder, a specific felonious intent must be proved ; and so when one plants such weapons with the general intent to kill trespassers and wounds a particular person, he can not bo convicted of assault with Intent to commit murder. The intent to kill that particular person alone must be shown and can not be implied from the general conduct. Conviction of assault with intent to commit murder. The evidence tended to show that the complainant, who occupied lands adjoining the defendant's, was wounded by a spring guu, which the defendant had long been in the habit of maintaining against trespassers who had in- 3 Dkfknce.s. 1 Cr. Pr. Act, sec. 50. 53 .11 miin — " ' --■-■■— ■■"--•I 834 CRIMES AGAINST THE PERSONS OF IiN^DIVIDUALS. iurecl his property. There was also evidence of enmity betw- ->- Cplainant Tnd defendant. The substance of the instrucUons coj plained of is sufficiently set forth in the eighth paragraph of the opi ''""^rrington & Graham and Rice, Jones & Wiley for »PP«"-^*;- Settini^ a spring gun under the circumstances disclosed by the bUl excen "ons i 'la^fu'u The language of the statute 7 and 8 of Geor ?v'' whereas, it is expedient to prohibit the settu^g of spring gun el ' shows it Us lawful at common law. There is no statute on subject in Alabama. If anything more was needed .t is sufficient B^y that while the practice of setting spring guns, has P'-aded s" Zs came into use in the fourteenth century, not a case can he fo. n the reports of England or America, where any one has oecn pro cuted for shooting another with a spring gun. Bragg and Thorington, for the Attorney-General, co««ra. Brthkell C J. The Indictment contains a single count, charg i„^;epres;rn3ed form, the defendant with an assault with inten Irder one Michael Lord. It is founded on the statute,^ which re as follows: "Any person who commits an assault on another witn It to murder, mL. rob. ravish, or commit the crime ag.ins uat, or who attempts to poison any human being, or to comm t mu de any means noi amounting to an assault, must on conviction be I Sd by impasonment in the penitentiary, or by hard labor for ctntvfo Itlessthantwoormore than twenty years." It 1^^ he statute wa, intended for the punishment of several distinct offer *t£ etments of each being an act d.ne, which of H-lMhougMt™^^^ an indictable offense, is aggravated by the intent '^"«nding »*, an higher offense contemplated. Each was an offense k"own to thee mon law, indictable and punishable as a misdemeanor We do Tan of course, that each was at common law recogmzedas a sepa, Tstrnct techniJal offense. An assault was a misdemeanor; ,f a te. ^t a ilnious intent the intent was a matter of aggravation , us TXe imposition of severe punishment - not oMier or additional i^Lent-han that inflicted on misdemeanoas, but severer in deg Ina so at common law an attempt to poison or by any means to ™^ murder, or to commit any felony, in itself is « "^-^^-'j-^hi Repeat, the statute provides for the punishment o Beve-ral d^sUn fenses known to the common law. It does not declare the constit, of eTtLr offense ; it is silent as to thefacts which must concur, to 208 ; • Barn, ft Aid. 804 , Slier. S i«ai. ^^^ _ ^ ^^^ ^^^ ^^ ^^^^ ^^^^ NeK. B09. ^ g Whirt. Cr. L., sec. 2C96. s Kev. Code, ieo. 8670. )F li^DIVIDUALS. snce of enmity betw '^ e ee of the instructions com- rhth paragraph of the opin- Wiley, for appellants, nces didclosed by the bill of e statute 7 and 8 of George the setting of spring guns," There is no statute on the ras needed, it is sufficient to ijg guns, has prevailed since iry, not a case can he found lere any one has been prose- iin. -General, cojitra. jns a single count, charging th an assault with intent to [ on the statute,^ which reads [1 assault OQ another with in- mit the crime against uature, ing, or to comuiit murder by must on conviction, be pun- ry, or by hard labor for the f enty years. " It is apparent nt of several distinct offenses, lich of itself, though it may be e intent attending it, and the an offense known to thecom- L misdemeanor. We do not 1 law recognized as a separate, as a misdemeanor ; if attended aatter of aggravation, justify- -not o< her or additional pun- janoas, but severer in degree.* )ison or by any means to com- itself is a misdemeanor.'' We shment of several distinct of- es not declare the constituents 3ts which must concur, to con- Boasley v. State, 18 Ala. 634 ; Meredith »■ I, in manuscript ; 2 Whart. Or. L., Bee. 2 Arch. Or. PI. 285, not*. 1 Whirt. Cr. L., sec. 2C96. SIMPSON V. STATE. 835 stitute the felonious assault, or the felonious attempt. These must be ascertaincil from the common law, and if the statute liad not pre- -jcribed the forms of indictment, or declared the averments it is neces- sary to make, the offense must have been described as at common law — the facts constituting the assault or attempt must have been stated and connected with an averment of the felonious intent or design.' Though indictments are abridged in form and reduced to a stiitement rather of legal conclusions than of the facts which 8ui)port or from which the conclusions may be drawn, the nature of offenses is not changed, and the conclusion stated must be sustained by the same measure of evidence which would be necessary if the facts on which it depends were stated. It is the assertion of a mere truism to say that if an indictment charges one of these offenses, it can not be supported by evidence of another. As in the present case, the charge of an as- siuilt with intent to murder is not supported by evidence of an assault with intent to maim, or to commit either of the other designated felonies. Nor yet would it be supported by evidence of an attempt to poison or commit murder, by means not amounting to an assault. The offpi-T charged must be proved, and an essential element of the pres- ent i>iii'nse is not only an assault with intent to murder, but the specific intent to murder Ford, the person named in the indictment If the in- tent was to murder another, or if there was not the specific intent to murder Ford, there can not be a conviction of the aggravated offense charged, though there may be of the minor o^ense of assault, or of as- sault and battery. ^ The intent can not be implied as matter of law ; it must be proved as matter of fact, and its existence the jury must determine from all the facts and circumstances in evidence. It is true the aggravated offense with which the defendant is charged can not exist unless if deatii had resulted, the completed offense would have been murder. From this it does not necessarily follow that every assault from which if death ensued, the offense would be murder, is an assault with intent to mur- der, within the purview of the statute or that tlie specific intent, the essential characteristic of the offense, exists. Therefore in Moore v, State^ an aflBrmative instruction " that the same facts and circum- stances which would make the offense murder, if death ensued, fur- nish sufficient CAndence of the intention" was declared erroneous. The court say: "There are a number of cases where a killing would amount to murder, and yet the party did not intend to kill. As if one from a housetop recklessly throw down a billet of wood upon the side- 1 Beatley v. State, irtpra. 2 Barnci v. State. 40 Mias. 17; Jones «. State. 11 8. &M. 315; Ogletreo v. State, 28 Ala. 69:); Morgan v. State, 38 Id. 413} State V, Abraham, 10 Id. 928. s 18 Ala. S33. 83(5 CHIMES AGAINST THE PEU80N8 OF INDIVIDUALS. ,.alk where persons .re constantly passing, and it fall upon a person passing l.y aiul kill him, this would be by the eomumn law murder ; lutiftnsteadof killing hi.n it inflicts only a slight injury, that party could not be convicted of an assault with intent to murder Olb.. illustrations may be drawn from our statutes ; murder in the first degree may becommiUed in the attemi-t to perpetrate arson, rape, robbery or burglary and yet an assault committed in such attempt is not an assault with intent to murder. If the intent is to ravish or to rob it is under the statute a distinct offense from an assault with intent to murder though pu.ushed with the same severity. And at common law if death results in the prosecution of a felonious intent, from an act viahnn m se, the killing is murder. As if A. shot at the poultry otj^ intending to shoot them and by accident kills a human being he is guilty of murder.i Yet if death did not ensue, if there was a mere battery or a wounding, it is not under the statute an assault with intent to mur- der The statute is directe.l against an act done, with the particular intent specified. The intent in fact is the intent to murder the Person named in the indictment, and the doctrine of an intent in law different from the intent in fact, has no just application ; and if the real intent shown bv the evidence is not that charged, there can not be a convic- tion for the offense that intent aggravates, and in contemplation of the statute, merits punishment as a felony.^ As is said by Mr. Bishop the .-eason is obvious, the charge against the defendant is that m conse- quence of a particular intent beyond the act done, he has incurred a guilt beyond what is deducible merely from the act wrongfully per- formed; and therefore to extract by legal fiction from this act such further intent and then add it back to the act to increase its severity is bad in law.^ , , An application of these general princii.les will show that several of the instructions given by the Civil Court were erroneous and some c^ them misleading or invasive of the province of the jury. The sixth asserts the familiar principle of the law of evidence, that a man must be presumed to intend the natural and probable consequences of Ins acts and from it draws the conclusions " that if a man shoots another with a deadly weapon tlie law presumes that by such shooting he in- ten.led to take the life of the person shot." Whether this instruction would or would not be correct if death had ensued from the shooting, and the defendant was on trial for the homicide, it is not now important to consider. In a case of this character the instruction is essentially erroneous, for if it has any force it converts the material element of 1 1 RnBB. Cr. 640. 1 Ogletrco V. Slate, Bupra; Morgan v. State, lupra. !t I Bisli. Cr. L., sec. 614. ■te^ [VIOUALS. SIMPSON V. STATE. 837 . fall upon a person .muiou law murder ; t injury, that party murder." Olbor let iu the first degree arson, rape, robbery ii attempt is not an to ravish or to rob ssault with intent to And at common law intent, from an act at the poultry of B. lan being he is guilty 7as a mere battery or : with intent to mur- , with the particular to murder the person itent in law different and if the real intent can not be a convic- coutemplation of the lid by Mr. Bishop the ant is that in conse- ne, he has incurred a 3 act wrongfully per- 3n from this act such increase its severity is 1 show that several of irroneous and some of the jury. The sixth ence, that a man must e consequences of his a man shoots another )y such shooting he in- ^hether this instruction ued from the shooting, it is not now important istruction is essentially he material element of . h., «ec. B14. the offense, the intent to murder a particular person, into a presump- tion of law drawn from the nature of the weapon and the act done with it ; while the .atent is a fact which must be found by the jury and the cliarat'ter of the weai)on, and the act done are only facts from which it may or may not be inferred. The weapon used and the act done may in the light of other facts and circumstances, impute an intent to maim or merely to wound, distinct offenses from that imputed to the defendant ; and maiming or wounding is a probable, natural conse- quence of the act done with such weapon. In Morgan v. State,^ the court, at the request of the defendant, charged the jury " that they must be convinced beyond all reasonable doubt that the prisoner in- tended to shoot Schrimpshire " (the prosecutor) " before they can con- vict the prisoner of an assault with intent to murder," but added, referring to the particular facts of the case, "that the presenting of a pistol loaded and cocked, within carrying distance by one man at an- other, with his finger on the trigger in an angry manner, is of itself, an assault with intent to murder." This court said: " The explanatory charge given by the court in this case can not be supported. It ignores one of the material facts which constitutes the offense for which the prisoner was on trial. The defendant was not guilty as charged unless he committed the assault and this act was done with a special intent to kill and murder the person assaulted." It was said the facts were proper for the consideration of the jury and (quoting from Ogletree v. Stiite,^) that it was competent for them in their deliberations " to act upon the presumptions which are recognized by law, so far as they are applicable and their own judgment and experience as applied to all the circumstances in evidence. It does not, however, result as a conclusive presumption at law from the facts supposed in the charge, that the ac- cused had the intent to take the life of Schrimpshire ; the surrounding circumstances should have been considered by the jury and unless the jury were convinced that the prisoner entertained the particular intent to take the life of his adversary then the prisoner could not be convicted of tiie higher crime. The particular intent reaches beyond the act done and is a fact to be found preliminary to conviction aa necessary to the other fact itself, viz. , that the assault was committed. In other words while the law permits and commands juries to indulge all raasonable inferences from the facts in proof it does propria vigore, infer the one fact from another." In Scitz v. State,^ a similar question was consid- ered. In an indictment for an assault with intent to murder, the jury returned a special verdict finding the defendant "guilty of striking with a loaded whip, calculated to produce death, without any excuse or 1 33 Ala. 4U. s lupra. 3 23 AU. 42. 838 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. r.n •• nn which iud.rinent of conviction was pronounced, which Zr:ZZaZc^^^^--^ -t a legal conclusion from the facts 7t H that ofendrnt had the particular intent to murder the person t:^T^A:it::u^^^^^^^^^ -Ith mtent to fnghten,- say the court, " nn^m or wound, without producing death, or for tl- P-l-« «"»; flicing punishment or disgrace, is equally consistent w. h t e lind.ng o Z iurv as that it was :m assault with intent to murder. The t ue Sid, le' ts that the particular intent, the intent to murder the person, Tirl i m^ er of fact about which the law raises no presumptmns 7:^ttZZonl.n....^ The jury must And the fact; ami in as- certahin. its existence they may and will draw inferences from the chara ler'of the assault, the want or the use of a deadly -eapon and heprtlce or the absence of excusing or l-"^^^, -^^^^^^^^^^ What are the presumptions or inferences in view of all the facts, they Ist be left free to determine ; and the court misleads them and m- vades thdrpxlvince, if a part only of the facts is singled out and they Le Tnstructed from them, the felonious intent must ^^^^^^^ The particular facts of the case in one phase m wh ch the evidence present it are so interwoven with the remaining instructions, that a Se lationof the primary question they -volve is necessary to a CO re^t understanding of them. This question is the right of a land Z^toXntsprin/guns on the premises, by which trespassers may ;rwounder . Hiraf is his liability, if thereby a trespasser receives be wounaea, an y^^,^^^,^^ he was civilly liable at common frrBagtedinr..rS..on,3butn^^^ eTnanv c^vided in opinion. In Jlott v. Wilkes^ the Coui. «' f Bench unanimously decided that " a trespasser having knowledge tha fhere are spring-guns in a wood, although he may be ignoran of the SLu Ir pots whore they are placed, can not ma ntam an action for injury rceived in consequence of his -«;d<;"^^3r^7,^^"« j!" ^'.1 rin wire communicating with the gun, and tli^reby f ting t off. statlr followed soon after this decision, rendering the setting or pa^a spHn^^^ and other like agencies calculated to des roy hutanlifo'to inflict grievous bodily harm on trespassers, or others cliTgn contact with them, a misdemeanor.^ It is not our pro^.nce o deny Siat the decision in Ilott v. Wilkes is a correct exposition of the I^mon law of England as it then existed. The common law of En- ZdUnri: all Aspects the common law of this country^ This eoui. frfreque tly said tliat in this State, only its general principles which Te adapted to our situation and not inconsistent with our policy, legis- 1 state V. Stewart, 29 Mo. 419. 2 Meredith v. State, in manuscript, a 7 Taunt. 618. « 3 B. ft A. 304. > 1 Uu»8. Cr. 7ii3. e vannesa v. Packard, 2 Pet. 144. rmmfm ^^ SIMPSON V. STATK, 839 IVIDUALS. i pronounced, which sion from the facts ) murder the person ten," say the court, [• the purpose of in- it with the finding of murder." The true 3 murder the person, iscs no presumptions the fact ; and in as- inferences from the , deadly ■weapon and .ting circumstances.'' of all the facts, tliey lisleads them and in- singled out and they St be inferred, n which the evidence g instructions, that a live is necessary to a is the right of a land Thich trespassers may a trespasser receives lly liable at common nded, the judges being ,4 the Court of Kings having knowledge that lay be ignorant of the maintain an action for ently treading on the hereby letting it off." idering the setting or calculated to destroy 1 trespassers, or others It is not our province orrect exposition of the lie common law of En- is country.^ This court ;eneral principles which it with our policy, legis- 304. r. 733. V. Packard, 2 Pet. 144. lation and institutions are of force and prevail. » We concur in the con- clusions reached by the Supreme Court of Connecticut in Johnson v. Patterson^ and -State v. Moore ■^ after a careful examination, that the prin- ciple announced in Ilotf v. ir.Vto, is not in harmony with our condition or our institutions, and that it had its origin in a state of society not existing here, and the necessity for protection to a species of property not here recognized, or if recognized, of less importance and value than the legislation of Great Britain, and the common law there prevailing attached to it. It is a settled principle of our law that every one has the right to de- fend his person and property against unlawful violence, and may em- ploy as much force as is necessary to prevent its invasion. Property would be ox little value if the owner was bound to staml with folded arms and suffer it taken by him who is bold and unscrupulous enough to seize it. But wlien it is said a man may rightfully use as much force as is necessary for the protection of his person and property, it must be recollected the principle is subject to this most important quiUifioa- tion, that he shall not, except in extreme cases, inflict great bodily harm, or endanger human life.* The preservation of humpn life and of limb and member from grievous harm, is of more importance to society than the protection of property. Compensation may be made for injuries to or the destruction of property ; but for the deprivation of life there is no recompense ; and for grieviius bodily harm at most but a poor equiva- lent. It is an inflexible principle of the criminal law of this State, and ^ve believe of all the States, as it is of the common law, that for the , revention of a bare trespass upon property, not the dwelling-house, human life can not be taken, nor grievous bodily harm inflicted. If in the defense of property, not the dwelling-house, life is taken with n deadly weapon, it is murder, though the killing may be actually nec- essary to prevent the trespass. The character of the weapon fixes the 31 Id. 479. * State V. Morgan, 3 Ired. 186. 6 Carroll v. State, 23 Ala. 28; IlarriBon «. State, 24 Id. 21 ; State v. Morgan, 8 Ired. 18G; Com. V. Drew, 4 Maes. 391; McDanlel t>. state, 8 8. 4 M. 401; State r. Vance, 17 Iowa, 138; Whart. Horn., sees. 414-417. KtaMMMHMPorv 840 CRIMES AGAINST THE PEK80N8 OF INDIVIDUALS. mitted in the absence of the owner, he may employ means of defence and protection to ^hich he conld not resort if present, offermg personal resistance. The instructions requested, place the proposition in its most imposing form, of protection against repeated acts of aggression committed in the night time by unknown trespassers, lor the pieven- tion of such trespassers, he may, it is said, employ any agency or instrumentality adequate to the end, even though it involves of neces- sity, grievous bodily harm or death to the trespasser. The proposition itself subordinates human life and the preservation of the body in lU organized state to the protection of property. It subjects the man to loss of limb or member, or to the depredation of life, for a mere tres- pass capable of compensation in money. How else can the owner pro- tect himself ? it is asked. The answer may well be he is not entitled to protection at the expense of thelife or limb or member o^/^^^ J^^^^"' AH that the latter forfeits by the wrong is the penalty the law pro- nounces. At common law he would be compelled to compensation for particular trespasses and of the nature in one '"^^Pf *' *^\^\"^^«"J*°' Lended to guard against-the severance from the ^^^^^^^^^^^ products -not only is he compelled to compensation, but under our statutes, indictable for a misdemeanor. It may well be a^ke*^ »° «; turn if the owner has the right to visit on the trespasser a higher penalty than the law would visit? Has he a right to pumsh a mere Lpassasthe law will punish the most « ' .ated felonies, which not only shock the moral sense, evince .r. ,.^doned malignant, de- nraved spirit, but offend the whole social organization? There are but jroflen'sls the law suffers to be punished with death. Whether thi* extreme penalty shall be visited the law submits to the discretion and o the mercy of the Jury,-they may consign the offender to impnson- ^nt for life in the penitentiary. There is no offense which is punished by the laceration of the body, or by the loss of limb or member. Shall downer for the prevention of a trespass inflict absolute y the penalty Tdeath ajurycouldnotinflictnoracourtsanction. Inflict it without rCortunity the jury has when they may ^-'""^ ^"f l;*;;[^^^^ sening it in their mercy and discretion to imprisonment? Shall he in ;rect;on of his prope^y lacerate the body, a punishment so revo mg that it has long been excluded from our criminal code? If the owneris lexed b'^crft trespasses and their repetition, his own vgilance must, within tL limits of the law, find means of protection. Stronger enclo- Tu e and a ^ore constant watch must be resorted to and a stricter en- o ment of the remedies the law provides will furnish adequate pto- taction. If these fail it is within legislative competency to adopt remedies to the urgencies and necessities of the owner. It is said the spring gun or like engine is harmless, if of his owi -ijl.Mrilp^.S*-*'^'- ^^B ^ e„,„c.,,u,«. ::^r,''' h".*?-:: ment is adapted only to tue pi rpu i offense is man- inflict a in-i«b™ent fro.n wh.eh ae^^^^^^^^^ slaughter, as it would have been if the 2"! ^ pliant were iaconsist- violence. The instructions requested by the appellant ent with these views and were V^'^f^^^l^^^ ^^^^ ^, ,,,^, ..^ed on cutor by the spring g-' >\-»^^ I^J^J^ ^al ', b intent^to ^.h lutent to ""f '•■'*%' ";„""^,,, „, ,te trespasser, .nd ,«.lnst to kill the prosecutor whom be »"'1«'-'™ ' , ;„„„( to kill ,1.„M Ue bore malice, altbougb "'«'■«.""' "^""^f" we regard wboever was Ibe trespasser, coming ... contact w,tb it. g eacb class of ln,t™ctions - erroneon. ^^^^^^^^ ^__^__^ .^ ^^^ — r:^:^«nr:jS^H^Hi--: tb. felonious in»n.io„ to ^11 one, -a tbe *a«^ .0 ,«,.,,„„, intent causing de«U j^ ■7;,'^- J„^;„^] byTlpUcatlon of law supplies tbe existing in the mind of tue actoi ""'u , ' ^^ ^ ,„p,|jd pl.ee of mdice to tlie person sbin.' J"" *°"^™\°' ;„„„„„„ i, «,. by 1.-, different from ''- •7"',;".;:* ^^^tL te'rms of tbe Stat- offenses tbe statute pumshes. It is «°'"<"" > , y , jt i, ute, wbicb include only f-' «-*- tf'K't" ere Z. no. tbe 1 Whart. Horn.. Bee. 183; 4 Black, 2ttl; Bratton v. State. iO Humph. 103. • Morgan v. State. 13 S. & M. 242; Joue. V. State, n Id. 318; Norman v. State. 94 BIlfl». 54. 3 85 Ala. 363. IVIDUALS. anfl if death should er, and an unforseen ;t in itself not unlaw- asser or by detaining olve hini in disgrace ; ISSC3. If tlie instru- hment, and it should the offense is man- jrson had inflicted the ellant were inconsist- »me of them, based on ounding of the prose- murder, it is a legal ssault with intent to is guiltj' of an assault Tith the specific intent respasser, and against El general intent to kill with it. We regard elonious intent is made lich we have said ia the ch the prisoner stands ication of law will con- T, though his death or ■er. So also if there is 1 blow falls on another, i to the felonious intent ation of law supplies the ine of an intent implied ^ve no application to the ►y the terms of the stat- person of the party it is n fact there was not the leral felonious intent, or is not important — there a itnpt by violence, to do a o(e,3 it is defined as "an 'd. 31S ; Norman v. State, 24 BIU». SIMPSON V. STATE. 843 attempt to offer to do another personal violence, without actually accomplishing it. A menace is not an assault, neither is a conditional „ffor of violence. There must be a present intention to strike. In I„wson V. State,' it is said: "To constitute an assault, there must be tic commencement of an act, which if not prevented, would produce a l,,ttery ; " the drawing of a pistol, without cocking or presenting it, is not an assault. In State v. Davis;' it is said by Gaston, J. : "It is dil'lcult in practice to draw the precise line which separates violence menaced from violence begun to be cxecute.l, for until the execution of il is be^un, there can be no assault. We think, liowever, that where an unequivocal purpose of violence is accompanied by au act, winch if not stopped or diverted, will be followed by personal injury, the execu- tion of the purpose is then begun, and the battery is attemi)ted. Constructive assaults are not within the statute. The ulterior offense ; the principal felony intended and the intent to accomplish which is the aggravating (piality of the offense, consists in actual vio- lence and wrong done to the person. The assault must therefore con- sist of an act begun, which if not stopped or diverted will result, or m-iv result in the ulterior offense, and the act when begun must be directed against the person who is to be injured.^ It must also l)e an act which when begun, the person against whom it is directed has the riirlit to resist by force.'' The setting a spring gun on his premises by the owner, is culpable only because of the intent with which it is done. Unless the public sifety is thereby endangered, it is not indictable. ^ If dangerous to the miblic it is indictable as a nuisance. Resistance by force to the setting of it, by an individual (if not dangerous to the public), the law would not sanction, though he may apprehend hijury to him is intended if he trespass on the premises. The injury exists only in menace — it is con- ditional and his own act must intervene and put in motion the force from which injury will proceed. While because of the unlawful inten- lion with which the gun is set, the owner is made criminally liable for the consequences he contemplates, it is not his violence, except by im- plication of law, which produces the injury. It is not, consequently, an assault, which, connected with an intent to murder, is punishable under the statute. If the gun is set with the intent to kill a particular person who is injured by it, whether it is not an attempt to murder committed by means, not amounting to an assault, indictable under > 30 Ala. 14. ' 1 Ired. 125. 3 Eyans v. State, 1 Humph. 894; State v. FreeU, 3 Id. 228. * 2 Archb. Cr. PI. 224, 2 note. 6 State V. Moore, 31 Conn. 479. 844 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. another clause of the statute, is a question this record does not present. , , *i. The result is that the judgment of the City Courtis reversed and the cause remanded. The prisoner will remain in custody unt ischarged by due course of law. AGGRAVATED ASSAULT- MEANING OF "CHILD." McGregor v. State. [4 Tex. (App.) 699.] In the Court of Appeals of Texas, 1878. 1. Vndar th. TexM Statute making an »i«anlt on a " chUd" an afgravated ataaolt the word "child" is not •ynonymoui with minor. 4 Charge of the Court. -An information charged an sdolt with aggrarated aisatilt on a chiia, and alleged no other cIrcumBtanco of aggratation. Btld, error to initruct the Jury to conTict in case they found that the aieaalt wai made under other olreamatanoet of aggravation than the one alleged. Appeal from the County Court of Lamar. Tried below before the Hon. S. C. Brtson. Winkler, J. The appellant and another were prosecuted, by infor- mation, for an aggravated assault and battery alleged to have been com- mitted upon one William Edmonson, the assailants being averred to be adult males and the assaulted party a child. On the trial it was shown in evidence that the assaulted party was of the age of fourteen yeai-sand upwards. The court charged the jury, among other things, to the effect fol- lowing : — "If you should find that he did commit an assault upon him, he, the defendant, being an adult male person, and the party a child under the age of twenty-one years, or that the assault was made in a manner or with an instrument calculated to inflict disgrace, or that he did him some serious bodily injury, you will find him guilty of an aggravated assault." This charge, as well as other portions of the charge given, and also an instruction asked by the defendant and refused by the court — to the effect that a child, under the statute, is a person of tender years, one who has not arrived at the.strength and age of manhood — Indicate that the trial proceeded on the idea that the term child was synonymous with minor. fDlVIDUALS. this record does not irtis reversed and the Btody unt: iscbarged m'oregor v. state. 845 IF "CHILD." , 1878. A" an aggravated aiaanlt the with aggraTated awaalt on a . Held, error to Instruct the de ander other cireamstanoet Tried below before the e prosecuted, by infor- £ged to have been com- nts being averred to be n the trialit was shown ge of fourteen yeai-s and lings, to the effect fol- ssault upon him, he, the party a child under the iS made in a manner or ce, or that he did him guilty of an aggravated charge given, and also ed by the court — to the jon of tender years, one manhood — indicate that lid was synonymous with One of the circumstances under which nn assault or battery becomes aggravated, under the provisions of the code, is " when committed by an adult male upon the person of a female, or child, or by an adult female upon the person of a child." An assault may become aggravated under other circumstances, but from the prominence given to the idea that the assaulted party came within the description mentioned in the statute under the denomination of child, we are led to conclude that this ideapieponderated in the mind of the court, and necessarily had a controlling influence upon the find- ing of the jury ; or that it, at any rate, was so intimately connected with other portions of the charge that we are unable to separate it so as to determine its precise effect. And it may be well to note, in this con- nection, that the information does not charge, as one of the circum- stances of aggravation, that the assault was made by means such aa inflicts disgrace ; and for this reason the charge was incorrect. In the absence of any such guide, we are of opinion that that por- tion of the law set out must have been enacted for the purpose of pro- tecting the weak, and the weaker sex, against the strong, and this object becomes the more evident by that portion which renders an as- sault aggravated when committed by an adult female upon a child. Ordinarily, the object would not be attained by construing the word chil'', in either case mentioned, to extend to and include any and all persons under twenty-one yoars of age ; as, on the one hand, there T\ould not ordinarily be any sue.. Msparity between the strength of a person twenty years and six months old and one twenty-one years and three months old, or between one at tlie age of twenty and an adult female, as that the law could take hold of and act upon it. Hence we conclude that the terra child must be construed to have the meaning affixed to it which it has in common parlance, or as understood in com- mon language, and that the charge which held it to mean any one who had not attained the full age of twenty-one years was erroneous ; and having been excepted to at the time, and an effort having been made to correct it by an additional instruction, and the action having been .as- signed as error, we are not at liberty to pass it unnoticed, although we might deem the charge amply sustained by the evidence. " Except when a word, term, or phrase is specially defined, all words used in this code are to be taken and construed in the sense in which tUey are understood in common language, taking into consideration the context and subject-matter relative to which they are employed." > The word " child " is mentioned in the code, and is not specially de- fined therein; and, therefore, there must be aflSxed to it the sense and meaning in which it is understood in common language. I Penal Oode.art. 28 (Paic. Dig., att. 1630). 846 CRIMES A0AIN8T THE PERSONS OF INDIVIDUALS. The court also errod In permitting the prosecuting witness to testify to what tl.e other boys sai.l when he told them of his conversation, ». shown bv bill of exceptions tnlcen as tl>e time. Fo these errors thl judgment is reversed and the cause remanded. ror iuco«= o jieveraed uhd remanded. AOORAMTED ASSAULT-».AI>E UPON DECREPIT PEHSON-OR IN private house. Ham. v. State. [16 Tex. (App.) «•] In the Court of Appeals of Texas, 1884. iiri*»,i« th« Taxas Statute Is one who ii disabled, Incapable o Sras to rondo.. ...u Uel..le« a.a.nst o..e o, - '->• ^-JJ; ^^,^^„^^ ,„^,„,,, ,,, 3. H. wa. ladioted for an assault on another «« ^'» ^^/^^-^/^J *;„,« ,an,ily the d. denoe was insufflclent. APPEAL from the County Court of Grayson. Tried below before tt Hon S D. Steedman, County Judge. The appellant was convicted in the County Court of Grayson Count, Texas Tder an indictment charging in substance in the first count th defemia" committed an aggravated assault and battery upon the pe - 7 ZniP Hall a female, the defendant then and there being an ah iC-ontibes^ndcountcharging^^ ^^ a plrson of robust health and strength, and the said Jennie th Z there being decrepit; and the third count charging, in Bubstam Jhl defenlnf went Lo the house of a private family and there co mitted an assault and battery upon the said Jennie Hall. The jury returned a verdict of guilty of aggravated -«- ^^^f ^ defendant!and as punishment assessed against him a fine ^f twenty-1 'ir.' Jennie Hall was ^ first witness ' state. She test!. that'he was thirty-seven years old; th was stei>mot r defendant, having been seven years marr., o his father, xue defe ant struck the witness twice, on the ninth day of September, 1883 he fX ^ ting room, in the house of her husbaud, -tuated in G, son cTuSy, Texas. Witness did not know whether ornot she at Z defen/a'nt. She struck at him with a chair because he was pusl INDIVIDUALS. HALL t^. STATE. 847 scutlng witness to testify m of his conversation, »* »nc\ the cause remanded. teveraed and remanded. IREPIT PERSON — OR IN xas, 1884. one who la disabled, Incapable or ad by age or otherwise, to such an ir}' health. Buse. The evidence dlslosed thnt father, of whose family the de- an occupant. JTeM.that the evi- n. Tried below before tbe J Court of Grayson County, itance in the first count that md battery upon the person n and there being an adult ubstance that the defendant I, and the said Jennie then unt charging, in substance, rivate family and there com- I Jennie Hall. ggravated assault against tlie inst him a fi"<« "^ twenty-five State. She testified was step-mot' r to the to his father, lue defend- I day of September, 1883, in r husbaial, situated in Gray- ow whether or not she struck chair because he was pushing her. Witness could not remember what the defendant said as he ad- vanced into the room, except that he cursed her. Defendant, witli his fist, struck the witness iu tlie left eye, and then knoclced her down. The witness* face swelled up and became discolored, and remained so for two or three weeks. The witness thought tlie defendant had reached tlie age of twenty-one years, and was a strong man. Witness had been in bed all day at the time, and had »)een sick off and on all summer. Cross-examined, the witness stated that the room in which the diffi- culty took plac' was no more the defendant's room than it was the room of the other hired hands. The defendant's second blow knocked the witness flat on the floor. The blow did not break the chair. Witness mver curses at any time. She had never threatened the defendant, and had never called him a son of a b— h. The sitting room in which the difficulty occurred opened into a hallway, and the stair ran down opposite the sitting room door. Witness' husband, E. C. Hall, had just come into the hall, and was standing inside of the door when the witness first saw him. This was before E. C. Hall interfered. The witness' daugh- ter, Alice Stobin, was present and saw the whole of the difficulty, but did not strike the defendant. Witness assisted in placing supper on the table, but told Mr. Hall that she would not get a warm meal. Alice Stobin testified, for the State, that she was the thirteen-year-old daughter of the prosecutrix, Jennie Hall, and was present when the difficulty occurred. While Mrs. Hall was in the sitting room, the defendant came down stairs, stopped at the sitting room door, and cursed Mrs. Hall. He then stepped into the room and struck Mrs': Hall twice, knocking her down with the first blow. Mrs. Hall first struck the defendant with a chair. Witness' step-father, E. C. Hall, then inter- fered and separated the parties. Cross-examined, the witness stated that, during the fight between her mother and the defendant, she, the witness, struck the defendant. Wit- ness' mother struck the first blow, with the chair, and then received two blows from the defendant, the first of which felled her to the floor. At the time that the difficulty commenced the belligerent parties were standing just inside the sitting room door. E. C. Hall rushed in to sei> arate the combatants as soon as he could after Mrs. Hall struck the first blow. Mrs. Hall' s face was discolored for two weeks after the difficulty. The witness went off to school two days after the difficulty and did not return home for three weeks. As soon as the difficulty was over, wit- ness and the prosecutrix went to the house of Mr. Hughes, a neighbor. Mrs. Hall called the defendant a "trifling puppy," but nothing else^ She did not curse him. Tlie defendant introduced his father, E. C. Hall, who testified in sub- stance that he was seventy years of age, and had been married to the 848 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. prosecutrix about six years. The defendant, at the time of this ti was not quitp twenty-one years old, and still lived at home with the ness. Witness was present at the time of the difficulty between his s the defendant, and bis wife. The witness, accompanied by the deft ant, had been after medicine for his wife, who had been complaii during the day. They reached home about seven or eight o'clock, witness asked his wife to prepare a little supper. She declined, witness and defendant retired to the dining room to partake of a ( supper. While eating, the witness' wife, the prosecutrix, came the dining room and proceeded to scold the witness. The witness ta] back somewhat roughly. She then accused the defendant of tel witness tales on her, and called the defendant many ugly names, then went up stairs and threw the defeuda.it's trunk out of the wind and his satchel of clean clothes out at the ni>rth door. Witness then mad himself, went up stairs and threw his wife's daughter's trunk at the door. Witness then got the defendant's satchel of clothing and put i the stair steps, that he might take it upstairs. In the meantime the fendant had taken his trunk back upstairs. When he came down si for his satchel, he saw Mrs. Hall standing in the door, and said to ] " I don't want you to monkey with my things any more." Thereu Mrs. Hall caught up a chair, ran up to the defendant, and struck over the head. Witi.ess had just entc -ed the hall, and seeing his ■ strike the defendant with the chair, ran in between them, and told t to stop their row. Witness shoved his wife back into the room, defendant was then about even with the sitting room, or posa a short distance inside the room. As soon as Mrs. Hall struck the fendant, they both wade a rush at each other, and it was at this 1 that the witness made his way between them. In the scramble tc at each otlier, Mrs. Hall fell to the floor. She fell some four or feet inside the sitting room. Each continued the ef.rtto strike other after the witness got between them. The witness did not k whether or not the defendant struck Mrs. Hall during the fracas. 80, the witness did not -.^v. him do so, and witness saw the whole of fight. Mrs. Hall cursed and threatened the defendant, saying that would kill, poison, or cut the defendant, or make him leave the ho Being subjected to cross-examination, the witness averred thai testified in this cause with the greatest reluctance. While the wit was doing his best to separate his wife and son and stop tlie fight, girl, Alice Stober, was pounding the defendant's back with all the t of which she was capable. If the defendant struck Mrs. Hall du the fight, the witness saw nothing of the blow. Witness was some\ excited, and it is possible that the defendant may have struck OF INDIVIDUALS. HALL V. STATE. 849 iant, at the time of this trial, ill lived at home with the wit- the difficulty between hia son, , accompanied bj- the defend- , who had been complaining it seven or eight o'clock, and supper. She declined, and ig room to partake of a cold , the prosecutrix, came into witness. The witness talked 3ed the defendant of telling iant many ugly names. She it's trunk out of the window, lorth door. Witness then got 3 wife's daughter's trunk out ihel of clothing and put it on irs. In the meantime the de- . When he came down stairs in the door, and said to her : ings any more." Thereupon tie defendant, and struck him the hall, and seeing his wife between them, and told them ife back into the room. The le sitting room, or possibly )n as Mrs. Hall struck the de. other, and it was at this time hem. In the scramble to get r. She fell some four or five inued the ef .rt to strike the 1, The witness did not know 3. Hall during the fracas. If witness saw the whole of the lie defendant, saying that she or make him leave the house, the witness averred that he jluctance. While the witness ,nd son and stop the fight, the dant'3 back with all the torce idant struck Mrs. Hall during low. Witness was somewhat mdant may have struck her without witness seeing it. Defendant did not curse Mrs. Hall in wit- ness' hearing. He said nothing more to her than " I don't want you to monkey with my things any more." The witness stopped the difficulty as soon as he could. Mrs. Hall cursed the defendant, calling him also, a "trifling punpy" and a "son of a b—h." She was very angry. Witness was very much excited and talked very loud in his efforts to separate the parties. The stairway ran down on the west side of the hall, and the sitting room was on tlie east side of the hall, the door being just opposite the foot of the stairway. A new trial was asked because " the verdict is contrary to the law, and the evidence." Coides & Story, J. L. Cobb, and J. P. Cox, for the appellant. /. //. Burts, Assistant Attorney-General, for the State. WiLLsoN, J. There are three counts in the indictment, each charging an aggravated assault and battery. First, that the defendant, an adult male, committed an assault and battery upon a female ; sec- ond, that the defendant, a person of robust health and strength, com- mitted an assault and battery upon a decrepit person; and third, that he went into the house of a private family and committed the assault and battery. A general verdict of guilty of an aggravated assault was rendered upon this indictment, without specifying upon which of the three counts it was based. As to the first count, it is not sustained by, but is con- trary to the evidence. An adult, is a person who has attained the full age of twenty-one years. ^ It was proved by the testimony of defend- ant'? father positively, that at the time of the trial, the defendant was not twenty-one years old. There was no evidence contradicting, or tending to contradict this proof, except that of the alleged injured female, who testified that she thouglit the defendant was twenty-one years old. She did not state that she knew hia age, nor does it appear that in testifying about it, slie had reference to tue time of the alleged offense, or at the time of the trial. Besides, the mere opinion or be- lief of this witness can not be regarded as evidencfi in contradiction of the positive testimony of th. defendant's father, who, it must be presumed, knew the age of his ov n son. As to the second count, while the evidence might be held sufficient to establish the allegation that the defendant was a person of robust health and strength, itwas not sufficient to prove that the alleged as- saulted party was decrepit. Slie was not an aged person, being only thirty-seven years old. Mr. Webster defines ' ' aged ' ' as follows : ' ' Old ; having lived long ; having lived almost the usual time allotted to that species of being." The usual time for human beings to live, pre. 1 Schenault v. State, 10 Tex. (App.) ilO. S Defences. 64 850 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. scribed by revealed law, and in accord with the law of nature, is the period of three score years and ten. It is not alleged m the indict- ment, however, that the lady was an aged person, but that she was decrepit, and we must therefore direct our attention to this specific al- legation. ,„ , J • 41 What meaning are we to give the word decrepit? Words used in the Penal Code, except where specially defined by law, are to be taken and construed in the sense in which they are understood in common lan- euage, taking into consideration the context and subject-matter relative to which they are employed.^ Mr. Webster makes the word "de- crepit" a dependant of old age; that is, according to his definition, befora a person can be decrepit old age must have supervened upon such person. He defines the word thus: "Broken down with age: wasted or worn by the inflrmaties of old age ; being in the last stage of decav ; weakened bv age." This word is not befined in the Code, nor do we find any definition of it in the law lexicographies. la our opinion, as used in article 406 of the Penal Code, and as commonly understood in this country, it has a more comprehensive signification than that given it by Mr. Webster. We understand a decrepit person to mean one who is disabled, incapable, incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render the individual comparatively helpless in a personal conflict with one possessed of ordinary health and strength. Wo think that, within the meaning of the word as used in the Code, s person may be decrepit without peing old ; otherwise the use of th( word in the Code would be tautology. It certainly was intended h) the Legislature that it should signify another state or condition of tli( person" than that of old age. Thus, where the party assaulted was i man about fifty years old, disabled by rheumatism to such an exton that he was compelled to carry his arm in an unnatural position, am in such a manner as to render it almost if not entirely useless to hii in a personal difficulty, it was held that, whilst his cond.tion might nc come technically within the meaning of the word decrepit as defined b Mr. Webster, yet it might with propriety be said that it feU in ll measure of that word as used in common acceptation.** But, giving to this word its broadest meaning, we do not think th; the proof in this case shows that the alleged injured person 'vas decrepi She testifies herself that she had been sick off and on during the sur mer, and that she had been in bed all day the day of the difficulty, is not shown what was the character of her sickness, or what effect had produced upon her. On the other hand, it was proved that on t evening of the difficulty, and ut the time of its occurrence, she was i 1 Penal Code, art. 10. Sowden t>. State, 2 Tex. (App.) 66. INDIVIDUALS. the law of nature, is the ot alleged in the indict- 3erson,but that she was jntion to this specific al- ipit? Words used in the law, are to be taken ami (lerstood in common lan- id subject-matter relative r makes the word " de- I ■cording to his definition, it have supervened upon Broken down with age; being in the last stage of befined in the Code, nor rraphies. la our opinion, , as commonly understood ve signification than that I decrepit person to mean , from either physical or d by age or other causes", comparatively helpless in inary health and strength. ord as used in the Code, a otherwise the use of the certainly was intended by r state or condition of tlie the party assaulted was !i imatism to such an extent n unnatural position, and lot entirely useless to him lilsthis cond.tion might not «rord decrepit as defined by )e said that it fell in the ceptation.'' aning, we do not think that ajured person 'vas decrepit, off and on during the sum- he day of the difficulty. It ] • sickness, or what effect it i, it was proved that on the ! its occurrence, she was up HALI, V. STATE. 851 and going about the house ; and just before she was assaulted by the (lefciulant she liad gone up stairs and thrown his trunk of clothes out of the iiouse through a wlnow, and had also thrown his satchel out of t'.e house. It was further proved that before defendant struck or at- tempted to strike her s\e struck him with a chair. Considering all the testimony upon tliis question, we are of the opinion that it fails to show that the lady, at the time of the alleged assault upon her, was in a de- crepit condition within the meaning of tlie law. Therefore the convic- tioii can not be sustained under the second count. As to the third and last count, the learned judge, in his charge, did nnt submit the issues under it to the jury. He instructed the jury as to the first and second counts only, saying nothing whatever as to the third. As this last count was not submitted to the jury, we must pre- sume that the verdict was not based upon it, but upon one or the other, or both, of the preoe.ling counts. We think the court very properly omittc 1 to submit thistliird count to the jury, because in our opinion, the evidence did not warrant its consideration. It was shown by the evidence that the alleged assault took place in the houso of defendant's fatlier, in the common sitting room of the family, and that the defend- ant at the time was an occupant of the house and a menber of the family. We do not think that subdivision 3 of article 496 of the Penal Code applies to such a case. We do not believe that it was intended tc make an assault and battery aggravated when committed by a per- son in his own house. We think the object of this provision is to pro- teet private familes from the intrusion into their houses, and assaults made therein, by persons who are not members of the family, and who have no legal right to be upon the premises without the consent of the owner thereof. We find in the record numerous bills of exceptions and pssignments of error which we do not think it necessary to notice in this opinion. The questions presented are not of general importance, and are of a character that may, by proper investigation and effort on the part of the court and the counsel in the case, be avoided on another trial. Because in our opinion the v, rdict of the jury is not supported by the evidence, the judgment is reversed and the cause remanded. Reversed and remanded. rden V. State, 2 Tex. (App.) 66. 852 CRIMES AGAINST THE PERSONS OF INDIVIDUALS^. AGGRAVATED ASSAULT - INTENT AND ACT NECESSARY FoNDREN V. State. [16 Tex. rApp.) 48.] In the Court of Appeals of Texas, 1S84. In Every A..auU there must be an intent to Injure coupled with an not ^h'^h "lust .t feLt be «?e beginning of the attempt to injure at »"««' «»'« .""' ? 7'^' "nVe h Td o tion.orBome contempluted injury that "'^7 a^crward, be inn.cted. Ev.,ence ft^^^^^^^ be insufficient in this case to support a conviction for aggravated assault, because iusum cient to prove an assault. Appeal from the County Court of Ellis. Tried below before the Hon. O. E. DuNLAi', County Judge. The conviction was of an aggravated assault upon one Fayette MiUer, with a gun. The offense was alleged to have been committed in Elba County on the fifteenth day of January, 1883. A fine of fifty dollars WIS the penalty imposed. , Fayette Miller was the first witness for the State. He testified, in substance, that some time in January, 1883, he was at the defend- ant's gin, in Ellis County, Texas. Mr. M. Halford came to the gm house, and said to the defendant : " I have come for one of those bales of cotton and I intend to have it. Right is right, and right wrongs no man " Halford then went out of the gin house and began to load the cotton on the wagon. Defendant followed, pushed Halford back, threw the cottonoff, and said : " Don'tyoutake that cotton." Halford struck the defendant, and the two fell to the ground, Halford on top. Hal- ford struck defendant several blows, then got up, walked off a short distance, picked up a stick, and told the defendant that he would drop the stick when defendant put up his knife. Defendant put up his knife and started toward the gin, when Halford said to him: "You have made your brags about marking and splitting cars, but you can't do me that way." Defendant returned and he and Halford engaged i" another fight. When the defendant came back this time witness could not say whether Halford was or was not rolling the bale of cot- ton. Soon after this the defendant's wife came upon the scene of ac- tion. She took hold of the lines and attempted to lead the horses away from the bale of cotton, when Halford went around, took hold of the horses, and told Mrs. Fondren not to meddle with the horses. The de- fendant then went around the wagon and said to Halford: "If you strike my wife I will cut your guts out." Halford thereupon backed off and secured a club about three feet long and two inches in diameter. Defendant then said: " If I can aot protect my property without it, I fDIVIDUALh. CT NECESSARY rONDREN V. STATE. 853 , 2.954. od with an act which must at id not a mere act of prepuni e inflicted. Eviilence fteW to vated assault, because iusufll- 'ried below before the ipon one Fayette Miller, been committed in Ellis A fine of fifty dollars State. He testified, in he was at the defend- aalford came to the gin le for one of those bales rht, and right wrongs no je and began to load the shed Halford back, threw otton." Halford Btruclc J, Halford on top. Hal- ot up, walked off a short idant that he would drop Defendant put up his ford said to him: "You itting ears, but you can't he and Halford engaged back this time witness ot rolling the bale of cot- ame upon the scene of ac- d to lead the horses away t around, took hold of the with the horses. The dc- aid to Halford: " If you Halford thereupon backed id two inches in diameter, my property without it, I will go and get my gun." Accordingly he went to tlie house, about two hundred yards distant, and returned with his gun on his shoulder. When he reached h point about fifty yards distant from the party, he took his gun from his shoulder, and throwing it across his arm said : "Clear the track." Witness, then being apprehensive of serious trouble, met the defendant and asked him " not to shoot the boy," telling him at the same time that Halford had consented to let the cotton alone. The defendant told the witness to " get out of the way," that " this is not your fight," and walked around the witness. The witness followed after him. The wit- ness at this time did not have his knife ont. Webb then came out of the gin with a stick and told the witness to hold up ; that two on one was too many. Witness then took out his knife and told Webb to stand back, that he, witness, was trying to put a stop to the row. Webb then called to defendant that witness had a knife. Defendant turned, drew his gun on witness, and told witness to put up his knife or he would shoot the witness. Witness put up his knife, and the defendant put up his gun. When witness left Halford to meet the defendant, Mrs. Fondren was standing near and talking to Halford, and she was standing in tiie same place when witness returned. Several chil- dren, including one of the defendant's, were standing around. About this time everything quieted down. Defendant did not frighten the witness when he drew his gun on him* J. J. Daniels was the next witness for the State. His account of the dilHculty was the same as that of the witness Fayette Miljer, up to the time that the defendant went to the house and returned with his gun. Proceeding with his testimony, he stated that when the defendant got within forty or fifty yards of the crowd he pointed his gun toward the crowd and said: "Look out! I am going to shoot." Miller then walked up to defendant and told him that he sbould not shoot the boy. Defendant told Miller to go off, that it was none of his fight, andpassed around Miller and up to where Halford and Mrs. Fondren were. Webb at this time came up with a club and stopped Miller. Miller drew his itnife and told Webb to stand back. Webb replied that two on one was unfair. Miller retorted that he was only trying to stop the row. During this time Webb called to defendant that Milh-r had a knife. Defendant turned on Miller, covered him with his gun, and told him to put up his knife or he would shoot. Miller put up his knife and de- fendant put up his gun. M. L. Halford, the next witness for the State, testified, in substance, that he rented land from his uncle, the defendant, in 1882, and under the contract was to give him one-half of the cotton crop grown on it. Witness had gathered and sold three bales of the cotton. In October 854 CRIMES AOAINST THE PEKSON'S OF INDIVIDUALS. or November of that year witness quit the crop, but soon after returned aud agreed with defendant to resume work and carry out his eontruct, and to pick what remained of the cotton before he got any more of it for himself. He had not picked all of the cotton remaining at the tune lie went for the bale which was the subject-mntter of this difficulty. Tliere remained, perhaps, some six hundre.l pounds of ucpicked cot- ton in the Held. When the witness went to put this bale in his wagon the defendant went and pushed the witness off, threw the cotton out of the wa<^uii, aud told witness to let the cotton alone. In pushing the wit- nesa off he scratched tlie witness' hand. The two clinched, fell to the ground, the witness on top, and the witness struck defendant several blows Defendant then drew his knife aud attempted to cut witness. Witness got up, walked off and got a stick, and told defendant to put up his knife. The defendant did so, and started back to the gin, when witness said : " You have made your brags abcait marking and turning loose, but you can not serve me so." Witness at that time was trying to get the cotton back on the wagon. Defendant picked up a stick anci started back toward the witness, and another little fight ensued. About this time Mrs. Fondreu, the defendant's wife, came up, took hold of the linos, and attempted to lead the horses off. Witness told her to go away ; that she was not concerned in that controversy. The defendant stepped up with his knife out and told witness not to strike his wife, unless he warted to be cut open. Witness stepped off a short distance, picked up a stick, and told defendant to put up his kmfe. Defendant replied : " If I can not protect my property any other way I will do it with ray gun," and went to the house to get his gun. Wit- ness sat down on a bale of cotton, and Mrs. Fondren came to him and opened up a conversation. The remainder of the witness' state ment was essentially the same as that of the witnesses Miller and Daniels. . o ^ i The statements of two otlier witnesses, one for the State and one for the defence, were substantially the same as those of the foregoing witnesses. , ..u * i Mrs Fondren, for the defence, was the last witness to take the stand. She did not see the beginning of the difficulty, and her first ap- pearance upon the scene was when she attempted to lead the horsea from the cotton. In preventing her from doing this, Halford caught her by an arm and pressed it so tight that for several days the print oi his fin^rers was on her arm. From this time to the culmination of the affair her account harmonized with that of the others, except, according to her statement, when Miller went to intercept the defendant, on th« latter'8 return from the house with the gun, he. Miller, drew hi3 knife held it with the blade up his coat sleeve, and thus armed approacbec XDIVIDUALS. FONDREN V. STATE. 855 but soon after returned I carry out his eontriict, e he got any more of it m remaining at the time natter of this difficulty, lounils of unpicked cot- ut tliis bale in his wagon , threw the cotton out of lie. In pushing the wit- two clinched, fell to the struck defendant several ittempted to cut witness. ad told defendant to put ;d back to the gin, when lUt marking and turning js at that time was trying mt picked up a stick and ttle fight ensued, ant's wife, came up, took liorses off. Witness told n that controversy. The told witness not to strike 'ituess stepped off a short ant to put up his knife. y property any other way use to get his gun. Wit ''ondren came to him and r of the witness' state the witnesses Miller and lie for the State and one as those of the foregoing , witness to take the stand, iculty, and her first ap- inpted to lead the horses aing this, Halford caught •r several days the print of ( to the culmination of the others, except, according pt the defendant, on the he. Miller, drew his knife, id thus armed approached the defendant, and in the same manner followed him back to the crowd. Tiie defendant at no time attempted to shoot Miller. The motion for new trial raised the question involved in the opinion, nnd denounced the punishment irai)03ed by the verdict as excessive. WiLLsoN. We are of the opinion that the evidence does not sus- tain the conviction. JMiller was advancing toward defendant, armed with an open knife, when defendant was told of it, and instantly turned and pointed his gun at him, telling him if he did not put up his knife lie would shoot liim. Miller put up his knife and the defendant put down his gun. At the time these acts occurred defendant and another person, who was present, were angry at each other, and had just before 'leen engaged in fighting each other, and defendant had gone off and got his gun and returned, with the avowed purpose of protecting his property from being taken by the person with whom he had been fight- ing. He had no difficulty with Miller, and there is no evidence that he had any feeling or malice toward him. While defendant was in an ex- cited state of mind from his difficulty with the other party, and had his attention directed to that part}', he was informed that Miller, who was in his rear, was armed with a knife, and, looking around, be discovered that such was the fact, and that Miller was advancing upon him. With a foe in front and another in the rear, as he doubtless supposed, he very naturally made the necessary preparations to defend himself. He made no attempt to shoot Miller or any one else, but merely stood upon the defensive. It does not appear that his intention was to injure Miller or any one else, unless he was forced to do so in defence of hia person or his property. On the contrary, it is shown that when he saw he was no longer in danger he put down his gun and made no further hostile demon- stration. In every assault there must be an intention to injure, coupled with an act which must at least be the beginning of the attempt to injure at once, and not a mere act of preparation for some contemplated injury that may afterwards be inflicted.^ We think the evidence in this case fails to show any act committed by the defendant which, in law, would constitute an assault upon Miller ; and because the verdic*^ is not warranted by the proof, the judgment is reversed and the cause is remanded. Reversed and remanded. I Clark's Cr. L. U9, note 7*. 856 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. MAYHEM— PREMEDITATION NECESSARY. Godfrey v. People. [(•.3 N. Y. 207.] 7a the Neto York Court of Appeals, 1875. A Premeditated Deeiim to do the act Is eiientlal to maThcm, and therefore where the act i8 done in the heat of a Budden affray, without any efldence of premeditation, the crime is not committed. The case is reported below.' Mitchell Laird, for plaintiff in error. B. K. Phelps, for defendant in error. Miller, J. The statute under which the plaintiff (in error) was in- dicted ar d convicted is as follows : — " Every person who from premeditated design, evinced by laying in wait for the purpose or in any other manner, or with intention to kill or commit any felony, shall (1) cut out or disable the tongue; or (2) put out an eye ; or (3) slit the lip or destroy the nose ; or (4) cut off or disable any limb or member of another, on purpose, upon conviction thereof, shall be punished," etc' A question is made by the prisoner's counsel whether as the case stood upon the evidence the prisoner could be convicted of the crime of may- hem. This question was presented upon the trial in the request and refusal to charge that he could not, and by an exception to that por- tion of the charge in which the judge charged the jury that if they found from the evidence that the prisoner willfully and intentionally seized the left ear of the complainant with his teeth at any time during the affray with the intention of biting it off and did willfully andinten- tionally and on purpose bite it off, and though the intention to bite off his ear originated or was first meditated but an instant before he seized the ear, they would be authorized to find that he bit the ear off from premeditated design, within the meaning of the statute. According to the statute there must be a premeditated design, which must be shown by lying in wait for the purpose or in some other man- ner. There was no evidence upon the trial to establish that the prisoner lay in wait for the complainant or that prior to the time of the com- mission of the alleged offense, he had contemplated or intended to do the act. The proof evinces that it was done upon the impulse of the moment in an affray which originated unexpectedly, with no previous ill feeling except what arose at the time, or apparent intention upon 16 Hun, 359. 2 2 Bev. Stat*. 664, sect 37. NDIVIDUAL9. GODFREY V. PEOPLE. 857 JESSARY. Is, 1875. Ijom, and therefore where the BTidence of premeditation, the intifl (in error) was in- gn, evinced by laying in or with intention to Itill able the tongue ; or (2) ihe nose ; or (4) cut off )urpo8e, upon conviction whether as the case stood ted of the crime of may- trial in the request and n exception to that por- 3d the jury that if they Ufully and intentionally teeth at any time during d did willfully andinten- 1 the intention to bite off , instant before he seized t he bit the ear off from i statute. emeditated design, which le or in some other man- establish that the prisoner to the time of the com- plated or intended to do I upon the impulse of the ectedly, with no previous apparent intention upon itat». 664, sect 37. the part of the prisoner or the prosecutor to engage in any such alter- cation as produced the consequences which ensued. There was then no premeditated design evinced by lying in wait for such a purpose witliin the meaning of the statute, and under the circumstances pre- sented it is certainly not clearly apparent how, or in what form, such premeditated design is evinced in " any other manner." The last words are not very explicit and somewhat general, but they can not, without a constrained construction be held to mean that they include cases of simple assault and battery where there is no direct proof of any intent or purpose whicQ results unfortunately in the loss or dis- abling of some member of the body of the person assailed. If such a result should occur in an ordinary affray by accidental circumstances and without any manifest intention, no case would be established within the meaning of the statute. There must be a design or intention ex- isting and a purpose to do this very act and this must be the result of premeditation. The words cited must bo construed in connection with ai)d in reference to those which precede them in the same section ; and when thus interpreted they evidently mean in any like or similar man- ner. There are numerous instances where full force and effect may be given to this language where a premeditated design has existed with- out lying in wait for the purpose, while it would not be applicable to ca'^es where no such intention has been formed, or proved. Take the case of a person who had determined and threatened to out off an ear, put out an eye or disable some limb or member of the body of another and preparing himself with the necessary weapon for that purpose should meet the individual against whom his animosity was directed and commit the offense, or if, perchance when seeing him at a distance ' he should follow him, suddenly rush upon his victim and carry his in- tention into execution. These cases, without referring to others which might be named, are suflficient to show that the language employed could be made effective and have full operation. This interpretation of the language stated is also sanctioned by the last clause of the section which provides that the cutting off or dis- abling of any limb or member must be done ' ' on purpose. ' ' If the offense was committed within the meaning of the statute it must have been done "on purpose" as well as with a " premeditated design." There is no real ground for claiming that there was premeditation and a purpose existing at any time during the progress of the conflict when the passions of both parties were aroused and there was no time or op- portunity for reflection or deliberation. Such an assumption would be contrary to the natural inferences to be drawn from the circumstances and the situation of the parties at the time, and looking at them it 858 CniMI-.S AOA1N8T THE PERSONS OF INDIVIDUALS. can not be fairly claimed that the prisoaer intended to commit the nfffiiso of which he was convicted. An ar.'un.ent is made by the learned counsel for the prosecu .on to the cffec't that the doctrine of instantaneous malice un.ler the old law of murder is applicable, and that the definition of premeditation, as .pplied to such a case, may be invoked. I can not concur in this view. In cases of homicide, where the offense is committed by means of weap- ons, or by the use of violence sufficient to produce death, such a rule mi4t well be applied, because eveiy circumstance tends to show that thrrosult was intended. But this differs widely f ron» a case of simp lo nssault and battery where there was a hand to hand flght, without an^ r^pon which could be used to maim or disable, and every intendment is af^ainst any such purpose. Another answer to this position is that the statute of mayhem in England as well as In this State, was evidently intended to provide for c-ises where there was an antecedent and secret purpose to commit the act, and not for casual and sudden affrays, when the act was done in the heat of the strife and with no direct evidence of any such inten- *'Tt is evident that the offense of mayhem was not made out, and that the judge erred in refusing the request made; and in that portion of the charge referred to. Questions are made as to the f onn of the in- dictment as well as to some other rulings on the trial ; but the consider- ation of them is not required, as sufficient already appears to reverse the judgment. All concur. ASSAULT WITH INTENT -"BODILY INJURY DANGEROUS TO LIFE." R. V. Gray. [Dears. & B. 303.] In the English Court for Crown Cases Reserved, 1857. statute. The following case was reserved on the Norfolk Spring Circuit 1857 at Huntingdon, b: Erle, J., and stated by him for the consideratio anddecisionof the Court of Criminal Appeal. , ,.#. t The indictment was for causing a bodily injury dangerous to life, wit, a congestion of the lungs and a congestion of the heart, with intent t XDIVIDUALS. [tended to commit the 1 for the prosecution to ilice under tlie old law n of piemt'ditntion, as not concur in this view, ittcd by means of wcap- iduce death, such a rule mee tends to show that y from a case of simple hand fight, without any e, and every intendment 5 statute of mayhem in intended to provide for , purpose to commit the when the act was done ience of any such inten- 3 not made out, and that ; and in that portion of is to the form of the in- e trial ; but the consider- ready appears to reverse n. V. GRAY. 859 DANGEROUS TO LIFE." >s Reserved, 1857. ' bodUy Injury dangerous to life" doned her olilld in a field whereby Held, that this was not within the )rfolk Spring Circuit 1857, him for the consideration njury dangerous to life, to i of the heart, with intent to murder. The verdict was guilty. T'lo facts wore these. The prisoner lift Ikt infant child on a cold wet diij' lying in an open field, intending that it should die, and it was found there after some hours nearly dead num the effects of such exposure, there being congestion of the lungs iind the heart caused thereby, which would have been in a short time fatal if relief had not been given. At the time when the prisoner left the child l^'ingin the field she had not caused nu}' bodily injury to it and ill a few hours after the child had been found it was restored by care, aiul then there remained no bodily injury either to the lungs or heart, or o'l her wise consequential from the exposure through congestion or other- wise. Judgment was respited, the prisoner remaining in custodj' till (!,e opinion of this court could be taken on the question, whether, on tlu'se facts, the .r^'^viction for causing a bodily injury dangerous to life was right. This case was argued on 2d Maj', 1857, before CocKncftN, C. J., CoL- EHIDOK, J., CUOW'DEU, J.,\VlLLE8, J. and BuAMWEM,, B. Cuuck appeared for the Crown ; no counsel appeared for the pris- oner. Couch, for the Crown. This indictment is under section 2 of 7 William IV. and 1 Victoria,* which enacts, that " whosoever shall ad- minister to or cause to be taken by any person any poison or other ile>tructive thing, or shall stab, cut, or wound any person, or shall by any means whatsoever cause to any person any bodilj' injury danger- ( us to life, with intent, in any of the cases aforesaid, tocommitt m"> der, slwill be guilty of felony, and being convicted thereof shall suffer death." Now in this case the prisoner left her infant child in a field (11 a cold and wet day intending, as the jury found that it should die. There was therefore the intent to murder, and the question is, whether, the temporary injury to the child, by the congestion of the lungs and heart was a " bodily injury dangerous to life," within the meaning of the statute. The learned judge at the trial seemed to think that, to tiling the case within the second section of the statute, the bodily injury must be of a like nature with the injuries previously mentioned in that section, namely, stabbing, cutting or wounding. But I submit the words upon which this indictment is framed constitute an entirely dis- tinct provision, and create an offense different to those previously men- tioned. CocKBURN, C. J. What bodily injury is there here? Couch. There is congestion of tlie lungs and heart, which, if relief had not been given, would shortly have caused death. The intention of the Legislature seems to have embraced every kind of attempt to murder, whatever the means employed, and therefore the words, " or 1 eh. 85. 860 CRIMES AGAINST THE PERSONS OF 1ND1VI1>UAL9. by any means " -were Introduced. If the child hnd been plac^a In an open field with the intent that it should die, and it had died in conse- quence, it would have been murder. CoLERiDGK, J. No doi.bt; but hcrc, the child not having died, the question is, was there any bodily injury produced by the act of the pns- oner? Suppose tlie child had been put into an exhausted receiver, but had been taken out before it had actually received any bodily in- jury would that have been an offense within this section? Couch. There was no bodily injury in the sense of a wound, but there is an internal injury, and it has been held that an internal wound- ine Is within the section.^ CocKBi'itN, C. J. Must it not be an injury to the organic structure to satisfy the statute? All that was produced in this case, was a mere functioi derangement. Congestion is the flUing of the lungs and heart with more blood than there ought to be there. The offenses ere- ated by the preceding words of this section are cases of injury to the bodily structure. The words " stab, cut or wound " all relate to some Injurv to the structure, some lesion of the body. Cbowdek, J. But the section also relates to administering poison or other destructive thing. CoLEUiDOE, J. I think the words, " or by any means cause bodily injury dangerous to life," were intended to meet cases of serious injury where no instrument is used, such as injuries by biting,'^ or striking with the fist, wb'Qh it had been decided were not within the meaning of pre- vious statutes. «^„„„v= Couch The Legislature, by using the most general words, appears to have intended to make their application as wide as possible. CocKBiRN, C. J. Must not the means be applied with intent to cause the particular Injury sustained? It strikes me that this was an attempt to commit murder. BRA.MWELI,, B. If the prisoner, inter '.g to kill the child, bad directed upon it a blast of cold air, or a stream of jater, and had thereby injured the child, would that have been within the statute? Is there any difference between that and exposing the child to the influ- ence of the weather? Couch. The prisoner in this case, placing her child in the open field, i8 the same as if she had directly applied the blast of cold air, or the stream of water to the child intending to kill it thereby. The Legisla- 1 In Reg. V. Smith, 8 C. & P. 173, a Wow had been given with a hammer, on the fae« which broke the lower Jaw in two places; the skin was broken internally but not externally, and there was not much Wood; Parke, J., on consulting with Lord Denman, O. J., held the offense to come within the section in question in the princi- pal case. See, also, lleg. v. Warmern, 1 Den. 183. « Rex V. Steveni, 1 Moo. 0. 0. 409; Bex*. Harris, 7 0. A P. M6. «D1VIDUAL8. Imd been placoil In an id it had died in conse- d not having died, the I by the act of the pris- m exhausted receiver, received any bodily in- lis section? sense of a wound, but that an internal wound- ;o the organic structure in this case, was a mere lUing of the lungs and liere. The offenses cre- e cases of injury to the und" all relate to some to administering poison my means cause bodily jt cases of serious injury r biting,* or striking with thin the meaning of pre- t general words, appears (vide as possible. J applied with intent to ikes me that this was an to kill the child, had Iream of water, and had been within the statute? ling the child to the influ- ler child in the open field, e blast of cold air, or the it thereby. The Legisla- 3. J., held the offense to come section in qnestlon In the princl- ee, also, lleg. v. Warmern, 1 Den. Steyent, 1 Moo. 0. 0. i09; Rexv. AF.446. STATE V. LUNSFOItD. HfU ture intended to include every bodily injury dangerous to life, if occa- sioned by that wliich was done with Intent to murder ; and I submit that this case comes within the evil intended to be remedied and withio tiie moaning of the statute, and that the conviction is right. Cur. adv. vult. Tlie judgment of the court was delivered on the 22d of June, 1857, l>y — CocKBunN, C. .1. This case was argued before my brotliers Cole- ridge, CuowDEiJ,WiLLE9, BuAMWEix and myself on u point reserved by my brother Ekle, as to whether the prisoner, who had exposed her child, whereby temporary congestion of the lungs had taken place in the child, was liable to be indicted and convicted under the 7 William IV. and 1 Victoria.! We are of opinion that the conviction in this case can not be sustained. We think that, looking to the words of the act of Parliament and the other offenses provided for by the second section of the 7 William IV. and 1 Victoria,^ the condition of the child's organs not having been attended with any lesion, there was no bodily Injury dangerous to life within the meaning of the statute. The conviction therefore must be quashed and the prisoner discharged. Conviction quashed. false imprisonment — no crime where pirson goes volun- tarily—fraud. State v. Lunsford. [81 N. C. 628.] In the Supreme Court of North Carolina, 1879. 1. False Imprisonment la the nieval reetraint of one's peraon against bis wlU. I. When on Trial of an Indictment 'or such offense It appeared that the defendants went to the prosecutor's house at night, called him up out of bed, represented to him in changed voices that they were in search of a stolen horse, and offered to pay him to accompany them ; and thereupon he mounted behind one of the defendants on his horse, and went yoluntarily, without threat or yiolence from defendants, and after riding a quarter of a mile on a gallop he complained of the uncomfortable mode of transportation, dismounted aiid discovered he was the victim of a hoax and was left in the road by defendants : Seld, that the fraud practiced did not impress the transaction with tQ% character of a criminal act. Indictment for false Imprisonment tried at Spring Term, 1879, of Macon Superior Court, before Gudger, J. The bill charges that the defendants, Wiley Lunsford, Leander Bate- 1 ch. 8S, sec. 82. 9 ch. 85. 8(52 CRIMES AOAINST THE PERSONS OF INDIVIDUALS. man and Nelson Rogers did make an assault npon one Robert Garrison, and him the said Garrison unlawfully and injuriously, against his will, and against the laws of the State and without any legal warrant, author ity, or reasonable or justifiable cause whatsoever, did imprison anc detain, etc. The jury returned a special verdict finding the following facts ; or the night of the day of , 1878, the defendancs went to th( house of Robert Garrison, the prosecuting witness, after he had gon< to bed, and called him up and represented to him thattliey were search' ing for a stolen horse which they understood had gone in the directioi of Swain County, and urged him to go with him in search of the hors*" The defendants changed their voices and their names. After giving them some directions about the roads, the witness yielded to then request to go with them, they offering to pay him. Garrison thought they were the persons they represented themselves to be, and were it search of a stolen horse, and got behind one of them on bis horse when the defenda-nts rode off in a gallop some quarter of a mile befon Garrison discovered vho they were. He complained of being luir from the riding, and defendants proposed that he should change ant get on behind another one of the defendants. He then got down anc the defendants rode off, leaving him in the dark about a quarter of i mile from his house. The defendants offered him no violence, nor did him any injury except such as resulted from the rapid riding. Defend ants were not in search of a stolen horse, but used the device only fo: the purpose of perpetrating a practical joke on the prosecutor Defendants were young men, and the prosecutor between sixty an( seventy years of age. Upon these facts the court held that the defend ants were guilty. Judgment ; appeal by the defendants. The Attorney-Oenerai, for the State. Beade, Busbee & Bmbee, for the defendants. AsiiE, J. False imprisonment is the illegal restraint of the persoi of any om; against his will. The common law was so jealous of ch personal liberty of the citizen, that it was regarded as a beinou offense and the inf ringem ,^nt of this right in England under certaii circumstances was visited with severe punishment. False imprison ment generally included an assault and battery and always at least i technical assault ; and hence the form of the indictment, which is fo an assault and battery and false imprisoi nent ; though there may be false imprisonment without touching the person of the prosecutor, a when a constable showed a magistrate's warrant to the prosecutor an( desired him to go before the ma^, '. trate, which he did, without furthe compulsioi'. This was held to be a sufiRcient imprisonment, becaus the officer . olicitP'l a warrant for his arrest, and in going with him, h r INDIVTDUALS. upon one Robert Garrison, juriously, against bis will, any legal warrant, author- soever, did imprison and g the following facts ; on iie defendancs went to the vitness, after he had gone him that they were searcli- had gone in the direction im in search of the hors'-. leir names. After giving witness yielded to their y him. Garrison thought nselves to be, and were in ne of them on bis horse, le quarter of a mile before omplained of being hurt hat he should change and 3. He then got down and dark about a quarter of a 1 him no violence, nor did the rapid riding. Def end- it used the device only for joke on the prosecutor, ecutor between sixty and iourt held that the defend* defendants. ts. ;al restraint of the person law was so jealous of the IS regarded as a heinous in England under certain ishment. False imprison- btery and always at least a le indictment, which is for it ; though there may be a rson of the prosecutor, as 'rant to the prosecutor and ich he did, without further ent imprisonment, because and in going with him, he BEVILLE V. STATE. 863 yielded to what he supposed to be a legal necessity. But there must lie a deteption, and the detention must be unlawful. i The prosecutor in this case went voluntarily with the defendants with the expectation of a reward for his trouble. Instead of walking to the point of destination, a short distance from his house, he pre- forred to mount on the crupper of one of the horses ridden by some of the party, and after going about one-fourth of a mile and discovering that he was the victim of a hoax, he complained of the uncomfortable mode of transportation, and dismounted without objection from any one. He was left all the while to the exercise of his own free will There was no violence, no touching of his person, no threat, no intim- idation of any sort. And the ruse employed by the defendants to decoy him from his house we do not think was such a fraud so as to impress the transaction with the character of a criminal act. It seems to have been one of those practical jokes that are sometimes practiced, without any intention of doing harm, or violating the law ; and we are of the opinion thtit there was no violation of the criminal law in this case. There is error. Let this be certified, etc. Reve7'sed. FALSE IMPRISONMENT — DELAY IN TAKING BOND. Beville V. State. [16 Tex. (App.) 70.] In the Court of Appeals of Teras, 1884. 1. Xbe Ordinance of a City authorized the arreet by an officer of a drnnken man without warrant. A. being arrebted by D. for druukenncsB immediately offered to give bond, which B. refused and he was confined in the calabooie about an hour. Held, that B. was not liable to conviction for false imprisonment. •. — Authority of Officer. — Upon the question of tho> right of the u.'pnty manihal to arreiit a party detected in the violation of the ordinance, the trial court charged that, in ordiir to make a valid arrest, such officer must have " eznresa ' uathority. Held, error. Appeal from the County Court of Wise. Tried below before the Hon. G. B. Pickett, County Judge. The opinion discloses the nature of the case. A fine of ten dollars was the penalty imposed. The evidence disclosed, in substance, that Decatur, Wise County, was a town incorporated under the general incorporation act of the State ; that its ordinances denounced drunkenness and i^iceaciies of the 1 8 BU. Cms. m> 864 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. peace as offenses ; that H. C. Carter was drunk and in the act of com- mittmg a breach of the peace in the presence of N. C. Cargill, -marshal, and the defendant, deputy marslial, of the town ; that the marshal and the defendant, having no warrant, arrested Carter, and started to the town calaboose with him ; that Carter proposed, as soon as arrested, to execute a bond for his appearance before the mayor's court, and that several parties present, some of whom were solvent, proposed to sign such bond as sureties ; and that the marshal declined to accept a bond. There was no proof that the marshal neard any solvent person propose to go on the bond. It was proved, also, that while the defendant and the marshal were taking Carter to the calaboose. Carter tripped the marshal, threw him down and stamped him, and, while the marshal was unlocking tlie calaboose door, that Carter struck the marshal a blow in the face, whereupon the jiarshal struck Carter a severe blow .-er tl.o right eye, drawing the blood. Carter was confined in the calaboose for about one hour, and was released on bail. The motion for new trial raised the questions involved in the opinion. J. H. Burts, Assistant Attorney-General, for the State. Hurt, J. N. C. Cargill, marshal of the city of Decatur, and the ap- pellant, deputy marshal, arrested one H. C. Carter, within tlie limits of said city, while said Carter was intoxicated in a public place, and in tlie act of committing a breacli of the peace in the view of said officers. The arrest was made without a warrant. The marshal and appellant, his deputy, carried Carter to the calaboose, a place provided by tlie city for the detention of city prisoners, and tliere kept him confined about an hour, when he was liberated on giving an appearance bond. Carter proposed to give such bond when he was arrested, but this was refused by the marshal and appellant. By ordinances of the city of Decatur drunkenness and breaches of the peace are made offenses. Appellant was prosecuted to conviction for false imprisonment; from which convietiun he appeals to this court. Under the above state of facts, had ai)pellani the right to arrest and imprison Carter as ha did? We are most clearly of tlie opinion tliat he liad. Nor does the fact that Carter offered to give bond when arrested affect the question. As stated iu the case of Sdrcle v. Neeves ; ^ " There is probably not a city or town in the ^tat.' making any pretense to proper mun cipal gov- ernment tliivt has not an ordinance in substance t!.e same as this (one making drunkenness an offense), and whose police officers do not con- stantly ar-est, lock up and afterward carry before the courts, persons who violate its provisions. Such persons must learn that nociety has the right to protect itself against the evil influences of their example. I 47 Ind. 289. D1VIDUAL8. Tid in the act of com- J. C. Cargill, 'marshal, that the marshal and er, and started to the LS soon as arrested, to jayor's court, and that rent, proposed to sign lined to accept a bond, lolvent person propose tiile the defendant and ise, Carter tripped the while the marshal was the marshal a blow in a severe blow dver i led in the calaboose for nvolved in the opinion, the State. )f Decatur, and the ap- ter, within tlie limits of public place, and in the lie view of said officer- marshal and appellant, I place provided by the lere kept him confined ig an appearance bond. » arrested, but this was dinances of the city of are made offenses, ilse imprisonment ; from ader the above state of prison Carter as ha did? Nor does the fact that t the question. There is probably not a proper mun cipal goM- le t'-ie same as this (one )lice officers do not con- fore the courts, persons it learn that Hociety has uences of their example. ASSAULT — NOTES. 865 and that the- are proper objects of municipal legislation, arrest and punishment." This we believe to be the correct doctrine. We are of the opinion taat it was the duty of the marshal, or his deputy, to arrest and confine C^.ter until he became sufficiently sober and rational as not to be a nuisance to peaceable and orderly citizens of the city. Society has rights as well as the citizen, and when the good order of society is thus invaded and defied, her officers sliould act promptlj' and effectively. This verdict is not supported by the evicencc, and for this, if no other reason, the judgment would be reversed. The learned judge charged the jury that defendant must have express lawful authority to make the arrest. This was calculated to mislead the jiirj'. If, from all the circumstances, the law would authorize the arrest, by a fair construction, defendant would not be guilty because the power was not expressly given. Because the charge was erroneous, aD.i because the evidence does not support the verdict, the judgment is rpvv^.jed and the cause remanded. Reversed and remanded. NOTES. 5 628. ABMult — ThereMustbea Present Intention to Strtke. — An a«> sault la an attempt or offer to do anether person violence without actually ac^ complishlug It. A menace is not an assault; neither is a conditional offer of violence or a threat. There must be a present intention to stril{e,» Whereagun is held In s threatening way, yet there Is no Intent to use it unless assaulted by the adversary, there Is no assault.' In State v. Mooney,^ the prosecutor, with some other person!), had gone to Mooney's house, and after some conversation, a quarrel arose, in the course of which insulting language was used by both parties. Thereupon the defendant ordered the others to leave his house. At or about the same time he seized his pun; the witnesses diflering as to whether he did this Immediately, or after finding that the prosecutor and his party did not leave. A scufDe for the r,an ensued between the defendant and som«< members of his own family, and the latter Hnally got possession of it. The defendant did not present it or attemf/t to make use of it. As the prosecutor and his friends were leaving the premls3n, the defendant followed them and seized an axe, getting near enough to throw it, but the witnesses differed as to whether he was near enough to strilie with It. He did not attempt to use it. Subsequently, upon bslng dared to come out, he advanced again with the axe, but did not get nearer to them than twenty-flve or thirty yards. The court charged the jury that In any view of the testlmoay u 1 JohnioB V. state, 35 Ala. 3U (186C) ; Pno- Pla •. LiUejr, ante, p. "S3. 3 Defences, 65 3 state V. Blackwell, 9 Ala. 79 ilMS). 3 PbiU. 4M (1868). 866 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. aeeault had been committed by the defendant with both the gun and the axe. Verdict aullty; rule for a new trial discharged; Judgment and appeal. READS, J. His honor's charge "that in any view of the testimony the de- lendaut was guilty," Is so broad as to entitle the defendant to a new trial, if there is any view consistent with his Innocence. After a careful cons deration of the testimony, we ar« obliged to say that in no view of the case is the de- fendant guilty. , ^^, When the defendant ordered the prosecutor and his crowd to leave ma house, as he liad a right to do, it may have been rrde behavior to seize his gun at the same time; but as he did not point his gun, or in any way offer or aU tempt to use it, there was certainly no assault, which Is an offer or attempt, and not a mere threat, to commit violence. And so the picking up of an axe within some twenty-flve yards of the prosecutor without an offer or attempt to^ use it, was Hot an assault. There is error. This opinion will be certified. § 6H. Assault -Intentton to Injure ■ssenilal, Coupled with Act. -In every assault there must bo an intention to injure, coupled with an act towards that end, and not an act of preparation for some contemplated injury that ma,^ afterwards be iuflicted.i There must be the commencement of a.a act which, if not prevented, would produce a battery. Therefore, drawing a pistol, without i;resenting or coclcing it, is not an assault.'' In a sudden quarrel A and B lew pistols and confronted each other. B. did not present his pi«to at A., but threaten' d to shoot him if he cocked L,. pistol, when bystanders interfered. This was held not an assault by B.* ^ * . In State v. Milsaps,* the prisoner using insulting language to the prosecutor, plckea up a stone, being about twelve feet from him, but did not offer to throw It. This was not an assault. S 626. ThrwitenluB Oeature not -Pointing Cane. -A mere threatening gesture is not an assault.' So to point a cane in derision at a person in the street is not an assault.* ( 626. Intent to Injure the Gist -Pointing Pistol not per ae an Assault. -In Bichelsy. State,^ the court in reversing a conviction say : The question arises upon the charge of the court. It was so far as excepted to, u these words: "That the defendant would be guilty of an assault if they found from the evidence that he pointed a pistol purporting to be loaded at the pro- secutor. within the distance such pistol would carry, notwithstanding he did not then and thereby intend to shoot and so stated." This is erroneous. An assault is an attempt or offer to do a personal violence to another. It Is an inchoate violence with the present means of carrying the intent nto effect. The Intention to do harm is of the essence of the offense and this intention .» to be ascertained by the jury from the circumstances. If at the tl.ne of menac- ing the prosecutor and apparently offering to harm him, defendant ^8«d words showing It was not his intention to do It at that time, it is no assault.* The 1 Johnson ... State. 43 Tex. 976 (1876). ' Goodwin'. Cs.e 6 City H. Bee. 9 (IWl). a L«weon».8Ute.30Als. 14(1867). i 8ne«d. 606 (1854). 8 Ralnbolt V. State, 34 Tex. 887 (1870). • « Greenl. Ev.. sec. 88. 4 88 N. C. 549 (1880). ' •'*• **"•' ™* » Spears v. SUte, 8 Tex. (App.) 244 (1877). JDl VI DUALS. ASSAULT — INTENT TO INJURE. 867 both the gun and the Igment aud appeal, of the testimony the de« sfendant to a new trial, U ii a careful consideration lew of the case Is the de- I his crowd to leave his behavior to seize his gua or in any way offer or at. >.h Is an offer or attempt, the plsklng up of an axe jut an offer or attempt to Qion will be certified. Coupled with Act. — In ipled with an act towards teniplated injury that may cement of a.a act which, it drawing a pistol, without sudden quarrel A. and B. iresent his pistol at A., but lien bystanders Interfered. inguage to the prosecutor, but did not offer to throw ai: — A. mere threatening derlaion at a person in the air Pistol not per ge an sing a conviction say : The ts so far as excepted to, in of an assault If they found ng to be loaded at the pro- xy, notwithstanding he did ." This Is erroneous. 1 violence to another. It Is •ylng the intent into effect.' >flense and this intention is !s. If at the tiine of menac- him, defendant ised words lime, it is no assault.* The n'» Caie, e City H. Reo. 9 (1821). m (18M). 1. £v.. leo. 8!. ,88. example given in all the boolts treating of this subject, of one's laying his hand on his sword, saying, "if it were not assize time, I would not take such Ian- guaire," is an illustration of this rule. Pointing a pistol at another would perhaps be sufficient evidence of an intent to do harm, if nothing more appeared. But if It were shown that it was done playfully or accompanied with a declaration that he did not Intend to shoot or any other words evincive of the absence cf any criminal Intent, then it would not be an assault. It would still be a question for the jury to determine, from , all the facts, as to the intent. If the prosecutor had good reason in view of all ' the circumstances to apprehend danger, notwithstanding the declarations made at the time, the jury would be authorized to find tlie defendant guilty. For it might be well shown by the circumstances, that this disavowal of harmful In- tentions was insincere, or intended to put the other party off liis guard. As a matter of law then, it is not true that to point a pistol at another, is of itself in assault, as charged by his honor. It may or may not be, according to the attending jircumstances. These must be such as to satisfy a jury that there was an intent, coupled with an ability to do h.irrn, or that the other party had a right so to believe from the facts before him; otherwise there is no dan- ger of a breach of the peace. The judgment will be reversed and u new trial granted. § 627. Worda aot an Assault. — Threatening words and violent and men. c'ng gestures, if unaccompanied by a present Intention to do a corporal injury do not amount to assault. ^ § 628. No Assault Where Words Bxplaln Hostile Action. — In Com- monwealth V. F-re,^ a prisoner raised his hand and said to the prosecutor: "If it were not for your gray hairs I would tear your heart out." This was held no assault as the words tools away the idea of an intention to strilce. In State v. Croio,^ the defendant was indicted for an assault on William Gray- son. One witness testified that he heard the parties have some words and he then saw the defendant raise a whip which he had In his hand, and shake it at Grayson, swearing that he had a great mind to kill him; and that, at the time when the defendant raised his whip, he was in striking distance of Grayson, but not strike him, although not prevented from doing so by the interference of any other person. One or two other witnesses testified that they did not see the defendant raise the whip, but heard him say to Grayson, " were you not an old man I would knock you down." The defendant's counsel contended that no assault was proved, because the words which accompanied his acts qualified them and showed tliat he had no intention of striking, and oonse- quently there was no such o«".r or attempt to strike as constituted an assault. The court charged the jury that, notwithatandiug the words used by the de- fendant when he raised his whip and shook it at Grayson, yet if .his conduct was such as would induce a man of ordinary firmness to suppose he was about to be stricken and to strike his assailant in self-defence, the latter would be guilty. Otherwise there might be a fight and the peace broken, and yet neither party be guilty. And further, that otherwise, one man might follow another all over the court yard, shaking a stick over his head, and yet not be guilty, > Smith V. State, 39 MiM. S4 (1660) ; J%,- nit«Q V. State, 8 Tex. (App.) iea (1870;. » 1 8. A K. 847 (1815). 3 1 Ired. S7B (ISil). 868 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. Brovlde,! he took care to declare, while he was doing so, that " he had a great Tnd to kao k him down." The jury found the defendant ^-^^y'--'^-^^^ TrUl being refused, judgment was produced against hin., from which judgment he aoDealed to the Supreme Court. j,„„„ i Slttorney-aeneral, for the State, cited Archboid's Crlmtual Pleadings' and Hawkins .'-i No counsel appeared for the defendant, ^ . , »v ^„.„„a DAKiEL. J. The judge charged the jury " that it the conduct of the defend- ant was s^ch as would induce a man of ordinary firmness to suppose he was tbort to be stricken, and to strike in self-defence, the defendant -ould by such conduct be guilty of an assault." We admit that such conduct would be strong rvfdence to' pro've, what every person who relies on the plea of -n ««««« Jemesne must prove to support his plea, to wit, that ^''^f'^'^"/^^''''^''^^^ or offered to strike him; but It is not conclusive evidence of t^^' J"^^^^^^^^^^^^ it can be collected, notwithstanding appearances to the contrary, that there was not a present purpose to do an Injury, there Is no assault.^ The law makes a - lowance, to some extent, for the angry passions an infirmities of man. It seems to us that the words used by the defendant, cotemporaneously with the act of raising his whip, were to be taken into consideration, as tending to qualify that a?t, and show that he had no intention' to strike. The defendant did not strike, although he had an opportunity to do so, and was not prevented by any other person. The judge should, it seems to us, have told the jury, that if at the time he raised his whip and made use of the worde, "were you not "; old man I would knock you down," the defendant had not a presen purpose to strike, in law It was not an assault. We again repeat what was said In Davis case- "It was difficult to draw the precise line which separates violence menaced from violence begun to be executed, for until the execution of it be begun, there can be no assault." The evils, which the judge supposed might follow if the law was different from what he sUtedlt to be, can always be oSd by the offending part, being bound to his good behavior. There must be a new trial. j^^^ ^^^j awarded. § 629. A8«kult Must be on Person. -So besetting the house .* another i« not an assault* nor Is beating his horse .s 6 630 Opentog Railway Switch. - In Be Lems « the prlsone opened a railway switch with intent to cause a collision whereby two trains dll come in collision causing a severe injury to a person in one of them. This was heldnot an assault. *631 Assault MuBt be to Person - Swpplmr Oarrlage Not. -This was ruled in State v. Edge,^ the court saying: " Upon a slight view It migh seem that this case was decided by the case of the State v. Davis «'««5»'-*'«: where the defendants were found guilty of an assault In cutting a rope by which the prosecutor had tied the body of a negro to his own person. This case was decided on the ground, that every thing attacaed to a man's person partakes ol 1 p. S47. 3 oh. la, Bee. 1. 3 State t». Davie, 1 Ired. 1*7. * State v. FrceU,3 Uumpb. 229 (1842). 6 Kirland ti. State, « Zni. 149 (1873). • 6 U. C. Pr. Bep. 2i7 (1874). ' latrobh. 91 (1846). « 1 HIU, 96. DIVIDUALS. o, that " he had a great ndant guilty, and a new n, from which judgment I's Crlmlaal Pleadings i B conduct of the defend- ness to suppose he was defendant would by such conduct would be strong the plea of son assault idversary first attempted ience of that fact, for if contrary, that there was iult.3 The law makes al- inflrmlties of man. It temporaneously with the lideratlon, as tending to > strilce. The defendant o, and was not prevented i, have told the jury, that i worde, "were you not iad not a present purpose ,t what was said in Davis' Thich separates violence til the execution of it be he judge supposed might d it to be, can always be is good behavior. There New trial awarded. g the house v* another is wis " the prisone opened a eby two trains di I come in if them. This was held not ilng Carriage Not. — This pon a slight view it might State V. Davis and Purdue,^ It in cutting a rope by which wn person. This case was a man's person partaltes of u. state, 43 :nd. 149 (1873). 'r. Rep. til (1874). .91 (1846). }. ASSAULT — MUST BE TO PERSON. 869 his personal inviolability, as the clothes he wears, or the stick he carries in his hand. But the extension of this doctrine to the extent contended for in this case would confound the distinctions between trespass to the person, which is indictable, uud trespass to goods, which is not. Many cases arc to be fonnd in the Eiifflish Reports, where the defendant willfully ran against the carriage of the prosecutor, by reason whereof he was hurt and sustained bodily injury; but the cases go no farther. It would be going too far to say, tliat to stop the carriage in which the carriage is riding, without any design or manifestation of intention to do him any bodily hurt, can amount to an assault, any more than to stop a boat in which many persons were sailing, would be an assault on each and every of the passengers. In tfiis case the declared object of the defendant Edge was to recover his negro, which the prosecutor was unlawfully carrying away. This he might lawfully do, if he could effect it without a breach of the peace or the violation of the criminal laws of the country. If this was his object, and so declared at the time, and there was no offer or attempt to commit any violence on the person of the prosecutor, I can not regard the act as any thing more than a trespass; or at most, the momentary restraint on the liberty of the prosecutor would be only a false imprisonment, which it is now settled may be committed without an assault; though the opinion seemed once to have been entertained that a false imprisonment included an assault.' Incases like the present, where no personal injury is done or attempted, the question is always one of intention, and the jury should be instructed to find the defend- ants guilty, or not, according as they should decide that he intended to do an injury to the person of the prosecutor, or not. That the jury may decide on this point, a new trial is ordered," § G32. Force Must be External. — In R. v. JTansun,^ one Hanson put some cantharides into a glass of rum and gave It to Mary Warburton to drink. She drank the liquor not knowing what it contained, and was made ill. This was held not an assault. § 633. And Must do Injury, — To expose a child to the inclemency of tlie weather, where as a result no injury or inconvenience actually happens to the child, is not an assault. ^ A prisoner indicted for manslaughter and acquitted because the death was not the result of the assault can not be con- victed of assault.* § 034. Accident or Play — No Intent to Injure. — There must be an ^intent to injure — either In bodily pain, constraint, shame or other disagreeable emotion. Thus to shove another in accident or in play' or in friendship* is not au assault. § C35. Use of Lawful Force. — The use of lawful force is not an assault. Thus the conductor of a car may remove a passenger violating the rules ' or not paying fare.' So the sexton of a church as to persons violating 1 2 Bos. ft Pul. 2.'». 2 2 C. ft K. 913 (1849). s K. i: Renshaw, 2 Cox, 286 (1847). * II. V. Connor, 2 C. ft K. 518 (1847). '■ Kutherford r. State, 13 Tax. (App.) 92 (ItWJ;. « People V. Hale, 1 N. Y. Crlm. Kep, 883 (1883). ' State V. Goold, 83 Me. 279 (1865) ; Stato V. Cliovin, 7 Iowa, 204 (1858); People v. Caryl, 3 Park. 326 (1857). • People V. JilleoD, 3 Park. 234 (1886). 870 CUIMES AGAINST THE PERSONS OF INDIVIDUALS. «,« rnlos I and the superintendent of a poor-house, as to thelnraates.Sorapollce- r?^i;iC-e.t.3 A.tot.eri«htofpar^ ter corporal punUhment to infant, see volume III. of this series. § 630. Preventing Breacuof Peace. -Laying hands on another to prerent his fighting or comralttluf? u breach of the peace is not assauU." s rqfia ShootlnB at House Window. - Where one shoots at a picture la the ^iiow of !nlerwUh latent to destroy the picture, because he Is offended by U, but w^ouUnLt ^^^ do a personal Injury to any one. It Is not an assault upon the owner of the house.' • 1 Com. V. Dougherty. 107 Mass. 245 (1871). « Slate V. Neff.M lud. B66. 3 Doering v. State, 49 lud. 60; Shovllnr. Com., 106 ra. St. 390 (1884). 4 ante. vol. HI., ch. V. And. see. Dowlon V. State. 14 Tex. (Avp.) 61 (1888). on e. p. 8«. .'ipicer V. People. U Btadw. 295 (1882). In People v. Van Vechten, 2 N. Y. Cr. Rep. 291 (1884). Learned. J., delivered the ioUowing dissenting opinion: •'ThlB^vasa prosecution for anassault and battery. The defence claimed that the complainant Hib- bard had been previously forbidden to come into defendant's hotel where the assault had been committed; that Hibbardwas drunk, and that defendant used no more force than was necessary to eject him. The defend- anfi counsel asked Hibbard whether the defendant, prior tb the assauU. had forbid- den him to enter the hotel unless he had legal process. This was excluded. The Inquiry was repeated in several forms and was excluded. The same questions were asked of the defendant, and again excluded. The defendant's counsel also inquired whether Hibbard at the time was drunk or sober, and this was excluded. An inquiry was also made of defendant when the con- versation as to Hibbard's coming en the premises was bad. This was excluded . Now there was no dispute that the premtses. ■where the assault was committed were in the lawful possession of the defendant. Nor is it claimed that Hibbard entered by virtue of his authority as a peace officer. He says himself that he did not go vnere in that capacity. The place was a hotel, and very properly without some evidence on the con- trary, there is an implied invitation to enter peacefully into a hotel. But certainly the proprietor may forbid such entrance. When he does forbid such entrance to any person, if that person then enter, he is a trespasser. The occupant of the premises may eject him. using no more force than is necessary. By the exclusion of the evidence which was offered, the defendant was deprived of the opportunity of Justiiylng the alleged assault. He was placed in the condition of a person who. without any previous prohibition to Hibbard against entering the hotel, com- mitted an assault. Now even If the Jury had believed that the force used was no more than necessary to eject Hibbard, the defend- ant would have been convicted, because he was not permitted to show that he had pre- viously forbidden Hibbard to enter. It was not in litigation of damages or In any such view, that the evidence of previous conversation was offered. It was to show that, at the time. Hibbard was a trespasser, and therefore, that the defend- ant might lawfully remove him. It Is true that defendant would not then be Justlfled in using unnecessary violence. But It does not appear that the Jury thought the force used was unnecessary. The defendant was not allowed to show the fact which would have JusilQed some degree of force. So too. I think that proof should have been ad- mitted that Hibbard was intoxicated. Not that intoxication Justifies an assault, but because the question of what Is necessary force to remove an intruder from one's premises, may depend on the condition of the intruder. A degree of force may be necessary in the removal of a drunken man from one's hotel, which would be quite needless and improper in the case of one who was sober and quiet. Of course. It might be that, if the evidence of this forbidding Hlobard to enter had been received, the Jury might still find that the defendant's acts were not Justifiable; that he used un- necessary force in attempting to remove Hibbard. But the defendant had a right to have the jury decide this question, and of that right he was deprived. I think tno conviction and Judgment should be reversed and a new trial had." United States v. Hand. 2 Wash. 435. fDIVIDUALS. the Inmates," or a pollce- schoulmaater to adminla- lis series.* 9 on another to prerent assault." shoots at a picture In tin- because he Is offended by jne, It Is not an assault ifendant was deprived of the justiiylng the alleged aasault. in the condition of apereon any previous prohibition to ist entering the hotel, nom- ult. Now even if the Jury had the force used was no more ^ to eject Hlbbard, the defend- rebeen convicted, because he Itted to show that he had pre- den Hlbbard to enter. It was itlon of damages or In any at the evidence of previous was offered. It was to t the time, Hlbbard was a id therefore, that the defend- rtuUy remove him. It Is true It would not then be Justlfled icessary violence. But It does iiat the Jury thought the force iccessary. The defendant was to show the fact which would 1 some degree of force. So too, proof should have been ad- Hlbbard was Intoxicated. Not ition Justifies an assault, but question of what is necessary move an Intruder from one's ly depend on the condition ot ■. A degree of force may be the removal of a drunken man hotel, which would be quite d Improper in the case of one er and qiilet. Of course, it might lie evidence of this forbidding enter had been received, the still find that the defendant's lot Justifiable; that he used un- orce in attempting to remove tut the defendant had a right to iry decide this question, and of he was deprived. I think tno ind Judgment should be reversed ;rlal had." States t'. Hand, 2 Wash. 435. ASSAULT — MAYHEM. 871 § G3C,b. NcfrllgrentDrlvlngr.— One ne^Usently driving over another Is not guilty of an assault and battery, though he Is violating a municipal ordinance against fast driving.' § G37. Recaption. — If a constable levy upon and talce goods, after the authority of the seizure derived from the writ has expired, the defendants who do no more than temporarily exercise the cOmmon-law right of recaption, are not guilty of assault.^ § C38. Force used to Recover Property Fraudulently Talcen. — In An- derson v. State,^ It is said: " If a man meet another In the highway and by false and fraudulent misrepresentation Induce that other to surrender to him the possession of bis horse and carriage and when he has so obtained possession show a different purpose by word or act to appropriate it to bis own use and to escape with it, surely it will not be held the person so deprived of property is compelled to stand with folded arms and see the fellow so escape beyond the reach of the law, or a hope of the restitution of the property or be guilty of a violation of law in attempting to recover possession. On the contrary every ramn has a right to defend his property and his possession thereof, and to use such force as wUl secure to him its full enjoyment. If he use the necessary force to eject the Intruder from his house or premises, upon the same principle he may use like force to recover a chattel attempted to be converted by a dis- sembler or felon." § 638a. Mayhem — Premedltatlonnecessary.— To the crime of mayhem pre- meditation Is necessary.* § 639. Mayhem — Other Bcsentlala. — A permanent Injury i3 neces- sary — a temporary Inj ury of a finger, an arm, or an eye is not mayhem fi Biting off a small portion of the ear Is not mi^yhem,* nor fracturing the skull.' Under a statute In Virginia, which enacts that If any person *' shall unlawfully cut out or disable the tongue, put out an eye, slit a nose, bite or cut off a nose or Up, or cut off or disable any limb or member of any person whatsoever, within the Commonwealth, with intent In so doing to malm or disfigure, in any of the man- ners before mentioned, such person," he shall be declared a felon and suffer as in case of felony, biting off an ear Is not a felony .» § 640. << Maiming" by "Lyinff in Walt." — A husband cutting hts wife's throat while both are In bed Is not "maiming" by "lying la wait" within the statute.* § 641. Assault 'With Intent to Kill. — On this charge the Intent to kill must be proved.io To sustain an indictment under the act of March 3, 1825, it must be proved that the assault was made with the Intention to take the life of 1 Com. V. Adams, \U Mass. 362 (1873). ^ Finn v. Com., 6 Pa. St. 460 (1847). 3 6Baxt.608(1872). * Godfrey r. People. 68 N. Y. 207 (1875). s State V. Brlley, 8 Port. 473 (183tt). < State V. Abram, 10 Ala. 929 (1847). Deo. 57i (1811). As to what la mayhem under the New York statute, see Ilurke v. People, 11 N. Y. (S. C.) 481 (1S75.) » United States v. Askinti, 4 Crunch, C. C. 98. • B. V. Lee, 1 Leach, 61 (1761). 1° Ogletree v. State, 28 Ala. 693 (1856) ; 7 Com. V. Somervllle, 1 Va. Caa. 163 ; 5 Am. SUte v. Painter, 67 Mo. U (iS77). »m'- 872 CRIMES AGAINST THE PEUSONS OF INDIVIDUALS. the person assaulted; an intent to torture merely, or to give pain, is not enough. 1 Where a person aiming at A. misses him and wounds B., he can not be con- victed of assault with intent to kill B.* In State v. Sluanaker,'' the prisoner was indicted for an assault and battery comiultted by the prWoner on James Brown with intent to Itlll him. On the evening of tne 25th of August preceding, upon the arrival of the train on the railroad at Claymont Station, Mr. Brown had just left the train and taken his seat in his carriage, when a pistol was discharged from the platform of one of the cars, the ball from which hit and penetrated the right side of his face, from which it was afterwards extracted, but inflicting a wound which was at one time considered to be dangerous to his life. There were some twenty persons on the platform of the station when the prisoner, who had just before been seen standing with another young man on the platform of a car with a pistol In his hand, apparently examining it as the train was starting and had partly passed Mr. Brown's carriage, suddenly brought his arm and hand with the pistol in it around in that direction and discharged it. They were both strangers to Mr. Brown, and were on their journey together from Philadelphia to Dover, to work at their trade as carpenters for a person who had employed them there. The companion ol the prisoner was the owner of the pistol, and in packing his chest In the city had forgotten it until it was too late to be packed, and on leaving had put it in his pocket, and had informed the prisoner of it about the time thf train reached the station, and told him he did not like to be carrying a pistol in his pocket, when the latter expressed a desire to see it, and he handed it to him for that purpose, as they went out on the platform of the car. He further tes- tified that tlie prisoner was examining it when he accidentally and unintention- ally discharged it, and that the prisoner did not know that it was loaded uiiill it went off. When a gentleman on the train, who had no acquaintance with the prisoner, went to him soon afterwards and told him that it was rumored on Ihe train that a man had been shot by him, he replied Insolently to him, and said 11 he had done it he did not know that it was any of his business; and after the train had reached Wilmington, when he replied that he did Arc a pistol in that direction, but if any one said he fired at anybody, or tried to shoot anybody, he was a liar and he would whip him, although he was not a fighting man, They were followed by ofllcers to Dover the same night, and were arrested to- gether In the same bed. They both said to the officers arresting them that they bad got hold of the wrong parties, and when asked for the pistol denied that they had any, but on turning back the bed clothes and pillows they found one under them. The prisoner had since called on Mr. Brown, in Philadelphia, and said that he was the man who did it, and that he was sorry for It. The Deputy Attorney-Generial, asked the court to charge the jury that if they were satisfied from the evidence that the pistol was recklessly dis- charged by the prisoner into the crowd ol people then and there assembled, and particularly in such a place, regardless of Its effects, or whom he might wound or kill, it was a case of malice generally against all of them, and was sufficient to sustain the felonious Intent alleged in the indictment to kill the person wounded by it, although he might have been an entire stranger to the 1 United States v. Riddle, 4 V^ash. 644. a LAcefleld v. State, 34 Ark. 276 (1879). ' 1 Houat. Cr. Cas. 02 (1858). NUIVIDUALS. ASSAULT WITH INTENT TO KILL. , or to give pain, is not nds B., be can not be con- or an assault and battery ntunt to 1(111 him. Un the arrival of tlie train on the L-ft the train and tukuu hit) otn the platform of one of ■ight side of Ills fact", from wound which was at one were some twenty persons > liad just before been seen t a car with a pistol In his ting and had jiartly passed 1 hand with the pistol In It were both strangers to Mr. ladelphla to Dover, to work mployed them there. The 3l, and In packing his chest I be packed, and un leaving 3er of It about the time the e to be carrying a pistol in it, and he handed it to him jf the car. He further tcs- jcldentally and unlntentlon- jow that it was loaded uiiill id no acquaintance with the tliat It was rumored on Ihe Insolently to him, and said his busine<:s; and after the it lie did Are a pistol In that or tried to shoot anybody, he was not a fighting man, light, and were arrested to- ers arresting them that they sd for the pistol denied that I and pillows they found one Brown, In Philadelphia, and as sorry for it. rt to charge the jury that I pistol was recklessly dis- ) then and there assembled, I effects, or whom he might gainst all of them, and was in the Indictment to kill the len an entire stranger to the t. Cr. Cas. 62 11858). prlsiiDer at the time, and the latter might have had no Individual or actual iiiulice against him. Gurtlun, for the prisoner. The felonious Intent to kill must bo proved in this, as in ivcry other case, like any other material fact In It, and It was incumbent ( n the State to establish it. But if the pistol was accidentally or unluteution- iilly discharged by the prisoner on the occasion, it was a case of misadventure iu contemplation of law, and would be a good defence even to the misde- nieaunr or the assault simply, although It would be no defence In such a case Id a civil action for the trespass. G ii.riN, C. J., charged the jury, that If they were satisfied that the pistol was flred by the prisoner unintentionally and by accident merely, however imprudent or Improper It may have been for him to be handling It or examining It loaded In such a place and at such a time, he ought not to be con- victed of either the misdemeanor or the felonious Intention alleged In the indictment. But If, on tlio contrary, they were satisfied by the proof that he discharged It Intentionally and wantonly and recklessly Into the crowd of per- sons assembled about the place at the time, or In the direction of the carriag« of the prosecuting witness, indifferent as to whom he might shoot, or what the mischief or Injury might be, or where or on whom it might fall, such conduct would manifest such a wicked and depraved Inclination and disposition on his part, that it might well be presumed by tliem that he intended at the time to shoot some one, upon the principle that every one is presumed to intend the probable consequence of bis own act; and if that was so in the opinion and belief of the jury, the prisoner was guilty at least of the assault alleged in the indictment. But the felonious intention alleged in it to kill the prosecuting witness, Mr. Brown, was not a matter to be mode out by Inference or presump- tion merely, but must be proved like any other fact material In the case, in order to convict blm of the felony, or felonious intention alleged in it, and the point had been several times so ruled and decided in this court. It was com- petent under the statute, however, for the jury to convict him upon the Indict- ment of the misdemeanor or the assault merely. But as to the felony or intent to kill the prosecuting witness, it would have been a very different case, both in law and fact, if he bad died of the wound within a year. Verdict, not guilty. §642. Assault With Intent to Murder — BlementB of Crime. — In this charge every element of murder must be present, except the death of the assaulted party,' and there must be an intent to kili.^ Presenting a pistol, loaded and cocked, within shooting distance in an angry manner, do not per sc constitute an assault with intent to murder.* The evidence was held insuf- cientto convict in the following cases: Black v. State,* State v. Ah Eung,^ Joties V. State," Erring v. State.'' In People v. iiree/er,^ the court said: »'The defendant was indicted for an assault with intent to murder one John R. Evans, and convicted of the crime of an assault with a deadly weapon, with intent to do great bodily harm. The court Instructed the jury that If a loaded gun was presented within shoot- ing range at Wilson or Evans, or at the dog, under circumstances not justified 1 Smith V. State, 62 Ga. 88. 2 Hairston v. State. 61 Miss. 689. 3 Morgan v. State, 33 Alii. 413 (18S9). <8Tex. (App.) 329 (1880). <■ 17 Nev.361 (1683). 13 Tex. (App.) 1 (1882). ' Hex. (App.) 417 (1878). » 18 Oal. 636 (1861). 874 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. by the law, aart under circumstance* showing an abandoned ""d ™aH?na heart and hat the gun wa« flred off and Inflicted a dangen.us wound upon th tnl Evans, then'the crime of an assault with a deadly ^oapon w th Intej to inflict a bodily Injury upon the witness Evans, has been proved; »« " w«ul only remain for them to Inquire whether or not the defendant was guilty of th crime. The pertinency of this charge, as we gather from the case, was show by proofs which conduced to prove that Keeper flred a Run In the direction < Wilson ai'l Evans and of a dog near them, there being some dispute os t whether the Intent was to kill or wound the dog or these men or one of then It is true that a person may be convicted of murder or of an assault, thou no specUlc Intent may have existed to commit the crime of murder upon tl person charged. The familiar Illustration Is that of a man shooting at oi person and killing another. In these cases, the general malice and the unla, fuTact are enough to constitute the offense. No doubt exists that a man m. be guilty of manslaughter under some circumstances by his mere carelessnea But this rule has no application to a statutory offense like that of which tl defendant was convicted. This is an assault with a deadly weapon, with nte to do great bodily harm to another person. The offense Is not constituted any part by the battery or wounding, but Is complete by the assault the weap, and the lat.nt-as If A. snaps a loaded pistol at B. within striking dlstan the offense would be no more under this clause of the statute It the shot to effect. It could scarcely be contended. If a man shot at another s dog chicken, when such shooting would be a trespass and wholly Illegal, that trespasser was guilty of this crime of assault with Intent, etc., merely from fact the owner of the animal was near by and within range «« «'e shot, or t shot went through his hat or clothes; and yet the reason of holding thus that case Is as great as in this. So, if a man carelessly handling bricks on t roof of a house should throw them Into the street below, though he might liable, civilly and criminally, for injury done to persons thereby, he could i be guilty of the statutory offense of assault with Intent to kill. The words the statute, « with intent to do great bodily harm to a person,' i are not mer formal, but they are substantial - they constitute the very gravamen of i offense; and the statute, like all other penal laws, must be strictly constru It is nothing In this view that the defendant is guilty of some crime; he m be guilty of the very crime charged, which can not be unless the element* the crime, as defined by the Legislature, appear. This is the universal r applicable to criminal proceedings; audit is as plainly supported by comn sense as by technical law. We can not make the proposition plainer by ill -ration If the defendant is convicted under this charge of the court, it wo seem that he might be convicted of an assault upon a dog with a deo weapon, with intent to do a great bodily Injury to a man; or of assaultlr man with a deadly weapon with intent to do that man great bodily harm, w he had no such Intention. «« We know nothing of the facts of the case, and intimate no opinion as to merits of the controversy. Judgment reversed and cause remanded for a new trta § 642a Assault With Intent to Murder -Assault With Intentto Kill No In Peterson v. Stat^; tse prisoner had been convicted of an assault with in 1 Woods Dig. 335. » 13 Tex. (App)i»l). .djtet^jteJQMSwiJttsateiti^^'' ■>. IMAGE EVALUATION TEST TARGET (MT-3) •^ ^.^ V.^^ ^f<^^.V 1.0 2.2 1.1 i.-^is 11-25 nil 1.4 1.6 6" '/ ^/ »,'% J. Photographic Sdences Corporation 23 WEST MAIN STMET WIBSTER.N.Y. USSO (716)872-4503 ^^^\ <^^'^ V W^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical iViicroreproductions / Institut Canadian de microreproductions historiques ^^B A8SAULT WITH INTENT TO MURDER. 875 to kill. On the trial, tlie court iu its charge to the jury, when explaining the difference between an assault with intent to murder, and an aggravated assault, used this language: "The offense, if any, would not be reduced to an aggra- rated assault, if you believe from the evidence that the defendant assaulted Sidilie Acco with a knife, which was a deadly weapon, with intent to kill." On appeal, this was held error, the Court of Appeal saying: "The charge of the learned judge, as a whole, was a very able, clear and exhaustive embodiment of tlie law of the dase, but we are of the opinion that the extract above quoted is erroneous; and, having direct reference to a most material issue in the case, it would be most likely to mislead the jury to the injury of the defendant's riglits. The error in the paragraph quoted is *his,— it concludes with the word kill instead of the word murder. The defendant may have assaulted Siddle Acjo with a knife — a deadly weapon — and with Intent to kill him, and yet under circumstances which would, in case the death of Acco had ensued from the assault, have reduced the homicide to mpnslaughter. There exists an intention to kill In manslaughter, and therefore, notwithstanding the assault in this case may have been made with the intent to kill, that would not necessarily make It an assault with intent to murder. The Intent to kill may have existed without malice, and malice is as essential In the offense of an assault with intent to murder as It is in murder itself. It is clear, therefore, that, although the jury might have believed from the evidence that the assault was made with a deadly weapon, and with intent to kill, they might still very properly acquit tlie defendant of the charge of assault with Intent to murder and find her guilty of an aggravated assault, provided the evidence did not satisfy their minds, beyond a reasonable doubc, that the homicide. If accomplished, would have ))een murder. But the charge referred to instructs them plainly and positively to the contrary, and while we do not doubt but that it was an accidental mistake iathe otherwise model charge of the learned judge, we think it was a most vital one to the defendant, and one which demands a reversal of the judgment." § 643. Assault With Intent to Murder— Mtist t>e Intent to Kill Party I Awaulted. — An Intent to kill another is not enough. In Barcus v. State,^ the court said: "At the last term of the Circuit Court of Warren County, the plaintiff In error was Indicted, tried and convicted on a charge of shooting at , Sandy Mitchell with Intent to kill. From the judgment against him the accused prosecuted a writ of error, and asks here a reversal of that judgment upon several grounds not essential to repeat or discuss. Upon the trial, the right of tlie city police to arrest vagrants, without warrant, was made a prominent point, and Is again pressed in the argument in this court, but we do not think that question Involved at present. There is a fatal error, however, in this case, and it is this: there is no evidence that the accused shot at Sandy Mitcht'll. The proof Is, that he shot at Henry Creighton, and according to his own declarations subsequent to the shooting, Intended to kill him. Upon this I point there is no conflict in the evidence. It is positive and uncontradicted, I that he shot at Henry Creighton, accidentally hitting Sandy Mitchell, an Inno- Icent bystander. The verdict Is wholly unsupported by the evidence. It is I true, that the jury, in response to the instruction for the State have found, in I substance, that the accused shot at Sandy Mitchell with the intent to kill and I murder him ; but the verdict must have been through some misapprehension of 49 Mias. IT. 876 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. law or fact. There Is no doubt of the rule, that a man shall be presumed to intend that which he does, or which is the natural and necessary consequence of his act; and that malice, in this class of cases, may be presumed from the character of the weapon used. If the ev Idence in the case at bar was limited to the mere fact of shooting and the striking of Mitchell as the result of the shot, or if the evidence as to the person intended to be killed was conflictinii, we might accept the v --rdict as conclusive; but the record before us leaves no question or doubt. Indeed, it is conclusive that Creighton and not Mitchell was the person aimed at and designed to be hit. To sustain the indictment in this case, it was incumbent on the part of the State to prove that the accused shot at and intended to kill Mitchell, whereas the proof is that he shot at Creighton with the intent to kill him. The essential averments of the indict- ment are, therefore, not only not sustained, but absolutely negatived. It fol- lows that the indictment should have charged the shooting to have been at Creighton, and the result is, the judgment must be reversed and the indictment quashed, but the accused can not be set at liberty. He will be detained in custody to await a trial under another indictment, to be drawn as herein indi- cated." I (J44. Assault with Intent to Murder — Spring Guns. — One who plants spring guns with a general intent to kill trespassers, and wounds one can not be convicted of assault with intent to murder .» § 645. Assault with Intent to Commit Manslaughter. — There appears to be no such offense as this.'' § 646 . Assault with Intent to Rob — Subseauent Common Assault. — In B. v. Satulyi>,^ the prisoner and another were indicted for feloniously as- saulting the prosecutor with intent to rob him. It appeared that the prisoners had met the prosecutor upon the road, and as it seemed, for a frolic, demanded his money or his life. The prosecutor recog- nlzed them, and some words passed, and the prisoners offered a shilling to make it up. They tried to thrust the shilling into the prosecutor's hand, and in doing so it fell to the ground ; they then insisted on his getting off his horse to pick it up. He complied, then they struck hlra three times against his horse, and gave hlra a black eye. One of the prisoners was drunk, the other was not. On these facts being proved, Wightman, J., suggested that the transaction was more of a frolic than a felony. Merivale, for the prosecution, admitted this, but contended that the prisoners miehi be convicted of a common assault. Cornish, for the prisoners, contended tliat the assault proved, being subse- quentto the act charged as felonious, was an after thought, a distinct transac tion and in no way connected with the original felony. Assuming that there had ever been a felonious intent, it had ceased before the assault was com- mitted. Watkin'8 Case * and Phelp's Case^ were cited. Wightman, J. (after consulting Patteson, J.). My brother Patteson is clearly of opinion with me that assuming that the assault proved was not com- 1 Btmpson V. state, 69 Ala. 1 (1877). s People V. LlUey, aiUt, p. 783. » 1 Cox, 8 (18U). See Robertson v. State, lOTex. (App.)e4aaS81). <2Moo.C. C. <> Ibid. V1DUAL8. AGGRAVATED ASSAULT DANGEROUS WEAPON. 877 shall be presumed to ecessary consequence le presumed from the use at bar was limited sll as the result of the killed y/Hs confllctin;:, rd before us leaves no ton and not Mitchell tain the indictment in >rove that the accused of is that he shot at erments of the indict- ely negatived. It fol- oting to have been at led and the indictment [e will be detained in drawn as herein indi> ng Guns. — One who sers, and wounds one r. — There appears to It Oommon Assault. — :ed for feloniously as- r upon the road, and aB The prosecutor recog- s offered a shilling to 08ecutor*8 hand, and in getting off his horse to mes against his horse, ink, the other was not. that the transaction was nded that the prisoners It proved, being subse- igbt, a distinct transac ', Assuming that there e the assault was com- fy brother Patteson is nil proved was not com- mitted with a felonious intent, it was not so connected with the original trans- action as to be the subjec' of felony under this indictment. His lordship then directed the acquittal of the prisoners. § 647. Anrntvatea Assault — <' Child "—»' Decrepit Person."— Under the Texas statute an assault is aggravated when made by an " adult" on a child, or a " decrepit person." But " child " is not synonymous with " mlacr," i and a "decrepit " person is one who is wholly disabled and helpless.^ An «« adult " means a person twenty-one years old.* § 647a. Aggravated Assault — Intent and Act Essential. —Both intent and act are necessary to an ag^^ravated assault, like common assault.* In Texas an assault or battery does not become aggravated by being committed upon a woman by another woman. Nor is a man necessarily guilty of an aggravated assault and battery, simply because he agrees that one woman may commit an assault on another, whether he aids her or not.' § C48. "Beating." — Pulling a man to the ground and holding him while another escapes is not "beating" him.* I 049. " Bodily Injury Dangerous to liife." — This does not include a mere temporary disease resulting from exposure.' § 650. "arlevoua Bodily Harm." —The fact of striking a man with tht fist so as to break his jaw is not per se sufficient to show an intent to do grievous bodily harm.* § 661. ««Wounding." — To constitute a "wounding" the skin must be broken.* To constitute a " wounding " there must be a separation of the whole skin ; a separation of the cuticle or upper skin only is not sufficient." Breaking a person's collar bone and bruising him with a hammer, the skin not being broken is not a " wounding " withlnjthe English statute." This word In a stat- ute means a wounding with some instrument. Therefore, biting off the end of a person's nose, or a joint from a person's finger is not a " wounding." 12 A wound Inflicted by a party's teeth is not a " wounding; " it must be done with an instrument.'^ Throwing vitriol In a person's face is not a " wounding."" § 652. Dangerous Weapon — "Deadly Weapon." — A gun or pistol used simply to strike with is not per ae a " deadly weapon," »^ nor is a police- man's club a " dangerous weapon." i* 1 MeOregor v. State, 4 Tex. (App.) 790 (18T8). 2 Hall V. State, 16 Tex. (App.) 6 (1881). » Schenault v. State, 10 Tex. App. 41 (1S81) ; Ueorge v. State, 11 Tex. (App.) S5 (l!i81). * Fondren v. State, 16 Tex. (App.) 48 (1384). '' ColquUt V. State, 34 Tex. S50 (1870) « R. Hale,2 C. &K. 327 (1846). • R. r. Gray, D. A B. 303 (18S7). > R. V. Wheeler, 1 Cox, 106 (1844). » R. *. Wood, I Moo. 278 (1830). As to what is not a " woun'ling," see R. v. Jones, 3 Oox, 441 (1848). 1° R. V. MoLoaghlln, 8 C. ft P. 63S (1838). 11 R. V. Wood. 4 C. 4 P. 881 (1830). 13 R. V. Harris, 7 C. 4 P. 446 (1836). 13 R. V.Jennings, 3 Lew. ISO (183S); R. v. Harris, /d. 131(1836). 14 R. V. Hensball, 2 Lew. 133 (1834) ; R. v. Hurrow.t Lew. 136 (1835) ; 1 Moo. 456 (1835). 1> Shadle «. State, 34 Tex. 573 (1S70). As to what is not an assault with a deadly weapon, ave Tarpley v. People, 42 111. 340 (1860). i> Doering v. State, 49 ind. W. 878 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. § 653. oflenalve Weapon.— A common whip is not an "offenaiTe weapon." • 3 Cox, 187(1818). • 2R Ala. 70 (1864). i ^^m IDCALS. not an "offennive 1th the handle of a dangeroufl weapon '* jon " must be both FALSE IMPRISONMENT. 87^ § fi68. False Imprisonment— Restraint Must be Against Will. — To con- stitute false imprisonment it is necessary that the restraint was against t&e party's will. If he consent to It, even through fraud, it is not a crime.' < § 659. False Imprisonment — Delay in Taking Ball. —An unavoidable delay of a magistrate in taking ball for a prisoner is not a false imprison- ment.* om Hand. — Snatch- ig his hand, but with ssault with force and I state V. Lanitord, 81 K. C. 628 (1879). Evidence held imuffleient to snstain con- Tiotion in Boyd v. State, 11 Tez. (App.) 80 (1881). * Beville V. State, 16 Tex. (App.) 70 (1884) ; CarglU v. State, 8 Tex. (App.) 431 (1860). Bvldence. — An En- inflict any assault to ttness against certain 1 C, called a spy and r was assaulted and uring the assault. It rhe code of Alabama B who abuse, whip or r to force such person Ished. In construing out the offense cou- 1 that the accusatiou he term ' accusation * It means something 'ere to bring a charge :t complained of , that ilm, not from the pro- ulltyof the accusation le is simply an act of snt, the usurpation of It is commonly called ds the prosecutor was had been whipped by ind battery, but not of isationwas the cause, iroper. The charge of •bserve the distinction nd cause remanded.** ly, 13 OuBb. 270(1803). 8). I). 880 CRIMES AGAINST THE PEB30NS OF INDIVIDUALS. Part III. RAPE, RAPE— FORCE AND VIOLENCE ESSENTIAL. McNair v. State. [53 Ala. 463.] In the Supreme Court of Alabama, 1875. Voroe la an Essential Ingredient In the crime of rape, and a charge that it the defend- ant intended " to gratify his passion upon the person of the femaie, cither by force or by ■urprise, and against her consent, then he is guilty as charged," i^ erroneous. Manning, J. In Lewis v. State,^ decided in 1867, a prosecution of a negro slave for rape, or attempting to commit rape, by personating the Iiusband of a married wliite woman, and so effecting, or endearor- ing to effect, illicit sexual intercourse with Iier, this court 'said: — "It is settled by a chain of adjudications, too long and unbroken to be now shaken, that force is a necessary ingredient in the crime of rape. "The only relaxation of this rule is, that this force may be construc- tive. "Under this relaxation it has been held, that where the femalii was an idiot, or had been rendered insensible by the use of drugs or intcd- cating drinks, * * * she was incapable of consenting, and the law implied force ; " in support of which propositions authorities were cited. And it was further held, that where the sexual intercourse was had with the consent of tlie woman, " although that consent was procured by fraudulent personation of her husband, there was neither actual nor constructive force, and such act does n^t amount to the crime of rape." It is not easy to conceive of a case in which an act of this sort could be more properly said to have been accomplished by" surprise." Yet it was decided, as we have seen, that it would not amount to a rape, and further, that if unsuccessful, the offender would not be guilty of an attempt to commit rape, if he did not intend to overpower the woman by force, if necessary. (This decision led to enactments to meet such a case. ) A1S.M. " -^ IVIDUAL8. M'NAIR V. STATE. 881 NTIAL. 875. charge that it the defend- male, cither by force or hj d," ij erroneoas. !67, a prosecution of rape, by personating fecting, or endearor- !8 court 'said: — long and unbroken dient in the crime of rce may be construc- rhere the female was e of drugs or intOTi- consenting, and the ions authorities were il intercourse was had sent was procured by 3 neither actual nor int to the crime of I an act of this sort ished by" surprise." mid not amount to a r would not be guilty end to overpower the led to enactments to The offender, in the case before us, was a youth fourteen and one- liftlf years old the female was a girl of about the same age. She was in bed in the same room in which three or four of her sisters were also sleeping. Defendant, through a window that was nailed up, broke into and entered the room, about two hours after midnight. Being aroused by his jarring against her bed, and her foot being brought into con- fact with his naked person, she screamed and alarmed the household, and he escaped through the window. The indictment against him was for breaking into and entering a dwelling house with intent to commit rape, and (in a separate count) with intent to commit a felony. The breaking into and entering were clearly proved, and the court charged the jury, among other things, that if this was done "with the intent u[)on his part to gratify his passion upon the person of the female, either by force or by surprise, and against her consent, then he is guilty as charged " in the count alleging the intent to commit a rape. According to the reasoning in Lewis v. State, it can not be main- tained that this charge was correct. It plainly implies that the crime of rape may be committed without force, either actual or constructive ; whereas, not only has it always been held that there must be force, but the short forms of indictment, in which nothing is contained that was not held to be essential, prescribed by the code of this State for that crime, and the assault with intent to commit it, expressly use the word forcibly, as neccessary in describing those offenses.* The very question presented by this record has been decided in other States, in cases of greater aggravation, and in which the parties ac- cused were negroes, and the females white persons. In Charles v. State,'^ the testimony of the principal witness, a Miss Combs, was : "That about four o'clock in the morning, she was lying asleep with four other little girls, she was awoke by some one who took hold of her by the shoulders, and tried to turn her over ; that she was lying with her face toward the other girls ; that he made an effort to get over her ; tiiat she threw out her hand, and discovered the person to be a man and partly undressed ; that she then raised the alarm, and called for help," etc. The judge who delivered the opinion of the court, says: "In the case of Hex v. Williams,'^ it was held that in order to find a prisoner guilty of an assault with intent to committrape, the jury must be sat- isfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passion upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. In the case of Commonwealth v. Fields,* a free negro, which was an in- 1 R. C. 808, 809, forms Nos. 7 and IS. 6 Eng. Ark. 3(». 8 Defrnces. 66 » 33 Eng. Com. I. R. BM. «4Loigh,648. 882 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. dictment for an attempt to ravish a white woman, the jury found a special verdict — that the prisoner did not Intend to have carnal knowl- ede disputed, and the rule requires of us to reverse a judgment when improper evidence haa been admitted, un- less it clearly appears that the evidence erroneously admitted could not have had any effect on the action of tlie jury. Tliat the testimony of the medical witness did influence the verdict is made to appear the more distinctly by the charge o'/ the court. Por- tions of the charge suggest to the jury the theory -or at least possi- bility —that the will of tiie prosecutrix and her capacity of resistance mMxt have been destroved by some occuh influence proceeding from defendant, that her mind might have been " bewildered " or indeed ••paralyzed " by some mysterious agency, entirely disconnected from any physical violence or threat of violence. There is no pretense that any drug or noxious substance was employed to render the prosecutrix unconscious, or to produce unsoundness of mind. The portions of the charge of the court referred to if they had application to any part of the evidence,.could only have been understood by the jury as having application to such testimony as that given by the witness Smith ; and as an instruction that the law demands less resistance on the part of the female, when erotic passion has been aroused by the solicitation of a suitor, accompanied by improper familiarities, at a period when the amatory passion is supposed to be peculiarly active, than when no such ardent appeal or manipulation has preceded the alleged illicit inter- course > For example, amongst other matters the court charged : — «' If from all the evidence you are satisfied that, on or about the time alleged, the defendant, by manipulation, art or device, or by other means, so bewildered or overpowered the mind and will of this girl as to render her at the time unconscious of the nature of the act of carnal intercourse, or powerless to resist it, and under these circumstances he had carpal intercourse with her, he is guilty of rape." Such language conveys the notion distinctly that seduction may be rape; that 'the employment of any art or device by which the moral nature of a female is corrupted, so that she is no longer able to resist the temptation to yield to sexual desire, will render sufficient less proof of resistance than would otherwise be necessary ; that consent thus ob- tained is no consent. The proposition entirely overthrows the estab- lished law in respect to the offense with which the defendant is charged. Judgment and order reversed, and cause remanded for a new trial. 1^^ IVIDUALS. iiffloient than would timony in re8|)cct of evUlcMiee may have ) rule roquires of us \, been admitted, un- f admitted could not influenca the verdict s o'i the court. Por- — or at least poBul- ipacity of resistance lice proceeding from vildered " or indeed y disconnected from •e is no pretense that inder the prosecutrix The portions of the cation to any part of y the jury as having s witness Smith ; and stance on the part of by the solicitation of it a period when the e, than when no such alleged illicit inter- harged : — »at, on or about the or device, or by other [id will of this girl as e of the act of carnal these circumstances [ rape." lat seduction may be e by which the moral 1 longer able to resist jr sufficient less proof that consent thus ob- overthrows the estab- defendant is charged. wded for a new trial. DAWKIN8 V. STATE. 885 RAPE — WIIAT IS "ABUSE" OF CHILD UNDER TEN. Dawkins V. State. [58 Ala. 870; 20 Am. Rep. 754.] i In the Sttvreme Court of Alabama, 1877. ' la a Statute FanUhlnv cnrnal knowledge or "abu»e" Id an attempt to have carnal knowluilgo, of a tunmlo child under ton ycari of age, the word " iibuae " applies only to injurloii to tho gonltiil organs In nn unHueceBBful attempt at rane, and doea not Include mere forcible or wrongful lll-naage. Indictment for having carnal knowledge of «'or abuse In the attempt to carnally know," a female child under ten years, of age. There was no evidence of carnal knowledge. Tlie court chargtil that "the word 'abuse ' was not synonymous with tho word ' injure,' but meant to ' forciby use wrongfully.' " The defendant <', n asked the court to charge the jury that " if the evidence failed to show that t)au defendant ? jin d Cora Blankshear in the attempt to have : imal knowledge of her by bruising, cutting, lacerating, or teariug iaoron some jtart of her person, the defendant could not be convicted of the offense charged in the indictment," which charge the court refused. The defendant was convicted. W. D. Roberts, for appellant. J. W. A. Sanford, Attorney-General, contra. Brickell, C. J. The indictment in the form prescribed charges that the defendant, " did carnally know or abuse in the attempt to car- nally know " a female child under the age of ten years. It is founded on the statute,* which reads as follows: "Any person who has carnal knowledge of any female under the age of ten years, or abuses such female in the attempt to have carnal knowledge of her, must, on con- viction, be punished at the discretion of tlie jury, either by death or by imprisonment in the penitentiary for life, or by hard labor for the county for life." The Circuit Court was of opinion and so instructed the jury that the word abuse, as found in the statute, was not the syn- onym of injure, but signified to forcibly use wrongfully. The correct- ness of the instruction is the only matter presented for consideration. Rape, as defined by Blackstone, is " the carnal knowledge of a woman forcibly and against her will. " » A better definition Mr. Bishop suggests is, "rape is the having of unlawful carnal knowledge by a man of a woman, forcibly, whereby she does not consent. " 3 A distinct 1 Code of 18TC, SCO. 4306. 2 4 Black. 210. 3 BUh. on Cr. L., eec. 1115. 886 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. oflense, though punished with like severity, was the carnal knowled( and abuse of a female child under the age of ten years. Force ov€ coming the resistance of a woman if she was not an idiot, or subdui by fraud, or rendered unconscious by the administration of drug medicines, or intoxicating drinks, or other substances, was an indi pensable element of the offense of rape. The consent of the woma yielded at any time before the act of penetration was complete, reliev the offense of its felonious character. Of the latter offense, the carr abuse of female childien under ten years of age, the wrongful act i volved all the force which was a necessary element of the crime, ai the consent or non-consent of the child was immaterial. The Engli statute of 18 Elizabeth,^ directed against the offense is substantially follows : ' ' That if any person shall unlawfully and carnally know a; abuse any woman child under the age of ten years, every such unlawl and carnal knowledge shall be felony, and the offender thereof bei duly convicted shall suffer as a felon without allowance of clergy The present statute,* employs the terms " carnally know and abi anj' girl under the age of ten years." ^ In this country statutes hs be enacted in nearly all, if not all, of the States punishing the oflei and generally describing it as in the English statute by the won "unlawfully and carnally know and abuse any woman child um the age of ten years." Several of these statutes are to be found 2 Wharton's American Criminal Law.^ It is perhaps true, as suggesi by Mr. Bishop, that in these statutes carnally know includes in meaning ail that is signified by the word abuse. There can not be sexual connection between a male capable committing rape and a female child under ten years of age without jury to the private parts of the child. ^ The statutes to which we hi referred are directed against the complete offense — when there something more than mere outward contact of the genital organs something which may be called penetration. ^ The offense then inclui of necessity physical injury to the child and it is this injury the U abuse includes, though it is included also in the words carnally kn( Our statute differs from these statutes and is unlike any to which have access. It is directed not only against the offense itself wl complete, but against attempts to commit it, if in the attempt thert abuse of the child. Without any contact of the genital organs, w out anything which may be called penetration, there may be injurj the child's sexual organs. It is said that often tlie chief injury to child results from the use of the fingers of the male. There have b 1 ch. 7. « 34 and '.'5 Vict., ch. 100, sec. BO. Biah.Stat. Cr.,sec. 489. « sects. 1124, 113*. ' Whart. & S. Med. Jur., sec. 432. • Bisb. Stat. Cr. sec. 494. ^liM 3P INDIVIDUALS. , was the carnal knowledge of ten years. Force over- as not an idiot, or subdued i administration of drugs, • substances, was an indis- riie consent of tlie woman, ition was complete, relieved he latter offense, the carnal >f age, the wrongful act in- clement of the crime, and .3 immaterial. The English le offense is substantially as ully and carnally know and I years, every such unlawful the offender thereof being hout allowance of clergy." " carnally know and abuse 1 this country statutes have States punishing the offense jlish statute by the words, se any woman child under statutes are to be found in is perhaps true, as suggested rnally know includes in its luse. between a male capable of ten years of age without in- he statutes to which we have ite offense — when there is act of the genital organs — .6 The offense then includes nd it is this injury the term in the words carnally know, nd is unlike any to which we linst the offense itself when it, if in the attempt there is of the genital organs, with- tion, there may be injury to often the chief injury to the the male. There have been Its. 1124, 1131 tart. & S. Med. Jur., sec. 432. lb. Stat. Cr. sec. 494. COMMONWEALTH V. MERRILL. 887 cases in which, without th« contact which would constitute the com- plete offense, bodily harm has been inflicted by cutting the private parts of the child. An injury to these parts in the attempt at carnal knowledge, is the abuse to which the statute refers, and not to forcible or wrongful ill usage, which would be an element of the offense of an assault with intent to ravish the child. Abuse is stated by Webster to be the synonym of injure, and in its largest sense signifies ill usage or improper treatment of another. Its proper signification must be ascer- tained by reference to the subject-matter or the context and the mean- ing of the words with which it is associated. In this statute intended for the punishment of deflouring female children, it must be limited in signification by the words with which it is connected referring to the same subject-matter. The instruction given by the Circuit Court would render the attempt to know carnally and abuse of the child the equivalent of an assault with intent to ravish, a distinct offense, subject to a different punishment under another statute.^ Rape and its kin- dred offenses are the subject of several different statutory provisions and the punishment for each offense is distinctly described. No one of these statutes embraces the offense which is included in another. The result is the instruction of the Circuit Court is eiToneous, and the judgment must be reversed and the cause remanded ; the prisoner will remain in custody until discharged by due course of law. Reversed and remanded. ASSAULT WITH INTENT TO COMMIT RAPE — INTENT TO ACCOMP- LISH rURPOSE MUST EXIST. C/OMMONWEALTH V. MeRRJLL. [U Gray, 416.] In the Supreme Judicial Court of Massachusetts, 1860. On the Trial of an Indictment charging the defendant with an ussault on hit daughter with intent to commit a rape, it appeared that ha uncovered her person as she was lying asleep in bed, and took indecent liberties with her person, and after she awoke endeav- ored to persuade her to let him have connection with her, and offered iirr money to induce her to do so, and lay upon her, but she wholly refused his request, ami he did not effect his purpose, and, when she finally refused, desisted from his intent, and left her. Held, that there was no evidence of the felonious intent alleged. Indictment for an assault with intent to commit a rape. At the trial n the Superior Court in Suffolk at August term, 1859, the district at- torney introduced evidence of the following facts : — The defendant at midnight, with a light in his hand, entered the 1 Code of 1S76, tec. 4tl4 888 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. room of his daughter, thirteen years of agefand went to her bed, where she was asleep in her night clotlies, touched her quietly to ascertain whether she was awake, raised the clothes, and examined and applied his hand to her private parts for half an hour, desisting whenever she seemed to start or likely to wake. She then awoke and sat up in bed, put the clothes down, and said she wished he would go away. He asked her to let him have connection with, and offered her money, but she refused. He then got into the bed with his private parts exposed, laid one leg over her, and continued urging her to consent to his wishes, and took hold of her hand, and asked her to put it upon his private parts. She utterl}' refused his request, and told him to get off from her, to get off the bed and go down stairs or she would call her mother. He laid upon the bed for half an hour or more, and then went down stairs to his own bed. He did not take hold of her at all, or use any force, except as above stated, the girl testified further that his private parts did not touch her that night ; that he tried to touch her but did not succeed. The bill of exceptions stated this evidence in greater de- tail, tind added; "the above is a statement of all the evidence of the acts done by the defendant at the time of the alleged assault." Russell, J., instructed the jury, among other things, as follows: •' If the jury, from the evidence in the case, are satisfied, beyond a reason- able doubt, that the defendant forcibly, wantonly and indecently com- mitted any violence upon the person of his daughter, against her will, they will convict him of an assault. If they are so satisfied that he committed such violence with intent to ravish her by force and violence, against her will, they will convict of the whole offense charged. If they have a reasonable doubt as to the intent, they may acquit of that part of the charge, aqd convict of assault, if they are satisfied that an assault was committed." The jury returned a verdict of guilty of the full charge in the indict- ment, and the defendant alleged exceptions to these instructions. T. L. Wakefield, for the defendant. S. H. Phillips, Attorney-General, for the Commonwealth. BiGELOW, J. We think it entirely clear, that the evidence at the trial of this case fell far short of proving any intent by the prisoner to have carnal knowledge of the prosecutrix by force and against her will. There was ample proof of gross indecency and lewdness, and of an attempt by long continued and urgent solicitations and inducements to lead the prosecutrix to consent to the wish of the prisoner to h^ve sexual intercourse with her. These facts would have been sufficient to warrant a jury in finding the prisoner guilty of an assault.^ But thsre was an entire absence of all evidence of the use of force, there was I 1 Bum. Or. (7Ui Am. e«.) 7St. OIVIDUALS. ent to her bed, where r quietly to ascertain xamiued and applied esisting whenever she ke and sat up in bed, voukl go away. He !fered her money, but irivate parts exposed, consent to Iiis wishes, it it upon hia private i him to get oft from rould call her mother, and then went down her at all, or use any irtber that his private I to touch her but did vidence in greater de- ll the evidence of the ged assault." lings, as follows: •' If 9ed, beyond a reason- r and indecently com- hter, against her will, re so satisfied that he by force and violence, offense charged. If ey may acquit of that ly are satisfied that an II charge in the indict- ese instructions. nonwealth. : the evidence »t the ;ent by the prisoner to e and against her will. 1 lewdness, and of an ns and inducements to the prisoner to h^ve have been sufflcient to n assault.^ But thsre ise of force, there was COMMONWEALTH V. MERRILL. 889 proof of no act of violence, no struggle, no outcry, and no attem^ t to restrain or confine the person of the prosecutrix, which constitute the usual, proper and essential evidence in support of a charge of an intent to accomplish a felonious purpose on the body of a female by force and against her will. The gist of the aggravated charge laid in the indict* ment against the prisoner was the intent to ravish. In many cases, as in the familiar instance of a charge of breaking and entering with intent to steal, proof of the actual commission of the larceny is decisive proof of the intent with which the entry was made. The overt act leaves no room for doubt as to the felonious purpose with which the previous criminal act was perpetrated. But the case at bar is a very different one. The act itself, which if committed, would be decisive proof of the intent, was never consummated, and if it had been, would have constituted a higher crime than that charged in the indictment. The nature of the charge presupposes that the intent of the prisoner was not carried out. It is, therefore, necessary that the acts and conduct of the prisoner should be shown to be such, that there can be no reasonable doubt as to the criminal intent. If these acts and conduct are equivocal, or equally inconsistent with the absence of the felonious intent charged in the indictment, then it is clear that they are insufficient to warrant a verdict of guilty. The facts in the prt it case resemble those proved in Rex v. Nichol,^ where it was shown that a teacher took very gross and indecent liber- ties with a female scholar under his control, of tender years, without her consent, and it was held that he was rightly convicted of an as- sault, but not of an intent to ravish. So in the present case, the jury should have been instructed that there was no sufflcient proof to main- tain the charge against the defendant of an assault on the prosecutrix with a felonious intent to have carnal knowledge of her by force and against her will. As the case was left by the court to the jury under tlie instructions which were given them, they were at liberty to infer that the evidence was sufflcient to warrant them in finding the defend- ant guilty of the aggravated charge. This, we think, was erroneous. The omission to instruct the jury in a criminal case that the evidence does not prove the offense laid in the indictment is good ground of exception. (Omitting another point. ) Exceptions sustained. 1 Ruis. & Ry. ISO. 890 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ASSAULT WITH INTENT TO COMMIT RAPE -INTENT TO COMMIT rai'e must be proved. Thomas v. State. [16 Tex. (App.) 636.] J» the Court of Appeals of Texas, 1884. la Order to Sustain » conviction for asBault with intent to commll rape, the proof must .^w th!t tho assault was committed with the spec.flo intent to conHnit rape No other Intent will suffice. A conviction for such offense is not supported bJiproof that the accused assaulted a woman with the Intent of having Improper connection with her. without the nse of force, nor without her consent. Appeal from the District Court of Anderson. Trietl below before the Hon. J. J. Peukins. The conviction in tliis case was for an assault with intent to commit rape upon the person of Ida Kreig, in Anderson County, on the first day of November, 1883. The penalty imposed was a term of five years in the penitentiary. Ida Kreig was the first witness for the State. She testified, in sub- stance, that she was a girl thirteen years of age. On the night of No- vember 14, 1883, at about seven or eight o'clock, the witness and Henry Carswell, a little boy about eight years old, started down town in tlie town of Palestine, Anderson County, to purchase some lace for the witness' Bister, who was to be married on the next night. When the witness reached a point in the middle of the street about opposite a store kept by a Mrs. Nelson, the defendant approached the witness and the boy, coming out of Mrd. Nelson's store, with two bottles in his hands, resembling soda water bottles. He told witness and the boy to drink. The boy drank from one of the bottles. The witness took the other bottle in her hand, but did not drink. She gave it back to the defendant, and he put it in his pocket. The defendant took the wit- ness* hand with his left hand when he gave her the bottle. She ex- pected him to release her hand when she returned the bottle to him. The defendant then told the witness that he would give her ten dollars if she would "give him some." Witness refused. Defendant then pulled the witness up to him and told her that he would give her a hun- dred dollars if she would consent ; that he was a railroad man and bad plenty of money. Witness again refused, telling defendant, who was showing her money, that she did not want his money. The witness then succeeded in releasing both hands, and she and the boy ran oil towards Mi-. Harris' house, which stood on the street. The defendant pursued and caught the witness just as she reached Harris* fence. He pushed her up against the fence, and again proposed to pay her if she DIVIDUALS. NTENT TO COMMIT THOMAS V. STATE. 891 , 1884. ^onlmil rape, the proof must nt to commit rape. No other Bupported by iproof that the iproper connection with her, . Trietl below before t with intent to commit ion County, on the first nras a term of five years . She testified, in sub- . On the night of No- , the witness and Henry irted down town in the lase some lace for the next night. When the street about opposite a roacbed the witness and with two bottles in his witness and the boy to I. The witness took the She gave it back to the defendant took the wit- lier the bottle. She ex- iirned the bottle to him. 3uld give her ten dollars 3f used. Defendant tlicn he would give her a huu- i a railroad man and bad IHng defendant, who was lis money. The witness she and the boy ran off i street. The defendant iched Harris' fence. He reposed to pay her if she would consent to copulation. Witness and the boy went through Har- ris' gate on to his gallery to escape the defendant, and saw the defend- ant pass on down the street. Witness saw no one at Mrs. Nelson's store, or at Harris' house, though she saw a dim light in the latter building. Witness and the boy remained on Harris' gallery some minutes, until they thought that the defendant had gone. They looked around for him, and, not seeing him, came out and started along a rond that ran diagonally through the space where the stock yards were once located. At this point the road intersected a street which led into town. When they had crossed the street and started across the stock pen, the witness looked around and saw the defendant as he rose up from the ground at the corner of Harris' fence. The defendant started in pursuit, running at his best, and the witness and the boy ran, screaming, and still pur- sued by the defendant, until they encountered Mr. Whittle on the road intersecting the street near Mrs. Potts'. Defendant pursued, until he came within eight or ten feet of witness, the boy and Mr. Whittle, when seeing Whittle on horseback with a gun, the defendant turned and ran in another direction. About this time, the witness' step-father, Mr. Warner, came up with a basket containing purchases, and asked what was the matter. On being told, Warner sat his basket down and ran after the defendant. Witness saw the defendant again that night. He was the same man she saw at Mrs. Nelson's store, the same man who pursued her, the same man who was now on trial. She had never seen that man before that night. Witness did not cry out or give any alarm in the street near Mrs. Nelson's store. She saw a light in that store, but saw no person in it. She gave no alarm at Harris'. She saw no person at Harris'. She did not give any alarm until she was pursued the last time by the defendant. She gave no reason for not doing so, tliough she was asked by counsel. The defendant did not throw her down at Harris' fence, nor did he lift up her clotlies. He only put his hand on her as 3he ran. The witness said that she knew what the defendant meant when he asked her to "give him some," but declined to answer how she knew. Henry Carswell testified, for the State, that he Was eight years old. Ida Kreig came to the house where the witness lived on the niglit of the alleged offense, and asked him to go with her to town, and the two went together. They saw the defendant in the street near Mrs. Nelson's store. He is the same man who pursued witness and Ida across the stock pen grounds. J. C. Whittle was the next witness for the State. He testified that that he had been hunting on the day of the alleged assault, and left the duck pond, about eight miles distant from Palestine, near dusk. He -•^MhvMMaMtWMl 892 CRIMES AGAINST THE FERSONS OF INDIVIDUALS. rode in quite a brisk walk until he reached the suburbs of the town when he checked up to a slow walk. Witness reached the stock pen grounds at the point where the road crossing it diagonally intersect* the street which runs north and south by Mrs. Pott's residence, between eight and nine o'clock. As witness was crossing the stock pen grounds, and nearing the street last mentioned, he heard the voices o..' children screaming. Supposing the parties to be children at play, the witness at first paid no attention to the screaming. The voices came nearer and nearer, and sounding more like children in fright, the witness stopped his horse and turned in his saddle to see what was the matter. Ida Kreig and Henry Carswell about that time came running and screaming toward the witness who was then holding his gun muzzle up, the breach resting on his thigh. At the same time witness saw a man stop suddenly, and then run off rapidly in a northerly direction. He had approached within ten, fifteen, or twenty steps of the children. The children appeared to be very much frightened, excited and nearly out of breath. Witness asked Ida what was the matter and she replied that the man was after her. About the same time Mr. Warner, Ida's step-father, came up, and being informed of the assault, and being di- rected to the man who was running off, but in sight, he at his basket on the ground, requesting the witness to stay with th children, and started in pursuit. The witness went home with the children, and there saw the defendant in charge of a policeman. The witness had never seen the defendant before that night to know him, and could not swear that he was the same man he saw running after and ott from the children a short time before. The children caught up with witness about one hundred yards from where witness first heard them scream- ing. The witness described the topography of the stock pen grounds. Chas. Finger lived in a house about sixty feet east of Harris, and par- ties lived east and west of Finger. The distance between Harris* house and Nelson's store is about one hundred yards. There was a light in Nelson's store, and the door was open. Witness did not remember that he saw anybody in the store as he passed it. He did not see the children as he passed that store. If the children were in Harris' yard or on the street near the house when the witaeaB passed, they would have been too far to witness' left to be noticed ' ' L's, y made a noise. Witness heard no noise on the street ami uf. ot-.'jr persons than the persons mentioned. W. B. Warner was the last witness for the State. He tt «fl that he was the step-father of Ida Kreig. He knew the defendant, C. H. Thomas. Defendant was a married man, and in November, 1883, lived ne.ir the witness. The witness heard the children screaming on the evening in question, and, thinking he recognized Ida's voice, went A^i D1VIDUAL8. THOMAS V. STATE. 893 suburbs of the to\\'n cached the stock pen ; diagonally intersects t's residence, between he stock pen grounds, tlie voices o.'.' children n at play, the witness le voices came nearer in fright, the witness I what was the matter, ae came running and ng his gun muzzle up, me witness saw a man rtherly direction. He iteps of the children, ed, excited and nearly matter and she replied me Mr. Warner, Ida's assault, and being di- vht, he at his basket vrith tb children, and rith the children, and an. The witness had ow him, and could not after and oft from the Lught up with witness st heard them scream- ;he stock pen grounds, ist of Harris, and par- ance between Harris' I yards. There was a >en. Witness did not he passed it. He did If the children were in len the witaeaB passed, be noticed '•■'.'■ . U-.y treat ami uf. ::.■■ ot-.vjr ate. He tt «fl that r the defendant, C. H. I in November, 1883, children screaming on lized Ida's voice, went rapidly to the point from whence the sounds came. He there found Ida, Henry Carswell and Mr. Whittle. Asking what was the matter, Ida told him that a man was after her, and pointed out tlie retreating figure of a man. Witness pursued instantly, keeping the man con- stantly in sight, until he overtook him after a chase of about two hun- dred yards. The defendant is the same identical man who was pointed out to him by Ida Kreig as the man who had pursued her. The State dosed. Lively Jowers, a colored woman, was the only person introduced by the defence. She testified that, crossing the stock pens on her way home from work, on the night in question, she heard children scream- ing, and turned and looked toward the point from where the screaming seemed to come. She then saw Ida Kreig and Henry Carswell running :md screaming. At the same time she saw the defendant, whom she knew well, standing at the corner of Mr. Harris' fence. He did not move while the witness was looking at him. Thinking nothing was wrons, the witness started on. She walked some distance before she looked back again. When she did look back all the parties were stand- ing just as they were when witness first saw them. Defendant was tlien dressed in dark clothes and hat. He had two bottles, resembling soda water bottles in his hands. It was a moonless, but bright star light iiiglit. The witness and the defendant were about two hundred yards apart. The motio;i for a new trial presented, among other grounds, the issues discussed in the opinion. Gammage & Gregg and T. J. Williams, for the appellant. J. H. Burta, Assistant Attorney-General, for the State. WiLLSOS, J. 1. To authorize a conviction of the offense of assault with intent to rape, it devolves upon the State to prove satisfactorily such specific intent. That particular intent, no other, will make this offense. Thus an assault with intent to have an improper connection with a woman, but without the use of force, and not without the con> sent of the woman, would not be an assault with intent to rape.' In explaining to the jury the law of assault and assault and battery, the learned judge in one paragraph of his charge says: " Any unlaw- ful violence upon the person of another with intent to injure such per- son is a battery, and where violence is actually committed upon the person of another, no matter how slight, it rests with the person inflict- ing the injury to show the accident or innocent intention." This por- tion of the charge is assigned as error, and was made a ground of defendant's motion for new trial > Pefferling v. State, 40 Tex. 488 ; Curry v. State, 4Tex. (App.)B74. 894 CRIMES AOAliVST THE PERSONS OF INDIVIDUALS. Whilst the paragraph ia in almost the exact words of the code,' and in the abstract is unquestionably correct, still we think it was error to give it in this case. The burden was upon the State to show, beyond a reasonable doubt, that defendant committed the assault, and that he committed it with the speciflo intent of raping the person assaulted. He might have committed the assault and injury with some other intent than that of rape, and if so, certainly he could not be convicted of this offense because he failed to show that his other intention was an innocent one. Suppose he assaulted the girl with intent to persuade her to such carnal intercourse with him, but with no intent »v^ force her to such carnal intercourse ; he would not be guilty of an assault with intent to rape, and yet he would be unable to show that be com- mitted tlie assault with innocent intention. This charge instructed the jury that it devolved upon the defendant to show his innocent intention. His innocent intention of what? Of persuading, or of forcing the girl to have carnal intercourse with him? Considering the charge as a wholo, we understand that it only devolved upon the defendant to show his innocent intention as to the rape in order to relieve him of this charge, but we very much doubt whether the jury so understood the charge. It is quite probable, we think, that they understood it to de- volve upon the defendant the burden of proving an innocent intention of committing any offense or wrong upon the girl. But, however it may have been understood by the jury, we think it was wrong to give it, because it shifted the burden of proof from the State to the defendant upon an issue, the affirmative of which the State was bound to prove beyond a reasonable doubt. There are instances where it is proper to thus shift the burden of proof, and where it would be proper to instruct the jury in this manner ; but this case does not present such an instance.' We think this error in the charge was calculated to mislead the jury to the prejudice of defendant's rights, and it is therefore such error as demands a reversal of the judgment. In all other respects the charge of the learned judge is a clear, forcible and correct exposition of the law of the case. 2. Considering the whole evidence as presented by the record, the case to our minds, is a singular one, if the defendant's intention was to commit rape. We think the evidence was unsatisfactory as to such being his intention. In view of the meagerness of the evidence tend- ing to establish this specific intent, and of the alleged newly discovered evidence, we think the court should have granted defendant a new trial. The judgment is reversed and the cause is remanded. Beveraed and remanded. 1 Penal Code, art. 48ft. s Jonet e. State, 13 Tox. (App.) 1; Curry V. State, 4 Tex. (App.) 674. A^M INDIVIDUALS. STATE r. MASSEY. S»ft ords of the code,' and e tbink it was error to bate to sliow, beyond a e assault, and that he tbe person assaulted, with some other intent d not be convicted of other intention was an ith intent to persuade with no intent v^j force )e guilty of an assault e to show that be con}- 8 charge instructed the r his innocent intention. I, or of forcing the girl iring the charge as a t the defendant to show to relieve him of this jury so understood the ey understood it to de- ; an innocent intention rl. )y the jury, we think it •den of proof from the itive of which the State t. There are instances )f proof, and where it ner ; but this case does error in the charge was i of defendant's rights, ersal of the judgment, udge is a clear, forcible bed by the record, the ifendant's intention wns [isatisfactory as to such s of the evidence tend- lleged newly discovered d defendant a new trial, imanded. versed and remanded. , state, 13 Tox. (App.) 1; •.4 Tex. (App.) 674. ASSAULT WITH INTENT TO COMMIT RAPE — NO PRESUMPTION OF INTENT. State v. Massey. [86 N. C. 669; 41 Am. Rep. 478.] in the Supreme Court of North Carolina 1882. On aa Xadlotmant for asiault with intent to commit rape it appeared that the proieoutriz with a boy six years old waa trundling a carriage with a baby in it. The defendant ieyenty-flv* yards distant shouted, •• Hait, I intend to ride in the carriage ; if you don't halt, I'll kill you when I get hold of yon." The prosecutrix ran, trundling the carriage, and the defendant pursued, telling hor to stop, until she came up with another woman. Beld, Insufficient to convict of assault with Intent to commit rape. Conviction of assault with intent to commit rape. The head-note states tbe facts. Attorney- General, for State. Reade, Buabee & Buabef for defendant. Ashe, J. That the defendant is guilty of an assault according to the testimony of tbe prosecutrix, there can be no question ; but we are of the opinion that the evidence in tlie case did not warrant the jury in codvicting him of tbe intent charged, and that the court erred in not submitting to the jury the instruction asked by tbe defendant. We tbink tbe jury should have been instructed that there was no evidence, or at least none reasonably sufficient to maintain the charge against tbe defendant of an assault on tbe witness, with a felonious intent to have carnal knowledge of her person by force and against her will. Such a charge would have been substantially that asked for by defendant. But as tbe case was left to the jury without any instructions, they were at liberty to infer that the evidence waa suffi- cient to warrant them in finding the defendant guilty of tbe assault with intent. In this consists tbe error. Where a judge refuses to instruct the jury that the evidence does not prove the offense charged in the indictment, it is good ground for exception. In order to convict a defendant on the charge of an assault with intent to commit rape, the evidence should show not only an assault, but that tbe defendant intended to gratify bis passion on the person of the woman, and that he intended to do so at all events, notwithstanding any resistance on her part.* When the act of a person may reasonably be attributed to two or more motives, the one criminal and the other not, tbe humanity of our > Roscoe's Or. Ev. 810; Rex ». Lloyd, 7 C. * P. 318 ; Joice r. SUte, S3 Ga. 60. 896 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ^., law will ascribe it totliatwhicli is not criminal. " It is neither charity, nor common sense, nor law, to infer the worst intents which tlie facts will admit of. Tiie reverse is tlie rule of justice and law. If the facts will reasonably admit the inference of an intent, wiiich tliougli immoral is not criminal, we are bound to infer tliat intent." * Every man is pre- Rumed to be innocent until tlie contrary is proved, and it is a well establislied rule in criminal cases that if tliere is any reasonable hypotli- esis upon which the circumstances are consistent with the innocence of the party accused, the court should instruct the jury to acquit, for the reason the proof fails to sustain the cliarge. The guilt of a person is not to be inferred because ilie facts are consistent with his guilt, but they must be inconsistent with his innocence. Even conceding that the defendant pursued the prosecuting witness with the intent of gratifying his lustful desires upon her, does it follow that ho intended to do so " forcibly and against her will." That is an essential element of the crime charged and .aust be proved. It must be established by evidence that does more than raise a mere suspicion, a conjecture or possibility, for evidence which merely shows it possible for the fact in issue to be as alleged or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict, and should not be left to the jury." There is no evidence in this case in our opinion from which a jury might reasonably come to the conclusion that the defendant intended to have carnal knowledge of the person of the prosecutrix, at all hazards and against her will. At most the circumstances only raised a suspicion of his purpose and therefore should not have been left to the considera- tion of the jury. In the case of Commonwealth v. Merrill,^ which was an indictment for an assault, with intent to commit rape, tlie court says: "The nature of the charge presupposes that the intent was not carried out. It is, therefore, necessary that the acts and conduct of the prisoner should be shown to be such that there can be no reasonable doubt as to the criminal intent. If these acts and conduct are equivocal or equally consistent with the absence of the felonious intent charged in the indictment, then it is clear that they are insufficient to warrant a verdict of guilty." The attorney- general relied upon Neeley'a Case. The opinion there was delivered by the late chief justice, to whose eminent abilities and learning we are always disposed to yield a becoming deference ; but it was a divided court ; there was a dissenting opinion filed by Mr. Jus- I state V. Neeler. 74 N. C. 435 ; «. e. 21 Am. Sep. 4»6, diaaentlng opinion. 3 Matthia v. Matthla, 3 Jones, 132; Sutton V. Madre.Z /d. 330; Wittkowalcf o. Wataon, 71 N. C. Ml; State v, Bryaon, 82 Id. S76. 3 14 Oray, 415. ^rfl DIVIDUAL8. PENETRATION MUST BE PROVED. 897 It is neither charity, itonts which the facts nd law. If the facts riiich thoiigli immoral * Every man is pre- ved, and it is a well ay reasonable hypotli- with the innocence of ury to acquit, for the le guilt ot a person is tit with his guilt, bul tice Rodman and concurred in by Mr. Justice Bynum, both highly JIs- ttnguished for their learning and legal acumen ; and after a careful consideration of the different views of the question presented by these eminent jurists, we feel constrained to differ from tlie majority of the court and adopt the reasoning and conclusion of the dissenting opinion as enunciating the correct principle applicable to the cause. A venire de novo must, therefore, be awarded the defendant. Let this be certified. Error. Venire de novo. le prosecuting witness »on her, does it follow lerwill." That is an t be proved. It must raise a mere suspicion, erely shows it possible ses a mere conjecture erdict, and should not om which a jury might idant intended to have fix, at all hazards and ' raised a suspicion of left to the considera- dch was an indictment le court says : " The it was not carried out. onduct of the prisoner no reasonable doubt luct are equivocal or ous intent charged in isufflcient to warrant a je. The opinion there e eminent abilities and iming deference ; but it inion filed by Mr. Jus- 330; Wittkowaky v. Watton, late V, Bryson, 82 Id. 676. 5. NOTES. § 660. Rape— Foro* and VlolenoeBssantlal.— Force and Tiolenee on the man's part must be proved,' arts or devices practiced on her to inflame her pas* sion,* or frsud,^ is not enough. i 661. Psnetrstlon Must Xm Proved. — Penetration must be proved. la B. V. Gammon,* it was held that If the hymen was not ruptnred there was not suflactent penetration to constitute rape. In Davia v. State,* a conviction for rape was reversed, on the ground that the proof ot penetration was Insufflclent, the court saying: "The only question upon which the testimony left any room for dispute or ground upon which to rest an opinion was, whether the alleged offense had been completed by pene- tration. While the slightest penetration Is sufficient, still there must be sat- isfactory proof of some to consummate the offense. It must be shown, aays Tlndal, C. J., that the private parts of the male entered, at least to some ex- tent, those of the female. Unless tills is the case, the accused may be guilty of an attempt to commit the crime of rape, but not of its actual commission. "The proof upon this point, consisted of the evidence stating the position In which appellant and the girl, alleged to have been ravished, was found by her mother, the red and swollen coudition of her private parts, and the witness' statement that she was convinced and fully satisfied from what she saw take place at the time, and also from the examination of the person of her daughter, that there had been penetration. On the other hand she testified that there was no laceration or blood that she could discover, resulting from such pene- tration, and a surgeon, who was examined as a wituess, stated, after having made a private examination of appeilant, that though there were exceptions to tiie rule, a man of his d'mcnsions could not evidently or probably, penetrate a female of the age and size of the girl alleged to have been injured, without laceration. He also stated, however, if she could be so penetrated, the con- dition of her parts, as described by her mother, would be a natural consequence of the act. " This reference to the testimony shows (as, we regret to say, we find of much too frequent occurrence, in cases of the greatest Importance), a want of that 1 HoNalr V. State, 88 Ala. 4SS. » People V. Royal, SS CaU 68 (1878). ' ante, vol. III., cap. IV. "Ooment." «S CAP. 321 (1832). ' 42 Tex. 226 (187S). 898 CHIMES AOAINST TUB PERSONS OF INDIVIDUALS. (nil and thorough development and exploration of all the facta and clrcum> atancea connected with and bearluK on the case, of which It would leem to to reaaonably auaccptlble, and auch, aa tta vital Importance evidently demundM. No medical examination of tlio child waa made, nor wax the physician, who te>i> tiflod in the case, interrogated In reference to the aymptoma deocrlbed by the mother, except in the particular previously referred to. The time and circum- •tances under which the mother made her examination are not shown. The neighbor, to whose bouse she was taken Immediately after the alleged act, waa not examined. It does not appear whether the child's under clothing was inspected, and many other mutterH tending to aid in a correct conclusion, do not appear to have been adverted to, so far as we can see from the atatementof facts. " It is said by Wharton, iu his work on Criminal Law, after commenting on several English cases, discuttsing the necessity of proof of penetration: 'The practice seems to be, to judge from the cases just cited, not to permit a convic- tion iu these cases. In which It is alleged violence has been done, without modi- cal proof of the fact whenever such proof was attainable. It seems but right, both in order to rectify mistakes and to supply the information necessary to convict, that the prosecutrix should be advised at the outset, ho that she can take the necessary steps to secure such an examination In questiou. If this principle be generally Insisted upon, there is no danger of any conviction falling because of non-compliance with it, and on the other hand, many mistaken pros* ecutions will be stopped at the outset.' > "While we can not say that the necessity of a medical examination has been regarded as absolutely indispensable to a conviction in all cases by the Ameri- can courts, or that we are prepared to yield our assent to so broad and un- qualified a proposition aa seems to be approved by this able commentator, yet we think, the great and essential importance of this character of evidence can not be denied, and especially in cases like this, rh-'n t^^ party alleged to be in- jured is Incapable of testifying, and the proo' of penetration can be establishid by circumstantial testimony only, and that oy no means of an absolute or con- clusive character, it can hardly be overestimated. " These considerations lead us to the concl'ision — without, however, intending to intimate any opinion as to the proper conclusion which should be reached In a more full and careful consideration of the case — that in view of the vague and indefinite, and somewhat contradictory testimony on which it was tried, the absence of such instructions as would probably have enabled the jury to have given a more full and thorough consideration to the evidence applicable to the only real and vital question in the case, the nature of the offense, the cir- cumstances under which it is alleged to have been committed, the difficulty of disproving the charge in most cases of this kind when unfounded, the extreme penalty of the law Imposed by the verdict, and the humane and merciful prin- ciple of our criminal law, giving the accused the benefit of all reasonable doubt, the motion for a new trial should have been granted. " The judgment Is reversed, and the cause remanded. " Beveried and remandtd." § 662. Proof of Bmlasion. — In Ohio it was held In Blackburn ▼. State,^ that emission was a reqalaite, and the same has been held in North Carolina.^ ■a ■'■fr X 1 see. 1188. *820bioSt. 108 (1871). And to in incest' Noble V. State, 82 Ohio St. Ml (1878). • State «. Gray, 8 Jones, 170. JDIV1DUAL8. RAPE — INSUFrit'lENT rilOOF, 899 II the factB and ctrcum- which it would ■eem to tance evidently demandt*. \H the physician, who te>*- mptoma described by the o. The time and circum- Ion are not ahown. The y after the alleged act, bild'a under clothing was iorrcct concluBion, do not oni the Btatementof facts, aw, after commenting on Qof of penetration: 'The id, not to permit a convlc- been done, without mcdl- lable. It seems but right, information necessary to le outset, so that she can tlon In question. If this r of any conviction falling liand, many mistaken pros- Ileal examination has been in all cases by the Amerl- ssent to so broad and un- this able commentator, yet I character of evidence can t>"? party alleged to be in- etratlon can be establishid lans of an absolute or con- rithont, however. Intending which should be reached In - that In view of the vague ray on which it was tried, ly have enabled the jury to the evidence applicable to iure of the offense, the clr- committed, the difficulty of iien unfounded, the extreme 1 humane and merciful prln- lefit of all reasonable doubt, I. led. * Beverted and remandtd." I held in Blackburn v. State,'^ m held In North Carolina.^ Gray, 8 Jones, 170. § 608. Not Rnpe If Woaian Oonaent. — And if the woman consc ', even though her consent Is the result uf fraud. It Is not rape.> § 664. Intent Must be to Btfeot Purpose at all Haiarda. —The pris- oner must intend to effect his purpot^e at all events, and notwithstanding any resistance on the woman's part.^ § 6(16. Bvldenoe Held Insxifflolent. — In many cases the conviction Ins been reversed on th« ground that the evidence did not prove the crime." The ■ must Important of the cases are given in the succeeding sections. § 666. Rape — Conviction Reversed for Insvifflolent Bvldenoe— People v. Ardaffa.— In People v. Ardaga,* the prosecutrix, DelUna, was the only witness called for the People. She testified that she went from Los Angeles to Wilming- ton on a pleasure trip, and stopped at the bouse of Mannella Ruellna, and that she slept with her child, and that another bed in the same room was occupied by Frank Silver; tliat ah ut twelve o'clock at night, while she was asleep, three men bro'^e into the room and took her from the bed ; that she did not awake until they had carried her to the door, when she screamed ; that one of the men held a piptol pointed at her head, and threatened to kill her If she did not keep still; that they put her on horseback, and carried her In her nlg»ic clothes two miles, when the four men each had intercourse with her by force; and that they then carried her back to the room. She admitted that she was living with Frank Sliver, and had been living with him three years, but claimed that she had been true to him since she had lived with him. fihe also admitted that lour persons besides herself and Silver were sleeping in the house, and that she could not say she was virtuous. She further testlfled that the defend- ants were two of the four men. The two not on trial had not been arrested. The defendants were convicted, and appealed from the judgment and from an order denying a new trial. By the Couut. The defendants were convicted of rape on the uncorroborated evidence of the prosecutrix, who admitted herself to be an unchaste woman. Her story Is so grossly Improbable on the face of It, as to render the Inference Irresistible that the jury must have been under the influence of passion or prejudice. In People v. Benson,* the defendant was convicted of rape on the uncorroborated but positive testimony of the woman alleged to have been outraged; and in reversing the judgment and ordering a new trial, this court said that the story of the woman was '♦ so improbable of itself as to warrant us in the belief that the yerdlct was more the result of prejudice or popular excitement than the calm and dispassionate conclusion upon the facts by twelve men sworn to discharge their duty faithfully. • • • A conviction upon such evidence would be a blot upon the jurisprudence of the country, and a libel upon jury trials." lu People v. Hamilton* which was a sim. ilar case, we arrived at the same conclusion, and reversed the judgment, observing that " the ends of justice demand that the cause shall be tried anew.'* 1 See ante, vol. III., cap. V., " Oouent." • R V. Lloyd, 7 0. A P. 818 (1836) ; B, v. Wright, 4 F. A F. 967 (1866) j Irving v. State, 9 Tex. (App.) 66 (1880) ; Curry v. SUte, 4 Tex. (App.) 574 (1878) ; Ssnford v. State.l 2 Tex- (App.) 196 (18H3). ' Topolanck v. State, 40 Tex. 160 (1874) ; ■Gate V. State, Fla. 168 (1860) ; People v. Ben- son, 6 Cal. 22S (1866) ; People v. Hamilton, 46 001.844(1873). * 51 Cal. 371. » 6 Cal. 221. •46 Cal. 640. 900 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. We are of the same opinion in ttie present case. Judgment and order rev and cause remanded for a new trial. §667. Rape — BTldenoe Inaufflclent to Convict — Obrlstlan v. monwealth. — In Chriatian v. Commonvcealth,^ the prisoner Iiad been con belovr of an attempt to commit a rape under tlie following clicumstances prosecutrix proved ttiat one niglit, about four months before the trial, sh( with the prisoner to a performance of negroes from Washington, given at th Topolltan Hall, the prisoner paying all expenses ; that after the perf orman over, they started home together. On the way home, when near the Tn Works, the prisoner asked her an unfair question; aslced her to do It; as refused ; and he laid hold of her, pushing her down on a i 23 Uratt. 054 (1873). ^^ OF INDIVIDUALS. Judgment and order reversed, convict -Christian v. Com- Lhe prisoner had been convicted e following clicumstances: The lonths before the trial, she wen ,m Washington, given at the Met- • that after the performance was y home, when near the Tredegar on; asked her to do It; and she own on a \A\e of lumber, choking resisted, and that he did not ac- 1 from his effort, and she started her to yield to his wUhes, but leany violence towards her; that vn's Island, with a negro wo^an; oman, comprising the household^ depend upon the clrcumstonces ol idltlon of the parties may have an Ich would be ample to show and the wicked attempt and purpose .ference to a female of good and nt to establish guilt. If they were >r easy virtue. The certificate of ;he prosecutrix were both negroes, ibltlon of negroes at night, at the iad gone with the accused, and -t commit the crime wah against one occasions; as she was by her own n The evidence Indicates that he . would have been horrible and a Ions sensibilities, and should have rhlch the law would warrant. B:' osecutrlx does not appear. It by ,at It was an attempt to ravish her attempt to work upon her passions, I to others before, how often does could probably have accomplished hen he found her more unyielding erence, or any outcry on her part^ hlnk, that his conduct, though ex. mlshment, does not Involve him In punish. We are of opinion, there- 9 Court of the City of Richmond, 'iurred in the reversal of the judg- it the Indictment good." Iandersou, J. Judgment reveriea. KAPE — INSUmCIENT PROOF. 901 § 66B. Rape — Bvldenca Held Insufllolent to Convict — reopla v. Hamilton. — In People v. Hamilton,^ the court In reversing a conviction for rape say : " The In- dictment charges the defendant with the crime of rape, alleged to have been committed on the person of a child under ten years of age. At the trial he was convicted of an assault with the intent to commit rape, and was sentenced to confinement In the State prison for fourteen years. Ho appeals from the Judg- ment and from the order denying his motion for a new trial. It appeared in evi- dence, that t**" child on whom the assault Is alleged to have been made, is a step-daughter of the defendant, and was residing on a farm, In the same bouse with the defendnnt and his wife, the mother of the child. At the time of the trial, she was under thirteen years of age, and was the only witness called to prove thci accusation. She testified not only to the assault, with tb*) intent to commit rape, but also to the complete aceomplishment of the criminal intent. I witness was called to corroborate her testimony In any particular, as to time, place or circumstances, or in any respect whatever, except as to her age. The deiendant, who testified in bis own behalf, explicitly denied the truth of her testimony in respect to the alleged assault and the perpetration of the crime. Her version of the affair is, that the offense was accomplished in the bam, about fifty yards distac j from the dwelling bouse ; and that immediately afterward the defendant ordered her to assist her younger brother, a boy five or six years of age, to carry from the barn to the house a box of soap of the usual size ; that on reaching the house with the soap she found her mother engaged in her usual household duties, but did not state to her the occurrence at the bam; and on the contrary, proceeded to assist her about her household affairs as usual ; that no bleeding resulted from the assanlt upon her, and it does not appear that she complaineu of any pain or injury. She further testified that she did not Inform ber mother of the occurrence at the bam until about two years afterward, and (he assigns as a reason for her silence that he threatened to kill her If she dls- closed the facts, and that she was afraid of him. Two physicians were called, v'-o testified that though it was not Impossible for a man to have carnal knowl- edge of a child of such tender rears, it was in the highest degree Improbable that bleeding and great bodily palu would not ensue. This is all the testi- mony; and on these facts we are asked to award a new trial, on the ground that the evidence was Ineufflclent to support the verdict. The almost uniform prac- tice of this and other appellate courts is, to refuse to disturb verdicts on this ground when there Is a substkntial confiict in the evidence. The rule is founded on the fact *:hat the jury had the opportunity to observe the demeanor of tlie witnesses, and is, therefore, more ...impotent than we to decide upon their credibility. The rule is a most salutary one, and one not to be lightly departed from, iiievertheless, there are exceptional cases. In which the preponderance of evidence against the verdict is so great an to produce a conv'ctlon that, In rendering it, the jury must nave been under the Influence of passion or pre- judice. Such was the case of People v. Beneon,^ which was also a prosecu- tion for rape on a girl thirteen years of age, who was the sole witness to prr' e the charge. She testifieu positively to the forcible commission of the act of sexual intercourse on the occasion complained of, but admitted on cross-exam- ination, that on many previous occasions she had carnal intercourse with the defendant, and on none of them had made any outcry, though the defendant's wife was In an adjoining room: nor had she ever disclosed the facts to his wife; l8T3). i 460al.649(187S). 3 6 Col. 231. 902 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. BSiijntng for a reason that she was afraid the defendant would kill her. The defence introduced evidence of the bad character of the prosecutrix forchaatlty, and that she had frequently expressed feelings of friendship for the defendant. On these facta the defendant was oonvlcted, and on appeal this court said that the story of the girl was ' so improbable of itself as to warrant us in the belief that the verdict was more the result of prejuctce or popular excitement than the calm and dispassionate conclusion upon the facts by twelve men sworn to discharge their duty faithfully. A conviction upon such evidence would be a blot upon the Jurisprudence of the country, and a libel upon jury trials.' In some respects the present case is very similar to People v. Benson, Just noticed. The charge rests upon the uncorroborated testimony of a child, who, at the time, was under ten years of age ; and who not only made no outcry, but imme- diately went about her daily duties, us though nothing unusual had occurred, and failed for two years to disclose the facts, even to her mother. When, in addition, she admits that no flow of blood followed the alleged outrage, and it does not appear that she suffered or complained of any bodily pain, it is almost Inconceivable that a Jury free from passion or prejudice, would not, at least, have entertained a reasonable doubt as to the guilt of the defendant. A charge of so heinous a nature, when supported by even the slightest evidence, arouses In the public mind an intense indignation against the supposed culprit ; and it is not surprising that tlie same feeling sometimes finds its way Into the jury- box. That it did so, to some extent, in the present case is manifest from the unseemly conduct of one of the jurors, who in the progress of the trial inter- rnpted the counsel for defence in a most improper manner, and evinced clearly that he was under the influence of passion or prejudice, or both. On the whole, we think the ends of Justice demand that the cause shall be tried anew. "Judgment reversed, and cause remanded for a new trial; remittitur ioith- irith." } 669. Bap* — Offense Held not Proved on the Facta — Bozley ▼. Oom* monwealtb. — In Boxley v. Commonvotalth,^ the prisoner being convicted of rape, appealed to the Supreme Court, which held the evidence insuflloient to sustain the conviction, in the following opinion : < We are of opinion that the Circuit Court erred in refusing, under all circumstances of the case, to grant the new trial. Without recapitulating or very critically analyzing the testimony, we are compelled to say that the evidence adduced to establish the felonious act — the corpus delicti — is, to say the least of it, of a very doubtful and inclusive char- acter. It consists exclusively of the statements of the person upon whom the oitcnse is charged to have been committed, and is certifled by the court as fol- lows: < On the day of June, 1878, it being Sunday, about twelve o'clock m., Hiss Martha Spencer was at the spring (which is about one hundred yards from her father's house), had filled her bucket and was sitting down on a rock at the spring; while sitting there, some one came up behind her and seized her by the shoulders, pulled her over backwards, her bonnet falling over her eyes; the person making the attack spoke to her in a low tone, aud told her " not to make a noise " (a suggestion wb'.ch, for some reason, she seems to have duly re- spected). "She screamed once" (whether in a similar tone or not does not appear) ; *' but the bonnet was held over her mouth and ears and eyes so that she was unable to make further outcry, and could only catch a glimpse of her 1 14 Gratt 655. mtm %> Wa tWm wKawW'' ' ^^m INDIVIDUALS. dant would kill her. The he prosecutrix for chastity, eudship for the defendant, appeal this court said that to vrarrant us in the belief ir popular excitement than ,8 by twelve men sworn to such evidence would be a libel upon jury trials.' In iple V. Benson, just noticed, >ny of a child, who, at the made no outcry, but Irnme- ling unusual had occurred, to her mother. When, In the alleged outrage, and it ,ny bodily pain, it Is almost iudice, would not, at least, >f the defendant. A charge slightest evidence, arouses io supposed culprit ; and It finds Its way into the jury- t case Is manifest from the progress of the trial inter- lanner, and evinced clearly rejudlce, or both. On the e cause shall be tried anew. I new trial ; remittitur forth* le Facts — Bozlay ▼. Oom- >ner being convicted of rape, lence insuffloient to sustain of opinion that the Circuit i( the case, to grant the new zing the testimony, we are bllsh the felonious act— the doubtful and inclusive char- the person upon whom the sertifled by the court as fol. Sunday, about twelve o'clocli is about one hundred yards d was sitting down on a rock ip behind her and seized her lonnet falling over her eyes; » tone, aud told her " not to »n, she seems to hove duly re* imilar tone or not does not ith and ears and eyes so that only catch a glimpse of her RAPE INSUrnCIENT PROOF. 908 ravisher. Her arms were not confined, and she made an attempt to pull the bonnet away from her eyes. She wan very weak and very much frightened, and notwithstanding her resistance, he accomplished his purpose and ravished her." This is her own account of the alleged criminal act, and it Is all we have di- rectly on the subject. She proves no other violence than enough to draw her backwards by tlie shoulders from her seat, and to hold her bonnet over her face. Her person was examined by two physicians, and whilst they both testified that it was apparent that she had had recent sexual intercourse, they also proved that there was nothing to Indicate that It had been accomplished by violence; " that no bruises were found about the face, arms or person of the prosecutrix, except a small, almost imperceptible bruise under each knee." It was also proved that Miss Spencer was «< a large, stout wom«n," and the accused was a medium-sized man, about twenty-three years old. Can we say, upon such testimony, that the criminal act has been establishedf It would require a large decree of charity and credulity to believe that at noon- day, and within one hundred yards of her father's house, and within two or three hundred yards of the house of a neighbor (William Spencer), a rape was perpetrated on this large and stout woman, with both her arms perfectly free, by a medium-sized man, who neither threatened her with violence nor did any- thing to disable her, aud who, from her own account, had the use of but one arm, the other beidg employed in holding her bonnet over her face whilst the act was committed ; and that all this had been accomplished with no noise to alarm the families which were near; with not the slightest indication, from the appearance of the ground, that there had been a scuflic; and with no scratch or bruise on the person of the female, to show that her chastity had been violated without a struggle! Such testimony we think exceedingly weak, to say the least of It, to show that a rape had been committed at all, especially when it appears in the record that the accused, who lived at her father's house, had previously, in his kitchen, attempted to take Improper liberties with Miss Spencer, which she does not Appear to have disclosed or resented. But conceding the rape to be established, the evidence to couu«et the accused with the act is yet more doubtful and unsatisfactory. Although the accused had resided at her father's house for a year or two previous to the occurrence, and was, of course well known to the witness — voice features, gestures and per- son, —yet she does not swear to his identity. He spoke to her with his face very near to hers, yet she does not say that she recognized his voice. She saya she only caught a " glimpse of the lower part of his face," aud only saw his back " at a distance of about fifty or a hundred yards, running away." What she was doing from the time he left her person until he reached the distance of fifty or one hundred yards, does not appear; yet when she did see him, she seems to have been perfectly cool and collected, for she can tell that he wore a dirty shirt and a bhick felt hat. She says that, from the glimpse she had of his face, and the sight she had of his back as he ran away, she believed it was the prisoner. And this was all the evidence of identity, except the evidence of William Spencer, who lived about two or three hundred yards from the home of the prosecutrix. He proves that he saw, on what day and at what hour does not appear, a man whom he took to be Wilson Boxley, walking very rapidly along the road leading from Bannister Spencer's, and now and then looking back- wards. He called to him and asked, "What's your hurry?" but received no answer. He was one hundred yards off, and witness was not sure it was Bozley . 904 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ••The man he saw wore a white chip hat," not a black felt hat, as proved by Miss Spencer to have been worn by the person who assailed her. It was further proved that the accused lived about two miles from the home of Miss Spencer, and that he remained at his worlc as usual for three or four days after the occurrence at the spring, when he was charged with this offense by the brothers of Miss Spencer, and beaten by them. He then went to the court house and caused a warrant to be issued against them ; and it was not not until after these proceedings that the present prosecution was commei.ced, We think the evidence wholly insufBcient to Identify the prisoner as the guilty party. Were this not so, the evidence, to say the most of it, leaves the question of identity extremely doubtful, and, under the circumstances, the verdict of the Jury should have been set aside, and a new trial awarded, to allow the accused the privilege of introducing the testimony set forth in his own affidavit and that of Dr. Melvin, of which he was evidently deprived by surprise. Dr. Melvin's testimony, as set forth in his afflclavit, would still farther have weakened the testimony on the question of identity. He was the committing magistrate, and the testimony of Miss Spencer, as detailed by him, is materially Tariant from her testimony in court; and the facts set forth in the prisoner's afDdavit satisfactorily explain his failnre to have Dr. Melvin before the court. Under all the circumstances, this court is of opinion that the circuit court erred In refusing to set aside the verdict and to award the prisoner a new trial. { 670. " Abuse " of Oblld. — In a statute punishing the " abuse " of a child, the word "abuse" is restricted to injury of the geniul organs.^ { 671. Assault with Intent to Commit Bap* — Intsnt to Oommlt Baps must to* Proved. — The evidence must show an intent to commit rape — that is to say that the prisoner intended to accomplish his purpose at all hazards and to use force and violence to do so.' Where the prisoner uses force at first but desists on the woman's resisting, this is not an assault with intent to commit rape.* Thus to assault a woman with intent to persuade her to have intercourse with him, but with no intent to force her to it, is not assaalt with intent to commit rape.* In Commonaealth v. Fleld$,^ the prisoner, a negro, was indicted for attempt to rape a white woman. The Jury found "he intended only to have carnal knowledge of her while she was asleep; that he made the attempt to do so, but used no force except such as was Incident to getting in bed with her and strip- ping up her night garment in which she was sleeping, and which caused her to •wake." The court held that this was not an attempt to cotaimit a rape. In Th(mp$un v. State,* the defendant entered the room of a domestic at night; was seen to come in by herself and by a little girl who slept with her. He put his hand on her when she pulled up the bedclothes, being too fright- ened to scream, and the defendant immediately left the room. In another bed in the same room three little girls slept, and in a room across the hall the 1 Dawklns v. 8Ute, K Ala. S7« (1877). S Com. V. MerreU, U Gray, 415 (1880) ; Pet- ferUng V. State, 40 Tez. 408 (1874) ; Rhodci p. State, 1 Ccld. SSI (1860) ; Stote v. Priestly 7iXo.94(1861). S Pleasant «. State, IS Ark. S71 (185S) ; Oharlei «. SUte, 11 Ark. 390 (18M). « Thomas «. SUte, 18 Tez. (App.) M (1884). And see PaUnon v. State, 14 Tei. (App.) les (1888). > 4 Lciftli, 468 (im). «4S Tez. 088 (1875). KwiMiiwn>w i Jnw* a'' INDIVIDUALS. ilack felt hat, as proved by assailed her. It two miles from the home c as usual for three or four IB charged with this offense them. He then went to the ^inst them ; and it was not rosecution was commei^ced, y the prisoner as the guilty ost of it, leaves the question imstances, the verdict of the rarded, to allow the accused rth in his own aflldavit and ived by surprise. ,vit, would still farther have ty. He was the committing letailed by him, is materially 8 set forth in the prisoner's Dr. Melvln before the court. I that the circuit court erred e prisoner a new trial. ling the " abuae " of a child, snital organs.* ) — Intent to Oommlt Bap* ent to commit rape — that is is purpose at all hazards and Its on the woman's resisting, lade her to have intercourse is not assanlt with intent to ;ro, was indicted for attempt ntended only to have carnal ade the attempt to do so, but ng in bed with her and strip- ing, and which caused her to mpt to cotaimit a rape, the room of a domestic at little girl who slept with her. bedclotheH, being too fright* ' left the room. In another in a room across the hall the M V. Bute, IS Tex. (App.) Ba» id ice PeUnon v. State, U Tes. (1888). k, 468 (im). .088(1875). ASSAULT WITH INTENT TO COMMIT RAPE. 905 rest of the family. A conviction of assault with intent to commit rape was reversed by the Supreme Court. " The evidence," said Moore, J., "shows an unwarranted liberty with the person of a female of a gross, wanton and out- rageous character, well calculated to arouse the strongest feelings of shame mortification and indignation which was therefore, unquestionably an aggra. rated assault on her. But the manner, time, place and circumstances under which the assault was committed, however wanton and unjustifiable, were nut such as justifies the presumption that it was with the Intent to accomplish the purpose for which he may have entered the room, without consent and by means ol force. To support the verdict it is necessary that It should appear that the intent with whic'r the assault was made went to this extent. The improbability that he could suppose that he would be Ae to accomplish a design when the slightest outcry would have defeated it, renders It quite improbable that this was his intention. But it is not sufficient to support the verdict that this pos- sibly may have been the purpose and intent with which he made the assault. The burthen was upon the State to show beyond reasonable doubt that such was the fact, and as this was not done the motion for a new trial should have been granted." $ 672. Asaatilt with Intent to Oommlt Bap* — Bvldenoe not SulBolent— Saddler ▼. State — Sanford ▼. State. — In Saddler v. Slate,^ the opinion of the court was delivered by Winkucr, J., as follows : The appellant was charged by the indictment with an assault with ipVnt to ravish and carnally know one certain female whose name is set out in the indictment, " by force and without her consent." The person upon whom the assault In alleged to have been committed was the only witness who testified at the trial. Her testimony, after stating that she was a widow and living with her son, and Identifying the defendant, in reference to the charge said : " My son was not at home on the night of the ISth July, 1881 ; there was no one there witli me that night except my little grand child, about five or six years old. The defendant knew my son was away from home that night. I slept under an arbor that night, and some time during the night the defendant woke me up by pulling up my clothes, and when I looked up he was standing by my bed. I told him to leave and he stepped back a foot or two and stopped and looked back at me, and said he would leave when he pleased. I ordered him three times to leave, and he walked off muttering something I could not understand. The moon was shining brightly and I recog nized the defendant Dick Saddler. I know him well." It must be conceded that agreeably to this testimony the condact of the defendant was highly Improper, and perhaps sufficient to subject him to a con-^ viction for an aggravated assault; but, however reprehensible his conduct, we are constrained to say that the testimony utterly fails to show any attempt on bis part to employ any force whatever in the accomplishment of his purpose, whatever that may have been. When rape is intended to be accomplished by force, the force must be such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.* An assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of aa 1 12Tez. (App.) 194 (188S). i Penal Code, art. S89. 906 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. assault, coupled with an intention to commit such other offense, as maiming, murder, rape or robbery .1 It was perhaps a delicate subject for the trial judge to deal with under the circumstances, but inasmuch as he refused a new trlul on the evidence, which is wholly Insufficient to support the verdict, rather than the case stand as a precedent this court can not do otherwise than reverse the judgment and remand the case for a new trial. ^^^^^^^^ ^^^ ^^^^^^^ In Sanford v. -State,* it was held that a conviction for an assault with Intent to commit a rape by force is not warranted by proof that the defendant, against the win of the female. Indecently fondled her person with the intent to hiduce her thereby to submit to his embrace. It must appear that has Intent was to accomplish his purpose by force i^pi against her will. And the evidence was held insufficient to sustain a conviction for an assault with intent to commit a rape by force. The indictment charged that the appellant, an adult male, did, on December 24, 1881, make an assault on Zona Bean, " a female girl," and did beat, wound aud ill-treat her, with Intent, against her will and without her consent, to rape and carnally know her. The jury found the appellant guilty as charged in the Indictment, and assessed his punishment at confinement in the penitentiary for » term of five years. ^ „ ^ Zona Bean, for the State, testified that she was twelve years of age, and lived with her mother in the town of Longview, in a house situated about twelve feet from a public highway. There was no fence around the house, and there were several occupied houses close by; the nearest one being about twenty feet distant. Early In the day alleged in the Indictment, witness' mother went down town, leaving witness and two other children at the house. About eleven o'clock, and while witness was standing at the looking-glass, combing her hair, the defendant came to the house and asked witness to come and sit in his lap. She told him she would not, and then he took her by the arm, pulled her on the lounge put his hand under her clothes and felt of her naked knee. Witness got ap and was again pulled down by the defendant, who offered her fifty cenU, then a dollar, and then a dollar and a half. She refused his offers, and then he put her on the bed and placed his heart to hers. While in this position her clothes were down and he made no attempt to raise them, nor did he unbutton his pants or expose his person. His hands were over her shoulders and resting on the bed. When witness got up from the bed she immediately went out of the house and stood at a fence which enclosed a negro's cabin, about twenty feet distant. Defendant, when she had left the house, soon came and tried to get her back into the house. He offered her a doUar, but she refused to go. He teWrned to the house and came back two or three times to the witness, and tried to get her into the house again. She continued to refuse, and remained at the fence until her mother came home, which was between eleven and twelve o'clock. When her mother came, witness told her In defendant' presence what he had been doing. He denied it and said it wasnot so, but witness' mother told him he had better leave ; and he said all right and did leave. Defendant had been boarding with them for about a month. The night preceding the defendant's attempt on the witness, she sat in his lap until her mother told her to get up. S. Camp, for the State, testified that he lived close by the house in which Zona Bean lived, and about noon of the day alleged In the indictment he saw Zona out in the yard crying, and observed the defendant go to her and offer her 1 Penal Code, art. 6M. IUTez.(App.) 196 (1881). J lAiii NDIVIDUAL8. ASSAULT WITH INTENT TO COMMIT RAPE. 907 ther offense, as mblmlug, subject for the trial judge as he refused a new trial :t the verdict, rather than therwise than reverse the Reversed and remanded. tor an assault with Intent hat the defendant, against with the intent to hiduce iar that has intent was to 11. And the evidence was It with Intent to commit a It male, did, on December !irl," and did beat, wound thout her consent, to rape at guilty as charged In the lent in the penitentiary for elve years of age, and lived I situated about twelve feet the bouse, and there were ) being about twenty feet vltness' mother went down the house. About eleven Qg.glass, combing her hair, to come and sit in his lap. ' the arm, pulled her on the r nalced knee. Witness got rho offered her fifty cents, sfused his offers, and then While in this position her them, nor did be unbutton ir her shoulders and resting immediately went out of the '8 cabin, about twenty feet , soon came and tried to get but she refused to go. He se times to the witness, and i to refuse, and remained at between eleven and twelve In defendant' presence what so, but witness' mother told leave . Defendant had been t preceding the defendant's mother told her to get up. slose by the house in which d in the indictment he saw kdaut go to her and offer her a dollar to go back into the house. She did not go, and the defendant left her and went Into the house. People were almost constantly passing by the house aluug the public road. Mrs. Bean, the mother of Zona, testified for the State, and corroborated such of the latter's statements as related to what passed after the witness returned home on the day in question. The defence introduced no evidence. Winkler, J. The indictment charges the appellant with an assault with in- tent to rape one Zona Bean, who is alleged to be a female girl. The judge who presided at the trial gave to the jury, among other instmc- tlous,the following: " To constitute an assault to commit rape In this case, the purpose and Intent must have been to have carnal knowledge of Zona Bean by force. If bis intent was to try to ar ing parted from a companion, started to go home alone through the woods. She heard the respondent, a negro, call out to her to " stop," and saw him run- ning after her about seventy yards away. She began to run as hard as she could, and was pursued by tbe respondent, who called to her to stop three times, and was catching up with her. He pursued her about a quarter of a mile through the woods, when seeing a dwelling house near by, turned back and ran off. A majority of the court, Pearson, C. J., delivering a remarkable cinion,* held that there was sufBcient evidence to support the indictment. 48 Tex. S8S. » 4 Tex. (App.) 574. S 74 N. 0. 426. * Pbarsom.C. J. "Amajority of the court are of the opinion that there was evidence to be left to the Jury as to the intent charged. For my own part I think the evidence ple- nary, ftnd had I been on tbe Jury would not have hesitated one moment. I see a ehicken coekdrop hU wings and take after a hen; my experience and observation assure me that his purpose U sexual Intercourse ; no other evidence !• needed. Whether the cock supposes that tbe hen Is running by fe- male iBStinet to Increase the estimate of her favor and exeite passion, or whether the cock intends to carry his purpose by force and against her will, is a question about which there may be some doubt; as for Instance, if she is a setting hen and " makes light," not merely amorous resistance. There may be evidence from experience and observation of tbe nature of the ani- mals, and of male and female instincts, lit to be left to the jury upon all of the circum- stanees and snrroandlngs of tbe ease. Was the pursuit made with the expectation that he would be gratifled voluntarily, or was it made with the intent to have his wUl against her win and by force? Upon this ease of the cock and the hen, can any one seriously Insist that a jury has no right to call to their asBistance their own experience and obser- vation of the nature of animals and of mate and female Instincts. Again: I see a dog in hot pursuit of a rabbit; my experience and observation assure me that the Intent of tlie dog is to km the rabbit; no doubt about it, and yet according to the argument of the prisoner's counsel, there Is no evidence of the Intent. In our case, when the woman leaves the railroad and starts for her home, and is unaccompanied, to pass through woodland for one-fonrth of a mile, a negro man calls her to stop ; he Is at the distance of seventy-flve yards ; she with female in- stinot from the tone of his voice, looks and sees his purpose, and runs as fast as she can through tbe woodland and makes the head of the lane In sight of the house Itefore ^■te IDIVIDUALS. ASSAULT WITH INTENT TO COMMIT RAPE. 909 I time. Defendant came like hold of her, when he his arms. She screamed . Defendant then passtd ber, and he said nothing the window of the wash- ish to hold It up, by some ist detailed it. In brief, alibi was attempted to be , secutlon were true, is the e out with that degree of tWe and purpose may not )t. The cases of Thomp- nger inculpatory circum- icause the facts were not Reversed and remanded. •entlnff Opinion In State issault with intent to com ;riz, a white woman, hav- ilone through the woods. ' stop," and saw him run- an to run as liard as she Jled to her to stop three her about a quarter of a use near by, turned back ., delivering a remarkable > support the indictment. inroandings of the ease. Ww «de with the expectation tbtt grmtlfled volunurily, or was it I intent to have his will against by force? Upon this case of lb* hen, can any one seriously iry has no right to call to their ir own experience and obser- satnre of animals and of mate itincU. Again: I see a dog in a rabbit; my experience and ■sure me that the Intent of the be rabbit; no doubt aboatit, ding to the argument of the insel, there is no evidence of n our case, when the woman Iroad and starts for her home, eompanied, to pass throngb one -fourth of a mile, a negro ' to stop ; he Is at the distance re yards; she with female in- « tone of bis voice, looks and lose, and rons as fast as she the woodland and makes tbs AC In sight of the house before Rodman, J., delivered the following dissenting opinion which was concurred in by Bynum, J., and which is undoubtedly the law,> " In the opinion of the court as delivered by the Chief Justice, the argument la that because from cer> tain actions of certain brute animals, a certain Intent would be inferred, a like Intent must be inferred against the prisoner from like acts. It seems to roe that the illustrations are not in point even if that method of reasoning be allowable at all. The chicken cock in the case supposed has no intent of vlo- IbDce. He expects acquiescence, and, knows he could not succeed without it, and besides he is dealing with his lawful wife. But the method of reasoning is misleading and objectionable on principle. It assumes that the prisoner is a a brute, or so like a brute that it is safe to reason from the one to the other ; that he is governed by brutish, and in his case, vicious passions, unrestrained by reason or a moral sense. This assumption is unreasonable and unjust. The prisoner is a man, and until conviction at least, he must be presumed to have tbe passions of a man, and also the reason and moral sense of a man, to act as a restraint in their unlawful gratification. Otherwise he would be non compoe mentis, and not amenable to law. He is entitled to be tried as a man, and to tiave his acts and intents inquired into and decided upon, by the principles which govern human conduct, and not brutish conduct. Assume as the opinion of the court does, that the inquiry as to his intent is to be conducted upon an analogy from the Intents of brutes, you treat him worse than a brute, because what would not be vicious or criminal In a brute is vicious and criminal in him, being a man. When you assume him to be a brute, you assume him to be one of vicious propensities. If that be- true, what need of court and jury? Tbe pris- oner is not only feres naturas but caput lupinutn whom any one may destroy with- out legal ceremony. The evidence of the prisoner's intent is circumstantial ; the circumstances being the pursuit and its abandonment when he got in sight of White's house. It is the admitted rule in such cases that if there be any reasonable hypothesis upon which the circumstances are consistent with the prisoner's innt>cence, the judge should direct an acquittal, for in such cases there is no positive proof of guilt. The particular criminal intent charged must be proven. It will not do to prove that the prisoner had that intent or he is able to catch her; he pursues to the «nd of the lane, and then flees and attempts to escape in the woods. It is said in the iugenious argument of the counsel of the prisoner, his intent may have been to kill the woman, or to rob her of her shawl or her money, and if the Jury can not decide for which of those intents he pursued ber, they nuglit to find a verdict for tbe defendant. The fallacy ot this argument is, I conceive, in this: it excludes all the knowledge which we acquire from experience and observa- tion as to the nature of man. Tills is the corner stone on which the institution of trial )jy Jury rests. To say that a Jury are not at liberty to refer to their experience ami observation, when a negro man, under tlie circumstances ot this case, pursues a v/hite woman, starting at, say seventy-five yarils and gaining on her, and being near when ahe gets in sight of the house, when he stops and flees into the woods, is, as it seems to me to take from a trial by Jury all of its recommendations. Our case particu- larly called for the observation and experi- ence ot tbe Jurors as practical men. Tbe prisoner had some intent when he pursued , the woman. There is no evidence tending to show that his intent was to kill her or to rob her, so that the intent must have < been to have sexual intercourse, and the Jury considering that he was a negro, and eon- sidering tbe hasty flight of the woman, and the prisoner stopping and running into the woods when he got in sight of the house, and the instinct of nature as between male and female, and the repugnance ot a white woman to the embraces of a negro, had some evidence to find that the intent was to commit a rape." 1 The opinion ot the majority of tbe court has been since overruled by the same court. Chief Justice Pearson having subseqaently died. State v. Massey, ant«, p. 895 910 CRIMES AGAINST TIIE PERSONS OF INDIVIDUALS. Bome other, although the other may have been criminal ; and especially If the other, although Immoral, wan not criminal. In Bex v. Lloyd,^ it was held by Patteson, J., that in order to convict of assault with Intent to commit rape, the Jury must be Matisfled, not only that the prisoner Intended to gratify his passions on the prosecutrix, but that he Intended to do so at al' events and not- withstanding any resistance on hor part.< It Is not proof of guilt, merely, that the facts are consistent with guilt ; they must be Inconsistent with Inno* ceucc. It Is neither charity nor common sense, nor law, to Infer the worst Intent which the facts will admit of. The reverse s the rule of Justice and law. If the facts will reasonably admit the Inference of an Intent, which though immoral is not criminal, we are bound to infer that Intent. " In the present case, may not the Intent of the prisoner have been merely to •elicit the woman, and to desist, If she resisted his solicitations? Or may it not be that he had not anticipated resistance, and would desist In case it occurred? Either hypothesis will do, and either Is consistent with every fact In evidence; with the pursuit and with its abandonment, when the prisoner aitprehended discovery. There is absolutely no evidence that the prisoner had formed the In tent charged, viz. : to know the woman in spite of resistance and at all hazardn. " We are told In the Sacred Book that " wLoso looketh on a woman to luttt after her hath committed adultery In his heart; " adultery, not rape. In the minds of men there is a wide space between the Immoral Intent to seduce a woman, and the criminal Intent to ravish her. It is at this point that the infer- ence drawn from the assumed Identity of civilized men, with brutes. Is moHt misleading and unfair. A man may perhaps be easily led by his passions to form the Immoral Intent to solicit a woman, and to attempt to execute it. But, OB a reasoning being, he will pause before he forms the intent, and attempts to execute It, to coir nit so hideous and penal a crime as rape; one so certain of detection and punishment. The moral sense which every man has, in a greater or less degree, and the terrors of the law, come In to hold him back from the determination to commit the crime, and to make him take a period for delibera- tion, which, in the absence of evidence to the contrary, it must be presumed he availed himself of. Whereas, in the brute, there are no such restraints, as the gratification of his passions is neither a sin nor crime. Surely the same rules of evidence can not apply to beings so different and acting under different moral and legal responsibilities. " The difference In color between the prosecutrix and the prisoner, although It would aggravate the guilt upon the prisoner upon conviction, can not Justly affect the rules of evidence, by which his guilt Is inquired Into. These must be the same for all classes and conditions of men. " It seems to me that the decision of the court Is a departure from what I had supposed to be a firmly established rule of evidence for the nrotectlon of innocence." § 676. Penetration Provad. — On an Indictment for assault with Intent to commit rape if penetration Is proved, the prisoner can not be convicted. ^ f 676. Zntozloatlon of Priaoner. — It may be shown in defence that at the time the prisoner's physical system was greatly weakened by drink — u rendering him Incapable of committing the crime.* > 70. AP. SM (39 B. O. L. B. MS). * Roseoe Cr. Ev. 811. S B. V. Nteholls. 2 Cox, 181 (18t7). « Nugent «. State. 18 Ala. 6S1) 18S0). see anU, Vol. U., p. 078. And ^i«to NDIVIDUAL8. Inal ; and especially If the V. Lloyd,^ it was held by h Intent to commit rape, lur intended to gratify hiM lo so at al' events and not- It proof of guilt, merely, be inconsistent with inno- >r law, to infer the worst s the rule of juHtlco and ence of an Intent, which r that intent. Boner have been merely to icitations? Or may it not lesistln case it occurred? ith every fact in evidence ; the prisoner a^^prehended trisoner had formed the in istance and at all hazards, tolceth on a woman to luttt .dultery, not rape. In the mmoral intent to seduce a It this point that the infer- men, with brutes, is moHt lily led by his passions to ttempt to execute it. But, Lhe intent, and attempts to as rape ; one so certain of very man has, in a greater to hold him back from the take a period for delibera- ry, it must be presumed he ) no such restraints, as the ne. Surely the same rules icting under different moral nd the prisoner, although it conviction, can not justly inquired into. These must t departure from what I had ence for the orotectlon of lent for assault with intent r can not be convicted. ^ }e shown in defence that at iy weakened by drink— «« PAKT IV. HOMICIDE. ). state. 18 Ala. 6S1) 1880). . U., p. 878. And HOMICIDE — NEW-BORN INFANT — INDEPENDENT LIFE. State v. Wintheop. [43 Iowa, S19.] In the Supreme Court of Iowa, 1876. An Inflant Alttaouvh Fully Delivaredi can not be oonddered in law a human being' and the subject of homicide until life, independent of the mother, exists; and the lite of the infant is not independent, In the eye of the law, until an Independent circula- tion has ' icome established. Indictment for murder. Conviction of manslaughter. AoAMs, J. The defendant is a physician, was employed by one Roxia Clayton to attend her in child-birth. The child died. The defendant is charged with producing its death. Evidence was introduced by the State tending to show that the child, previous to its death, respired and had an independent circulation. Evidence was introduced by the de> fendant tending to disprove such facts. The defendant aslied the court to give the following instruction: "To constitute a human being, in the view of the law, the child mentioned in the indictment must have been fully born, and born alive, having an independent circulation and existence separate from the mother, but it is immaterial whether the umbilical cord which connects it with its mother be severed or not." The court refused to give this instruction, and gave the following: — "If the child is fully delivered from the body of the mother, while the after-birth is not, and the two are connected by the umbilical cord, and the child has independent life, no matter whether it has breathed or not, or an independent circulation has been established or not, it is a human be- ing, on which the crime of murder may be perpetrated." The giving of this instruction, and the refusal to instruct as attked^ are assigned as error. The court below seems to have assumed that a child may have inde- pendent life without respiratioii and independant circulation. The idea- C»n) 5»tti<* » 912 CRIME8 AGAINST THE PERSONS OF INDIVIDUALS. Of the court seems to have been that the life which the child Uvea be- tie e^tl^ t mo of Its birth and the time of the establUhment of resp.ra. iron and independent circulation is an independent Ife ;>«.»'« i;^ tion taken by the attorney-general, in his argument In behalf of the htnte, r^undame. tally different He says: '« It will probably not bo con- ten Id hat independent life can exist without independent c.rcula^on a d hencethe existence of the former necessarily presumes the ex.see of the latter, and so other and further proof is unnecessary. He fur- Ir sayt " The instruction complained of amounts to noUaing more ianThe sta ement that, if the child had an Independent life, then was not necessary to establish those facts upon which the existence of Hfe Tcess rlly depLs." If such w.^ the meaning of the court below the ranZge used to expess it was very unfortunate. The court said tha , iJtho fhild had independent life, it is no matter whether an .ndepend- ent circulation had been established or not. The attorney-general says 1 t f Th^^^^^^ had independent life, it had -^^^l-^^^rre thS of course. But whether we take the one view or tlje other, we think iTstruction was wrong. We will consider A-^ ^ 'e -. t^^^^^^^^^^ pendent life and independent circulation necessarily co-exist, and exam ine the instruction as though that were conceded. It foUows that, where a child is born alive, and the umb.llcal cord is not seve^d a^d' Independent circulation has not been established .n- Sependert ife is impossible, and the instruction amounts to this. iU tf the jury should And independent life, under such crcumstances a^- fhougUtwould be impossible, they might find the kill ng of the ch.W lo bemurder. Such an instruction could ^^-^y^o..^n.^^^^^^'l and would necessarily involve the jury in confusion. It would worse than th ^,- it would tell the jury in effect that they might find Xendence of life in utter disregard of the conditions m which alone t couirexist. To show how the defendant was prejudiced, if the in- Itruc^n is to be viewed in this light, we may say that there was ev tnce tharthe d«c^«« ^steriosns was not closed. This evidence end rshow slightly at lest, that independent circulation had not be, rJbUrhed The instruction told the jury, by implication, that the; h! .H«Lard^ t^^ eVdence. But we feel compelled to say that w rlShltraLrney-general'slnterpretationof^^^^^^^^^^ ever occurred to the court below. It is plain to see that 'he court b loTmeanTthat independent life |s not conditioned upon independ. rdtion. The error, if there Jas one, consisted in assuming tha was norThe question presented for our determination is by no mea Te from difficulty. Can the child have an independent life, while i Sculatrnrstill dependent on the moUier? There aretwo Bensea wh h ^e word independence may be used. There .s actual indepen AA INDIVIDUALS. dilch the child Uvea be- stablishment of respira- [lent life ; yet, the posi- nt In behalf of the Stnte, 11 probably not bo con- independent circulation, y presume* the existence I unnecessary." He fur- lounts to nothing more independent life, then it ?hlch the existence of life ig of the court below, the te. The court said that, ter whether an Independ- [•he attorney-general says [ Independent circulation, !W or the other, we think !r first the view that inde- sarlly co-exist, and exam- ed. and the umbilical cord is i not been established, in- !tlon amounts to this, tlmt er such circumstances, ai- lud the killing of the child erve no valuable purpose, confusion. It would do effect that they might find B conditions la which alone t was prejudiced, If the in- nay say that there was evi- ied. This evidence tended i circulation had not been ■, by Implication, that tliey si compelled to say that we rpretatlon of the instruction un to see that Khe court be- idltiuned upon Independent lOiisiPted In assuming that it jtermination Is by no means II independent life, while its r? There are two senses in There is actual independ- STATE V. M'INTIIROP. 918 eiioe, and there Is potential indopendenco. A child la actually inde- |i(Mulent of its father when It is earning its own living ; iii is potentially independent when it Is capable of earning its own living. We think the court below used the word Independent In the latter sense. While the blood of the child circulates through the jHacenta, it is renov- ated through the lungsof the motiur. In suchsense it breathes through the lungs of the mother.* It has no occasion, during that period, to breathe through its own lungs. But when the resource of its mother's lungs is denied it, then arises the exigency of establishing independent respiration and independent circulation. Children, It seems, oftentimes do not breathe immediately upon being born, but if the umbilical vord is severed, they must then breatba or die. Cases are recorded, it is true, where a child has been wholly bcvercd from the mother, and respiration has not apparently been established until after the lapse of several minutes of time. During that time it must have bad circulation and the circulation was independent. Whether it had appreciable res- piration, or was in the condition of a person holding his breath, is a question not necessary to be considered for the determination of this case. It Is sufficient to say, that while the clrcilatlon of the child is still dependent, its connection with the mother may be suddenly severed l)y artificial means, and the child not necessarily die.. This is proven by what is called the Caesarean operation. A live child is cut out of a dead mother and survives. Such a child has a potential independence antecedent to its actual independence. So a child which has been bom, but has not breathed, and is connected with the mother by the umbili- cal cord, may have the power to establish a new life upon its own resources, antecedent to its exercise. According to he opinion of tlie court below, the killing of the child at that time may be murder. It Is true, that after a child Is born, it can no longer be called afoelus, according to the ordinaiy meaning of that word. Beck says, however, in his Medical Jurisprudence : * "It must be evident that when a child Is born alive, but has not yet respired, its condition is precisely like that of the foetus in utero. It lives merely because the faital circulation is still going on. In this case none of the organs un> dergo any change." Casper says, in his Forensic Medicine,^ " In /oro the term 'life' must be regarded as perfectly synonj'mous with 'res- piration.' Life means respiration. Not to have breathed is not to have lived." While, as we have seen, life has been maintained independent of the mother, without appreciable respiration, the quotations above made In- dicate how radical the difference Is regarded between /ce/e^ life and the 1 Whart. ft 8. Med. Jar. toI. S, sec 128. » vol. 3, sec. 33. 'vol. l,Beo.49S. 3 Defences. S8 914 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. new life which succeeds upon the establishment of respiratici andindc pendent circulation. If we turn from the treatise on MedicalJurispri dence to the reported decisions, we find this difference, which is e emphasized in the former, made in the latter the practical test fc determining when a child becomes a human being in such a sense as t become the subject of homicide. In Rex v. Enoch,^ Mr. Justice i Parke, said: ''The child might have breathed before it was born, bi its having breached is not sufficiently life to make the killing of the chil murder. There must have been an independent circulation in the chile or the child can not be considered as alive for tliis purpose." In Regina v. Trilloe^^ Erskine, J., in charging the jury, said: •'] you are satisfied that this child had been wholly produced from tl body of the prisoner alive, and that the prisoner willfully and of malic aforethought strangled the child after it had been so produced, an while it was alive, and while it had independent circulation of its owi I am of the opinion that the charge is made out against the prisoner." It may be asked why, if there is a possibility of independent life, tl killing of such a child might not be murder. The answer is, that thei is no way of proving that such possibility existed if actual independenc was never established. Any verdict based upon such finding would b the result of conjecture. Judgment reversed. mi7bdeb— infanticide— child must be bobn — delibebatiol Wallace v. State. [7 Tex. (App.) 670.] In the {)ourt of Appeals of Texas, 1880. 1. If a Woman with a Sadato and deliberate mind, before or «fterthe birth of her chi formed the design to take its llfe,'and after the parturition was complete and the ■ born alive and in existence, she executed her design and took iti life. It wae mur with express malice and In the first degree. But if the design to take the life of 1 child wae formed and executed when her mind, by physical or mental anguish, was! capabio of cool reflection, and when she had not the ability to consider and contempf the oonseqnenees of the fatal deed, and she conceived and perpetrated it under a f den, rash impulse after the child had been wholly produced frem her body and whil had existence, the crime was mnrUer in the second degree. 9. If in a Oaae of thla Oharaotar the jury might have concluded from the evidence | the defendant took her infant's lite before its birth was complete, or that she oauseq death by means which she used merely to assist her delivery ,-it was Incumbent on court to inatruot for acquittal in the event the Jury ahonld so find. Appeal from the District Court of McLennan, the Hon. L. C. Alexander. Tried below bef 1 B 0. 4 p. 639. SlC.^U.6Ba * See, also, Oreenl. on Br., vol. UL, I 136. INDIVIDUALS. WALLACE V. STATE. 915 t of respiratiti andinde- tise on Medical Jurispru- 1 difference, which is so Bf the practical test lor ing in such a sense as to . Enoch,^ Mr. Justice J. I before it was born, but ike the killing of the child nt circulation in the child, this purpose." ging the jury, said: "H wholly produced from the ler willfully and of malice id been so produced, and ent circulation of its own, ,ut against the prisoner." ' ty of independent life, the The answer is, that there stedif actual independence pon such finding would be Judgment reversed. E BOBN — DELIBEBA.TION. .] ^exas, 1880. letore or sfterthe birth of h«r eWia. urltion was complete and the chUd jn and took Ub life. It was murder If the design to take the life other phydcal or mental anguUh, wai Jn- I ability to consider and contempUte veA and perpetrated It under a and- rodneed from her body and while It degree. re concluded from the eyidence that was complete, or that she caused iu er delivery .-It waa incumbent on the r abottld 10 find. jennan. Tried below before e, also, Oreenl. on Bt., toI. UL, sect The indictment charged that the appellant, on March 21, 1879, and immediately after the birth of her female infant, strangled it to death by tying a stribg around its throat. About sunset on the day prior to the infanticide, the defendant, a negress, came to the house of Csesar Williams, a negro who lived about six miles south of Waco in McLennan County. Neither he nor his wife knew the defendant, but she was given a bed and stayed all night with them. The indications of her pregnant condition were observed. The next morning she got up and left the house, but returned in about half an hour, joined the family at breakfast, and afterwards went with her liustess to the cow-pen. After remaining there a little while, and com- plaining that she was sick, she went down to a branch about a hundred yards from the house. Caesar's wife returned to the bouse ^from the cow-pen, and in about half an hour observed the defendant's head above the brusli and bushes near the branch. About eight o'clock the same morning she was seen on her way to her mother's, some four or five miles distant. The next day Caesar's wife and another negro woman found the corpse of a new-born infant near the branch where the defendant was seen the preceding morning. A domestic string was wound twice around its neck and tied in a hard knot behind. The child was fuU- sized, with developed limbs and nails and a full head of hair. Near by was found an apron worn by the defendant when she came to Csesar' s. A physic^n who at the instance of the coroner made an examination of the corpse described the indications upon which he based his pro- fessional opinion that the child had been born alive and that it was strangled to death by the string, which he said was tight enough to Lave strangled a grown person. He observed no swelling of the face or head. Another physician, testifying for the defence, said that the signs of strangulation were swelling of the head and face, and that an absence of these signs would indicate that some other cause than strangulation occasioned the death. He further stated that there is no test enabling a medical expert to affirm that a dead infant had or had not beeu born alive. The utmost ascertainable from post mortem observation is that the lungs had been distended with air either before or after birth, and by either a natural or an artificial process. C. Stubblefield, for the defence, testified that, about a week before the child was found, the defendant, who bad been in his employ, informed him that he would have to get another servant, as she was pregnant and would soon be confined, and wanted to go to her mother's for that purpose. He further testified that he was aroused by the defendant before day m the 19th of March, who took him to her room, waii«M«JMll«£ic««£M 916 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. where another negro woman also slept. This other negress was subject to fits, and was in great pain, going through all manner of contortions. Witness quieted her and returned to his bed, but was fiioon awakened by cries of the defendant. Going again to her room, he found her greatly excited, and engaged in a violent struggle with the other woman, who was in another fit. The defendant was greatly frightened, and was exerting every effort to get loose from the grusp of the other woman. Witness finally released her, and she ran out of the door and fell down a flight of four steps to the ground. She left his employ the same evening. She had never attempted to conceal her pregnancy from him. The jury found the defendant guilty of murder in the second degree, and assessed five years in the penitentiary. Williams Jb Inge, for the appellant. Thomaa Bill, Assistant Attomey-Greneral, for the State. Clark, J. If the defendant, with a sedate and deliberate mind, anterior or subsequent to the act of parturition, conceived the design to take the life of her new-born infant, and in pursuance of such formed design did take its life in the manner alleged in the indictment, and such infant was wholly produced from the body of its mother alive, and was in existence by actual birth at the time the injuries causing death were inflicted, then she would be guilty of murder with express malice. If, however, the design to take its life was formed and exe> culed when her mind, by reason of physical or mental anguish, was incapable of cool reflection, and she was not sufllciently self-possessed to consider and contemplate the consequences about to be done, but, yielding to a sudden, rash impulse, she conceived and perpetrated the fatal deed after tho infant had been wholly produced from her body and had an existence by actual birth, then she was guilty of murder in the second degree. We can not say that the charge of the learned judge who presided on the trial below submitted these issues with that accuracy which usuuily characterizes his instructions ; nor do we feel an assurance that the jury may not have been misled by the general terms employed in defin- ing the ingredients especially of murder in the second degree. Ab- stractly considered, the definition may not be inaccurate in ordinary cases, but in this case the better practice would have been to have sub- mitted that issue substantially as above indicated. In this particular case, it is not well conceived how any legal provocation, excuse or jus- tification could arise, if the defendant strangled her own child after birth ; and the instruction was practically tantamount to an announce- ment that the defendant was guilty of murder in the second degree if she voluntarily and intentioD&Uy killed the child by the manner and means alleged. IVIOUAL8. PEOPLE V. ARO. 917 negress was sabject nner of contortions, was boon awakened room, be found her ;gle with the other 9 greatly frightened, e grasp of the other It of the door and fell : bis employ the same iregnancy f rom him. n the second degree, le State. ad deliberate mind, conceived the design pursuance of such ed in the indictment, y of its mother alive, the injuries causing murder with express was formed and ele- mental anguish, was ciently self-possessed bout to be done, but, I and perpetrated the luced from her body s guilty of murder in udge who presided on jcuracy which usually n assurance that the ms employed in defin- second degree. Ab- naccurate in ordinary lave been to have sub- 1. In this particular cation, excuse or jus* d her own child after ount to an announce- the second degree if i by the manner and We are also of opinion that the charge is materially defective in another respect. The issue of strangulation before birth was not sub> mitted to the jury. It is true that among other definitions the jury were told that " in order that a child be in existence by actual birth, the par- turition must be complete, and the body of the child must be expelled from the mother, and it must be alive ; so that the destruction of vital- ity in a child before it is completely born is not murder, under what- ever circumstances committed." But after applying the law to the particular case with reference to murder in the two degrees, it was in- cumbent upon the court to do likewise with reference to that phase of of the evidence which might tend to the exoneration of the defendant. Presented in the form of an abstract proposition, it was not brought to the attention of the jury with that distinctness which the law demands. If they believed, from the evidence that tlie defendant took the life of the deceased, by the means and in the manner alleged, yet the same was done before the child was completely bom, or if they believed from the evidence that the means used, and which resulted in death, were merely for the purpose of assisting delivery, in either event they should acquit. The instructions asked on circumstantial evidence should also have been given. ^ The judgment is reversed and the cause remanded. Beveraed and remandtd. murder ~ death must be the result of act— time. People v. Abo. [6 Cal. 208.] In the Supreme Court of California, 1856. 1. To Ocnuititata Harder, the death moBt be the reanlt of the priioner's Mt, and mntt take place within the time provided by law. 3. An Indlotment for Mnrder, charging that the accneed, on or abont a certain day, did willtuily, feloniously and with malice aforethought, kill, mnrder and put to death a cer- tain person, with a pUtol and knife, without specify ing further the facte and the manner, iB bad. 3. Kurder a aoncltulon of Z«aw. — Murder is a conclusion of law drawn from certain facts. i. In an Indiotin«mt for Harder, the time of the death must be stated, so that It can be legally considered the consequence of the felony charged. Appeal from the District Court of the Fourteenth Judicial District, County of Plumas. ] Harrison v. State, 6 Tex. (App.) 41; Bunt V. State, 7 Tex. (App.) 211. BHIffH i fhilJ iii li i it iia^ 918 CHIMES AGAINST THE PERSONS OF INDIVIDUALS. The defendant was tried and convicted of murder, on tlie foUowing indictment : — . * j "Jacinto Aro is accused by this indictment of the crime of murde; a felony committed as follows: The said Jacinto Aro did, on or abou the second day of November, A. D. 1854, and before the finding ot this indictment, at or near a place formerly known as the Rock River House, in said county of Plumas, with a Colt's pistol and dirk-knife, wiUf uUy, feloniously and with malice aforethought, kiU, murder and do to death one (name unknown) a Chinaman, against the form of the statute made and provided, and against the peace and dignity of the State of California." Defendant appealed. Cole & Whiting, for appellant. Wm. T. Wallace, Attorney-General, for the State. The opinion of the court was delivered by Mr. Chief Justice Mubbat. Mr. Justice Tebbt concurred. The record in this case comes before us in such a loose and imperfect manner that we are unable to consider many of the errors assigned by the prisoner's counsel. There is no statement, or bill of exceptions, properly authenticated, and the attempted appeal upon the merits is characterized by an ignorance of the former rulings of this court, and a recklessness of human life reprehensible in the extreme. There is, however, one point arising upon the judgment roll, which fully justifies a reversal, and an arrest of what might otherwise properly be considered a judicial murder. It has been erroneously supposed by many of the profession, that the adoption of our criminal code of pro- cedure worked an entire abolition of aU the rules which the wisdom of the common law had thrown around criminal proceedings for the safety of the citizen, and that the only defence against a prosecution is to be found in the statute. Such, I apprehend, was never the intention of . the Legislature ; the main object to be obtained by them was the sim- plification of practice and pleading in criminal cases, by removing the rubbish and unmeaning technicalities resorted to,, and invented by the judges in England to shield the accused against the rigor of punishment, which, though sanctioned by law, was relaxed by the humanity of the bene h, and which, so far from accomplishing the end proposed, was found to defeat justice by permitting the escape of the guilty rp.ther than protecting the innocent. It was against these, the age and reason of their employment having long since passed away, that the statute was mainly directed, leaving those rules which were founded in principle to a great extent unchanged. There is littte or no difference between the requirements of an indict- ^^m YIDUAL8. >r, OD the following e crime of marde; iro did, on or abou ifore the finding ot n as the Rock River istol and dirk-knife, kill, murder and do .nst the form of tlie and dignity of the PEOPLE ). ARO. 919 lief Justice Mubbat. El loose and imperfect e errors assigned by r bill of exceptions, 1 upon the merits is 3 of this court, and a reme. judgment roll, which ht otherwise properly tneously supposed by criminal code of pro- which the wisdom of jedings for the safety a prosecution is to be ever the intention of by them was the sim- lases, by removing the 3, and invented by the e rigor of punishment, y the humanity of the he end proposed, was f the guilty rp.tlierthan the age and reason of y, that the statute was ounded in principle to uirements of an indict- ment at common law, and under our statute, except in the manner of stating the matter necessary to be contained. The indictment in this case charges the accused with tlie crime of murder " committed with a Colt's revolver and bowie-knife," but con- tained no description of the offense, or statement that the deceased came to his death by the wounds inflicted, or the day of his death. Murder is a conclusion drawn by the law from certain facts, and in order to determine whether it has been committed, it is necessary that tbe facts should be stated with convenient certainty : " for this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of tbe facts by whbh it is con- stituted, so as to identify the accusation, lest the grand jury should find a bill for one offense and the defendant be put on his trial in chief for another." This is necessary, so that the prisoner may know of wliat crime he is accused, and have time to prepare for his defence on the facts. It is also necessary that the jury may be warranted in their finding, the court in its judgment, and the prisoner be protected against any subsequent prosecution for the same offense.^ The nece 'sity of a statement of tlie facts and circumstances constituting the offense still exists, and is directly recognized by the two hundred and thirty-seventh section of the statute, which provides that the indictment shall contain " a statement of the acts constituting the offense," etc., as well as the precedent given in the statute which points out how such facts shall be charged. In this particular, at least, it may be safely said that our statute has not altered the common law ; and no one, I appre- hend, would maintain, that und^r the old system of practice, either in England or the United States, the allegation of a legal conclusion, instead of the facts which are predicate of a conclusion, ever has been held sufficient. In addition to these views it has already been stated the day of the death is not laid, which ought to have been done, that the court could be informed whether such death occurred in the time provided by law, so that it might be legally considered as the conse- quence of the assault or felony charged. For these reasons the judgment is reversed and the cause remanded, with directions to the court below to hold the prisoner in custody until a new indictment can be found. 1 1 Chltty Or. L. Scam. ioi. 170; WUUa «. PeopU, 1 920 CRIMES AUAIN8T THE PERSONS OF INDIVIDUALS. murder — time of committal— when fatal blow is struck. People v. Gill. [6 Cal. 687.] In the Supreme Court of California, 1836. 1. The Crime of Harder is committed not on tne day when the Tictim diet, bnt on the day on which bis injury was renelved. S. Where an Jkot ie Paaeed Between the time of the commission of tlie act and the death of the victim, deflniog the oifense, and providing for iu punishment, and providing that upon trials tor crimes committed previous to Its enactment, the party shall be tried \)j the laws in force at the time of the commission of the crime, the prisoner must be tried under the law in force when the vioiation of the law was committed. Appnal from the District Court of the Sixth Judicial District. Thr J fendant was indicted for the crime of murder, charged to have bep . j'.tted March 22, 1856. The case was tried September 8, 18.' . ' jury found a verdict of guilty of murder in the second degree. Defendant moved for a new trial, which was overruled, and dcf-n^.ant appealed. Biywie . ■\ G ^, ..., for appellant. This is &a inuicln.e:it for murder, charged to have been committed by the appellant, on the 22d day of March, A. D. 1856, upon the per- son of one Allen McCIory. .Upon the trial the jury found a verdict of guilty of murder in the second degree. The crime, if committed, was committed on the 22d of March, A. D. 1856, when no such crime as murder in the second degree was known to the land. The act defining and providing for the punishment of this oftense was not passed until April 16, 1856, — long after the act charged in the indictment is alleged to have been done. That act specially pro- vides that upon all trials for crimes committed previous to its passage, they shall be tried by the laws in force at the time of their commission.^ This trial, then, was had under a law that had no existence ; the jury found their verdict under a misapprehension of the law ; the trial itself is a nullity, as also is the verdict. William T. Wallace, Attorney-General, for the People. The prisoner is charged with the crime of murder, committed on the 22d day of March, 1856. The evidence shows that the killing took place on that day. As the law then stood he was guilty of murder, or of voluntary manslaughter ; if the latter, he might be imprisoned three years.* But ou the 19th of April last the law was amended.^ Murder is I See Stats, la^6, |i. 221, sec. lOO. s SeeOomp. Laws, pp. 6M, 641. > Stats. 18B6, p. 2M. >iyiDUALS. PEOPLE V. GILL. 921 L BLOW IS STRUCK. 1836. the Tiotim diet, bnt on tlie ton of the act and the death Bhment, and providing that , the party shall he tried bj , the prisoner mutt be tried nmitted. licial District, irder, charged to have 9 tried September 8, lurder in the second h was overraled, and have been committed K 1856, upon the per- try found a verdict of 22d of March, A. D. degree was known to le punishment of this ; after the act charged rhat act specially pro- revious to its passage, of their commission.^ lO existence ; the jury le law ; the trial itself People. ler, committed on the that the killing took } guilty of murder, or it be imprisoned three divided into murder of the first and second degrees — the former is punishable by death, the latter by imprisonment, which may extend to life. Manslaughter is made punishable by imprisonment for ten years. The jury found the prisoner guilty of «* murder in the second degree," and the court sentenced him to ten years' imprisonment. When the deed was done there was no such ^jffense as murder in the second degree — and the state of the law was such that, if guilty, the prisoner must either have been executed or imprisoned not exceeding three years. Under such circumstances, I do not think that the conviction can be sustained. The act of April 19, when applied to this case, becomes ex post facto. Mr. Chief Justice Murray delivered the opinion of the court. Mr. Justice Terry concurred. The prisoner was indicted for murder, charged to have been commit^ ted on the 22d day of March, 1856, and was found. •' guilty of the crime of murder in the second degree." At the time of the killing, charged in the indictment, there was no such crime known to the law as murder in the second degree, and the party could only have been convicted of murder or manslaughter. The act defining the offense of which the prisoner is found guilty was not passed until the 16th of April, 1856, and provides that, upon trials for crimes committed previous to its passage, the party shall be tried by the laws in force at the time of the commission of such crime. It is supposed, however, that this case presents an exception to the rule thus established. The blow was given before, but the death ensued after, the passage of the last statute. The death must be made to relate back to the unlawful act which occasioned it, and as the party died in consequence of wounds received on a particular day, the day on which the act was committed, and not the one on which the result of the act was determined, is the day on which the murder is properly to be charged. Besides this, although it is not absolutely necessary to state the pre- cise day on which the killing took place, still a conviction in a case like the present, where the party was called upon, by the indictment, to answer an offense under one statute, and was found guilty under another, would be bad, and ought to be arrested on motion. The judgment is reversed, and the court below directed to re-try the prisoner for murder. mended. 3 Murder is ■ IIIIBIII—III W B B Esai^illtea^WKataMiti^Baaii^^ 922 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. HOMICIDE -EFFECT OF ERRONEOUS TREATMENT OF WOUND CAUS- ino death. Parsons v. State. [21 Ala. 800.] In the Supreme Court of Alabama. 1 If a Wound ia Inftloted not dangeron. In Itself, and the death which en.uea wae en- denti, .cca.loned by the gro..ly erroneous treatment of It. the original author wU not be accountable. But If the wound was mortal or dangerous, the person who Inflicted It cannot sheler himself undar the plea of erroneous treatment. ^...w ♦™». 2 The Bvldanoa was OonflicUnir, a* to whether the deceased came to his death from the effects of a wound Inflicted by the prisoner, or from the Improper treatment of llhy the attending physician in sewing It up. The prisoner's counsel requested the court to charge that if the wound was not mortal, and It clearly appeared that the deceased came to hUdeath from the erroneous treatment, and not from the wound they must acquit Ihe prisoner. This charge the court gave, with this quallflcatlon, that If the ill treat- ment relied on. was the sewing up of the wound, the defendant would not be excused If otherwise guUty." Stld, that the quallflcatlon was erroneous. Error to the Circuit Court of Dallas. Tried before the Hon. E. Pickens. The facts sufficiently appear from the opinion of the court W. M. Murphy, for the plaintiff in error. M. A. Baldwin, Attorney-General, contra. GoLiwHWAiTE, J. The prisoner was indicted for the murder of one Mayo. On the trial of the case below, the evidence was conflicting as to whether the deceased came to his death from a wound inflicted by the defendant, or from the improper treatment which was resorted to by the attending physicians, the wound not being considered a mortal one. It was what is termed a " punctured wound " and the improper treatment which was reUed on was, the bringing of its edges together, and sewing it with stitches. The court, upon this evidence, was requested by the counsel for the prisoner to charge, " that if the wound was not mortal, but by Ul treatment or unwholesome application the said Mayo died, if it clearly appears that this treatment, and not the wound was the cause of his death, the defendant should be acquited." This charge the court gave, but with the addition, "that if the ill treatment relied upon, was the sewing up of the wound with stitches or other compresses, that the defendant would not be excused if otherwise guilty," and this addition or qualification of the charge is relied upon as the ground of reversal. We all agree that, ordinarily, if a wound » inflicted, not dangerous in itself, and the death was evidently occasioned by grossly erroneous treatment, the original author will not be account- IVIDUALS. PARSONS V, STATE. 923 T OF WOUND CAU8- alh which ensues wm evi- lie original author will not I, the person who inflicted mt. Bd came to his death from mproper treatment of it -by nael requested the court to red that the deceased came le wound, they must acquit ition, " that if the ill treat- lant would not be excused leous. , before the Hon. E. f the court for the murder of one ence was conflicting as , a wound inflicted by which was resorted to ig considered a mortal lid" and the improper ; of its edges together, 3n this evidence, was ;e, " that if the wound )lesome application the treatment, and not the it should be acquited." tion, "that if the ill wound with stitches or be excused if otherwise I charge is relied upon rdinarily, if a wound is as evidently occasioned hot will not be account- able.' The charge given by the court below asserts the general propo- sition that if the wound was not mortal, and the death properly to be attributed to the treatment, the prisoner should be acquitted, but the qualification s majority of the court hold to be erroneous, for the reason that it made an improper exception to the rule stated in the charge. In other words, they understand the charge as a whole to assert the proposition, that while the prisoner might be excused by the erroneous treatment of the attending physician, yet, if such treatment consisted in the sewing up of the wound, he would be held accountable ; thus excluding from the operation of the rule the actual case which the evi- dence tended to establish. I can not agree with tliis construction, and while I admit the charge is wanting in precision and fulness of expres- sion, I think it states the law correctly. The evidence being conflicting as to the cause of the death, and doubtful as to the character of the wound, these were matters proper for the determination of the jury ; and if the death was the natural consequence of the wound, or the wound was mortal, the defendant was answerable ; and, as I understand the charge, it asserted simply this propccition. The erroneous treatment which was relied on consisted in the sewing up of the wound, instead of having it open ; and the presiding judge, after laying down the general rule, went on to inform the jury, that if the defendant relied on the particular treatment resorted to, the sewing up of the wound, it would not operate to excuse him, if, without reference to such treatment, he was guilty ; or in his own language, " if otherwise guilty. " The construction placed by a majority of the court upon the qualification, gives no effect whatever to the words I have quoted, and strike out of the charge the limitation which qualifies the entire sentence. Regarding the legal proposition asserted by the charge as correct, yet as its tendency may have been to mislead the jury, in a case of this character, I concur in the reversal on that ground. Let the judgment be reversed, and the cause remanded ; the prisoner to remain in custody until discharged by law. 1 1 Hale's P. 0. 428; 1 EastC. L. 3M, sec. 113. dOb 924 CRIMES AGAINST THB P£B80N8 CF INDIVIDUALS. HOMICIDE — INDEPENDENT ACT OF THIRD PEBSON INTERVBNING, StATR V. SCATES. [6 Jones (N. €.)> 420.] In tht Supreme Court of North Carolina^ 1858. Wh«r« a Jndff* oh»r*«d the Jary that it one person infllcu a mortal wound, and before the aaialled person dies, another person kills him by an independent aot, the former ii guilty of murder, It was ktld to be error. Indictment for murder tried before Saundbbs, J., at the Spring Term, 1858, of Cleveland Superior Court. Tlie charge was for the murder of a small child of the age of about two years, by burning and by a blow. The deceased was the child of the prisoner's wife, born previously to his marriage with her, and it was proved by one Ettress that the prisoner's mother was greatly displeased at the marriage, and told the prisoner that, if he did not put the child out of way, she would ; that the prisoner was a weak-minded man, but considered as perfectly sane. This witness saw the child a few days after he was burnt, and that there was no mark, then, on the forehead, but he saw such a mark some days before its death. The burning took place about the first of March, and the child died about the first of April. Dr. Hill saw the deceased about twenty hours after it was burnt He dissected the burnt parts, and found the injuries very extensive, the arms, back and thighs were roasted, — crisped like a piece of leather. He stated that there was a wound in the forehead, as if from a blow ; he was fully satisfied the burning in itself was fatal, and must have produced death, but he '' doubted as to the immediate cause of death — thought it was produced by the blow." He explained on cross-examination that he thought the burning the primary cause of the death, but that it was probably hastened by the wound on the head. The court charged the jury that the confessions of the prisoner had been received by the court, but it was for the jury to say whether they were made, and if made, how far they were true ; that as to the cause of the death, it was for them to say whether it had been produced by the burning, or other means, and that if produced by the burning,' they should be satisfied that the burning was the act of the prisoner; " and even should they share in the doubt expressed by the doctor, that the blow had caused its immediate death, yet if satisfied that the burn- ing was the primary cause of the death, and the blow only battered it, it would be their duty to convict." Verdict, guilty. Judgment and appeal by the defendant. NDIVIDUALS. 8TATB V. aOATSS. 92b BRSON nrrERVENIlfO. ilina, 1858. M a mortal wound, and betora ndependent aot, the former It J., at the Spring Term, i was for the murder of burning and by a blow, rife, born previously to f one Ettress that the marriage, and told the f way, sbo would ; that lered as perfectly sane, tie was burnt, sad that 3 saw such a mark some lace about the first of ril. lira after it was burnt injuries very extensive, 1 like a piece of leather, ead, as if from a blow ; s fatal, and must have ediate cause of death — ihought the burning the obably hastened by the )ns of the prisoner had uiy to say whether they lie ; that as to the cause had been produced by duced by the burning,' bhe act of the prisoner ; issed by the doctor, that F satisfied that the bum* e blow only battered % Attorney-Oeneral, for the State. Oaither, for the defendant. Battle, J. (omitting a ruling as to confessions). Upon the other point in the ease, we are decidedly of opinion that the prisoner is entitled to a new trial. As to the cause of the death of the deceased, his Honor charged the Jury that if they " should share in the doubt expressed by the doctor, that the blow liad caused the imme- diate death, yet, if satisfied that the burning was the primary cause of the death, and the blow only hastened it, it would be tlieir duty to convict." This instruction was g .en upon the supposition that the blow was inflicted by another person, and the proposition could be true only when the testimony connected tlie aots of such person with the prisoner, so as to make them both guilty, and we at first thought such was the proper construction to be put upon the language used by his Honor; but, upon reflection, we are satisfied that a broader proposition was laid down, to wit : that if the prisoner infiicted a mortal wound, of which the deceased must surely die, and then another person, having no connection with him, struck the child a blow, which merely hastened its death, the prisoner wouid still be guilty. The testimony presented a view of the case to which the proposition was applicable, and it becomes our duty to decide whetlier it can be sustained upon any recognized principles of law. Murder is the killing with malice prepense, a reasonable being, within tlie peace of the State. The act of killing, and the guilty intent, must concur to constitute the offense. An attempt, only, to kill with the most diabolical intent, may be moral, but can not be legal murder. If one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, we can not imagine how the first can be said to hare killed him, without involving the absurdity of saying that the deceased was killed twice. In such a case, the two persons could not be indicted as joint murderers, because there was no understanding, or connection between them. It is certain that the second person could be convicted of murder, if he killed with malice aforethought, and to convict the first would be assuming that he had killed the same person at another time. Such a proposition can not be sustained. The prisoner must have a new trial. This renders it unnecessary for us to consider the effect of the alleged erroneous entry of the verdict. Judgment revtrsed. e defendant. MH«.v%^^xr«:.x.'~ ' 926 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. HOMICIDE -CAUSE OF DEATH - IMPROPER TREATMENT OR NEO- LECT CONTRIBUTING THERETO - MALICE NOT IMPLIED. Morgan v. State. [16 Tex. (App.) 693.] In the Court of Appeals of Texaa, 1884. 1. ImPlUd MnUM-MaUM not PM«uin«d. - On atrial lor murder the Jury were in. .iruoted M follow.: " ImpIl'JJ malice U an Inference or conclu.lonol law UPOJJ «"""" fact, found by the Jury. Thus the law Irapllc. malice from the unlawful killing of a hnman being, unle.. the olronm.tance. make it evident that the killing wa. e't^er Inifl. liable, or, If not Ju.tlflable. waa ao mlUgateU ai to reduce the offenie below murder In the second degree." Meld, error. 8. Oauw of ©•»th- Improper Troatmont Oontributtn* to D«»th-lMM •tat- ut«. - The Texai code enact* : " The destruction of lUo mu»t be complete by Bued act, agency, procuremout oromlMlon; but, although the injury which caused death might not. under oihcr circura.tance.. have proved fatal, yet If .uch injury be "••«•«»«»« death, without ita appearing that there baa been any groii neglect or manlfeatly Im- proper ^eatment of the person Injured, it la homicide." Beld, that If the njury be .uch that death Is not a certain result- If it be such that human aid and skill may prevent its fatal termination -then it ia such an injury aa comes within the meaning of the word, quoted. But If the injury be such that no human aid or .kill could prevent .t» fatal termination, then the injury is not such aa come, within the meaning of the words. S. At Common Law. the K.Bleot or Improper Treatment mu.t produce the death in order to exonerate the person who inllicted the original Injuiy. Cnd 1. statute it is not necessary that the neglect or improper treatment shall cont n any degree to the death, but if there be gross neglect or manifestly improper ti either In preventing or in aiding the fatal effect, of the Injury, the death of th a peraon is not homicide by the party who Inflicted the original Injury. 4. "OroeeHeBlect and Improper Treatment." a. construed by the majority of the court, are held to mean, not only such as produce the destruction of human life, but a> weU inch a. allow, suffer or permit the destruction of life. Appeal from the District Court of Travis County. WaUon & Hill and Slieeka & Sneed, for the appellant. J. H. Bum, Assistant Attorney-General, for the State. HcBT, J. The appellant in this case was convicted of murder in the second degree. A reversal of the jadgment is sought on three grounds : — 1. Error in the admission of certain evidence. 2. Defects in the charge of the court in two particulars. 3. Error in refusing charges requested by the defendant. first ground. The witness Cummings, M. D., stated that he be- lieved that the wound in the temple, and not that inflicted by the trephining operation, killed the deceased. He was then asked by the State's counsel if this conclusion was concurred in by the other physi- cians present, viz. : Tavlor, Wooten, Given, Johnson and Gasser. To this question the defendant objected, because the desired evidence was heresay. The objection was overruled, and the witness answered that T T ' ^ WIVIVVALS. MORGAN V, STATE. 927 PREATMENT OR NEO- S NOT IMPLIED. I, 1884. lor murder the Jury were in- ncluslon of law upon certnia im tbe unlawful killing of a at the killing WU8 either jniti- le offenie below murder in tlie t to Ssath-TazM ttet- luit be complete by Bueh art, y which caused death might t luch injury be the cause oi oil neglect or manifestly Im- Beld, that it the injury be such inn aid and skill may prevent es within the meaning of the aid or skill could prevent its bin tbe meaning of the words. .ant mast produce the death original Injury. Cnd- "is ■ treatment shall cont n lanifestly improper tt ijury, the death ol thu .... i Inal Injury. itmed by the majority of the itruction of human life, but b> 'ounty. ppellant. r tbe State. mated of murder in the it is sought on three particulars. le defendant. D., stated that he be- lot that inflicted by the e was then asked by the 3d in by the other physi- ohnson and Gasser. To the desired evidence was [le witness answered that the opinion which be hnd given as to the cause of the death was con- curred in and agreed to by tlie other physicians before named at the time of the post mortem cxiimination. We arc of the opinion that the objection of the defendant should have been sustained. This evidence was clearly heresay, and not ad- missible. But, as all of these physicians were examined as witnesses, anil testified that, in their opinion, liie wound in the temple, and not the trephining operation, caused the death of the deceased, certainly no injury appears to have been done the defendant by its introduction. Second. Error in the charge in the first particular, viz. : that in the ninth subdivision of the charge implied rorl". a is explained as follows: " Implied malice is an inference or conf^iubiun of law upon certain facts found by the jury. Thus the law implies malice from the unlawful kill!- ; of a human being, unless the circumstances make it evident that the killing was either justifiable, or, if not justifiable, was so mitigated as to reduce the offense below murder in the second degree." The proposition contained in this charge is simply this : That when an unlawful killing is shown, the homicide is presumed by law to be upon malice, and in order to meet and overcome this legal presumption, the evidence — circumstances — must make it evident that the killing was justifiable, or so mitigated as to reduce the offense below murder in the second degree. The appellant objected at the time to this charge. Is it obnoxious to the objection urged to it in the appellant's brief? Does this charge shift the burden of proof? We think not. Does it infringe the doctrine of reasonable doubt? We are of the opinion that it does, and this is so, and is susceptible of the clearest demiynstration. Let us illustrate: A. is charged, and is on trial for, the murder of B. The State proved that A. unlawfully killed B., and here closed. A. adduces evidence and circumstances tending to justify or reduce the homicide below murder. Must his justification be evident? Or must the evidence and circumstances render evident the fact that the homi- cide was not malice, but was manslaughter or negligent homicide? Suppose that neither justification, manslaughter, nor negligent homi- cide is by the evidence made evident ; but suppose the evidence ad- duced by the State or the defendant which tends to support justification, manslaughter or negligent homicide is suflScient to raise a reasonable doubt of the existence of malice, sutBcient to warrant the jury in call- ing in question this legal presumption. Should the jury find malice and convict of murder? Evidently they should not. A preponderance of evidence in support of circumstances which tend to justify or reduce is not required, the correct proposition being that the State must prove malice, and that if there be a reasonable doubt of its existence, either T T ^28 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. from the evidence or from any evidence, whether adduced by t State or by the defendant, he can not be legally convicted of homici upon malice. Let us view this subject in another light. An indictment for mur der as the case is ; and so it has always been ruled. But if the wound. be not mortal, but with ill applications of the party, or those about him, of unwholesat ^ ^ salves or medicines, the party dies, if it clearly appears that the medicines and not the wound was the cause of the death, it seems it is not homicide ; but then it must clearly and certainly appear to be so. But if a man receive a wound which is not in itself mortal, but for want of helpful applications or neglect it turns to a gangrene or a fever, and the gangrene or fever be the immediate cause of the death, yet this is murder or manslaughter in him that gave the stroke or wound ; for that wound, though it was not the immediate diuse of the death, yet if it were the mediate cause, and the fever or gangrene the immediate cause, the wound was the cause of the gangrene or fever, and ■o consequently causa causans. " ^ The foregoing quoted texts are fully supported by other distinguished authors upon criminal law, and by numerous adjudged cases, both English and American.' This common-law doctrine has likewise been quoted and approved by this court, but in the cases in which this was done it does not appear that the question presented in the case now before us was raised or con- sidered. I do not, therefore, regard the questions as having been directly passed upon and determined in either of those cases, or in any other case decided by this court. The two cases I allude to are Williamay. State* and Powell V. State.^ 1 S GreeiU. Et., seo. 139. 3 1 Hale'a P. 0. 438. ' 1 Rui«. on Cr. 806; Boscoe't Cr. Et. 717; 1 Biih. Or. L., see esS . .._." It is to be noticed that there Is a difference, though perhaps not a very material one, between the definition given at common law of " homi- cide," and that given in our code. Blackstone defines it as " the kill- ing any human creature." ^ Hawkins defines it " the killing of a man by a man."' Our code is more specific, and states it to be the de- struction of the life of one human being, by the act, agency, procure- ment or omission of another. And it goes still further and requires that the destruction of life must be complete ; not only so, but must be com- plete by the act, agency, procurement or omission aforesaid — that is, it must be complete by the act, etc., of the defendant. I find no such special requirement as this in the common law, though it may perhaps be embraced within the general rules on the subject. I have merely called attention to these differences to show that our code upon this subject is by no means an exact copy from the common law, but con- tains some tilings which are not expressed so fully, if expressed at all, by the common-law writers. I come now to the most material points involved in this contention. 1 4 Bl*. Com. m. 1 1 Hawk. PI. Or., oh. 8, see. 1 ;; .1 • V ^■^ DIVIDUAL8. igrapha of the charge they are a substantial under consideration. the common law has ■wiU new proceed to ■ with reference to this id ameliorated by our ' our Penal Code bear- the life of one human B omission of another, complete by such act, lie injury which caused e proved fatal, yet if pearing that there has lent of the person in- I said of gross neglect of some person other ysician, nurse or other lich makes it necessary injured, shell willfully le-^ - liy guilty as if tC' - .«»-. though perhaps not a common law of " homi- deflnes it as " the kill- ; " the killing of a man lates it to be the de- e act, agency, procure- urther and requires that ly so, but must be com- ion aforesaid — that is, endant. I find no such , though it may perhaps abject. I have merely lat our code upon this s common law, but con- illy, if expressed at all, ;lved in this contention. n. Or., oh. 8, aeo. S. MORGAN V. 8TATE. 935 What is meant by the words *' but although the injury which caused death might not, under other circumstances, have proved fatal," used in article 547 above quoted? In my judgment, they refer to all injuries which are not of themselves inevitably fatal, or which are not inflicted under circumstances which make them inevitably fatal. In other words, all injuries which under the circumstances of the particular case are not necessarily fatal, but which may cause death. An injury which must cause death under any state of circumstances, such as the severance of the head from the body, the severance of the carotid artery, or the breaking of the neck, would not come within the meaning of the words quoted. For injuries of this character no legislation is required, be- cause they can not be affected either by cure or negligence, skillful or unskillful treatment. They produce death in spite of any human aid. But, if the injury be such that death is not a certain result thereof, if it be such that human aid and skill may prevent its fatal termination, then it is such an injury as the words quoted refer to. I need no better il- lustration of the idea I am endeavoring to express than the case before us. In this case, the wound inflicted upon the deceased by the defend- ant was a mortal wound, but it was not necessarily fatal ; it would not surely and inevitably produce death ; it was within the power of human aid and skill, perchance, to prevent it from terminating fatally. It was, therefore, in the language of the statute, " an injury which might not, under other circumstances, have proved fatal." That is, this in- jury, if it had been properly treated, skillfully attended to, by those called to treat it, might have been cured and the life of the deceased saved. But if it had nevertheless produced the death, although by proper and timely aid and treatment death might have been prevented, still it would be homicide by the act of the defendant, unless it should appear that there ht.d been gross neglect or manifestly improper treat- ment of the person injured by some other person than the defendant. In my opinion, just here is the important change made by our statute in the common law. At common law the negleot or improper treatment must produce the death in order to relieve the person who inflicted the original in j ury from the homicide. Such neglect or improper treatment, and not the wound, says Mr. Oreenleaf , must appear to be the sole cause of the death. Our statute, as I interpret it, does not require that the neglect or improper treatment should produce the death, either in whole or in part. If there be gross negleot, or manifestly improper treatment, either in preventing or in aiding the fatal effects of the injury, the death of the injured person is not homicide by the party who inflicted the original injury. To illustrate : If A. should cut B. with a knife, severing a small artery, this wound would not be necessarily fatal, yet it would certainly prove so unless properly and promptly attended WW ■""^mmmmUm 936 CRIMES AGAINST THB PERSONS OF INDIVIDUALS. to. Thfl injured party would surely bleed to death in a short time if left without the proper aid, but with proper treatment the artery would be closed, the flow of blood thereby stopped, and death prevented. Now, suppose a surgeon is called to treat this wound, and instead of attempting in any way to stop the flow of blood, be administers to the wounded man chloroform, and leaves him to bleed to death. Here would be gross negligence, manifestly improper treatment of the injured person, and yet the death of such person would be the result solely of the wound, and not of the neglect or improper treatment. At common law this would be homicide in A. who inflicted the wound, but it would be homicide in the surgeon who permitted the man to bleed to death, when, by the exercise of proper care, and the use of well known and effective means, he could have prevented it. I think '* gross neglect and improper treatment," as used in our statute, are not only such as produce the destruction of life, but are such, also^ as allow, suffer or permit such destruction of life. In this connection, and in support of my construction of these provi»> ions of the Code, I call attention particularly to that portion of article 548, which provides: " If the person inflicting the injury which makes it necessary to call aid in preserving the life of the person injured shall willfully fail or neglect to call such aid, he shall be deemed equally guilty as if the injury were one which would inevitably lead to death." I find no such provision as this in the common law. What is the object of this provision? Manifestly it is to cause the person who inflicts a personal injury upon another to furnish such aid as may be necessary to prevent a fatal result of such injury. What is the effect of the provis* ion? If the party who inflicts the injury wiUfully fails to furnish tlie aid necessary, and the injured party dies from the injury, the injury is regarded as inevitably fatal, and no question as to neglect or improper treatment can arise in the case as a matter of defence. In such case he who inflicted the injury would not be excused of the homicide, even liad the death in fact been produced solely by the gross negligence or mani* festly improper treatment of those who hrd the treatment of the case. But, on the other hand, suppose there is no such willful neglect of the defendant to call aid ; suppose he promptly calls a surgeon who has the reputation of being learned and skillful in his profession, and suppose this surgeon grossly neglects the case or treats it in a manner manifestly improper, what then is the meaning and effect of this provision? In such case, in my opinion, the homicide is shifted from the defendant to the surgeon, and I can not read these articles of the code in any other light. The provision I have last quoted, it seems to me, is inoonsist* ent with the oommon>law rule, but harmonizes with and makes perfect the rule which, I think, is prescribed by the code. • y i^iJm miVIDUALS. MOROAK V. STATE. 987 eath in a abort time if meat tlie artery would and death prevented. 1 wound, and instead blood, be administers im to bleed to deatli. roper treatment of the >n would be the result proper treatment. At > inflicted the wound, permitted the man to r care, and the use of prevented it. I think Bed in our statute, are (e, but are such, also, • ■uction of these provis* I that portion of article ihe injury which makes he person injured shall tall be deemed equally vitably lead to death." w. What is the object > person who inflicts a as may be necessary to he effect of the provis* illy fails to famish the tie injury, the injury is to neglect or improper tence. In such case he the homicide, even had OSS negligence or mani> i treatment of the case, ih willful neglect of the I a surgeon who has the )rofession, and suppose b in a manner manifestly t of this provision? In 1 from the defendant to t the code in any other ems to me, is inconsist- •rith and makes perfect le. If, as contended, the author of the code merely intended, in the three articles quoted, to declare the common-law rule upon the subject, be certainly did not do so very clearly or forcibly, and yet among all the great productions there is not perhaps a more perfect work than our Penal Code. I am sure that those articles are intended to, and do, modify the common-law rule, and to the extent that I have suggested, and consequently beyond the limits of the charge given to the jury in this case. In this connection I will say that our Supreme Court, in the case of Broum v. State,^ in referring to said articles of our Code, said : " Our law undoubtedly changes the rule of the common law, the theory of which was that he who caused the first injury should be held guilty." The subject is not discussed in that opinion, nor are the changes re- ferred to pointed out, and the case is only valuable for the purpose of showing that this is not the first time that the common-law rule upon this subject has been challenged, and denied to be the law of this State. I do not wish to be understood as approving the changes in the common- law rule which, in my opinion, have been effected by our statute. It ia no business of mine whether such changes are wise or impolitic. My duty and my desire is to arrive at an understanding of the case as it i8» not the law as I might wish it to be. It is not a consequence of this view of our law that the defendant would escape all punishment for his criminal act. While he might not be guilty of homicide, he might yet be guilty of an assault with intent to murder, and might properly be convicted of such offense under the indictment in this case.' I think that the learned trial judge should have instmoted the jary upon the law of the offense of assault with intent to murder, even under his view of the other law of the case. I presume he did not give such instructions because they were not requested, and for the further reason, perhaps, that he did not think the evidence justified them. I do not regard the evidence as so conclusive in its nature, in regard to the cause of the death, as to exclude that issue from the consideration of the jury. It was a part of the defence that it was the gross neglect and the manifestly improper treatment of the surgeons that produced the death, and not the wound inflicted by the defendant. This was one uf the issues presented by the defence. The State proved by a number of physicians and surgeons who had examined the case, that, in their opinions, the wound inflicted by the defendant was the sole cause of the death. Tliis evidence, it is true, was competent and suf- ficient, but it was not conclusive. It might be met, and, perhaps in the estimation of the jury, he wholly overthrown by other evidence ia the case. The jury were the judges of the credibility of the witnesses, lasTez. 48i. > Code Crim. Fr., art. 718; FMenoB •. Bute, 13 Tex. (App.) 8B0; Supp*. BtStS^ 8 Tex. (App.) 188. •" y 938 CRIMES AGAINST THE PRR80N8 OF INDIVIDUALS. and of tbo weight of the testimony. Some of these expert witnesses who gave it as their opinion that the wound inflicted by defendant aloDe causedthe death, had themselves inflicted mortal wounds upon the de> ceased. They had sawed twice into the back portion of the deceased's skull, and had taken out two pieces of the skull bone. These surgical wounds were in a very vital portion of the skull, and where the skuU was perfectly sound. All the expert witnesses admit that these wounds were unnecessary, and were perhaps mortal wounds, but that, in their opinions, they did not cause the death. It seems to me that this evidence should have been submitted to the Jury for their opinion in connection with instructions as to the law of assault with intent to murder. Under the chaige as given to the Jury, they had but one alternative, and that was to convict the defendant of homicide, or acquit him of any offense whatever. The. charge of the court did sub- mit to the Jury the issue as to the cause of the death. Having done this, it seems to me to follow, as a matter of course, that instructions as to assault with intent to murder should have followed. I must say, further, that I do think the charge upon justiflable homi* oide is entirely correct. It required the defendant to resort to all other means except flight of preventing the threatened injury to himself before taking life, regardless of the imminence of his peril. I think the law upon this subject has been settled otherwise by several decisions of this court' White, J. I have read with much consideration and great interest the very able opinions of my brethren as to the proper construction to be given the language of articles 547 and 548 of th ) Penal Code. My conclusions are that the views expressed by Judge Willson are correct I am, therefore, constrained to concur in bis opinion, however much I may doubt the wisdom or the policy of a statute which, in my humble Judgment, properly admits only of such construction. It does occur to me that if the injury which causes the death under the conditions named in the statute would only amount to homicide, without its appearing that there has been any gross neglect or improper treatment of the per« son injured, that then the converse of this proposition must also follow inevitably, viz. : that, if it does not appear that there has been any gross neglect or improper treatment of the party injured, by the phys- ician, nuro.'j, or other attendant, it is not homicide in him who inflicts the first injury. Our business is to interpret the law as we And it in the code. With its policy we have nothing to do. For the additional reasons stated in Judge Wnxsox's opinion, tb« Judgment should be reversed and the cause remanded. Reverted and remanded. 1 K«ndaU «. StaU. 8 Tex. (App). 869; Voiterv. SUte, 11 Tex. (App.) lOB; King «. StoU. IS Tex. (App.) 2n. •■■y INDIVIDUALS. BULOFF V. PEOPLE. 989 r these expert witnesses ioted by defendant alone t\ wounds upon the de- ortion of the deceased's U bone. These surgical [ill, and where the skuU issea admit that these lortal wounds, but that, ti. It seems to me that lie Jury for their opinion }f assault with intent to jury, they had but one endant of homicide, or ge of the court did sub* he death. Having done course, that instructions B followed. ge upon justifiable homl- ilant to resort to all other 1 injury to himself before )ril. I think the law upon d decisions of this court.' ration and great interest be proper construction to of th ) Penal Code. My dge WiLLSON are correct opinion, however much I ;ute which, in my humble uction. It does occur to ider the conditions named ie, without its appearing per treatment of the per^ tposition must also follow that there has been any ,rty injured, by the phys- nicide in him who inflicts i the law as we find it in ) do. ;e Willson's opinion, the imanded. iever$ed and remanded. HOMIOmS— CORPUS DELICTI MUST BE PROVED. RuLOFF V. People. [18 N.Y. 179.] In th« Court of AppefiUa of New York, 1858. 1 To Wftrnuit » Oonvlotlon of MoMtmr there muet be direct proof either of the de»th, u by the fludlng »nd Identtfloatlon of the corpse, or of orlminal violence adequate to pro- duce death and exerted In anoh a manner a* to account for the dUappearaneo of th« bodj. I The Oorpos DsUoti, in Mnrdar, has two eomponento, death aa the reenlt and crim- inal agency of aroiher ai the meant. It la only where there U direct proof ol one th«t the other can be eiUblUhed by circnmatentlal evidence. 3. The &ul« o< Lord Halo.i forbidding a eonvlctlon of murder or manilaughter unleie the fact be proved to be dona, or at leaat the body found dead, commented upon and afBrmed. Writ of error to the Supreme Court. The appellant was indicted in Tompkins County for the murder of his infant child by various means, — stabbing, choking, drowning, iwisoning, etc., set forth in dif- ferent counts. The indictment was brought by certiorari into the Supreme Court, and, the venue having been changed, was tried at the Tioga Circuit in October, 1856, before Mr. Justice Masom. The pris- oner having been convicted, moved for a new trial upon a bill of excep- tions, which was denied, and having been sentenced at general term in the Sixth District, brought the case l.> the court by writ of error. The exceptions and facta material thereto are sufficiently stated in the following opinion. Francis M. Fine*, for the plaintiff in error. Danid S. Dickiraon, for the People. By the Court, Johnson, C. J. At the opening of the trial the coun- sel for the prosecution, in answer to a question of the prisoner's coun- sel, stated that he did not propose to prove by any direct evidence, that the infant daughter of the prisoner, with whose murder he was charged by the indictment, was dead or had been murdered, or that her dead body had been found or seen by any one, but that from the lapse of time since the child and her mother were last seen, and from other facts and circumstances, he should ask the jury to infer and presume and ilnd that the infant daughter was dead and that she was murdered by the prisoner. " The prisoner's counsel, on this, moved the court to stop the trial, for want of proof of the corpus delicti; that the rule laid down by Lord Hale, that no person should be convioted of murder or manslaughter unless the facts were proved to be done or at least the body found dead," is the rule universally acted upon by our courts, and I 2 p. C. 390. m-w 940 CRIMES AOAIN8T TMB PERSONS OF INDIVIDUALS. should never be departed from. The judge reserved the question ti the evidence should be closed. The prosecution gave proof tending to show that the prisoner di not live happily with his wife ; that his wife and infant daughter wei seen alive and well on the evening of June 24, 1845, by a woman wli lived across the road from Ruioft's house. No person shows tbi either of them has been seen since. The next day Ruloft borrowed wagon from a neighbor and took into it a box from his own hou* which the neighbor helped him to place in the wagon ; he drove oft wii it — where, is not shown; on the following day he returned with tl wagon and box. It was shown that he had in his possession a rii which his wife had worn on the twenty-fourth, and a shawl and son other articles of her apparel ; that he told stories as to her being sundry places where she was proved not to have been, and general conducted himself in such a way as to lead strongly to the inferen that he was the author of whatever had happened to his wife and chil if anything had, in fact, happened to them. In the house clothes we found lying about in disorder, dishes unwashed, a skirt lying in a cir< at the foot of the bed, and shoes, stockings and diapers. It was swo that Ruloff had a east iron mortar of twenty-five or thirty poum weight, and flat irons, which on searching the house were not foun He absconded and was in Chicago, early in August, under afal name ; there said his wife and child had died six weeks before on t Illinois River, in niinois, and left a box containing books, papers a articles of woman's apparel, which had belonged to Mrs. Ruloff, paper on which were the words, " Oh, that dreadful hour ! " and a lo of light brown hair in another paper, labeled " A lock of [Harriet's Mary's] hair ; " the witness thought the word was " Harriet's." At the close of the evidence, the prisoner's counsel renewed motion, made at the opening of the cause, and insisted that, as it n appeared that no direct evidence of the death or the murder of I infant daughter had been given, no conviction for murdes could properly had or allowed, and that the jury should be so advised a and instructed, and should be directed to find a verdict of not guil The judge refused so to advise, direct and instruct the jury, and to refusal the prisoner's counsel excepted. The judge then charged the jury. After explaining t* j legal ueii tion of murder, and the legal presumption of in' in favor of prisoner, and the duty of the prosecution, befc j could right f ask a conviction, not only to prove the allegi nurder, but alsu establish by evidence the guilt of the prisoner beyond auy rsasona doubt, he proceeded as follows: "The first branch of the case, corpus delicti, as it is termed in the law, by which is meant the b( 3F INDIVIDUALS. RULOFF V. PEOPLE. e4i e reserved the question till show that the prisoner diil e and infant daughter wen 24, 1845, by a woman who se. No person shows that next day Ruloft borrowed a a box from his own houM, le wagon ; he drove off with ig day he returned with the ad in his possession a ring urth, and a shawl and some d stories as to her being at have been, and generally d strongly to the inference )pened to his wife and child, In the house clothes were ihed, a skirt lying in a circle and diapers. It was sworn wenty-five or thirty pounds : the house were not found. Y in August, under a false jied six weelcs before on the lontaining books, papers and belonged to Mrs. Ruloff, a 1 ; dreadful hour I " and a lock ed " A lock of [Harriet's or ord was *• Harriet's." (Oner's counsel renewed bis and insisted that, as it nov leath or the murder of the iction for murdes could be Y should be so advised and find a verdict of not guilty. instruct the jury, and to bis r explairing tt j legal uiimi- of ir'^ in favor of the befc J could right f j allegi nurder, but alsu to soner bc} uod auy reasonable irst branch of tbe case, tbe by which is meant the body of the crime, the fact that a murder has been committed, must be clearly and conclusively proved by the government. The corpus delicti \% mads up of two things : first, of certain facts forming the basis of the corpus delicti, by which is meant the fact that a human being has been killed ; and secondly, the existence of criminal and human agency as the cause of the death. Upon this first branch of the case, the prifmner's counsel Insists that it can only be proved by direct and positive evidence ; that the government must prove the fact of death by 1 witnesses who saw the killing, or at least the dead body must be found. It has been said by some J dges, that a conviction for murder ought never to be permitted unless the killing was positively sworn to, or the I dead body was found and identified. This, as a general proposition, is undoubtedly correct, but, like other general rules, has its exceptions. It may sometimes happen that the dead body can not be produced, I although the proof of death is clear and satisfactory. A strong case in illustration is that of a murder at sea, when the body is thrown over- board in a dark and stormy night, at a great distance from land or any vessel. Although the body can not be found, nobody can doubt that the author of such crime is guilty of murder. In such a case the law permits the jury to infer that deatli lias ensued from the facts proved ; the circumstances being such as to exclude the least, if not almost every probability, that such a person could have escaped with life ; and yet there is a bare possibility in suoh a case that the person may have I escaped with life. 'I am of opinion that the rule, as understood in this country, does I not require the fact of death to be proved by positive and direct evi- dence in cases where the discovery of the body, after the crime, is I impossible. In such cases the fact may be established by circumstances where the evidence is so strong and intense as to produce the full cer- tainty of death. By the proof of a fact by presumptive evidence, we are to understand the proof of facts and circumstances from which the existence of such fact may be justly inferred. The facts and circum- stances to establish the death in the case of murder, in the absence of any positive evidence, must be so strong and intense as to produce the full certainty of death, or, as Mr. Wills says, ' the death may l)e inferred from such strong and unequivocal circumstances as render it morally certain, and leave no ground for reasonable dbubt.' The gov- I emment claim that they have proved the body of the crime, in the case under consideration, up to the strictest requirements of the rule. This I is for you to determine. The determination of it involves the examina- I tion of all the facts and circumstanoes disclosed by the evidence in the case." Aftc- then, observing briefly upon some parts of the evidence, the - t» iim t K nmmmmm .mm 942 CRIMES AGAINST THE rSBSONS OF INDIA'IDUALS. judge coDcluderl bis charge by stating the rule that should gov in their ultimate conclusion, as follows: " In regard to the fin of the case, the establishment of the corpus delicti, the bod; crime, before you find it against the prisoner you must be satis: the evidence in the case that it is established by presumptivo of the most cogent and irresistible kind, that is, established bj stances proved, so strong and intense aa to produce the full cci death. " In regard to the second branch of the case, by which we traverse between the government and the prisoner, as to the of his guilty agency in the commission of the alleged murd this question, the rule is, that the government are required, be can claim a conviction, to prove by their evidence the guilt of oner, beyond any rational doubt. If, upon a full and delibe sideration of all the evidence in thf o'ase, doubts remain in t of the jury, it is their duty to acquit. Upon this branch of the doubts, however, which require an acquittal, should be doubts. They are not doubts which may arise in a speculati after the reason and judgment are thoroughly convinced in thi The defendant's counsel excepted to so much and such pai charge anO instructions given to the jury as submits to then presu'ue and find, with ut direct proof, the death and the i the infant daughter of the defendant. llie question presented to us, therefore, is whether there is law., in respect to the proof in cases of homicide, which does r a conviction without direct proof of the death, or of the or other act of the dej ;ndant which ia alleged to have produc If it be objected .that such a rule may compel the acquit whom the jury are satisfied is guilty, the answer is, that the exists, must be regarded as part of the humane policy of th law, whicU aflSrms that it is bettt^r that many guilty should es that one innocent should sufier; and that it may have its foundation in the idea, t\:,n where direct proof is absent, as 1 fact of death and of criminal violence capable of producing evidence can rise to the degree of nroral certainty, that the is dead by criminal intervention, or even lead by direct in those results ; and that where the fact of death is not certs tained, all mere inculpatory moral evidence wants the key for its satisfactory interpretation, and can not be depended nish liiore than probable results. It may be also, that such some reference to the dangerous possibility that a genei ception of guilt, or a general excitement of popalar feeling, in, to lupply the evidence, if, upon other than direct proo^ 5N8 OF INDIVIDUALS. RULOFF V. PEOPLR. 943 the rule that should govern them 1 : "In regard to the first branch corpus delieth the body of the -isoner you must be satisfied from Wished by presumptive evidence d, that is, established by circum- j as to produce the full certainty of I t the case, by which we mean the | d the prisoner, as to the question on of the alleged murder ; as to 1 remment are required, before they I leir evidence the guilt of the pris- 1 f , upon a full and deliberate con- ' jase, doubts remain in the minds | it. Upon this branch of the case, I an acquittal, should be rational I 1 may arise in a speculative mind, oroughly convinced in the cause." to so much and such parts of the B jury as submits to them to infer, roof, the death and the murder of | pfore, is whether there is a rule of at homicide, which does not permit of the death, or of the violence is alleged to have produced death. le may compel the acquittal of one f, the answer is, that the rule, if it ' the humane policy of the common hat many guilty should escape than md that it may have its probable lirect proof is absent, as to both the nee capable of producing death iroral certainty, that the Individual »r even lead by direct inference tc fact of death is not certainly ascer- evidence wants the key necessary and can not be depended on to fu^ It may be also, that such a rule h*" possibUity that a general precon- Bment of popuUtt feeling, may creep a other than direct proof of death, or a cause of death, a jury are permitted upon whatever evidence may be presented to them, competent on any part of the case, to pronounce a defendant guilty. I proceed, therefore, to consider whether any such rule Is to be found in the common law. Lord Hale says: " I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead, for the sake of two cases — one mentioned in my Lord Coke's Fleas of the Crown,^ a Warwickshire case; ai^otber, that happened in my remembrance, in Staffordshire, where A. was long missing, and upon strong presumptions B. was sup- posed to have murdered bim, and to have consumed him to ashes in an oven that he should not be found, whereupon B. was Indicted for mur- der, and convicted and executed, and within one year after A. returned, being, indeed, sent beyond sea by B., against his will, and so, though B. justly deserved death, yet he was really not guilty of that offense for whicb he suffered."' It forms part of the chapter in which he treats of " evidence requisite, or allowed by acts of Parliament, and presumptive evidence. ' ' Considering the law of evidence first in treason, requiring two witnesses, then upon indictment for murder against the mother of a bastard child, where by act of Parliament the mother of such a child, concealing its death, was to suffer as in murder, unless she proved by one witness that the child was born dead, and next, the sub- ject of presumptive evidence, he says: *' In some cases presumptive evidences go far to prove a person guilty, though there be no express proof of the fact to be committed by him ; but then it must be very warily pressed, for it is better five guilty persons should escape unpun- ished than one innocent person should die." This observation he fol- lows by a case illustrative of his meaning, where one was executed for stealing a horse, which was proved to have been stolen, the prisoner was found in possession of the horse, " a strong presumption that he stole him," and yet it afterwards appeared that another person stole the horse, and that the prisoner's possession was innocent. He 'proceeds : " I would never convict any person fo.' stealing the goods oi a person unknown, merely because he would not g fe an account how he came by them, unless there were due proof made that a felony was committed of these goods." Then follows the passage first cited, which is the earliest statement of the doctrine for which the defendant contends. When this was written, a prisoner charged with murder or any in- ferior felony, was neither allowed the advantages of sworn wltneiset, or the full aid of counsel, and it is therefore quite apparent upon the whole passage that Lord Hale was here stating, not what prudential iom>.iM,p.53a. *S Hale's p. O.SM. 944 CBIME8 AGAINST THE PERSONS OF INDIVIDUALS. ii' principles ought to govern the action of individual jurors in weighing evidence, but what, acting as judge, and exercising the control which Judges were then uccustomed to exercise, he would govern them by. The case cited in Coke was of an uncle who brought up his niece, whose heir at law he was. He correcting her on some occasion she was heard to cry out, "Good Uncle, kill me not," and afterwards disap- peared and could not be found. He was arrested on suspicion, and to avert this, produced as his niece another child of similar appearance. The imposition was detected, and he, being indicted, was on trial, con- victed on these circumstances and executed. The niece afterwards made her appearance, and was proved to be the true child. Lord Coke reports this case, as he says, to the end that judges, in case of life and death, judge not too hastily on bare presumption. In Hindmarah'a Caae,^ the indictment for murder of a ship oaptidn contained two counts, one for killing by beating, the other for drown- ing. The fact happened at sea ; a witness proved that he was awakened at midnight by a violent noise ; that on reaching the deck, be saw the prisoner take the captain up and throw him overboard into the sea, and that he was not seen or heard of afterwards. Another witness proved that the witness proposed to one Atkyns to kill the captain; and another proved that on the deck, near where the captain was seen, a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood. Oarrow, of counsel for the prisoner contended, citing the passage from Hale, that the prisoner was entitled to be acquitted for want of proof of the death, as he might have been picked up by some other ship. He cited a case before Justice Gould, iHiere the mother and reputed father of a bastard child took it to the margin of a dock in Liverpool, stripped it and threw it in. The body of the child was not afterwards seen ; and as the tide ebbed and flowed in the dock, the judge, observing to the jury that the tide might have carried out the living infant, directed them to acquit him. The court, which consisted of Sir James Marriott, Judge of Admirality, Mr. Justice Ashurst, Baron Hotham, and others, admitted the general rule of law ; and Mr. Justice Ashurst left it to the jury, on the evidence, to say whether the captain was not killed before his body was thrown into the sea. The jury found the fact to be so. The case came aftti- wards before all the judges, who held the conviction to be right, and the prijioner was executed. Blaokstone says,' all presumptive evidence of felony should be ad* mitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent sutler ; and Sir Matthew Hale, in iSIiMOli'aOr.L.S«e. > i Com. SB8. fDIVIDUALS. BULOFF V. PEOPLE. 949 lual jurors iu weighing sing the control which \ld govern them by. brought up his niece, some occasion she was and afterwards disap. id on suspicion, and to •f similar appearance, ited, was on trial, con- The niece afterwards ;rue child. LordColce l^es, in case of life and I. rder of a ship captain f, the other for drown- d that he was awaliened g the deck, he saw the board into the sea, and Mother witness proved kill the captain; and le captain was seen, a I part of the prisoner's iunsel for the prisoner le prisoner was entitled as he might have been before Justice Gould, rd child took it to the hrew it in. The body tide ebbed and flowed it the tide might hare quit him. The court, > of Admirality, Mr. kitted the general rule lury, on the evidence, his body was thrown The case came after- iction to be right, and felony should be ad> letter that ten guilty 1 Sir Matthew Hale, in partionlar, lays down two rules most prudent and necessary to be ob- served: (1) Never to convict a man for stealing, etc. ; and (2) never to convict any person of murder or manslaughter, till at least the body be found dead. In Regina v. Hopkina,^ a won? an was indicted for the murder of her illegitimate child. It was born March 23, and sent to a nurse, where it remained until April 7, when the prisoner took it away, stating an intention to go to her father's. She was seen the next day at several times, the latest being at six in the evening, with the child in her arms on the way to her father's. Between eight and nine she arrived there without the child. The dead body of a child was found on the 13th, in a river near the place where she was last seen with her child, which upon proof of its age and appearance was shown not to be her child. Lord Abdtoer, after stating the particulars of this latter proof, added, " with respect to the child which really was the child of the prisoner, she can not by law be called upon (hither to account for It or say where it is, unless there be evidence to show that her child it actually dead," and directed an acquittal. In bhe Case of Videtto,'' Walworth, C. J., sajrs: " One rule which ought never to be departed from is, that no one should be convicted of murder upon circumstantial evidence, unless the body of the person supposed to have been murdered has been found, or there be other clear and irresistible proof that such person is actually dead." It docs not appear that this direction was material on that trial, and it is cited only to show how constantly the doctrine has been receiyed as clear and undisputed law. In the Case of WUson,^ the cook of the steamer Endora was indicted for the murder of the captain upon Long Island Sound; after five months a body floated on shore, which the prosecution claimed was shown to be that of the murdered man. Strong, J., who presided at the trial, charged the jury, " that ordinarily there could be no convic« tion for murder until the body of the deceased was discovered. That there were several exceptions to the rule, however, as where the murder has been on the high seas, at a greaf distance from the shore, and the body had been thrown overboard, or where the body had been entirely consumed by flre, or so far that it was impossible to identify it But, in the present case, the scene of the supposed tragedy was near the shore, and there was strong reason to suppose that if a murder had been committed, the body of the deceased would be discovered. The exception to the rule is therefore inapulicable, and the jury must be 18C.AP.S91. ssPuk-ooe. S8PMrk.0r. B.a07. 946 CRIMES AGAINST THE PEK30N8 OF IXDIVIDUALS. satisfied that the body discovered was that of the murdered captain, before they could convict the prisoner." In Tawell's Case,^ Baron Parke, told the jury, that " the only fact which the law requires to be proved by direct and positive evidence is the death of the party by finding the body, or, when such proof is absolutely impossible, by circumstantial evidence leading closely to that result — as where a body was thrown overboard, far from land, when it is quite enough to prove tliat fact without producing the body." These are the cases in which the rule contended for by the defendant has been recognized as the clearly acliuowledged law regulating the pro- duction of evidence, in cases of homicide. No case is to be found which has been determined the other way. That no more reported cases contain the rule, is to be accounted for on the ground that the doctrine baa been universally acted on and acquiesced in, while it is equally certain that any case departing from the rule would not have escaped observation. A great deal of strong general language has been used by judges in respect to the power of clroumstantial evidence to afford suflacient ground to warrant conviction, and many instances of this have been cited and are relied on by the prosecution. Most of those expressions have been used, in answer to the position that circumstantial evidence ought not to be relied on to prove any part of the case for the prose- cution. But I have not found any case in which a judge, speaking directly to the point here involved, has said that without direct evidence on either branch of the corpus delicti a conviction for murder could be allowed. The cases contained in The Theory of Presumptive Proof, for a con- siderable time after its publication, formed the basis of repeated attacks upon the value of circumstantial evidence for any purpose of inc ilpa- tion in criminal cases. It was to dispel this error that judges often had occasion, and sometimes took occasion, to vindicate its employment. But that the general language thus employed was not intended, by those who used it, to conflict with the rule for which the defendant in this case contends, is fairly to be inferred. In Cowen & Hill's Notes to Phillips,' after a review of the cases con- tained in The Theory of Presumptive Proof, and sustaining in the strongest manner, the general value and importance of circumstantial evidence against the attacks upcn it, as well those contained in the work mentioned as those founded upon the cases which that work first col- lected, the authors say : '* In these cases of homicide, the precaution of Lord Hale seems to be enough for laying the foundation of circumstan- 1 WUl'B Cir. Et. (Sd ed.) 181. 3 Vol. 1, p. 304. 9. ed captain, e only fact evidence is sh proof is ; closely to from land, tliebody." e defendant ling the pro- be found ported cases the doctrine t is equally ive escaped >y judges in rd sufficient t have been expressions :ial evidence r the prose- ;e, spealiing ■ect evidence ier could be if, for a con- iated attacks B of inci lipa- ses often had employment, intended, by iefendant in le cases con- fining in the ircumstantial 1 in the work ork first col- )recaution of ! circumstan- RULOFF V. PEOPLE. 947 tial evidence, citing in terms the rule. A departure from this important suggestion, which is now universally acted upon, was a capital error in Miles' Case, before cited from the above named work. The body being afterwards found, it plainly appeared that the death was accidental. The judge should have stopped the pro&ecution. In the two illustra- tive cases cited by Hale, one of the persons supposed to have been murdered, was sent on a long sea voyage, and the other had run away. The rule that th^ body must be found dead, is adhered to with great strictness in the English courts." No one was better qualified than Judge Cowen, both by long experience and great learning, to speak of what rules were universally acted on in the courts of England and of this country. It is quite plain, too, that his general remarks on the value of circumstantial evidence must in his own view have been consistent with the rule which he thus lays down and approves. In the next place, I proceed to consider the principal cases relied on for tlie People. Mr. Justice Washington, in United States v. Johns,^ says: "That the prisoner perpetrated the act, or directed or procured it to be done, positive evidence is not necessary. Circumstantial evidence is suffi- cient, and is often more persuasive to convince the mind of the exist- ence of a fact than the positive evidence of a witness, who may be mistaken ; whereas a concatenation and a fitness of many circumstances made out by different witnesses, can seldom be mistaken, or fail to elicit the truth. But then those circumstances should be strong in themselves, should each of them tend to throw light upon and to prove each other, and the result of the whole should be to leave no doubt upon the mind that the offense has been committed, and that the accused and no other could be the person who committed it." The defendant was on trial for casting away a ship. That augur holes had been found in her bottom, which nearly sunk her, was proved by pumping her out and bringing her to port. The whole question of fact was the personal guilt of the accused. The remarks are just; indeed they are cited by Judge Cowen with approbation in the same note before referred to, and are followed by his statement of the rule, in cases of homicide, as to proof of the fact of death. The same remarks are applicable also to Jacobson's Case,^ where Mr. Air. Justice Livingston is reported to have srid : " The rule in this court, even in capital cases, is, that should the circumstances of a case be suffi- cient to convince the mind and remove every rational doubt, the jury is bound to place as much reliance on such circumstances as on direct 1 1 Wash. C. C. 388. !aCit7HanU«e.l31,14S 948 CRIMES AGAINST THE PERHONS OF INDIVIDUALS. and positive proof, for facts and circumstances can not lie." Tliis was also in a case of casting away a ship, and the only question was of the personal guilt of the defendant. It was no way necessary for the judge's argument, nor required by fairness to the defendant, that he should stop to state an exception as to the fact of death in murder. In the Case of Burdelt^he question was whether a libel had been published in a certain place ; and the observations of the judges are, of course, to be construed >vith reference to the point before them. All the judges speak of the necessity of a resort to presumptive evidence, and recognize the fact that, even in cases of murder, a great part of the convictions rest upon that sort of evidence to establish the guilt of the accused; but Abbott, C. J., only notices that kind of nroof in its application to the fact of death. Speaking of the ca«;e8 of supposed murder mentioned by Lord Hale, which, as he says, have sinoo oper- ated as a caution to all judges, he observes: " In those cases there was no actual proof of the death of the person supposed to have been slam, and consequently no proof that the crime of murder had been commit ted " From nothing which is said, or omitted to be said, in that case can it be fairly inferred that any of the judges denied the correctness of the rule stated by Lord Hale. What was said by Mr. Justice Best comes nearest to the purpose for which it was cited on the part of the People. He said : " Until it please.^ Providence to give us means beyond those our present faculties afford of knowing things done in secret, we must act on presumptive proof, or leave the worst crimes unpunished. I admit, where presumption is raised as to the corp«» ddicti, that it ought to be strong and cogent." The corpus dehcU, in murder, is a compound fact, made up of death as result, and criminal agency of another person as means; and, therefore, if he had been speaking of murder, he might have employed this expression without intending to deny the rule that as to one or the other branch of the crime there must be direct evidence. But it was in no way necessary, or conducive to the argument he had in hand that he should be minutely accurate on the point before us, for, in the case of which he was speak- ing the corpus delicti, the publication of the libel by the defendant, was acbnitted, and the presumptive proof which he had sustained related only to the place of publication. What was said by Mr. Justice Park, in Rex v. Thurtell, tried for the murder of Wenrc, which is quoted in the opinion of Mr Justice Mason, was said in a case where the body of the defendant had been found recently dead, and was intended to answer the address of Thur- teU to the jury, which had mainly turned on certain cases which we 1 4 Barn. & Aid. liil. ^rfa .8. RULOFF V. PEOPLE. 949 " This was 1 was of the sary for the lant, that he murder. )el had been udges are, of ) them. All ive evidence, xt part of the 3 guilt of the nroof in its of supposed e sino'j oper- aes there was ire been slain, been commit I, in that case e correctness y Mr. Justice Dn the part of five us means hings done in worst crimes to the corpus rpus delicti, in , and criminal he had been ession without branch of the vay necessary. Id be minutely he was speak- lefendant, was itained related urtell, tried for of Mr Justice ddant had been dress of Thur- ;ases which we read, exhibiting the fallibility of circumstantial evidence.' It affords uo inference that he denied the rule of Lord Hale. In United States v. Gilbert,^ an indictment for robbery on the high seas, Judge Story, in summing up, adverted to certain cases which had been cited to show tlie danger of relying on presumptive evidence, in capital cases, as sufficient proof of guilt. He says: "They are brouglit to establish these propositions on trials for murder: (1) That there ought to be no conviction for murder unless the murdered body is actually found; (2) that men have been convicted of murder on false testimony. The first proposition certainly can not be admitted as correct, in point of common reason or of law, unless courts of justice are to establish a positive rule to screen persons from punishment, who may be guilty of the most flagitious crimes. In the case of mur- ders on the high seas the body is rarely if ever found, and a more com- plete encouragement and protection for the worst offenses of this sort could not be invented than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas." Strong as this language is, I find in it no support for the idea that, in the absence of ahy direct evidence showing that anybody has been killed, and accounting for the absence of the dead body, it is to be put to a jury to find, according to their belief, that a murder has or has not been committed. The other cases cited for the prosecution, People v. Tliorn,^ Com' monwealth v. Harman,* State v. Turner^ and Commonwealth v. Web- ster,^ except that last mentioned, were cases in which the fact of death was clearly established by finding the body ; and in Webster's Case the identification of the remains as those of Dr. Parkman was the vital fact on which the success of the prosecution depended. I proceed to consider briefly what has been written by elementary writers on this subject. Mr. Starkie,'' under the rule which he lays down, that it is essential that the circumstances should to a moral certainty actually exclude every hypothesis, but the one proposed to be proved, says, "Hence results the rule in criminal cases, that the coincidence of circumstances tending to Indicate guilt, however strong and numerous they may be, avails nothing, unless the corpus delicti, the fact that the crime has been actually perpetrated, be first established. So long as the least doubt exists as to the act, there can be no certainty as to the criminal agent. Hence, upon charges of homicide, it is an established rule that the 1 8 Ohron. of Crime, Lond. 1841, p. 85. • 1 Wright, 90. > 3 Snmn. 27. • S Cnah. 810. > 6 L. R. M. T 1 stwk. Bt. S7S. 4 4 Banr. 968. 950 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. accused shall not be convicted unless tlie deajih be first distinctly proved either by direct evidence of tlie fact or by inspection of the body — a rule warranted by melancholy experience of the conviction and execu- tion of supposed offenders, charged with the murder of persons yho survived their alleged murderers ; as in the case of tlie uncle, cited bj- Sir Edward Coke and Lord Hale." On the subsequent page of the same work, when speaking of the proof of the death of the person specified in the indictment, as having been murdered, he says: " It has been laid down by Lord Hale, as a rule of prudence in cases of murder, that, to warrant a conviction, proof should be given of the death, by evidence of the fact, or the actual finding of the body. But although it be certain that no conviction ought to take place unless there be most full and decisive evidence as to the death, yet it seems that actual proof of the finding and identifying ofltbe body is not absolutely essential. And it is evident that to lay down a strict rule to that extent might be productive of the most horrible con- consequences." ^ Hindmdrsh'a Case is then stated by him, thus illus- trating the meaning of the expressions he has just employed, and the allowable exposition of the terms of Lord Hale's rule. Having finished the discussion of the proof of the corpus delicti, he proceeds: "When it has been clearly established that the crime of willful murder has been perpetrated, the important fact whether the prisoner was the guilty agent is, of course, for the consideration of the jury, under all the circumstances of the case." * It is in this con- nection, and with reference, I think, mainly, if not exclusively, to this branch of the inquiry that he observes that "it is essential to the security of mankind that juries should convict, when they can do so safely and conscientiously, upon circumstantial evidence which excludes all reasonable doubt, and that it should be .well known and understood that the secrecy with which crimes are committed will not secure im- punity to the criminal. ' ' ^ Specifying, under this head, among the topics of circumstantial evidence pertinent to the inquiry, the conduct of the prisoner in seeking for opportunities to commit the offense, or in using means to avert suspicion and remove material evidence, he adds: "The case cited by Lord Coke and Lord Hale is a melancholy instance to show how cautiously proof arising by inference from the conduct of the accused is to be received, when it is not satisfactorily proved by other circumstances that a murder has been committed ; and even when satisfactory proof has been given of the death, it is still to be recollected that a weak, inexperienced and injudicious person 1 2 stark. Ev. 710. * I*. 719. > Id. 720. ,s. ictly proved le body — a and execu- lersons rho le, cited by king of the t, as liaving , Hale, aa a conviction, tr the actual iction ought ce as to the fying oflthe lay down a lorrible con- I, thus illus- fred, and the 19 delicti, he ;he crime of whether the ideration of in this con- vely, to this ntial to tlie y can do so lich excludes I understood it secure im- , among the the conduct e offense, or evidence, he k melancholy ice from the latisfaetorily raitted; and , it is still to iious person RULOFF V. PEOPLE. 9S1 will often, in hope of present relief, have recourse to deceit and misrepresentations." * Having explained himself fully as to the proof of the corpus delicti in another place, it was not necessary, to avoid misconception, for him to inweave that distinction into this passage, and it ought not to be talsen to qualify what has been before carefully stated. Indeed, his language, attentively considered, requires no modification, for he dis- tinguishes between the proof of the murder — of both branches of the corpus delicti — and proof of the death alone. In Russell on Crimes," it is said: " It has been holden as a rule that no person should be convicted of murder, unless the body of the de- ceased has been found ; and a very great judge says : ' I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body be found dead.' But this rule, it seems, must be taken with some qualifications ; and circumstances may be sufficiently strong to show the fact of the murder, though the body has never been found." The rule which is thus qualified is that which prohibits a conviction unless the body be found, not tiie rule stated by Lord Hale. This appears by what immediately follows in illustration, a statement of Hindmarsh's Case, which tlie defendant's counsel admits to be cor- rectly decided. In that case the violent noise which awakened the witness, the blood on the deck and the prisoner's clothes, the billet of wood lying by, and the actual casting into the sea, made a satisfactory case of prodf under Lord Hale's rule. Greenleaf says: ^ "It is seldom that either the corpus delicti or the identity of the prisoner, can be proved by direct testimony, and, there- fore, the fact may lawfully be established by circumstantial evidence, provided it be satisfactory. Even in the case of homicide, though ordinarily there ought to be the testimony of persons who have seen and identified the body, yet this is not indispensably necessary in cases where the proof of death is so strong and intense as to produce the full assurance of moral certainty." For this proposition. Wills on Circumstantial Evidence,* is referred to, and Hindmarsh's Case is cited as an example. Such judicial obser- vations as are referred to, in the places cited in Wills, were made by judges with reference to the further proofs of crime, after the fact of death had been fully established by direct and unequivocal evidence. The only case cited in which any rcl^ation of the rule — that the body must be found — has taken place, is Hindmarsh's, and that, as we have seen, stands upon satisfactory grounds, there being direct and unequivo- 1 Id. 790. » TOl. I., p. 473. 8 s Greenl. Ev., see. tO. < pp. UT, 163. 952 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. cal proof of what was done with the man or his body. He proceeds: " But it must not be forgotten that the books furnish deplorable cases of the conviction of innocent persons, from the want of sufficiently certain proofs, either of the corpus delicti, or of the identity of the prisoner. It is obvious that, on this point, no precise rule can be laid down, except that the evidence ' ought to be strong and cogent,' and that innocence should be presumed until the case is proved against the prisoner, in all its material circumstances, beyond any reasonable doubt." I '♦The corpus delicti, or the fact that a murder has been committed, is BO essential to be satisfactorily proved, that Lord Hale advises that no person be convicted of culpable homicide unless the fact were proved to have been done, or at least the body found dead. Without tliis proof, a conviction would not be warranted, though there were evidence of conduct of the prisoner exhibiting satisfactory indications of guilt. But the fact, as we have already seen, need not be directly proved, it being sufficient if it be established by circumstances so strong and intense as to produce the full assurance of moral certainty." ^ " § 132. The most positive and satisfactory evidence of the fact of death is the testimony of those who were present when it happened, or who, having been personally acquainted with the deceased in his life- time, have seen and recognized his body after life was extinct. This evidence seems to be required in the English House of Lords, in claims of peerage, and, a fortiori, a less satisfactory measure of proof ought not to be required in a capital trial. ♦' § 133. But though it is necessary that the body of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence, if the circumstances be such, as to leave no rea- sonable doubt of the fact. Where only mutilated remains have been found, it ought to be clearly and satisfactorily shown that they are the remains of a human being, and of one answering to the size, age and description of the deceased ; and the agency of the prisoner in their mutilation, or in producing the appearances found upon them, should be established." The question will be found further discussed in Best on Presump- tions,3 Wharton's American Criminal Law,* Wills on Circumstantial Evidence,^ and in Burrill on Circumstantial Evidence.« The last writer states, as his conclusion, that the fact of death, when the body can not be found, may be proved by circumstances. It may be inferred, says Mr. Wills, from such strong and unequivocal circumstances of jwe- 1 8 Greenl. Et., Bee. SO. * S Greenl. Ev., see. 131. 3 pp. 271-276. « pp. 283-287. » pp. 1S6-170. •pp.«78-68l>. L8. STATE V. GERMAN. 953 [e proceeds: lorable cases f BUfQciently sntity of tlie rule can be and cogent,' ■oved against ly reasonable ;ommitted, is Ivises that no ere proved to jt this proof, i evidence of ns of guilt. tly proved, it > strong and .» a )f the fact of happened, or ;d in his life- xtinct. This rds, in claims f proof ought e deceased be )ved by direct leave no rea- ins have been t they are the size, age and isoner in their lem, should be , on Fresump> Circumstantial rhe last writer body can not inferred, saya tances of {re- sumption OH render it morally certain, and leave no ground for reason- able doubt." In illustration Hindmarah'a Case is again referred to, and, it may be assumed, to show what is meant by the expression so constantly used, " such strong and unequivocal circumstances of pre- sumption as render the fact morally certain, and leave no ground for reasonable doubt." He says, further: •' A dead body, or its remains, having been discovered and identified as that of the person charged to have been slain, and the basis of a corpus delicti being thus fully estab- lished, the next step in the process, and tlie one which serves to com* plete the proof of the indispensable preliminary fact, is to show that the death has been occasioned by the criminal act or agency of another per- son. This may always be done by means of circumstantial evidence, including that of the presumptive kind ; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death ; and all the circumstances of the case, including facts of con- duct on the part of the accused rotiy be taken into consideration.^ If what is said by these writers is to be taken as intimating their opinion that Lord Hale's rule may be departed from, I find no judicial authority warranting the departure. The rule is not founded in a denial of the force of circumstantial evidence, but in the danger of allowing any but unequivocal and certain proof that some one is dead to be the ground on which, by the interpretation of circumstances of suspicion, an accused person is to be convicted of murder. We are of opinion that the judge, at the trial, erred, and that he should have directed an acquittal. Roosevelt, J. , dissented. Judgment reversed and new trial ordered. homicide — corpus delicti must be fboved— confessions. State v. German. [54 Mo. 526; 14 Am. Rep. 481.] In the Supreme Court of Missouri^ 1874. I. A Oonvlotion of Mnrder is not warranted when there la no proof of the eorpiu dttteHt bat the nnoorroborated extra-Jndicial oonfasBlon of the accnied. Burr, on Oir. Et. 682; Best on Presom., see. SOS : WUIa' Olr. Et. 168. 2U CRIMES AGAINST THE PERSONS OF INDIVIDUALS. .. Defendant wa. Indicted for t,.c --J'-:^;;/," r„ro^T.rart^or^^^^^^^^ ,„re. NO remain, of 0. wore found^ nor w«. '^^^^^;'^"^^J^^^^ ,„,.,« to the offloor the confession was not ailmlaalble. Indictment for murdor. The opinion states the case. Jamea F. Hardin and D. A. Harrison, for plaintiff in error. 1. The court erred in admitting any evidence. There was no proof offered tending to prove that Canaday was dead, and w.thout proo of the death, there could be no conviction.^ The confession could n..t be used to prove the corpns delicti. See above cases. , ,.„ , 2 The court erred in admitting the evidence of confessions testified to by the witness, C. W. Mallory." H Clay Etoing, Attorney-General, for defendant In error. Waoker J. The defendant was Indicted In the Circuit Court for Jj:Zl': first degree, in killing one Canaday. On the «rst trial Ije was convicted of the offense with which he stood charged but on h motion that conviction was set aside, and being again put upon his trial he was found guilty of murder in the second degree The testimony, as preserved In the bill of exceptions, shows, in brief, that the defendant and Canaday lived together, C«°;f ^ ^^^^^ "^"^^ defendant's wife's mother ; that on the day on which Canaday disap- peared, the two started together In a wagon, to a corn field where they were working, about two miles distant. In the evemng, when defendant r^urned, he was alone, and when Inquired of concerning Canaday, he said that a couple of men came along where they we. e at work, and gave the old man a drink of whisky, and he went off with Them Thfre was nothing unusual about defendant's actions a„d appearance, and he uniformly told the same story in reference to "^ A^tC Crof several months. In the woods betwc the house where defendant lived and the field where he went to work when he was accompanied by Canaday, a pair of old boots and some other Ithingwere found and also some bones. An attempt was made to identify the boots and clothing as those belonging to and worn by Cana- day, but the evidence only showed that they were similar, no witness swearing to a positive Identification. Nothing was done toward arrest- ing the defendant or fastening the alleged crime upon bim, and in about 1 Whart. Am. Or. L., sees. 746, 746 ; State v. Robinson, 12 Mo. 692; SUte ». Scott, 89 Id. 429; 1 Chit. Or. L. 663; 8 /d.730; 1 KusB. on Or. 667, B68; I Greenl. Bv., sec. 217. 2 iQreenl. Ev.,»oc8. 213, 26S; People v. ■Ward, 15 Wend. 231; State v. Hector, 2 Mo. 166 • 1 Phil. Ev. 644 and caaei there cited; Archbold'a Cr. PI. 125, 126; Roscoe's Or. Ev. 34; Joy on Confessions, 38 Law Lib. 59, 61 ■ 7 Ired. (K. C.)239; 2 Humph. (Tenn.1 37; State V. Scott, 39 Mo. 424; State v. Robinson, 12 Id. 692 ; Stata v. Brockman, 46 Id. 866. .s. STATE V. OKKMAN. 955 line month* be- th, other than a lie to the offlcor ihat evidence of rror. was no proof lOUt proof of could not be iions testified jr. uit Court for e first trial be kI, but on his put upon bis lows, in brief, ^aving married anaday disai)- jld where tliey jvening, wben of concerning ■e they were at went off with s actions and 1 reference to vc - the house work when he ad some other )t was made to . worn by Cana- ilar, no witness 5 toward arrest- n, and in about ; caae* there cited; ,, 126; RoBCoe's Or. Ions, 38 Law Lib. 59, Humph. (Tenn.l 87 ; [ ; State V. Robinaon, kmau,46/(l. 966. eight months after Canaday's disappearance ho ohangod his residence, going into Kansas, forty miles distant from where he previously rusldi d. A warrant was afterwards sued out against liim, in Jasper County, charging him with the murder of Canaday, and an officer went and arrested him, in his own house. He accompanied the officer baclc to Jasper Coimty, without any kind of assistance and on the way he was told by one of them that it would be better for him to confess. After he was placed in prison, the officer who arrested him and was deputy sheriff had several conversations with him. The otHcer says that those conversations were confidential ; and upon occasion he says that he had the prisoner completely «' broke." At one of these con- versations, and only one, the prisoner made the confession to him, which was given in evidence. From the officer's statement it seems that the prisoner labored under the impression that there were certain witnesses who were going to swear that he committed the crime. He evidently believed that they would convict him, and ho told the officer that he liad made up his mind not to put the county to any more expense, and that he would plead guilty, and that he killed Canaday. There was a mere admission of killing ; no time, place, or circumstances were given. He wanted the officer to see the judge and use bis influence to have his punishment as light as possible, and then to get up a petition to have him pardoned. The officer promised that he would get up the desired petition, and told him 4hat he thought he coidd be got out of the peni- tentiary, after he had been there a reasonable time. At the time this confidential interview was had, it appears that this same officer was engaged with others in procuring counsel to assist in prosecuting the accused to a conviction, for the purpose of obtaining a reward that had been offered. It appears abundantly clear that, when the prisoner proposed to plead guilty and confessed the crime, he supposed tliat he could plead guilty of murder in the second degree, and that no higher punishment than imprisonment in the penitentiary could be in- flicted upon him under the indictment. But when he afterward saw the indictment and became aware that it was for murder in the first degree, and that a conviction thereon might lead to an execution, he changed his mind, and declared that he would not plead guilty, but would stand his trial. Such is substantially the evidence as shown by the record. It will be observed that there was no evidence whatever that Canaday was murdered except the confession of defendant, and that was made under circumstances which rendered it inconclusive and questionable indeed whether it should have been admitted at all. Confessions are divided into two classes, namely, judicial and extra- judieial. Judicial confessions are tliose which are made before the magistrate or in court, in due course of legal proceedings, and it is 956 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. essential that they be made of the free will of the party, and with full and perfect knowledge of the nature nnd consequences of the confes- sion. Of this kind are the preliminary exan^inations, taken in writing by the magistrate, pursuant to statutes, aud tuo plea of guilty made in open court to an indictment. Either of these is sufficient to found a conviction upon, even if it be followed by sentence of death, they being deliberately made, with the advice of counsel, and under the protecting caution and oversight of the judge. Extra-judicial confessions are those which are made by the party elsewhere than before tiie magistrate, or in court, this term embracing not only explicit and enpress confes- 8ionc> of crime, but all those admissions of the accused from which guilt may be implied. ^ Whether extra-judicial confessions, uncorroborated by any other proof of the corptis delicti, are of themselves sufficient to found a con- viction of the prisoner upon, has not only been doubted, but, in the best considered cases, denied. "In the United States," saya Green- leaf, " the prisoner's confession, when the corpua delicti is not otherwise proved, has been held insufficient for liis conviction ; and this opinion certainly best accords with the humanity of the v;riminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases ; and it seems countenanced by approved writers on this branch of the law." * Wharton, in his treatise on crim- inal law, lays down the doctrine it> equally emphatic terms, and says that proof of the corpi^ delicti, by jlear and satisfactory evidence, must always precede a conviction. He approvingly quotes the language of Lord Hale, where that great judge says: " I would never convict any jjerson for stealing the goods of a person unknown, merely because he would iiot give an account hdw he came by them, unless there were due proof made that a felony had betn committed. I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead."^ A writer of standard excellence has said : " It may be doubted whether justice and policy ever SRnctioned a conviction where there is no other proof of the corp\is delicti than the uncorroborated confession of the party." ** In murder trials the rule laid down by Lord Hale has been generally followed, uamdy that the fact of death should be shown either by witnesses who Wire present when the murderous act was done, or by roof of the body having been seen dead ; or if found in a state of decomposition, or reduced to a skeleton, that it be identified by tests of the most clear and cogent character. These authorities have free uently received the ap- I 1 Greenl. Ev., teo. 313. 1 Id., 800. 217. 8 1 Whart. Or. L., leoc 74S, 740. * WiUa on Oir. Bv., lee. <. [DUALS. STATE V. GERMAN. 957 irty, and with full ces of the confes- , taken in writing of guilty made in Bcient to found a : death, they being ider the protecting al confessi'jns are ore the magistrate, id express confes- jd from which guilt ited by any other mt to found a con- oubted, but, in the ites," says Green- licti is not otherwise n ; and this opinion linal code, and with eighing the evidence nanced by approved his treatise on crim- itic terms, and says 3tory evidence, must otea the language of i never convict any ?., merely because he inless there were due would never convict fact were proved to L writer of standard r justice and poUcy ?r proof of the corpiis party."* In murder 1 generally followed, her by witnesses who ■by roof of the body of decomposition, or of the most clear and sntly received the ap- . L.. sees. 74S, 748. r. Ev., B«o. 6. probation of tliis court. In Robinson v. State,^ Judge Rylund, after examining many of the cases, laid it down as a settled rule, that the confession of a defendant, not made in open court, or on an examina- tion before a committing court, but to an individual, uncorroborated by circumstances, and without proof aliunde that a crime has been com- mitted, would not justify conviction. In the case of State v. Scott,^ which was an indictment for robbery, while the evidence showed that the prisoner was riding in company with an old man, and he declared that he intended to get into a " fuss " with the old man and take his liorse f .'om him, and afterward he was seen riding the horse, and he said he had got into a "fuss" with the old man and took his horse, this was held to be insufficient evidence to wairant a conviction, because there was no corroborative testimony that a crime had been committed. This doctrine was also recognized in the case of State v. Lamb,^ where a conviction for murder was sustained upon a judicial confession by the prisoner, which constituted the only actual proof of the commission of the crimo. But there was a claim of corroborative circumstances from which th. vidence of guilt was irresistible. In the case at bar there is an utter failure to prove the corpus delicti. All the circumstances proved by the State, outside of the confession, xa^y well exist, and still be entirely consistent with the fact that Can- aday was never murdered, and that he is still alive ; that a pair of coarse boots were found similar to his is really no evidence. All boots bought of the store as his were will look alike when worn ; so with the clothes. The belt, which it was fint thought was his, upon a close examination, proved not to be his. Ms. Davi«- the witness with whom he had lived when be was working on tne railroad, and who had mended it for him, when she inspected it, said that his belt was lined by her with a piece from an old calico dress, and that the belt produced and found was lined with bed. ticking and was not his. The confession was made out of court, and lacks the necessary corroboration. It further appears that it was made under a misapprehension, au>! that the prisoner did not have a full knowledge of all the facts, and w..: the consequences that would result therefrom. It is undeniable that the officer to whon. the confession was made was in the prisoner's con- fidence, and exerted a great influence over him, and it may be well doubted whether it was properly admitted in evidence. I think that the demurrer tendered to the evidence by the defendant's counsel should have been sustained, and that the judgment i^bould be reversed and the cause remanded. The other judges concur. Judgmei^ reversed. 1 12 Mo. 692. > 34 Mo. 424. I Ho. 318. 958 CBIMES AGAINST THE PERSONS OF INDIVIDUALS. HOMICIDE— INTENT TO CAUSE DEATH OB BODILT HABM ESSEN- TIAL. Wellar V. People. [30 Mich. 276.] In the Supreme Court of Michigan, 1874. m a ProMoution for Komiolde, where it appears that no weapon was nsed, but that death resulted from a blo\v or a kick not likuly to cause death, the offense is man- slaughter and not murder, although the assault be unlawful and nalicions, unless the respondent did the act with intent to cause death or grieTous bodily harm, or to per- petrate a felony, or some act inyolving all the wickedness of a felony. Erbor to Saginaw Circuit. William. H. Sweet and William A. Clark, for plaintiff in error. Isaac Marston, Attorney-General, for the People. Campbell, J. Plaintiff in error was convicted of the murder of Margaret Campbell, by personal violence committed on July 25, 1873. They had lived together for several months, and on the occasion of her death, she had been out on an errand of her own in the neighborhood, and on coming back into the house, entered the front door of the bar- room, and fell, or was knocked down upon tlie floor. While on the floor, there was evidence tending to show that Wellar told her to get up, and kicked her, and that he drew her from the bar-room, through the dining-room into a bed-room, where he left her, and where she after- wards died. The injury of which she died was inflicted on her left temple, and the evidence does not seem to have been clear how she received it, or at what specific time. It was claimed by the prosecution to have been inflicted by a blow when she first came in, and if not, then by a blow or kick afterwards. Ail of the testimony is not returned, and the principal questions arise out of rulings which depend on the assumption that the jury ini^ht find that her death wns caused by some violent act of Wellar' s ; which they must liave done to convict him. There can be no question but that, if she so camd to her death, he was guilty of either murder or manslaughter. The complaint made against the charge is that a theory was put to the jury, on which they were instructed to find as murder what would, or at least might, be manslaughter. There was no proof tending to show the use of any weapon, and, if we may judge from the charge, the prosecution claimed the fatal injury came from a blow of Wellai-'s fist, given as she entered the house. The judge seems to have regarded it as shown by a preponderance of proof, that the injury v .s invisible when she was in the bar-room, and that the principal dispute was as to how it was caused, whether by a blow, or The disi coiisidci the disti human WELLAR V. PEOPLE. 95» tM £SS£N- B used, bnt that offense Ismin- iouB, nnleiB tbe iarm< or to per- 1 error. B murder of uly 25, 1878. icasion of her eighborhood, or of the bar- While on the her to get up, 1, through the lere she after- sd on her left clear how she le prosecution , and if not, imony is not which depend ,tb was caused one to convict I to her death, jmplaint made on which they east might, be reapon, and, if the fatal injury le house. The ranee of proof, n, and that the by a blow, or kick, or by accident. It also appears that, if inflicted in that room, it did not produce insensibility at the time, if inl!!cted before the prisoner dragged her into the bed-room. It does not api zt from the case at what hour she died. It may be proper to remark that, while it is not desirable to introduce all the testimony into a bill of exceptions, in a criminal case, it is im> portant to indicate in some way the whole chain of facts which tbe evidence tends to prove. Without this, we can not fully appreciate the relations of many of the rulings, or know what instructions may be necessary to be ^er.u down to the court below. The bill before us is full upon some things, but leaves out some things which it would have been bettor to include. T^iion iiy of the theories presented, there is no difficulty in seeing that if Wellar killed tbe deceased, and if he distinctly intended to kill her, his crime was murder. It is not claimed on his behalf that there was any proof which coulr*. reduce the act to manslaughter, if there waa a specific design take life. Upon this the charge was full and pointed, and is not complained of. There was no claim that be had been provoked in such a way or to such an extent as to mitigate tb& intentional slaying to anything below one of the degrees of murder. But it i^ cu..inod that although the injury given was fatal, yet, if not intended i r* vtuce any such results, it was of such a character that the jury might, and probably should, have considered it as resting on different grounds from those which determine responsibility for acts done with deadly weapons used in a way likely to produce dangerous^ consequences. But the charge of the court did not permit them to take that view. It will be found, by careful ir pection of the charge, that the court specifically instructed the jury, that if Wellar committed :he homicide at all, it would be murder, and not manslaughter, unless it was com- mitted under such extreme provocation as is recognized in the authori> ties as sufficient to reduce intentional and voluntary homicide, committed with a deadly weapon, to that degree of time. And in thia connection, the charge further given that, if the intent of the respond* ent was to commit bodily harm, he was responsible for the result, because he acted willfully and maliciously in doing the injury, neces- sarily led to a conviction of murder, because there was no pretense of any provocation of that kind. T-Tanslaughter is a very serious felony, and may be punished severely. The discretionary punishment for murder in the second degree comes considerably short of the max mum punishment for manslaugliter. But the distinction is a vital one, resting chiefly on tbe greater disregard of human life shown in the higher crime. And in determining whether a 960 CRIMES AGAINST THE FEPSONS OF INDIVIDUALS. person who has killed another, without meaning to kill him, is guilty of murder or manslaughter, the nature and extent of the injury or wrong which was actually Intended must usually be of controlling im- portance., It is not necessary in all cases that one held for murder must have intended to take the life of the person he slays by Lis wrongful act. It is not always that he must have intended a personal injury to such person. But it is necessary that the intent with which he acted shall be equivalent in legal character to a criminal purpose aimed against life. ^" - 964 CRIMES AGAINST THG PERSONS OF INDIVIDUALS. house some time before. Stokes was a tinsmith, and it was stiown that he was present when Crouch prepared the mixture. It smoked so that he declared himself afraid of it. Martha Hovey was a married woman who did not live with her hus- band. She had resided with Stokes some time. She had had difficulty with Mrs. Stokes on several occasions. On one occasion she was out with the defendant and introduced him as her brother. Deceased had la bank at the time of her death $4,600 recently received from the es- tate of a deceased relative. The jury found the defendant guilty of murder in the second degree. The defendant's counsel thereunpon made this motion for anew trial under subdivision 6, section 465, Code of Criminal Procedure. E. C. Emerson, District- Attorney, and P. C. Williams, for People. W. F. Porter and Watson M. Rogers, for defendant. Mebwin, J. On the pait of the defendant it is claimed among other things that the verdict is clearly against the evidence, and that, there- fore, under the provisions of subdivision 6, section 465. of Code of Criminal Procedure a new trial should be granted. Upon this proposition it is suggested that there is no evidence that the defendant knew that the mixture which apparently operated to pro- duce the death was poisonous. In Wharton's Criminal Evidence,^ it is laid down that in order to convict of murder there must be a knowl- edge of the dangerous character of the poison. Very evidently this is necessary in order to show an intent to kill. In the present case there is no evidence that defendant knew that the mixture was poisonous. He did not buy it himself ; he is not shown to have known of what ingre- dients it was composed. A recipe was referred to on the trial, but it was not in evidence or shown to be in defendant's possession. The mixture was prepared by Crouch and used by him for an honest pur- pose, and for the same purpose which he stated to the druggist. It was used in December previous to the death, and what was then done with it or who had it, does not appear, except that it was found the day after the death in the room in which the post mortem had been held. Assuming that defendant knew that in the mixture there were mercury and nitric acid, it is not shown that he knew the dangerous character of these elements or of the compound. It is said he was a tinsmith, and therefore must have known it. That sequence does not follow. It is not shown that as a tinsmith he dealt in those articles or tad any occasion to use them. This can not be inferred. He was present when Crouch made up the compound. The packages which Crouch had re- ceived of the druggist were not marked by the druggist as poisonous. 1 (8th ed.), BbC. TM. u Whart. ( PEOPLi: V. 8TOKE8. 965 shown that ked so that ith her hus- id difficulty she was out sceased had from the es- ond degree, a for anew ocedure. , for People. among other 1 that, there- of Code of mdence that rated to pro- Evidence,^ it t be a knowl- Ldently this is jnt case there as poisonous. »f what iugre- le trial, but it session. The m honest pur- druggist. It was then done was found the lad been held. ! were mercury reus character ras a tinsmith, oes not follow. es or bad any IS present when Crouch had re- t as poisonous. The particular manifestations at the time they were mixed would indi- cate that the articles were not entirely harmless. It would also indicate that a change then took place ; and whether the compound was danger- ous or not, a person unskilled or unacquainted would not be expected to know. A knowledge that the compound might not be entirely harmless might be reasonably inferred, but the character or extent of the harm would be entirely a matter of speculation. In cases of this kind the purchase or possession of poison under false pretenses and a knowledge of its properties are deemed among the most, if not the most material circumstances.^ Their absence in this case is a matter to be seriously considered. As bearing upon the knowledge of the defendant of the character of the mixture as well as upon his connection with the act itself, it is said that defendant stated differently about his knowledge of the mixture at the time of its discovery and at the time he testified before the coroner a few days after its discovery. At the time of its discovery he said he did not know what was in the bottle or where it came from or anything about it. Before the coronor be testified that he didn't know what was in the bottle ; that it came fiom Camp's ; that Crouch got it for silver washing. The variance will be noticed. If it be true that nothing had been done about this mixture by the defendant after the experi- ments of Crouch in December, then it would not be strange for the defendant to fail to identify it at the time when first suddenly called on about it, and then afterwards before testifying have ascertained or recalled to memory the fact that it was got by Crouch at Camp's for silver washing. In other words, the variance may be accounted for consistently with defendant's innocence. Whether it can be done so reasonably, depends largely upon what other circumstances there may be in the case that are of doubtful construction and which may raise grounds for suspicion. A single circumstance involving a slight sus- picion may be woi-thless and deserve no consideration, while several of that kind, based on distinct evidence, may lead the mind far toward the presumption of guilt. We oome, then, to the consideration of other circumstances which are claimed to be suspicious. It is said that when he was informed of the sickness of his wife he delayed to give her attention and delayed sending for the doctor ; that he was too ready in his explanations to the doctor ; that he knew her fatal condition before he saw the doctor, as indicated by bis remark to his son in the presence of Clifton ; that he saw Bobbins about noon too ostentatiously ; that after the death he was too ready for investigation. As to these matters, I have carefully con- 1 1 Arcbb. Cr. Pr. & PI. (8th ed.) 856; 3 Wbart. Cr. L. (7lh ed), sec 3494, a. 966 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. sldered the evidence, and I find nothing which can not be e^Pjaine;^ consistently with innocence. She had previously been troubled with indigestion and had bad spells sometimes, and was general y costive. She was on the morning in question as well as usual, and insisted upon Koing to work. The information given the defendant by Mrs. Hovey L to her being sick might fairly be attributed to one of her usual spells, and would not require him to drop everything in order to see to her. How long the delay was does not appear. It was not long. He then gave her the usual remedies, so far as it appears ; they not giving relief he went for the doctor. His manner then was natural for an innocent man. When the doctor came he asked the deceased what she had been taking. This might refer either to what ^^\^'^J''^*'l^ relieve her sickness, or to what she had taken that produced it. The doctor did not ask her what brought on or caused her sickness, bhe replied to the doctor's question that she had taken nothing but what they had given her. The defendant then stated what he had given her ; no part of his statement was contradicted by o^er evidence.^ He was certainly called on to state what he had given. Had he refused or stated untruly or hesitated, it would have been much more sus- picious. The time of day in which he spoke to the boy m presence of Clifton is concededly so uncertain upon the evidence that no pa ticular weight is to be given to it. So the occurrence testified to I. Bobbins looks to me as quite insignificant, as well «« uncertam in time, with reference to the time that the wife was sick. The distance to the defendant's store to where Bobbin's was, was short. The act of defendant was brief, and it might readily have happened before the sickness of the deceased assumed apparently a dangerous form, rhe readiness of defendant to have an investigation looks to me far from having a guilty tendency. In weighing these circumstances the ques- tion Is not whether they are consistent with his guilt. If there were other circumstances which authorized the presumption of his guilt, then the question would be whether there was anything else in the case that was inconsistent with his guilt; but when we weigh the circum- stances themselves from which the guilt is sought to be inferred we must assume and start with the presumption of innocence. If all the circumstances shown are consistent with innocence, then there can be no conviction. If they are not, then the question is whether they point to guilt so clearly and distincUy as to satisfy the mind be- vond a reasonable doubt. The facts proved must all be consistent with and point to the defendant's guilt not only, but they must be inconsistent with his innocence.* If equally susceptible of two inter- 1 B«z *. Jones, 3 O. ft P. s Per Churoh.O. J., In People v. Bennett, 49 N. Y. 144. s. PEOPLE V. STOKES. 967 e ezplaineu )ubled with illy costive, isisted upon Mrs. Hovey if her usual ler to see to t long. He y not giving bural for an led what she ad taken to ced it. The ikness. She ng but what e had given er evidence.' id he refused ih more sus- in presence that no pa jstified to I, rtain in time, istance to the The act of d before the s form. The me far from ices the ques- If there were of his guilt, se in the case h the circum- e inferred, we se. If all the n there can be whether they the mind be- be consistent they must be e of two inter- Peop]e V. Bennett, pretations, one innocent and one not, the innocent one must be taken. ^ So, it is said that if it be shown that either the defendant or s third person committed the deed, but it can not be distinctly ascertained which one, the defendant can not be convicted.' The same author 3 lays it down as established by many adjudications that the test of the sufficiency of circumstantial evidence is that the facts proved can be reasonably accounted for on no hypothesis which excluded the defend- ant's guilt; that with the theory of his guilt they are harmonious and consistent, and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reasonable doubt. The trouble in this case is, to be able to say that the facts proved are inconsistent with defendant's innocence ; that they can not be accounted for reasonably on any hypothesis which excludes the defendant's guilt* The question in my mind is whether upon the evidence here, there are not two hypotheses which at least are as reasonable as that of defend- ant's guilt. I have thus far not referred to the evidence on the subject of motive. There is much in the case on that subject. Motive, however strong, does not prove the crime. Its oifBce is to aid in the application of other cir- cumstances that point toward guilt. It is said to be a minor or an auxiliary fact from which, when established in connection with other necessary facts, the main or primary fact of guilt n^ay be inferred.^ When the case depends upon circumstantial evidence, and the circum- stances point to any particular person as the criminal, the case against him is much fortified by proof that he had a motive to commit the crime ; and where the motive appears, the probabilities created by the other evidence are much strengthened.^ In the present case the evidence discloses a very unpleasant state of things in the family of the defendant. I have no doubt the situation In this regard has had a tendency to his prejudice. Quarrels between husband and wife are said to be entitled to but little weight unless con- nected in some way with the fatal wound." That probably, however, depends upon the intensity and permanency of the feeling engendered in iiuch quarrels. The evidence here does not show any permanent feel- ing in the defendant against his wife, herself, nor any feeling at all against her upon the day in question. The question for the court to determine on this motion is whether the evidence pointing to the guilt of the de- fendant was sufficiently strong to authorize the jury to say that he was guilty. Does the evidence authorize that finding? If it does, then the 1 PoUook V. Pollock, 71 N. T. 137; Schultx «. Hoagland. 85 N. Y. 464. < 1 Bigh. Or. Pr. (3d ed.), seo. 1106. 3 sec. 1079. * Pienon v. People, IS Hun, 233. » Earl, J., In Pieraon v. People, 79 N. T. 436. • Whart. Cr. Et., see. 788. 968 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. verdict must stand, althougli the court might Imve to come to a different conclusion. If it does not, tlien the verdict would be clearly against evidence, and should be set aside. In the case of People v. Bennett,^ cited by the counsel for the People, the ill-treatment by the defendant o( his wife was connected with the occurrence of the fatal wound. There was evidence that she could not have inflicted it herself. He knew of her bleeding profusely, but did nothing to help her. In that case the court were divided on the question whether the verdict was against evidence, but it was set aside on anotlier ground. Having in view the proposition laid down in the Bennett Case, that the facts proved must all be consistent with and point to his guilt not only, but they must be inconsistent with his innocence, or as it is put in Poole V. People,^ be inexplicable upon the theory of innocence ; and having in view the want of connection shown between the defendant and the poison producing the death, I am of the opinion that the \er- dict is not authorized by the evidence. Motion granted. HOMICIDE — POISONING — INTENT TO TAKE LIFE ESSENTIAL. Ann v. State. [11 Humph. 159.] In the Supreme Court of Tennessee. 1. On as Andlotment lor the Kurder of an Infant by the adminlgtratlon of landanum. the judKe charged the Jury, that ■• if Ann, a slave, without authority, administered lan- dannm to the Infant, with the intent to prodace unnecessary sleep, and contrary to her expectations it caused death, she would be guilty of murder." Beld, erroneous. If an act unlawful in Itself be done with a deliberate intent to effect mischief, and death ensues, though against the Intention of the party, it will be murder i if the act be done heedlessly and incautiously without such intent, it will bo manslaughter only. S. The Administration ->f Laudanum was not per «« unlawful, and the charge excluded from the Jury the consideration of the facts, whether the defendant intended serious mischief to the Infant or not, and whether the offense amounted to murder or man- slaughter. 1 This indictment was prosecuted in the Circuit Court of Williamson County. The defendant was found guilty and appealed, Mamet, Judge, presiding. Marshall & Figures, for the plaintiff in error. Attorney-General, for the State. McKiKMET, J., delivered the opinion ihe court. 149N.T.187. 3 80N. Y.64S. % ^ J^. v^. ^% ■>. *» ^ "^ »'i«' \^^^ .^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^128 |2.5 ■50 ■^~ MSB ■tt 132 12.2 KCi 2.0 11.25 yini.4 i^i^ ^ Vl Photographic Sciences Corporation ■y 33 WIST MAIN STRUT wnSTfR.N.Y. U580 (716)872-4S03 ^mm [ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. jfe..- Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques The pi Tom, in B. Marr, acquittec '.3 indie judgracn has beer we have outline y^ determin prisoner' convictec death ws prisoner, eral comi The p murder, the inf an tion and day of tl to some I care of t supposes child sur but did I and his ( that the a drop w The p infant, upon the by the p< was put after the Nicliols, lived on where tt him, " h( her to sii it had k Tom ha( would gi she had ^^ ANN V. STATE. 969 The plaintiff in error was indicted jointly with another slave named Tom, in the Circuit Court of Williamson, for the murder of Mary E. B. Marr, the infant child of their master and mistress. The jury acquitted Tom, and found the plaintiff in error guilty as charged in '. 3 indictment. The court refused to grant a new trial, and pronounced judgment of death upon the prisoner, from which an appeal in error has been prosecuted to this court. It is not necessary, in the view we have taken of the case, to state the evidence in detail ; a mure outline will be sufficient to raise the questions of 'aw presented for our determination, except the question in relation to the admissibility of the prisoner's confession. The infant, of whose murder the prisoner stands convicted, was of extremely tender ngc, only five weeks old ; and the death was caused by an overdose of laudanum administered by the prisoner, without the knowledge of any one, and contrary to the gen- eral command, not to give the child anything whatever. The prisoner is of immature age, being at the time of the alleged murder, not over fifteen years. A day or two preceding the death of the infant, the prisoner was taken from the negro quarter on the planta- tion and put in the house to serve in the capacity of nurse. On the day of the infant's death, Mrs. Marr went into another room to attend to some of her domestic affairs, leaving the child asleep in the cradle in care of the prisoner. She remained absent about fifteen minutes as she supposes, during which time the laudanum was administered. The child survived about four hours. A physician was immediately sent for but did not arrive until about two hours after the laudanum was given, and his efforts to counteract its effects were unavailing. He states, that the death was caused by an overdose of laudanum and that half a drop was as large a dose as the infant could have borne. The prisoner for some time denied having given laudanum to the infant. Her master was much excited ; inflicted blows with his hand upon the prisoner ; threatened to shoot her, but was induced to desist by the persuasion of his wife, and sent her off to the quarter, where she was put in chains around her body and neck. On Saturday evening after the death of the child, which happened on the preceding day, Nichols, the overseer of Marr and Giles, the overseer of Perkins, who lived on an adjoining farm, went together after night to the house where the prisoner was confined. Giles states, that she was asked by him, "how she came there," seemed slow in speaking. Nichols told her to speak. She then said she had given laudanum to the baby and it had killed it. He then asked hor how she came to do it? She said Tom had been at her to meet him out at night, and told her if she would give it laudanum it would sleep until she could get back ; that she had asked him if it would hurt ; he said no, he had given it many 970 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. times to bis wife Eliza, and it never Imrt lier. Slie was told, slie had better come out and tell the truth— it would be better for her. She was asked if she would make the same statement before Tom, that she had made to witness and Nichols ; she said she would. Witness and Nichols then went to Tom's house and took him into the house where prisoner was, and told her to tell her tale again. She said Tom had recommended her to give it, and it would make the baby sleep till she could get back ; and she asked him if it would hurt. Tom denied all this. She said she thought she would try and see if it would make it sleep, and had poured some in her hand and give!i it. That since she had been chained Tom had been there and told her she had given it wrong; that she ought to have put some brandy in it, and sweetened it, and warmed it, md then the child would not have died in several days ; that he told her she must admit she had given it, but not to call his name, or he would shorten her days. Tom denied all this. Witness further stated that " in the first talk with her he told it would be better for her to come out and tell the truth." Nichols' statement of the prisoner's confession is somewhat different from that of Giles ; but we have thought proper to take the latter as probably the more coiTcct and reliable statement. There is proof in the record of an improper intimacy having existed between Tom (who was of mature age) and the prisoner for some weeks previous to the removal of the latter from the quarter to the house. The witness, Nichols, speaks of one occasion when he detected them, but he says " he passed on and said nothing, as it was no business of his, and he did not care what he did." Judging from the avowal of the overseer, the morals of the slaves under hia dominion were in bad keeping ; and it is not much to be won- dered at that the prisoner — who was brought up at the quarter — had a more imperfect sense of the obligations of morality and common decency than is even usual among those of her own caste and social condition. The circuit judge, in his introduction to the jury— after stating the general definition of murder and malice, and laying down some general principles, the correctness of which is not questioned — said : " If Ann, the prisoner, by force poured laudanum into the mouth of Mary E. B. Marr, such act, unless excused or justified by the evidence, would amount to a battery, and she would be responsible in law for the natural effects of the laudanum, although they may have been more serious than she designed or expected. "If Ann was the slave of Nichols Marr, the witness, and was employed by him to attend to Mary E. B. Marr ; and if she was ordered by her master not to administer anything to the said Mary E. B. Llarr; DUALS. iras told, she had er for her. She tre Tom, that she d. Witness and the house where Ihe said Tom had B baby sleep till irt. Tom denied if it would make ;. That since she r she had given it and sweetened it, i in several days ; it to call his name, Witness further i be better for her of the prisoner's les; but we have more coiTect and icy having existed er for some weeks Birter to the house, [le detected them, ras no business of rals of the slaves )t much to be won- the quarter — had ality and common m caste and social — after stating the down some general — said: *'If Ann, •uth of Mary E. B. le evidence, would 1 law for the natural been more serious I witness, and was I if she was ordered I Mary E. B. Llarr; ANN V. STATE. 971 if she, without authority, willfully administered laudanum to said Mary, intending thereby to produce unnecessary sleep, and, contrary to her expectations, it caused death, she would be guilty of murder." The first question for our consideration is, was the confession of the prisoner, which was objected to, properly admitted as evidence to the jury? This is a question which admits of no discussion. All the authorities concur, that a confession, to be admissible as evidence, must have been freely and voluntarily made, and not under the influ- ence of promises or threats. As to what is such a promise or threat as wiU exclude a confession, it is laid down, that saying to a prisoner it will be worse for him if he do not confess ; or that it will be better for Lim if he do, is sufficient to exclude the confession. ^ So where a sur- geon called to see a prisoner charged with murder, said to her, " you are under suspicion of this, and you had better tell all you know," the confession was held inadmissible. « So, where it was said to the pris- oner, " it would have been better if yon had told at first," the confes- sion was rejccted.3 It would be a useless labor to multiply authorities upon a point in respect to which there is no substantial disagreement to be found in the books. Nor would it be more profitable to indulge in speculation as to the probable influence of such a promise or threat in a particular case ; certainly not in the case of a timid girl, of tender age, ignorant and illiterate, a slave and in chains, whose life had been threatened by her master, and against whom the hand of every one, even those of her own color and condition, seem to have been raised. In such case, and in all cases, the law presumes, and conclusively pre- sumes, that an influence was exerted upon the mind of the prisoner, and, therefore, all inquiry upon the subject is precluded. 2d. The next question is, was the law correctly stated to the jury? We think not. The errors of the charge will be obvious from the mere statement of a few plain elementary principles. To constitute the crime of murder by the common law, and by that law this case is to be governed, the killing must be with malice afore- thought; no matter by which of the thousand means adequate to the destruction of life, the death may have been effected. Malice, in its legal sense, is the sole criterion by which murder is dis- tinguished from every other species of homicide. The malice essential to constitute the crime of murder, however, is not confined to an inten- tion to take away the life of the deceased ; but includes an intent to do any unlawful act which may probably result in depriving the party of life. It is not, in the language of Blackstone, so properly spite or malevolence to the individual in particular, as an evil design in general, 1 3 East's P. 0. 6S9. » 4 C. * P. 387. » 6 C. 4 P. 175. 972 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. the dictate of a wicked, depraved, and malignant heart; r.nd it may be cither express or implied in hiw.' ' If an action, unlawful in itself, be done deliberately and with inten- tion of mischief, or great bodily harm, to particulars, or of mischief indiscriminately, fall where it may, and death ensue, against, or beside the original intention of the party, it will be murder, But if such mis- chievous intention do not appear (which is matter of fact to be collected from the circumstances), and the act was done heedlessly and incau- tiously, it will be manslaughter only.* But if the death ensue in the performance of a lawful act, it may amount either to murder, man- slaughter, or misadventure, liccording to the circumstances by which it is accompanied. 3 These general principles apply as much to a case where death ensues by means of a medicine of poisonous qualities, as to any other species of homicide. It is true, that where one willfully poisons another, from such deliberate act, the law presumes malice, though no particular enmity can be proved.* But this presumption may be displaced in a case of death from poison, as in other cases, by direct proof, or by the circumstances of the particular case. If, as Blackstone says, the poison - re willfully administered, that is, with intent that it should have the effect of destroying the life of the party; or if, in the language of Foster, the act were " done deliber- ately and with intention of mischief, a great bodily harm," and death ensue, it will be murder. But if it were not willful, and such deliberate mischievous intention do not appear ; and the act was done heedlessly and incautiously, it will be only manslaughter at most. Testing the charge by these familiar principles, it is manifestly incor- rect in several respects. It assumes, that if the prisoner administered the laudanum in violation of her master's order, for the purpose of '» producing unnecessary sleep," and death ensued, contraiy to her intention, she is guilty of murder. This is not law. In the first place, the charge puts the disobedience to the master's order, on the same footing with a violation of a command or prohibition of the law. This is a great mistake. Such violation of the master's order, is not an «♦ unlawful act " in the sense of the rule above stated. It is no offense against the law of the land ; nor is it cognizable by any tribunal created by law. It is an offense simply against the private authority of the master and is cognizable and punishable alone in the domestic forum. Again ; the criminality of the act is made to depend upon an intent, with reference to the deceased infant, which may be in law, if not positively innocent, at least comparatively so. 1 4 Bla. Com. 199, 200. ■ FoBt. 261. 3 /d. 262 ; 1 Hale, 472 : 4 Bla. Com 192. * i Bla. Com. 199. ^tfi ^IDUALS. heart ; r.Dd it may ely and with inten- irs, or of mischief against or beside But if such mis- fact to be collected ediessly and incau- death ensue in the r to murder, man- ustances by which sphere death ensues any other species isons another, from )ugh no particular ly be displaced in a act proof, or by the Iministered, that is, •ying the life of the ere ' ' done deliber- r harm," and death and such deliberate nras done heedlessly >st. is manifestly incor- ■isoner administered for the purpose of id, contraiy to her In the first place, order, on the same n of the law. This 's order, is not an ed. r is it cognizable by y against the private lishable alone in the i is made to depend nt, which may be in i\y so. s, 472 : 4 Bla. Com 192. ANN V. STATE. 973 The laudanum may have been given by the prisoner in utter ignorance of the fact that it possessed any poisonous quality; and there may have been a total absence of any intention to do serious injury, or indeed injury of any sort, much less to destroy the life of the child. If tlie prisoner's purpose really wm, to superinduce a state of temporary quietude or sleep, without more, in order to afford better opportunit\ , or greater facility, for carrying on her own illicit intercourse with Tom, this, however culpable in morals, would not involve her in the guilt of murder. The tenderest of mothers might administer laudanum to her infant incautiously, in order to be enabled to attend to some pressing call of her household affairs, which admitted of no delay ; or a gay and thoughtless matron, devoted to the pursuit of pleasure, though not ♦'evoid of natural affection for her infant, might give a similar dose in order to bave opportunity to attend the theater or ball-room for a time. And although in both the latter cases the motive, so far as respects the actors. Is different, and less offensive to morals or propriety, yet the pur- pose or intention, with reference to the effect to be produced uix)n.the child, is the same in kind at least, that is, in the language of the charge, to " produce unnecessary sleep." And yet, perhaps, no one would contend that, had death ensued, in either case, the mother would have been guilty of either murder or manslaughter. In the case of the prisoner, her relation as a slave, taken in connection with her disregard of her mrster's positive direction, and the gross heed- lessness and incautiousness of the act, might constitute her offense manslaughter, but certainly nothing more. The charge of the couri then, is not only erroneous in excluding from the jury the questions of fact, whetiier or not the prisoner had knowledge of the poisonous quality of laudanum, and whether or not there exisited in the mind of the prisoner an intent to kill, or to do serious injury to the deceased ; but likewise, in not submitting it to the jury to determine the grade of offense, whether murder or man- slaughter. If the offense amounted to no more than manslaughter, as we hold to be clear, then the Circuit Court had no jurisdiction of the case. [Omitting another point.] Judgment reversed. 974 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. HOMICIDE BY POISONING — PROOF— SYMPTOMS. Joe v. State. [6 ¥la. 671 ; 65 Am. Dec. 679.] In the Supreme Court of Florida, 1856. •ymptonu of ThenneWe. are Insufficient to .u.Uln a conviction for adminlrtering poiBon. The Indirect proof considered BRtiifactorj in auch cmm it that of cbemleal analysia and tests of the contents of the stomach and bowels. Indictment for administering poison. The facts are stated in the opinion. A. L. Woodward, for the appellant. M. D. Papy, Attorney-General, for the State. By the court, Baltzell, C. J. This is an appeal from a conviction and sentence of death passed upon the prisoner Joe, on a charge of having administered poison and white arsenic to a negro woman, Rebecca. She did not die from the alleged eftects, but is examined as the only witness to the facts of the case, excepting the medical attend- ant. But little complaint is made of the instructions given to the jury which seem to have been drawn with exceeding care and caution on the part of the judge below, and are on the whole, liberal to the pris- oner. Reliance is placed in this court on a motion for a new trial, pre- sented to and overruled by the court below, and the broad position assumed that the facts of the case do not establish a case of guilt. It is rather a singular circumstance that new trials were nevor granted until within a recent period, in England, in cases of felony, this object being in some degree attained by the judge, reserving a point of diffi- culty for the decision of the court above. The courts of this country have maintained a different practice, even granting a new trial where the case was either against the weight of the evidence or not sustained by it. Appeals are not often allowed in criminal cases, and if per- mitted, the assignment of error is usually confined to questions of law. In this State the appeal is not only allowed, but the duty is imposed upon the court of examining into the correctness of the ruling, as to the refusal of a new trial. The crime of poisoning is of so shocking a character, so revolting to every sentiment of our nature, so far exceeding all others in atrocity, that we have not been able to yield a willing ear to the accusation or to admit it with ready facility. If true, the punishment of the law would not be by any means too severe. With a due sense of its importance, as well to the public as to the prisoner, not at all diminished by the fact that the individual implicated is a free man of color, we approach IDUALS. FTOMS. '6. lotion for adminiiterinr •••• !• thatof obamiMl are stated in the from a conviction 0€, on a charge of a negro woman, but is examined as \,he medical attend- } given to the jury re and caution on liberal to the pris- 'or a new trial, pre- tbe broad position , case of guilt, were nevor granted felony, this object ing a point of diffl- arts of this country g a new trial where :e or not sustained cases, and if per- lO questions of law. he duty is imposed of the ruling, as to eter, so revolting to others in atrocity, the accusation or to nt of the law would B of its importance, 1 diminished by the color, we approach JOE V. STATE. 975 the consideration of the subject. The cases to be found in the books, both medical and legal, exhibit abundant evidence of the absence of proper skill and acquaintance with the subject, creating the fearful im- pression that many, very many, innocent persons have been sacrificed to prejudice and ignorance rather than to actual guilt. Modern science, with its pervading power, has removed this diflaculty by substituting certainty in place of the obscurity that has so long pre- vaibd. To the philosopher, the man of science, and physician, the world is indebted for important aid in judicial investigations through means of chemical tests applied to matter ejected from the stomach and bowels, and to the different parts of the body. A remarkable instance of the certainty attending such an examination is given in the Edinburgh Medical Journal of Science as having occurred in Paris. The head, trunk, and two lower extremities of a man were found in different and distant parts of the city, and were subjected to the scrutiny and ex- amination of physicians, wlio, applying to them the results of science and skill, came to the conclusion that the individual was killed during sleep, a sleep induced by artificial means ; that this was the result of drunkenness or the effect of some narcotic ; that the throat must have been cut, and an immense quantity of blood lost; that the decapitation and cutting off of the limbs must have beenimmediatelyperformedby a per- son accustomed to such operations ; that the instrument was sharp-edged and long ; that the person committing the act must have been a vigorous person and the incisions made by the same hand, but the murderer became nervous at the close of the deed. They then examined the internal parts, and came to the conclusion that the deceased labored under no disease. In examining the contents of the stomach, they found a small quantity of alcohol and prussic acid. A few weeks after- wards the murderer delivered himself up and confessed, confirming in a remarkable degree these various opinions of the physicians.^ The German and French authors on medical jurisprudence hold that poison- ing can never be completely established unless the particular poison be found, a doctrine not adopted in English jurisprudence.^ Yet this accomplished author says: "Upon general principles, it can not be doubted that courts of law would require chemical evidence of the poisoning whenever it was attainable, and it is believed that no modern case of satisfactory conviction can be adduced where there has not been such evidence, or in its absence the equivalent of confession. "» "The most decisive and satisfactory evidence of poisoning," says this author, " is the discovery by chemical means of the existence of poison in the body, in the matter ejected from the stomach, or in the food or 1 wills, on Cir. Et. 144. 3 7d. 21S,216. • Id. 221. 97r. CRIMKS AGAINST THE PERSONS OF INDIVIDUALS. drinks of which tbe sufferer has pnrtalcen." » " It is even maintained tbLt r.virtion can not l>e eonsiaercl natisfactory where c.rcumstances of su^ci n von are Mended with the scientific testimony unless the ^rimo be establi.l.ed by adequate evidence independently of moral cu- ""rcase'^before us there was no examination of a ay kind made. Th c^^t^nTs of the stomach and bowels were not even noticed unt. a ^^ afTrwards, and this material part of evidence, so important to the as ertah ment of truth, is wholly wanting. In the symptoms, and the e abne there evidence of guilt. Before noticing these it .s proper to rorr to the weight and consequence assigned to such evidence m books of au Wy.Tegal as well as medical. " Medical writers appear to be agreed in o^inLi, that the symptoms and post sorter, -amination, wbTch are commonly incident to cases of poisoning, are such as in gen- eral mav be produced by other cases." » , . . . . ,„ The Penny Cyclopedia,^ in an elaborate article contaming a re- Jw of treTubiJct says : " It is evident from these circum^tance^^^t ]n a fatal case of suspected poisoning by an irritant subject, it wil sel- dom be poss We to decide upon the evidence of the symptoms alone, men poron has actually been taken, the symptoms are sometimes so modTfieS by circumstances peculiar to the case, that even wliere they rvebeencarefullyobserved,muchdoubtbas^ cause- and. on the other hand, the symptoms of natu.ally excited TeaVe, In too closely resemble those of Po^-n, to permit a positrv conclusion being arrived at. The circumstances that usually flist ex Te suJ^°.on of poison having been taken are, that the person affected i sudd ly attacked by symptoms of severe illness which come on soon a ter eating or ddnking, without any premomtory mdicatmns Teh regularly increase in severity without undergoing any important Th fge in the Character, and which rapidly prove fatal AllUiese. how- ever, are far from affording sufficient evidence of P^^^^^g . f "^^ denness of attack is common to many disorders, as c^o era, whethe ordhiary or Asiatic, plague, perforating ulceration of the digest v cala Tpoplexy and epUepsy; and even in some cases of fever h TremXy s/mptoms are too slight to attract the attention of the 'th"ist. then, symptoms, as a general rule, may not be -lie^ -^ - 2ivin^ satisfactory evidence of the use or presence of poison the ques Srjet arises: May not symptoms, in the specific case of poisoning by a^enic. by irritant subjects, when applied to those proved to exist 3 Wills, on Cir. Ev. 211 ; Whart. Or. L. (3d ed.) 3»l. « vol. 18, p. 307. 1 Id. 21B. 3 /<(.233,234. J : DUALS. ( even maintained lire circumstances mony, unless tlic ntly of moral cir- if a ay kind made, en noticed until a o important to the mptoms, and these lese it is pioper to evidence in books Titers appear to be \rtem examination, are such as in gen- 5 containing a re- circumstances that subject, it will sel- le symptoms alone. IS are sometimes so lat even where they Qed respecting their [ naturally excited to permit a positive that usually first ex- ; the person atfectcd ;s3, which come on lonitory indications, going any important ital All these, how- of poisoning. Sud- as cholera, whether on of the digestive J cases of fever the the attention of the r not be relied on, as B of poison, the ques- ific case of poisoning those proved to exist r. Ev. 211; Whart. Cr. L. (3d 7. JOE V. STATE. P77 in the ease under consideration, sustain the conviction and establish the yt'ilt of tlie prisoner? It is much to be regretted, that in the solution of these important questions, we have not the aid of the intelligent phy- sicians who gave to the jury a desoriplion of the symptoms usual in cases of poisoning by arsenic, their statement not lieing fully incor- porated in the record, and only a few symptons deserihed by one of them; and thus, we are necessarily thrown ui)on our own imperfect knowledge and researches in prosecuting our investigation upon the au- thorities cited in the brief of the prisoner's counsel, the positions assumed, and the views presented in his argument. It is true, the at- tending i)hysieian expresses iiis opinion that the case exhibited specific symptoms of poisoning by arsenic, yet, with all respect for his intelli- gence and learning, we should n(jt deem that we had discharged our duty, in relying upon that alone, without a more extended examination. It must be remembered, too, that his evidence is necessarily imperfect, as he saw none of the symptoms of the first day, nor noticed the appear- ances of matter ejected from the stomach and bowels at this period, most important and interesting of all others to the true understanding of the subject. The witness speaks a o of symptoms not specified in the record, from which we infer that some possibly essential to the formatioa of a riglit judgment, are omitted. If this be so, it is deeply to be regretted, as the court must decide the case upon the facts set forth in the record and are not permitted to presume any not pre- sented. Let us now refer to the facts developed by the evidence in the case under consideration. "The prisoner and the person complaining of being poisoned, a slave named Rebecca, were at work at Mrs. Gerard's in Tallahassee, both engaged in getting breakfast — the woman for the white family. The prisoner handed Rebecca some cow haslet which he had been cooking in an iron pot, asking lier to eat. She ate about six mouthfuls, and immediately felt a pain in the heart — can not express tiie rest of her feelings ; felt as if she wanted to throw up, but could not just then. Commenced vomiting about eleven o'clock of that day ; was blind when the misery was on; had great pain in breast, then all over. For two or three months was unable to work much at anything ; had not been sick before eating the haslet; felt effects immediately after eating, felt as if going to die; had painful and bloody discharges." This is the statement of Rebecca herself. A physician was not called in until the second day ; he speaks of the appearance of the patient as follows: "There was frequent vomiting and discharges from the bowels, both tinged with blood ; legs partially paralyzed ; great tender- ness about the stomach ; patient a week under treatment." Do these facts, as detailed by the witnesses, of themselves afford 3 Defences. 62 978 CRIMES AOA1N8T THE PEnSONS OF INDIVIDUALS. sufficient ana satisfactory evidence of l^^-^-'^'^^l:?^:::^^^ z remove uii rea.ona.io <^^;;!;^j:::r::s^:^^:^iu duced tl.e symptoms eKlub. ted ^^ "^ " ^^ ,^ ^^,, ^, imperfect especially tl.is particular k.nd, .n -y 7^;;^^^^^ in a bad state of prtservation, V099'|>'y «^^« j.^^^ ^^^^^^a as ti.e con- alone? „„ ♦i.o nonal avmntoms in cases of Medieal writers give the following as the »"«^ '^1^ administra- • . i» '!'».« r'liief svmptoms caused by the inierni»i »uui poisoning: Ihe chief m ^^.^^^.„„ ^^ gome or all tion of irritant poisons are ^^^f ^^/^^^^^^^n .^^ite burning, heat, parts of the aH-ntary jaL Jhey ,J.e^a _ y^ ^^ ^^^ ^.^.^^^ ^^, ^,^^ redness and -«^-g' ^^^ ^^^^^^ ,, ,,,„oW.ng, burning pain of throat, mouth and to"g"e, cum j ^^^jting, tenderness on press- the stomach, with nausea, tclug^^^^^^^^ g,^^^^ ^^^ ^^^^^^^ ure, ami tension otl^ 'PP^Jf ^^^^.^^ ,,„,ents of the stomach, vomited consist, first, of the 'ooci o ^^^^^ ^.j^. and afterwards of tough -^-^^^-^^^^^l^Zl accompanied by severe t.e .cUness is almo^^^^^^^^^^^ -mU along a part suffering. The pain coma o j tpndorness on pressure, and or the whole of the digesUve ^^^^^^^^^Z^'Z loss of blood, usually constant and painful d'^^^^';;'' ^ prostration of strength. The pulse is quick and feeble ; there i f^-'^ ,, ,,,,. excessive burning, tinrst -^ ^^^^^J^J^^^^-^^U of breathing." tcnance and manner, and of ten considerame y ^^^.tj^n The most general -^^'\'>' ^'^'XirmZl^J^iol be regarded as of the stomach, and its adm.nist a on ^^^^^l^'J^^^^^^^ the highly probable in -.V ««««!" '^^"f.; stomach a-ing Hfe, and its sifns of an acute ^•;«--^-J^^^ effects after ^-^^. ^ /° 7;;;,:"a directly after the poison is taken, ^z :«:^ "- -J^ --^ - -- ^'^- ^" ^^ "' ^^'^"^- "I '•^^Beck represents the symptoms of ^^l^^^l "^^sta Is „.arkable as not to be confounded -^'^^^^^^JZZo-t to the rec- them to be, «' marks of irr taUon -f, ^ °f j;^,^^^^^^^^^ ,, passing tum, the difflcnlty in ^-f^^''^^J'\Z7oJ^^^ bloody diarrhea, iTm^r:: '• '' Z !rtir ;r usL eamest symptoms, 1 Penny Cyclopedl*. Poison, 307. 2 2 Beck's Med. Jur.4n. UALS. ure they such as •thing else, pro- mal food itself, Lse of imperfect )r in ft had atato 1 of the storaacli, isted as Uie con- jn of any Icind? id must they he destructive thing ptoms in cases of ernftl administra- n of some or all te burning, heat, the lining of tl»e , burning pain of iderness on press- en. The matters s of the stomach, )t blood and bile ; mpanied by severe jmach along a part } on pressure, and ind loss of blood, ration of strength, le anxiety of coun- jr of breathing." acute inflammation ore be regarded as observer finds the luring life, and its poisoning a burning the poison is taken, the act of swallow- ' arsenic, " as so re- iseases." He states ihe throat to the rec- ! bladder in passing and bloody diarrhea, le earliest symptoma, Jur.417. .TOE V, STATE. 979 sickness or fnintness, succeeded hy pain, in the region of the stomach, most commonly of a burning liind, mucli aggravated by pressure, drv- nt'HS, heat, and tightness in tlie throat creating nn incessant desire for (hink, hoarseness and difHculty of speech, matter vomited greenish or yellowish, but scmietimes streaked or mixed with blood. The burning of tlio throat not always present, sometimes so severe ns to be attended by fits of suffocation and convulsive vomiting. Diarrhea generally, not always ; when this is severe, the rectum is excoriated, and burning heat felt there and along the whole of the alimentary canal ; mouth and lips inflamed, and present dark specks and blisters, lungs affected, short- ness of breatli, tightness across the chest, and in a few cases actual in- flammation, etc.! When life is prolonged several days or saved, the early symptoms are of the inflammatory variety as just described. The subsequent ones arc referable to nervous irritation. 'i!,.v vary from coma to an imperfect palsy of the arms and legs, and be i ween these extremes are observed epileptic fits or tetanus. Among occasional re- suits where life is saved are irritability of the ston M.h, att-nded wifli constant vomiting of food, loss of the hair, and desquamation of the cuticle, soreness and inflammation of the eyes, etc.'' It will be clearly perceived, we thiak, that the case ))ofore us is de- '"v v'tive in many of the most prominent distinctive symptoms described by the authors above quoted as most reliable in discriminating cases of poisoning by arsenic from those of disease produced by othcT causes. The symptoms exhibited in the present case are very few, and l)y no means create the clear and distinct impression upon the mind which is mad« by those described hy authors on medical jurisprudence as peculiar to this particular kind of poisoning. Passing this branch of the subject, we next proceed to the inquiry whether there are other circumstances in the case regarded as giving weight and force to the accusation. " There are particulars of moral conduct," says the writer so often quoted, that " by writers on circum- stantial evidence are considered as leading to important and well grounded presumptions as motives to crime, declarations indicative of intentions, preparations for the commission of crime, possession of the fruits of crime, refusal to account for appearances of suspicion, or unsatisfactory explanation of such appearances with evidence in- directly confessional." 3 if it be proved that a party charged with crime has been placed in circumstances which commonly operate as in- ducements to commit the act in question ; that he has so far yielded to the operation of those inducements, as to have manifested the dispo- sition to commit the particular crime ; that he has possessed the requisite 1 Id. 870. s Id. 372. ' WiUs. on Cir. Ev. 86. 980 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. means ar.l opportunities of effecting the object of his wishes; that Recently after the comn^ission of the act in question he has become pos- ses ec«f the fruits or other consequential advantages of the crime, . Tbe Identified with the cor,., .e... by any conolus ve mod.nica circumstance, as by the impression of hi. footsteps etc. , u the.e be r ev^t app arances of suspicion connected with h.s conduct etc ; sth as he might reasonably be presumed to be able to account for but which he will not and can not explain, etc. - the concurrence of all or n.any of tl,ese urgent circumstances naturally, reasonably and satisfactorily establishes the moral certainty of his personal guilt, if not wth the same degree of assurance as if he had been seen to commit the Ted! aVleast with all the assurance which the nature of the case, and the vast maioritv of human actions admit.^ Now U^is pait of the case is not only deficient and -nting in every- thing to create a presumption unfavorable to the prisoner, but the proof of tL person alleged to be poisoned removes and prevens a supposi- tion of ths even. " She and the prisoner never h-^d a falhng out, and we^ealway; on good terms." She was a slave, too; had no money to Tmnt her destruction. There was nothing to gain ; no fear of loss. Hav ng tlms considered the facts of the case, and the law connected thfrS it may aid in the consideration of cases depending «l,on cir- cu sranUal evidLce to refer to the rules and maxims which philosophic wUdom and judicial experience have laid down as safeguards of truth Td justice with respecl to evidence in general, and which apply with Deculiar force to cases of the present cliaracter. ^ -The facts alleged as the basis of the inference must be strictly con- nected with the factum probandum- « The circumstances proved must lead to and establish to a moral certainty the particular bypothesis as- signed, to account for them. In other words, the facts must be of such aTatu e that their existence is absolutely inconsistent w.th the non-ex^ fstence of their alleged moral cause, ana that they can not be explained uTon any oi^er reasonable explanatir^n. The conclusion drawn from ?he piemises assigned as its basis must satisfactorily explain and ac cLToTa the facts to the exclusion of every other -asonable solu- Z ''3 "If the circumstances are equally capable of solution upon he hypothesis of innocence as upon thatof guilt, they ought to receive a favorable construction, and to be discarded as presumptions of guilt, 'if tire be any reasonable doubt as to the proof of the corp'.JeUc^ or as to the reality of the connection of circumstances of evidence with irflmprolaLn, or as to the proper conclusion to be drawn from 1 Id. 250. S WllU. onCir. Ev. 177. 3 Id. 187. « Id. 187, 188. IVIDUAL8. of his wishes; that , he has become pos- ges of the crime ; if nolusive mechanical sps, etc., if there be i his conduct, etc. ; able to account for, -the concurrence of ally, reasonably, and personal guilt, if not in seen to commit the ture of the case, and ind wanting in every- risoner, but the proof i prevents a supposi- h-d a falling out, and 00 ; had no money to a ; no fear of loss, ind the law connected 3 depending upon cir- dms which philosophic as safeguards of truth and which apply with e must be strictly con- jmstances proved must irticular hypothesis as- le facts must be of such istent with the non-ex- >y can not be explained ;onclusion drawn from ctorily explain and ac- f other reasonable solu- ipable of solution upon t, they ought to receive )resumptions of guilt." * )of of the corpus delicti, stances of evidence with ilusion to be drawn from SMITH V. STATE, 981 these circumstances, it is safer, and therefore better, to err in acquit- ting than in convicting." ^ These rules arc not needed to the conclusion wc have arrived at in the present case. It lias been seen very clearly that there is no direct proof of poison traced to the prisoner from the beginning to tlie end of this transaction, none of the fact of poisoning ; that the indirect proof considered salis- ^ factory in such cases — that of chemical analysis and tests applied to the matter ejected through tiie influence of the poison from tiie stomach and bowels, and of all moral circumstances, is wanting ; that tlic only fact relied upon, that of symptoms admitted in cases of this nature, to be unsa'asfaclory and unreliable, in thij case is particularly defective and unsatisfactory. Where, then, is tliere ground for conviction? Without saying tliat there is none, we are clearly of opinion that there is not sufficient to justify the conviction, and that the prisoner is right- fully entitled to a new trial. The judgment will be reversed, and the cause remanded for a new trial, and other proceedings to be had. HOMICIDE- ■INTENT TO COMMIT MISDEMEANOR ONLY — MAN- SLAUGHTER AND NOT MURDER. Smith v. State. [S3 Me. 48; 54 Ara. Dec. 007.] In the Supreme Court of Maine, 1851. 1. Where an Act is Done with Intent to Commit a Misdemeanor and death ensnes it is not murder. 'I. An Indictment Alleged Ihftt the inisoner caused the death of a pregnant woman by an operation performed Ijy him with intent to procure a miscarriage. The prisoner was convicted of murder. Held, error as the intent was not to commit a felony. Indictment for murder. Clifford, for the plaintiff in error Tallmnn, for the State. Texnet, J. Tlie record shows that the Jury found a verdict of guilty of murder in the second degree against the prisoner upon the third count of the indictment. Thereupon judgment was rendered and sentence that he be punished by confinement to hard labor for the term of his natural life, 'n the State prison, was pronounced. 1 Id. 188, 190. 982 CRIMES AGAINST THE PERSONS Or INDIVIDUALS. The seventeenth, eighteenth and nineteenth causes of error assigned Jtlmttr charge in the third count of the indictment is manslaughter and not murder in the second degree and that the Judgment and sen- tanfo ihiTcuDon are erroneous. The tS count in the indictment charges the P-o-r -Uh hanng felon ously, wilfully, knowingly, and inhumanly forced -^^ Jh "st a wre up in o the womb and body of one Bermgera D. ^aswc he Te na then pregnant and quick with child, with a wvked and mal c.ous und ;Ss Lent to cluse and procure her to miscarry and brxng forth a child, of which she was then pregnant and quick. And it is harged that by means of forcing and thrusting the sa.d wife into her womb and body, she did bring forth tlve said ch.U of ILTch she was pre<^nant and quick, dead. And it is further charged lat bv the fordn/and thrusting of the said wire by defendant into her that by t»^« ;«^^"^=- afterwards became sickened and distempered in Tbo";': same means so used she suffered and languished an' aSwardsby reason theieofshedied. And it is averred m the same :Lt the indictment, that the defendant in manner and f orm ^ aforesaid, feloniously, wickedly and of his malice aforethought, did k.U and murder contrary to the form of the statute, etc. ItuVrnportant to decide, whether in this count the prisoner is direcUy Tu ed of having inflicted violence upon the mothe^ and therebv caused her death, or whether in putting into execution an un- lawful' d"gu death took place collaterally or beside the principal "iftTdicine is given to a female to procure an abortion which kills her the party administering it will be guilty of her murder.^ fh s s ipon the g omid that the party making such an attempt with or without Checo seft of the female Is guilty of murder, the act bemg done with- out laTful purpose and dangerous to life, and malice will be ^™P"ted.^ ' W In delthlnsues in the pursuit of an unlawful «^-g". -f -* ^^ intention to kill, it will be either murder or -->-|^t- us t e . * 1 .1 ..ffonop is felonv or only a misdemeanor. » Thus it a man T'flfnoSvo another with intent merely to kill them, which is only t:lTl^I^lyTn..n by accident, it will be manslaughter ; but if heXded to steal them when dead, which is felony, he will be guilty ^Tcommon law it was no offense to perform an operation upon a orelrnrwoman by her consent, for the purpose of procuring an abor- ?"n, a'dllLby uccceed in the intention, unless the woman wasquick J 2 Ch. Cr. L. 729 ; 1 Halo's P. C. 429. J Com. V. Parker. 9 Sleto. 263 (43 Am. Dec 896) ; 1 BU88. OB Cr. 484. ! roster, 268. ^.. „ t * Rex ».Plammer, Kel. 117; 2 Ch. Cr. L. 720. dak ALS. error assigned 1 manslaughter rment and sen- ior with liaving ] nnd thrust a ). Caswell, she i and malicious jivrry and bring rusting the said le said cliihl of further charged fcndant into her I distempered in and languished trred in the same ler and form as thought, did kill the prisoner is ;he mother, and ixecution an un- de the principal )rtion which kills lurder.i This is )t with or without being done, with- .11 be imputed.* sign, without any [laughter, aa tlie Thus if a man icm, which is only [Slaughter; but if , he will be guilty operation upon a rocuring an abor- woman was quick Kel. 117; 2 Ch. Cr. L. SMITH V. STATE. 983 with child. 1 And under the ancient common law, if a woman be " quick with child, and by a potion or otherwise, killeth it in her womb; or if a man beat her whereby the child dieth in her body, and she be deliv- ered of a dead ohild, this is a great misprison, but no murder." * In both these instances the acts may be those of the mother herself, and they are criminal only as they are intended to affect injuriously, and do 90 affect the unborn child. If before the mother has become sensible of its motion in the womb, it was not a crime ; if afterwards, when it was considered by the common law that the child had a separate and Independent existence, it was held highly criminal. Similar acts with similar intentions by another than the mother were precisely alike criminal or otherwise, according as they were done be- fore or after quickening, there being in neither the least intention of taking tlie life of the mother. If in the performance of these operationa and with these designs an abortion took place, and in consequence of the abortion the mother became sick and death thereupon followed, it was not murder, because the death was collateral and aside of the prin- cipal design, and success in the principal design did not constitute a felony. This distinction is very clearly expressed in the case of United States V. Rons.^ " If a number of persons conspire together to do any unlawful act, and death happen from .nything done, in the prosecution of the design, it is murder in all who take part in the same transaction. If the design be to commit a trespass, the death must ensue in prosecution of the original design to make it murder in all. If to commit a felony, it la murder in all, although the death take place collaterally or beside the principal design. More especially will the death be murder, if it happen in the execution of an unlawful design, which if not felony, ia of 80 desperate a character that it must ordinarily be attended with great hazard to life ; and a fortiori, if death be one of the events, within the obvious expectation of the conspirators. " In the third count of the indictment, the prisoner is charged with no assault upon the mother of the child. There is therein no allegation tliat any wound of any description had been inflicted upon her, or any injury done, suited of itself to cause death. It ia manifest that of whatever he is accused in reference to the intention of causing miscar- riage, and the measures employed to cairy out that intention, and the success attending it, it was by the consent of the mother, if " ot by her procurement. Thia count alleges the design to cause the miscarriage by meana of the forcing and thrusting up into tlie womb of the wire, and the subse- 1 Com. t>. Bangs, 9 Mass. 887 ; Com. v. ! 3 Inst. 50. Parker, before cited. si Gall. 621. 984 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. nusnt miscarriage; also the sickness and distemper ensuing immedi- ately afterwards, followed by the death of the mother. It is alleged that the means used to procure the miscarriage were the cause of death, but it was evidently intended to be charged as the remote cause. The charge substantially is, that the miscarriage was the proximate cause of the death. . . In the case of Commonwealth v. ParTcer, the indictment is in very nearly the s-ime language as that emi.loyed in the count we are now considering, as touching the charge of the subordinate offense, except- ing in that there was no allegation that the mother was - quick with child " whereas in this it is so alleged. By reason of that omission it was hold, and we think properly, that no offense at common law was charcre is a re- moval of the unsubstantial distinction, that it is no offence to procure an abortion before the mother becomes sensible of the motion of the child, notwithstanding it is then capable of inheriting an estate ; and immediately afterwards is a great misdemeanor. It is now equa ly criminal to produce abortion before and after quickening. And the unsuccessful attempt to cause the destruction of an unborn child is a crime, whether the child be quick or not.^ We now come to the consideration of the question whether the subor- dinate offense, as charged in the third count in the indictment, is a felony or otherwise, under the statute. By the Revised Statutes,* the term "felony," when used in any chap- ter in the title of " Crimes and Offenses," etc., shall be construed to include murder, rape, arson, robbery, burglary, maims, larceny, and every offense punishable with death or by imprisonment in the State prison. ..t • i. 4. * Every person who shall use and employ any instrument with intent to destroy the child of which a woman may be pregnant, whether such child be quick or not, and shall thereby destroy such child before ita 1 Rev. Stots., ch. 100, seca. 18. M. * <>•». 167, ••0. 2. UAL8. ensuing immedi- . It is alleged 1 cause of death, ote cause. The proximate cause ,ment is in very 3unt we are now offense, exccpt- Yas " quick with : that omission it ioinmon law was J subordinate of- (V was an offense, n its uterine life rom the mother ; nother herself, defendant is ac- [ design, without execution of that lent and sentence tatute, which has T'lcre is a re- flense to procure the motion of the ig an estate ; and ;t is now equally cenin;;. And the I unborn child is yhethor the subor- itment, is a felony used in any chap- ,11 be construed to kims, larceny, and nent in the State nent with intent to ant, whether such !h child before ita SMITH V. STATE. 985 birth, shall be punished by imprisonment in the State prison, not more than five years, or by fine, etc.* It is obvious if the prisoner be charged with the murder of the mother in proper form, in the commission of the subordinate crime, and the subordinate crime U such as is described in the statute referred to, and that is properly charged, the judgment and sentence upon this count is authorized, and there is no error therein. But if the subordinate offense as charged, does not constitute a felony under the statute, the judgment and sentence are errroneous. The offense described in the statute," is not committed unless the act be done with an " intent to destroy such child " as is there referred to, and it be destro^-eil by the means used for that i)urpose. It is required by established rules of criminal pleading tliat the intention which prompted the act that caused the destructiou of the child, as well as the act itself, and the death of the child thereby produced, should be fully set out in the indictment in order to constitute a crime punishable by imprisonment in the State prison, under the statute. The allegation that a certain instrument was used upon awomm pregnant, and that the use of that instrument caused her to bring forth the child dead, is not a charge that the one using the instrument intended to destroy the child. The inference of such design, from the use of the instrument and its effect, is by no means necessary. Tlie third count in tiie imlictraent alleges the act to have been done with the intent to cause and procure the deceased to miscarry and bring forth the child of which she was then pregnant and quick ; and that by means of that act she brought forth the child dead. But tiiere is no allegation that the act was done with the intention that she should bring forth her child dead, or with an intent to destroy it, unless the words ''miscarry" and "bring forth the child" necessarily include its destruction. "The expulsion of the ooum or embryo within the first six weeks after conception is technically miscarriage ; between that time and the expiration of the sixth month, when the ciiild may be positively alive, it is termed abortion ; if the delivery be soon after the sixth month it is termed premature labor. But the criminal attempt to destroy the foetus at any time before birth is termed in law a miscarriage, varying, as we have seen, in degree of offease and punishment, whether the attempt were before or after the child had quickened." ^ Other writers on the subjCwC give a similar definition of the term "miscarriage."^ I Rev. stats., ch. 160, see. 13. 3 Chit. Med. Jur. 410. S cb. 160, sec. IS. 1 Hobljrn's Dictionary of Terms Used in Medicine and other Collateral Sciences. 986 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. The converse of the last proposition can not be true, as there are undoubtedly many miscarriages involving no moral wrong. If the term " miscarriage " were to be understood in the indictment in its most limited sense, it can not be denied that in effect it must be identical with the destruction of the fiutus. But this indiutmcut itself has given to tlie word " miscarriage " the more general signifu ition. It charges that the miscarriage was of the woman who was pregnant and *' quick with child." The term " quick with child " is a term known to the law, and courts are presumed to understand its meaning. A woman can not be " quick with child " until a period much later than six weeks from the commencement of the term of gestation. The more general mearlng of the word " miscarriage " must, therefore, be applied. The indictment charges no time, after the quickening, when the miscarriage took place. It may have been at any period when the birth would have been premature. The language of the indictment, when taken together, construed in the ordinary or in its technical and legal signification, does not forbid this. And labor is premature if it take place at any period before the completion of the natural lime. It is admitted by Dr. Paris, a writer of high repute on medical juris- prudence, from the number of established cases, it is p ssible that the foetus may survive and be reared to maturity, though be .i at very early periods. Many ancient instances are stated of births even at four months and a half with a continued life even till the age of twenty-four years. And the Parliament of Paris decreed that an infant at five months possessed the capacity of living to the ordinary period of hu- man existence ; and it has been asserted that a child delivered at the age only of five months and eight days may live ; or according to Beck and others, if born six months after conception.'^ Many of the facts upon which the opinions of writers upon medical jurisprudence are founded may be erroneous and the opinions incorrect. We can not take judicial notice of either. But it is not too much to say that a child may be born living, when its birt'i may be so soon after conception, that it is premature. The f ojtus may be expelled by unlawful means so soon after conception that extra uterine life can not continue for any considerable length of time, and yet afterbirth it may onca ej:eroise all the functions of a living child. We have found no author ' ; .articularly to those inter- ested in criminal pleading, that there should be an opinion upon each of the errors assigned, but it is unnecessary for a disposition of the case. Judgment reversed and the court order that the prisoner be dis- charged from his imprisonment and go thereof without day. murder — presumption op malice. State v. Coleman. [G Rich. (S. C.) 185.] In the Supreme Court of South Carolina, 1875. 1. Where there are Sui&oient Facts before the Jury to enable them to inter malice, or the want of it, a» a fact, directly from the evidence, recourse should not be had to anj legal presumption of malice which may arise, in the absence of direct proof, from the fact of homicide. 2. Where there is full Evidence a* to the Surrotmdins Ciroumatancea, this pre- Bumption can not be allowed to deprive the prisoner of the benefit of any reasonable doubt, but the Jury should find the malice as an inference from the facts, if at all. It was erroneous, therefore, to charge " that all homicide is presumed to bo malicious, and amounting to murder until the contrary appears from circumstances of alleviation, ex- cuse or Justification, and that It is incumbent upon the prisoner to make out such cir- cumstances to the satisfaction of the court and Jury, unless they arise out of the evidence produced against him." WiLLARD, A. J. The prisoner was convicted of murder. The circuit judge charged as follows: "That all homicide is presumed to be mail- 988 CR1MK8 AGAINST TUB PERSONS OF INDIVIDUALS. cious. una nmounting to mnrdor until the contrary appears from eir- cuinstances of alleviation, excuse or justification, and tluit it is incumbent ui)on tlie prisoner to muke out such circnrast.inces to the sat- isfaction of the court and jury, unless they arise out of the evidence produced against him." The authorities, undoubtedly, support the proposition that the law presumes malice from the mere fact of homicide.' But this presumption is not applicable where the facts and circumstances attending the homi- cide arc disclosed in evidence, so as to draw a conclusion of m-'ice, or want of malice, as one of fact from the evidence. Pre8umi)tion of this class are intended as substitutes in the absence of direct proofs, and are, in their nature, indirect and constructive. The best evidence of the state of mind attending any act is what was said and done by the person whose motive is sought for. The motive that impels to the taking of human life is no exception to this rule, and the importance of the consequences that depend u|)on the accurate ascertainment of its nature in such cases, affords the strongest ground for limiting indirect and constructive proofs to the narrow grounds within which they belong, In the present ease, the evidence disclosed tlie fact that the deceased came to his death by a blow, from a stick in the hands of the prisoner, fallini? upon the back of his neck. It appears from the record before us, that the proofs embraced a statement of the origin of the difficulty between the parties ; their con- duct towards each other down to the time of the killing, and to some extent, the subsequent conduct of the prisoner. When the evidence is of such a character; it must be presumed eufflcient to enable the jury to draw from it a conclusion of fact one way or the other. Under such circumstances, there was no necessity, and, therefore, no propriety, in resorting to any general presumption arising by operation of law. If the evidence did not warrant the conclusion of malice, the jury should have so found, uninfluenced by any presumptions from the naked facts of a homicide. If an obscurity as to the motive of the party arose from the circumstances detailed in the evidence, it was not competent to resort to the presumptions in order to solve the obscurity. It was material to the solution of the question of malice, as one of fact under the evidence, to ascertain whether the stick employed was a deadly weapon. In determining this fact, regard should be had to the character of the weapon, the mode of its use, and the strength and position of the per- son against whom it was used. If, considering all these circumstances. 1 4 Bla. Com. 201 ; State v. Toobey, MSS. UALS. ipears from cii- 111(1 tliiit it is iinccsto llie sat- )f tlie evidence m tliat the law his presumption niling the homi- on of m-'icc, or sumption of this eet proofs, and act is wliat was r. no exception to tk'pend upon the rds llie strongest J to tlie narrow hat the deceased i of the prisoner, jofs embraced a uties ; their con- ing, and to some n tlie evidence is enahlo the jury ler. Under such , no propriety, in ation of law. If !, the jury should n tlie naked facts 1 party arose from lot competent to lity. malice, as one of k employed was a e character of the isition of the per- !se circumstances^ STATE V. COLEMAN. 089 death was a c nsequoneo reasonably to be apprcheniled, thru tin* jury are warranted in drawiiig tlie infeteiice of malice, if that inference be in harmony with the otlier proofs. The size, form and weight of the stick, and the amount of force em- ploj'cd l»y the prisoner, in giving the blow, do not appear by the record, Imt it is to be presumed that some evidence on these points was sub- mitted to the jiuy. The charge of the judge, quoted above, failed to present to tht? jury the nature of llair duties as to the issue of fact involved, and maj' have led them to conclude that they might disregard uncertainties in the evi- dence, and place their conclusions on the ground of the legal presump- tions alone. Although the charge allows them to 8( ek for ground for rebutting such presumi>tions in the evidence of what took place, still it left their minds in a position to conclude that the benolit of a reason- able doubt arising from the evidence ought to be given to the State instead of the prisoner. Where the circumstar es preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and can not be deprived of such benefit by any presumption of guilt arising b}' operation of law from the naked fact of a homicide. A charge may be erroneous, although the propositions of which it is composed may severally be conformable to recognized authority, if in its scope and bearing in the case it was likely to lead to a misconcep- tion of the law. An objection was taken, on the argument, to the panel of grand and petit jurors, but it does not appear that such question was raised, or an exception taken upon it in tiie court below. We are not called upon to decide, at the present time, whether matters can be alleged as grounds of appeal in circumstances that were not the subject of except tion in the Circuit Court, for under no circumstances would this cour- pass upon a question that was not raised in the Circuit Court, where such question was not indispensable to the appeal. It appearing that the prisoner is entitled to a new trial on the ground of a misdirection, the object of the appeal is accomplislied, and it is not essential that the question as to the legality of the panel should be considered. There should be a new trial. MosES, C. J., and Wright, A. J., concurred. 1 990 CUIMKS AOAINST THE PERSONS OF INDIVIUUAT-S, lIOMICIDlC-FiaONIOUS II()MICII)K-NO INTENT TO TAKE LIFE- WANTUXNKSS. Dakky V. People. [10 N. Y. 120.] In the Court of Appeola of Nev> York, 1854. Onder a Statute Defining the Crime of Murder and enacting (among other*) that killing »houia bo imirat..- "wl.c.. pcTpetratcd by any not imnilnunlly ilniigerous to other" ami evincing a .leprnv.d mlml, ngaraiesMo bumnn life, altl.ough without any promodllntcd design to ntfect the dcnth of any i.urti.uh.r Individual, a kdllng without premeditated di'-ign to take life, though perpetated by nueh acts as are i™""nently dangerous to the person killed, and evince a depraved mind, regardless ol the lite of the deceased, is not murder. Wkit ok Euuou to the Supreme Court, sitting in tlie Eighth District, where a conviction of the plaintiff in error, of the munler of bis wife, in tlie Court of Oyer and Terminer of Erie County, hud been affirmed, on certiorari, and sentence of d^atli pronounced upon him. Tlie Gov- ernor respited the execution, to enable the prisoner to have a review in this court. The indictment contained five counts, charging the killing to have been effected by the prisoner, by striking and beating the deceased, with his hands and feet, and with a chair, and by kicking her ; the first two cliarged the murder to have been committed with malice afore- thought, in the common-law form ; the others alleged that it was done, with°a premeditated design to effect the death of the deceased. On the trial, the prosecuting attorney gave evidence tending to prove that the deceased died on the 14th August, 1852, of injuries and bruises inflicted upon her by the prisoner, a few days previously. It also appeared, that the prisoner, during a portion of the time in which the injuries were inflicted, was partially under the influence of licpior. No provocation on the part of the deceased was shown, but on the con- trary, she made little or no resistance to the attack of the i)risoD.er, save by way of expostulation. The prisoner had several times threatened to kill his wife ; and they were alone together in their room, when the injuries were inflicted; but her parents and brother who occupied another part of the house, heard her cries, and had witnessed many of his acts of violence. The dying declarations of the deceased were given in evidence by the prosecution, to the effect, that on the 8th of August, after she and the prisoner had retired to bed, he coram. need striking her in the pit of the stomach with his fist, and that he repeated it, on the two follow- ing nights; that he struck her upon the head with his fists, and on one UAT,s. I TAKE LIFE — \4. (among others) that luiilly ilniigerous to Itliough without any il," a kilUng without g ns are imminently »rdle88 of the lite ot Eighth District, rder of his wife, d been affirmed, him. The Gov- have a review in e killing to have ig the deceased, iiig her ; the first th malice afore- that it was done, leceascd. tending to prove juries and bruises viously. It also ;ime in which the •e of li(iiior. No , but on the con- the i)risoD.er, save times threatened r room, when the ler who occupied r-itnessed many of sn in evidence by list, after she and iug her in the pit )n the two f oUow- fists, and on one DARRY r. PKOrLR. 091 of these nights, with a chair. A suir jiistiliable homicide, according to tiie facts and circumstances of each -ase. § 5. Such killing, unless it be manslaughtiT, or excusable or justifi- able liomicide, as hereinafter provided, shall be murder, in tiie follow- ing cases : — 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any iiuman being. ?,. When perpetrated by any net imminentl}' dangerous to others, and evincing a depraved mind, regardless of human life, altiiough with- out any premeditated design to effect the death of anv oarticular indi- vidual. 3. When perpetrated, without any design to effect death, by a per- son engaged in the commission of a felony.* The court charged the jury, vder alia, that, in order to convict the prisoner of the crime of murder, it was not necessary tliat they should be satisfied that the prisoner, at the time of inflicting the injuries upon the deceased, entertained a premcdiated design to effect her death by means of those injuries ; according to the first subdivision of section 5 of the title of the Revised Statutes respecting crimes punishable with death ; but that if they should find, upon the evidence, that the pris- oner designedly inflicted the injuries, that they were inflicted, without provocation, and not in the heat of passion, but were perpetrated by such acts as were imminently dangerous to the life of the deceased, and evincing, on the part of the prisoner, a depraved mind, regardless of human life, although without any premeditated design to t ffect the death of the deceased ; that then the offense woidd come within the statute defining the crime of murder. The prisoner's counsel excepted to this portion of the charge. The prisoner was found guilty of murder, and the cause having been removed to the Supreme Court, by certiorari, on a certificate of proba- ble cause made by the presiding judge, was there argued on the bill of exceptions, and judgment rendered in favor of the People ; whereupon, I 2 Rev. state. 65C, 657. 992 CllIMKS A<»AIXST TIIK rKllSOXS OF IxniVllMTALS. the prisoner 9U0.1 out tl.i. writ, nnd tl.c aovcrnc.r rospltcl tl.eoxec.ition. On tl.o first arjium.-nt, in IXM, tl.c momlurH ..f tl.e cuurt were tqufthy divid.d in opinion; antl a rcur-rnnicnt was ordered. /////, for llio plaintiff in imtoi.' S'lwin, District-Attornoy, for tlu- People. SicLUi-N, J. Tlio Bubstitntion ..f new and original phraseology in our statute dinning tlio crime of luMidei ,» was tl.o re^ilt of nn effort to clear tlio subject of the obscurity wl.ieli grew out of the inaccurate mo of Borao of tl.e terms of the cnimon law. To render this effort Buccessfid, lb IsneccBsai-y so const rue the new terms used according to their natural import. A resort to tho rejected terms, in oi.b-r to in- terpret those newly adopted, would obviously ninvest tho subjc. t with much of tho pievious uncertainty, and render abortive this i.ttempt nt elucidation. When, therefore, it is said, as has been said by seviral of our Judges, that tho first subdivision of section T) of our natntc was intende.l to define murder from cxi)rc8s, and tho second and third, from implied malice, no light whatever is thrown upon tho true inter- pretation of tho section. A glance at the law of murder, as it existed prior to the Revised Statutes, make it evident, that the U-rms express and implied malice, an. It tended to intro- if the word implied in ence of actual malice bitious malice, without * Fott. Or. U 336,207. DARKY V. PEOPLE. 996 In putting a constrnction, therefore, upon our statute, we should lay aside entirely the common-law terms of express and implied malice, as calculated to mislead and to engender false ideas, and interpret the phraseology, as before insisted, according to its ordinaiy import. Looking, then, at the statute itself, and conutruing it in this spirit, what is its real scope and meaning? In endeavoring to answer this in- quiry, it '" important to keep in view certain rules, which reason and experience have established, as calculated to aid in the just interpreta- tion of statutes. If the enactment be subdivided, each subdivision should be construed so as to provide for a separate and distinct class of cases, and bo as to include all the cases it is intended to embrace, and to exclude all others. Each clause is also to be construed in the light of all the rest, and so as to give force and effect to every sentence and word ; and such a construction is to be put upon the whole, if possible, that no case or class of casrs will fall within more than one branch of the act. These rules are necessary in order to attain that precision and certainty which is the object of the subdivision. There is, I believe, no great contrariety of opinion as to the meaning of the first subdivision of section 5 of the statute in question. If there is any diificulty in this respect, it is in ascertaining whether the Inst clause of that subdivision, viz., "or of any human being," was in- tended to provide solely for cases where the premeditated design, al- though not aimed at the person actually killed, was nevertheless directed to some particular individual ; or, whether it also includes oases where it was aimed indiscriminately at a multitude of persons, or at human life in general. That the former is the true interpretation was insisted by the prisoner's counsel, upon the argument, for several reasons. He urged, first, that upon comparison of section 5 of our statute with the description of murder from malice aforethought express, as given in East's Plem of the Crown,^ and considering that the revisers in their m ■ to section 5, expressl" ay, that it was compiled partly from East, it is apparent, that the two first subdivisions of section 5 were copied ei ibstantially from the definition given by East ; the only mate- rial difference being, that the two first subdivisions of East are, in our statute, condensed into one, and that as both subdivisions of East are plainly and expressly confined to cases of malice to a particu- lar individual, tLo corresponding subdivision in our statute ^aould receive the same construction. Again, he contended, that, as the first clause of this subdivision was clearly confined to cases of particular malice, the last, being directly connected with It, should be held to be- 1 p. 288, MO. 10. 996 CUIMES AGAINST THE PERSONS OF INDIVIDUALS. long to the same class, agreeable to the maxim noscitur a sociis.^ I have very little hesitation in adopting the construction of this subdi- yisioa thus cont.'nded for, not only for the reasons given by the coun- sel, but for others which will appear when we take into consideration the second subdivision. This biinnded that there was a substantial identity of design and object between our statute and that of Pennsylvania passed in 1794 ; and that as the latter statute had been construed to limit murder, to those cases in which an actual intent to take life exists, ours should receive the same construc- tion ; and insisted, that the first subdivision of section 5 being intended to provide for all cases where the hostile intent was specially aimed at thelife of some one individual, the second subdivision was designed to embrace only those cases excluded from the first, where the intent, al- thoucrh deadly, does not single out its object. But there are serious objections to taking this view of the latter sub- division, conceding the construction thus put upon the first to be, as 1 think it is correct. Of what use, upon this supposition, are the words •' imminently dangerous to others ? " Are they not rendered mere un- meaning verbiage, by assuming that an actual intent to take life is essential to the crime under this subdivision? Again, if such an intent is necessary, the requirement must be found in the defimtion of the crime given by the statute. The only affirmative words indicative of the intent rcciuired are these, " a depraved mind, regardless of human lifp •• These words describe the state of mind which must accompany the act ; do they express a formed intent to destroy life ? Clearly not ; no sound reason can be given, why the Legislature should have resorted to such equivocal and circuitous phraseology, to express that simple intent. Such an intent is expressed in clear terms, in the subdivision 1 Broom'* Leg. Max. 294; Evans v. Ste Tens, 4 T. R. 22S. 2 19 Wend. 869. 3 U Id, S20. AL3. %r a sociis,^ I of tliia subdi- n by the coun- > consideration of interpreting lis subdiAision Rector,'^ and in hose cases was t to that rigid \ true meaning, the subject as rst, whether an I constitute the ir contended for i great learning He cont(>nded ect between our liat as the latter ises in which an ! same construc- I being intended >ecially aimed at nras designed to re the intent, al- )f the latter sub- first to be, as I n, are the words sndered mere un- it to talce life is if such an intent definition of the ards indicative of irdless of human must accompany fe? Clearly not; iild have resorted press that simple in the subdivision DARRY V. PEOPLE. 907 which precedes, as well of that which follows, the one under review ; would they not have expressed the same intent in the same way in this, if that was what was meant? Would they have resorted to phraseology, not only peculiar, but such as does not import what, upon this suppo- sition, they intended? It seems to me, not. But tliis is not all : The piiraseology of the subdivision is taken sub- stantially from the writers upon the common law. An absolute intent to take life was not necessary, at common law, to constitute the crime described by tliis phraseology ; as to this, there is no room for doubt. Tlie first general division of homicide, as given by East, is as follows: " From malice aforethought, express; where the deliberate purpose of the perpetrator was to deprive another of life, or to do him some great bodily harm." ^ This general division of homicide is again divided by East into three subdivisions, in the next section, as follows: 1. From a particular malice to the person killed. 2. From a particular malice to one, which falls by mistake or accident on another. 3. From a gen- eral malice or depraved inclination to mischief, fall where it may. Now, as this third subdivision is obviously a specification of the nature of the cases falling within the last clause of the previous general divis- ion, it is entirely clear that it was intended to describe a class of cases in wliicb a deadly intent is not required to make out the crime. It has been already intimated that the first subdivision of section 5 of our statute appears to be a virtual transcript of the first two subdi- visions just given from East. It is, I tliink, equally apparent that the second subdivision in our statute was taken substantially from the third subdivision of East, although not a literal transcript of it. The infer- ence from this is very strong that it was intended to describe tlie same class of cases ; and if so, tlien it follows, from what has already been said, that a deadly intent is not necessary to constitute the crime of murder under it. But tliere is an important clause added to the second subdivision in our statute which does not appear at all in East ; and it becomes indis- pensable to ascertain its design and object. If we can discover the true object of introducing tliis clause, we have a key to the interpretation of tlie whole section. The words are, " although without any premedi- tated design to effect the death of any particular individual." These words must have been introduced for some purpose ; what was it? I remark, first, that they were not designed to show that a particular deadly intent is not essential to constitute the crime, because tliey could not have been deemed at all necessary for that purpose. The idea of such a necessity seems, as we liave already shown, to be excluded by 1 1 Eaet'a P. C. 222, Bee. 9. 998 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. the whole phraseology of the subdivision. No corresponding language is contained in East's definition of this class of murders ; he evidently considered the definition complete and perfect without it. Besides, if this clause was introduced for that purpose the plain implication would be, that a general deadly intent, not aimed at any particular individual, is necessary. This would be repugnant to all our previous reasoning, and would exclude from the operation of the subdivision the very cases which, at common law, marked the class. This view of the clause would also effectually exclude the case at bar from the subdivision. But I consider it clear, from what has been heretofore said, that this could not have been the object of the clause. There is but one other purpose which this clause could have been in- tended to subserve. Although the terms of the second subdivision do not require a deadly intent, to make out the crime, yet, independent of the clause in question, they do not exclude it. Hence, the second sub- division mi-ht be construed to embrace most, if not all, the cases pro- vided for in the first. This would defeat the very object of the classification, which was, to draw a clear line of distinction between the different classes, and prevent confusion by their merger. The plain object, therefore, of the last clause of the second subdivis- ion, and the only conceivable object, I hold to have been, to mark the distinction between that subdivision and the first, by at once excluding from the former all cases of particular, and at the same time stating that it was not intended to exclude cases of general deadly intent. Assum- ing this to have been its object, it is apparent, that force and signifi- cancy is given to every word of the clause in question; and that each of these subdivisions is made to stand out, isolated and distinct, with boundaries clearly marked, and with no tendency to fusion with each other. • , J. • • 4. It will be seen that this view necessarily limits the first subdivision to cases of particular malice, from the antithetical relation between that subdivision and the last clause of the second. This will be made more apparent, by reading the two clauses in connection, omitting the inter- mediate significant words, thus: "when perpetrated from a premedi- tated design to effect the death of the person killed, or of any human beinc^; or when perpetrated" (in a certain way), "although without any premeditated design to effect the death of any particular individ- ual " I doubt, whether any other reading can be adopted, which will atonce give scope and meaning to every word of both subdivisions, and at the same time accomplish the object of drawing a definite and clear line of demarcation between the two. We have, then, the precise clas- sification of East; the only difference being that in our statute it is simplified, by reducing the first two subdivisions into one, and rendered ALS. iding language ; he evidently it. Besides, if [)Ucatio;i would liar individual, ious reasoning, I the very cases of the clause he subdivision. i said, that this d have been in- subdivision do independent of the second sub- l, the cases pro- object of the tion between the second subdivis- !en, to mark the ; once excluding time stating that intent. Assum- orce and signifi- i ; and that each nd distinct, with fusion with each pst subdivision to on between that ■ill be made more mitting the inter- from a premedi- or of any human although without larticular individ- opted, which will subdivisions, and definite and clear I, the precise claa- our statute it is one, and rendered DARRY V. PEOPLE. 999 a little more definite by the express exclusion from the last subdivision of all cases embraced in the first. What, then, are the cases which, upon this construction, were intended to be included in the second subdivision? In considering this question it is clearly proper, in the first place, to inquire what kind of cases were embraced in the corresponding class, as defined by East. The words in East are: " From a general malice, or depraved inclination to mis- chief, fall where it may." The word " general " here used and the last words of the s atence, leave no doubt as to the nature of the cases con- • templated by this subdivision ; they were cases of depraved and reck- less conduct, aimed at no one in particular, but endangering indiscriminately the lives of many, and resulting in the death of one or more. If this be not clear upon the words themselves, the comments of Mr. East upon this subdivision woulrl seem to put tlie matter at rest.* In illustrating this subdivision, he says: "The act must be unlawful, at- tended with probable serious danger, and must be done with a mischiev- ous intent to hurt people, in order to make the killing amount to murder in these cases; " and the instance" ^ ■ gives are as follows: *' If a per- son breaking in an unruly horse, willfully ride among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal, it is murder." Again, " so, if a man, know- ing that people are passing along the street, throw a stone likely to create danger, or shoot over the house or wall, with intent to do hurt to people, and one is thereby slain, it is murder." These are the only examples given, and they accord perfectly with the language of the sub- division, and show that the latter was intended to embrace those cases of general malice only where the lives of many were or might be in jeopardy. The inference is very strong that the subdivision of our statute which we are considering was intended to provide for the same cases as that of East, from whtch it was substantially taken. But the argument in favor of this construction is by no means confined to this inference. It is clear, I think, from what has been already said that the subdivis- ion in question does embrace those cases where an intent to take life exists, which is not directed to any particular individual, but is general and indiscriminate. The language of the subdivision, however, at the same time, shows that it was not intended to be confined to those cases, but was designed to include another class closely akin to and almost identical with those in which death is produced by acts putting the lives of many in jeopardy, under circumstances evincing great depravity and 1 1 East's p. C. 2U, sec. 18. I. 1000 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. fire into a crowd with the view of destroying life, and he may do so for Z me purpose of producing alarm, although at the i^--^^^^^^^^^^^ Z he knows, of killing some one. Again, he may open the drawbudge "f araillawith intfnt to destroy the lives of the P-^f"'- ^^ may do it for the sole purpose of effecting the destruction of the prop- 71 of the rlilroad company. The subdivision in question was |ntended to provide for all these and similar cases indiscriminately, inUtmg them uprthe same footing, without regard to the particular intent. The Phrases "imminently dangerous to others," and "depraved mmd, re- gardless oZman life," have an apt and intelligible meaning when used in regard to such cases. . , , „„„„ «# thin *le- If, then, the subdivision was intended to include cases of th 8 de scri^tion, t would seem to follow, upon the plainest P"-;?^-;' «;"; 8?^ction that cases of death produced by acts affec uig a smg^ n^i iLl only are excluded. It would be r^V^^^^^^ ^oj^Usr^ln^^^ of interoretatlon to associate under the same clause of a statute groups of caseTsoTssimilar as those, examples of which I have ust g.ven and ordinary homicides; especially where, as in the preseu instance, ^n attempt iL been made, in framing the statute, at a precise classifi- cation of the cases arising under it. ... v.„ The examples which I have given as falling within tbe prov-on b^ lone to a class having marked features, easily distinguishable from all o^his and tLre is no difficulty in so construing the subdivision in :Son:st::Lludecasesnotb'elongingtotln^ time so as to include aU cases falling properly withm it. For these re^ons I am entirely satisfied that this subdivision was 1002 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. tlon of murder was well establishe^U The act concerning '""rde' »n the rcisTon of 1813, did not atten,pt a definition of the offense but was mied tothere-enJctmentof several English statutes l>-v>«l'"g '- ^ few ilicular cases of homicide, bringing them withux, or exomptmg them from, the penalties of mun'i-r.'^ %.eaes;riptlLoftheo«e..eth^ "^^7^^:^^^ -nlawfuny UiUeth an, reasonable creature :^ h malice^,.•epense (or aforethought)." 3 The -rds maUc ,-- tense acouircd a peculiar significance on account of their use in the s Ite r/lenry VIH.^ That act provided, that ^-^^ -^ actud^^^^^^^^ bolv orders, should be found guilty (among other crimes o any w.l fu murder of malice prepensed," they should be utterly excluded fim the benefit of their clergy,.and suffer death in such —rand form ''as if they were no clerics." From that time, the words referred toTecame indispensable in the definition of the offense, as only a nom^ ralZLment could be inflicted, if malice were not estabhshed by the Je die and from thence, also, the inferior grades of fe on.ous honu- dde came to be called manslaughter, while the capital offense was deno^nated murder. And where a capital conviction was sought i tsTaid to be indispensable that the indictment should contam the words - ex malitia sua pmcogitata, inlerfecit et murdraviL Though the words, in their ordinary sen.e, conveyed the idea of deadly Animosity against the deceased, and, by a strict interpretation ionl f »erhans only embrace cases of a killing from a motive of re- Tent ' tCy wer'ell so limited by the construction of the courts. AU rnSdes for which no excuse or palliation was proved, and a large clTwhe;^^^^^^^ no actual intention to effect the death of the per- son kUlcd, were held to be murder. To justify these convictions an Tificlll meaning was attached to the words -11- prepe^ b^ w ich thev were made to qualify the taking of human life, m all cases where sound poUcy, or the demerfts of the offender, were supposed to require *haf he should be capitally convicted. . . *u- llnce t deflniLs of murder to which I have referred contam he nd^^tl tnt the malice may be express or implied; but in drawing the Snctl^b^^^^^^^^^ the two' classes, great confusion was introdnced^ Coke fTinstance, classes among instances of implied mahce, the case ofTolsoii.^" and all cases of the killing of another, without any provo- caUoThrhrm that is slain ; though it would seem, that a willful poison- M Keeve.. Hist. Eng. Law. ^ m to ^^'.^oj:*^'?-"- *'^'"^'^" '" '"''*"' ,S6; 6 Id. m to 223: FoBters- Crown Law. 4 Bla.^Com. 195. J02 to 306 ; 4 Bla. Com. 201. ^ ^ ^^^^.^ p p ^jq « 1 U. L. 66. JALS. ling murder, In )ffen3e, but was providing for a ^ or exompting liled for several sound memory, onable creature, irds malice pre. Lheir use in the y, not actually in ;s) of " any will- titterly excluded uch manner and le words referred , as only a noml- stablished by the ! felonious homl- )ital offense was an was sought, it iOuld contain the avit." sycd the idea of let interpretation, im a motive of re- f the courts. All aved, and a large ! death of the per- se convictions, an repense, by wliich in all cases where pposed to require iferred contain the but in drawing the a was introduced, jd malice, the case without anyprovo- at a willful poison- l7;lHale*8P.C.U9,450; 50. DARRY V. PEOPLE. 1003 ing afforded the strongest evidence of deliberate malice, while in the othtr case, supposing no explanatory evidence to be given, actual malice ought to be found as a matter of fact upon the evidi;nce.> Hale includes in the class of malice in fact, the case of Ivilling from a deliber- ate compassing and design to do some bodily injury, and instances Hallowiiv'a Case, where the prisoner tied a lad, who was found tres- passing, to his horse's tail, and he was dragged till his shoulder was broken, wliereof he dicd.^ So, he says, if a master dcsigneth an im- moderate and unrea3ona»)le correction of his servant, either in respect to the measure or the instrument, and death ensues, it is murder from ex- press malice; and so of a schoolmaster toward his seholar.s This author, in his chapter of " murder by malice implied, or malice inlaw," includes in that class, cases where the homicide is committed without provocati(m, where it is upon an officer or minister of justice, and where by a person that intends theft or burglary, etc. In the first division (murder without provocation), the cases present merely a rule of evidence. As the law holds that a man intends the natural consequences of his own acts, it determines, that where there is no provocation, or where there has been time for the blood to cool, the killing must be designed and intentional. As was said by Coler- idge, J., in Regina v, Kirkliam:* "Everyone must be presumed to intend the natural consequences of his acts. If you throw a stone at a window, it must be taken that you intend to break it, because it is a brittle substance. That being so, if you had heard nothing tiore than simply that the prisoner, taking a knife in his hand, had stabbed his son, that would have put it on him to clear himself from the charge of murder." In cases of this kind, if the prisoner could sliow, positively, that his intention was not to kill the deceased, he would, of course, be acquitted. In the other instances, on account of the intention to do some other illegal act, not Vouching life, the presumption is juris el de jure, and the most conclusive evidence that death was not intended, would not help the prisoner. Take, for example, the case of a homi- cide, by one engaged in committing a burglary; the party killed may have been a stranger, or even the nearest friend of the prisoner, and he may be able to show in the most conclusive manner that lucre was his only object, and that murder was not in all his thoughts ; still, he was, by law, guilty of murder with malice aforethought. These references are sufficient to show, that the term malice prepense had been made the subject of much and not always perfectly intelligent refinement. Malice in law, or implied malice, was simply a conclusion 1 3 Inst. S2. » 1 Hale's P. 0. 461, 454 ; Ilalloway's Case. Cro. Car. 13L 3 p. 454. < 8 C. & P. 119. 1004 h case. excusable or jus- rder in the follow- ed design to effect ing. 2. When per- and evincing a de- hout any premedi- ividual. 3. When person engaged in !d from a premedi- h without a design t>y the revisers that distinction between much needed as a le first step to such )orted, except the jected.3 It thence- ive consideration of each case presented 5 within the statute. of easy solution, as died by his hands, ► evidence given to )micide, wholly ua- violence, unreiievtd gn to do some great 3 2 Rev. atats. 656. DAHRV v. PEOPLE. 1005 bodily harm, from which death resulted, po93ii)Iy, without its being contemplated by the accused. In either case, as a hcjuiicidc uncx- [tlained, or a killing by cruel violence, unprovoked, it was murder by the common law. Whether, under the statute, tiie jury would have l)een authorized to'flnd a premeditated design to effect her death, within the meaning of the first subdivision of the fifth section, is a question not before us, and upon which it would be improper to express an opinion; that question was not presented to the jury. The precise question is, wliether the second subdivision embraces the case of killing by an unprovoked and cruel beating, the accused not intending to take life. Had the fourth subdivision, as reported, been enacted, it would precisely have met the case. I do not rely very much upon its having been reported and rejected by the Legislature. It may have been, because they did not intend to punish such a case, as mur- der, and it may have been, because it was considered as embraced in the prior provisions. It is, however, a circumstance of some moment, as it would rather be presumed, that where a case of frequent occur- rence was well described in the projected law, the provision would have been adopted, instead of leaving it to be dealt with bj' a construction upon other provisions less accurately adapted to the case. This con- sideration is strengthened by the circumstance, that a homicide com- mitted in the attempt to do a great bodily injury, short of death, without, or on insufficient, provocation, formed a distinct bead of the law of murder by the common law.' In ascertaining the meaning of the second subdivision, upon which the plaintiff in error was convicted, it is necessary to look into other instances of murder at the common law, where it is not necessary that there should be any intention to take the life of the person killed. I refer to cases where death was the collateral consequence of the act, which itself was highly criminal. Foster says, that " if an act, unlaw- ful in itself, be done deliberately and with intention of mischief, or great bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and death ensue, against, or beside, the original inten- tion of the party, it will be murder." '■* One branch of the offense here refeiTed to is, in a modified form, provided for in the first subdivision. A premeditated design to effect the death of " any human being," is made murder, though the person killed was not at all within the inten- tion of the offender. 3 Then, as the intent to do mischief indiscrimin- ately, by which is meant such as is deadly or very dangerous ; almost every writer on criminal law has a division of murder from general mal- 1 See in addition to tlie books referred to, Fo8t. Cr. L. 268, 891, 296 ; 4 Bla. Com. !»9: B«X V. aeaiou, 1 Str. SOO; Arcbb. Cr. PI. 391. i p. 261. ' See Queen ». SAundera, Plowd. 473. 1000 CUIME8 A(»AINST THE PERSON'S OP INDIVIDUALS. ice or a dcprave.l inclination to mischief, fall Mrbcre it may.> The act muHt be ItHelf unlawful, attended with rrobable serious danger, and must be done with a malicious intent to hurt people. The instances given are, riding an unruly horse among a crowd of people, the probable danger being great and apparent; throwing a Lavy stone into the street, when multitudes are passing; firing a gun into a crowd, and the like. No one will deny but that the second sub- division of the fifth section very accurately describes tbe particular .n- gtance of murder just referred to ; but the question is, whether it Is not limited to that, and whether it fairly extends to cases where the in ten- tionand the act refer only to the person killed ; -«;"« ^« «^''Vt,^ tlon, whether more or less wicke^ has for Its object the party who ultimately becomes the victim. Ihe language does not seem to bo de- Ined to embrace the last mentioned ca.e. In the first place, the act causing death must be one imminently dangerous *<>«*»>;"• J^y should the greater or less degree of danger be an ingredient when the case supposes that the party against whom It was directed, and for whom it was intended, was killed by it? It must be dangerous to others. The plural form is used; and though I am aware that, by » general provision of the Revised Statutes, the plural may be construed to include the singular, 1 conceive, that where a precise deflmt.on was m- tended, and where the distinction between general and particular malice Tust have been in the mind of the Legislature. ^^^;'^-^;\^^r::T' danger to the person killed would have bocn specified, h'^d.i' ^«" tended to embrace it.3 The act must evince a depraved m.nd regard- ss of human life. These words are exactly ' ^""^ ^'«'^ the miseries, the pleasures, or the vanity of human life. Again, the 1 1 KMf« p. C. 281 -.Hale, 476 ; 4 Bla. Com. aoo; 1 Hawk., ch. ». ••«• W. "»* «•>• "• "*• «1. » EMt, ffipra. SSBeT.SUU.nS >UAL8. mny.' The act QU8 danger, and long a crowd of ent; throwing a ing ; firing a gun t the second eub- the particular in- wbether it Is not wliere the inten- re the evil inten- ct tl»o party who ot seem to bo de- Irst place, the act to ■ others. Why rcdient, when the directed, and for be dangerous to aware that, by a ly be construed to definition was in- l particular malice case of imminent 3, had it been iu- ,ved mind, regard- riptive of general tion of the mind, efine general reck- to an individual, ice a disregard to lal may evince ani- lel and revengeful ividence of a reck- :e the case of death of a servant; the he servant, but not one, wc know, is a cent, in a general Y of human life, or a life. Again, the DAIIKY V. PEOPLE. 1007 killing must be without any premeditated design to effect the death of any particular individual. Why did not tiio Legislature say, of the person killed? or, if it were intended to embrace botii general and particular malice, of the person killed, or of any particular individual? The first subdivision presented an example, in immediate proximity, of the phraseology suggested, wiuMO it was intended to provide, as well for the case of particular malice effecting it» object, as for malice taking effect in a manner collateral to tho intention. Upon tlie most careful and anxious examination of the provision, I am entirely satisfied, that it can not, witliout violence to the intention of the Legislature, as evinced by tlie language, be applied to the case of homicide resulting from a direct assault by one person upon another. It is not necessary to maintain, tliat homicide from a cruel assault, without a design to effect death, could be adequixtely punished, under the provisions respecting manslaughter. It may be, that the failure to enact the provision in the revisers' report, rendered a change necessary in the enactment respecting manslaughter, which was omitted through inadvertence. If so, it is a cams omissus which tho Legislature is alone competent to supply. I have not overlooked the opinions incidentally expressed by Chan- cellor Walworth and Mr. Justice Bronson, in People v. WhiU * and in People V. Rector."^ In neither of these cases, was this question pre- sented ; and in both of their opinions, those learnei judges were dis- sentients from the judgment of the court upon the points decided in those cases. The judgments of the courts below should be reversed, and a new trial ordered in the Court of Oyer and Terminer. Parker, J. As it appeared that the injuries upon the head of the deceased had no part in causing her death, we may lay them entirely out of view in considering this case ; the whole case, then, is this : the prisoner made three several assaults upon the deceased, and beat her with his fists, in thb pit of the stomach, which caused her death. The fact that the prisoner had threatened to kill the deceased, certainly made the case a proper one in which to submit to the jury the question, under the first subdivision of the definition of murder, whether the act was done from a premeditated design to effect death. But the judge charged that the prisoner might be convicted, under the second subdi- vision of the definition of murder, which applies to a killing" perpe- trated by a?7. act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premedi- tated design to effect the death of ;«:y particular individual. I think, that subdivision was designed to cover a very different class of cases ; such as, where death is caused by firing a loaded gun into a MW«nd.l20. a 19 /A 689. 1008 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. water, or by opening the draw « ^ ^f f^;^^ ^^ ..^j^ently danger- about to pass over it. In such, and l»k« «*^^^' ' reaardlcssness of ous act, the extreme depravity ^^C^ t^e same W as the taking human lif., properly place the ^^^^^l^'^^^J'f^^^^ ^re not appUc- of life by premeditated design. ^"^ *^f J^^^, ,^, commission of a able, and can not be made so, to a me e c-e «' ^^^^ ^^^^ ^^.^^ well as from the dicta in Peoi^e y Enoch. If the judge was right in his «'^.'»rg;m;^>^^^^^^^^^ intends against a conviction for mur er m ^^^^^^^ J . 3 19 Id. 691. 3U/(i.U>* (IVILtUALS. accustomed to draw as a train of cars is e imminently danger- he regardlcssness of aie level as the taking issions are not applic- the commission of a ieath, but from which nator Wager, in Peo- V. Rector,"^ and differ ions in those cases, as se, there is no security (vhere a person intends causes death, and in sonal violence, because imminently dangerous, ry beating with tho fist there is a design to do 1 misdemeanor, and to essness of human life in , death. If such a con- id, of putting the offense I in the commission of a thout design, by a person aishing both with death ; adoption of the Revised jntion of the revision, to oanslaughter. ing murder, and the sec- ik, very clearly the erro- 3 section defining murder lighter," etc., " shall be 3ation is made applicable If it is not manslaughter, imminently dangerous to if the facts proved bring lanslaughter, it can, in no us, if there was no pre- t within the first subdivis- the charge was made, the 3 13 Id. IBS. DARRT V. PEOPLE. 1009 case falls precisely witliin the definition of manslaughter in the first degree. It was the killing of a human being, without a design to effect death, by the act of a person engaged in the perpetration of a crime or misdemeanor, not amounting to a felony, in a case where such killing would have been murder at the common law ; and being within the description of manslaughter, it could not be murder. To be mur- der, a case must not only fall within one of the three subdivisions, denning murder, but it must not fall within any of the defmitions of manslaughter. If full effect be thus given to the words, " unless it be manslaughter," in the preliminary part of the section defining murder, the second subdivision of that section will only be applicable to the class of cases above indicated. All others, growing out of personal rencontres, and confined generally to two persons only, will be found to fall within some of the definitions of manslaughter and, of coarse, without the second definition of murder. With this constructioi. crimes will also be properly graduated, ac- cording to the intention of the revisers. If A. attempts to cowhide B., for having libelled him, and death accidentally ensue, the crime will be manslaughter in tho first degree, because the assailant was engaged in committing an assault and battery only. But if A. attempts to cut off the hand that wrote the libel, and dtath accidentally follow, the crime will be murder, because A. was engaged in the commission of the fel- ony of mayhem. It is evident, that the presiding judge, in charging the jui-y, had in his mind the idea, that the case, to be murder, must not fall within the definition of manslaughter, for he made it a condition to bringing the case within the latter, that the jury should find the injuries "were in- fiicted without provocation, and not in the heat of passion." But he overlooked the definition of manslaughter that was alone applicable. He should have specially called their attention to the definition of man- slaughter in the first degree, and if he alluded to the second subdivision of the definition of murder at all, he should have told them, it could not fall within that, if it was a case of killing, without a design to effect deatli, while engaged in committing an assault and battery only. If there was a design to effect death, it would, of course, have fallen under the first subdivision of the definition of murder. If there was any question on that point, it should have been submitted to the jury, to find whether it was murder, under the first subdivision, or manslaughter in the first degree. If this case was properly submitted to the jury, as falling under the second subdivision of murder, so might a case be thus admitted, where death was caused with' -.t design, by a person engaged in a felonious assault upon the person killed, which is one of the cases expressly pro- 1010 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. ^A.A for in the third subdivision. But tl»e construction I have put rfthe B^crnd ^division confines each subdivision to a dist.nct class Of cases, and renders it entirely inapplicable to ^y^^^ Wnt it has been said » that the sixth section of the statute aenn.ng Jns aughter YnTe fli'st degree, is not applicable to a case where t^. naitv causing death without design, is engaged in an assault and bat ?erv rand no warrant for such a position; no except.cm of that Itftnte noThcrc confines this section and the third subdivision of the Xn d:flning Irder to other offenses than those of intentional vio- *Ti« said that this plain construction of the act would niake every it becomes felony of ™»»'»°8 '"' V"f ,, 3,7/„iLa.ely to no ench »uvi fuc w , n.„, Tf thpi-p is the excuse, that tue a^i was r;Lr:7^%tr':::l\y ..e ....eent. .eetlon U, U.e ,o„«b ^ftZay U that the« reBpeotive erimos „re no. properly g^uajed. 1 People V. Uector, 19 Wend. 608. QALS. DARRY V. PEOPLE. 1011 :ion I have put a distinct class ;r. statute defining case where the assault and bat- :ception of that the killing of a he act, procure- ther is engaged: lot amounting to crime or misde- • at the common s section is thus lors, not amount- ery is one. The ubdivision of the ,f intentional vio- rould make every ttd deatli ensuing, ed in such felony, malely to no such rise provided. If asues, without de- mayhem or other sign, it is murder, js not designed, in ( construction sup- commit a battery, such a case, is ihe e, that the act was iMUsual manner, or th and twelfth sec- id if done in the ner, and not with a Rction to the fourth )roperly graduated, cy ; but the dispro- th ensuing, without uanslaughter in the first degree, within the description of the sixth section. With such a construction, and with a construction of the second subdivision of the definition of murder, like that adopted at the trial, the question for the jury would not be, whether the crime was murder or manslaughter in the first degree, but it would be, whether it was murder or manslaughter in one of the lower grades, thus making a leap from murder to man- slaughter in the fourth degree ; from a crime punishable with death, to one punishable in a county jail, witlj but a shade of difference between tiiem. The very case before us falls at once to manslaughter in the fourth degree, it excluded by such a construction from the first degree. It is objected, that, if my construction of the first degree of man- slaughter is correct, it would cover every other degree of manslaughter for, in every case provided for in the lower degrees, there is also an assault and battery, and death ensues. I answer, the general descrip- tion in the first degree can not be considered as applicable to cases par- ticularly described in the lower degrees. The first degree gives the general description ; the lower degrees, the exceptions, as where the act is done in the heat of passion, etc. It is far more consistent, to hold, that the description in the first degree, does not apply to cases described in the second and third degrees, than to hold, it is not ap- pHcable to any case of assault and battery, where death ensues. There is much less violence done to the language of the section, by my con- struction, than by that against which I contend. There is reason in holding that the first section, being in general terms, is not applicable to cases specially described. Though within the general language, it may well be supposed, the Legislature did not intend to include them, because they are provided for specially in other sections. But it seems to me, it is refusing obedience to the statute, to say, that it is not in- tended to be applied to any case of assault and battery, when no ex- ception of that offense is made. But whatever may be the true con- struction of the sixth section, defining manslaughter in the first degree, I am clearly of the opinion, that the court below erred in attempting to bring the case within the second subdivision of the section defining murder. The offenat, was either murder by design, under the first sub- division, or manslaughter in some degree. If I were sitting in the Oyer and Terminer, and, perhaps, if sitting in the Supreme Court, I should feel bound by the opinions expressed on these points by the learned judges who constituted a majority of the court in deciding the Rector Case. But in this court, where this question has not been decided, and where we are bound by no such O|)inions expressed in an inferior tribunal, I think it is our duty, to settle the construction of these sections of the statute, by giving to them the effect which must have been originally intended, and thereby 1012 CRIMES AOAIN8T THE PERSONS OF INDIVIDUALS. placing the different statutory provisions more in harmony with each °*Mv conclusion is, therefore, that the Court of Oyer and Terminer erred in its charge to the jury, aud that the judgment of that court, and of the Supreme Court, should be reversed. Judgvient reverted, and new trial awaroea. Gabdineb, C. J.,andRuaoLES, J. dissented. MURDER IN FIRST DEGREE - SPECIFIC INTENT TO KILL ESSENTIAL. Bratton V. State. [10 Humph. 103.] In the Supreme Court of Tennessee, 1849. A Statute Declare, that " all murder which shall be perpetrated by moa"' «* P"},"""' Iv^ie fn watt o" ny other kind of willful, deliberate. mallciouB and premeditated killing, o'r which BhaU be clouted in the perpetration of or attempt '«> P^-^P^f.' ! ""?hat 'o arson burg ury. or larceny, shall be deemed murder in the first 0«f ™«; "«"'• '^"' ^° rnst'turSer in the flrst decree, there must exist, in ^''^ »'-•» »' 'f,\nrh, ^th •lays another, a spcci0c intention to take the life of the person slain. «""» f «f " J^"' **"„ premed"tated intent to slay one person, against his intention slay another, it wUl not be murder in the first degree. Bratton was indicted for murder, in the Circuit Court of Giles, and was tried by Judge Dillahuntt and a jury ; found guilty of murder in the first degree, and judgment entered accordingly. He appealed. Nicholson and Jones, for the plaintiff in error. Attorney General and Wright, for the State. McKiNNEY, J., delivered the opinion of the court. ^ ^., _ ^ The plaintiff in error, was indicted in the Circuit Court of Giles County for the murder of Mary Jane Wilsford ; and was found guilty, by the jury, of murder in the first degree, as charged in the indictment. The iurv also found that there were mitigating circumstances in the case. The prisoner moved the court for a new trial ; but the motion was over- ruled, and judgment pronounced, that he undt-.go confinement in the jail and penitentiary house of this State, for and during the period of his natural life. A bill of exceptions, setting forth the proof in the case, was signed and sealed and an appeal in error prosecuted to this ^'''upon a careful consideration of the proof, we feel constrained to say, that the facts of the case, as presented in the record before us, furnish [JALS. nony with each Terminer erred at court, and of rial awarded. TO KILL by moans of poison, premeditated killing, perpetrate any rape, degree," held, that to Ind ot the person who In, and that If he, with another, it wUl not be irtof Giles, and lilty of murder in He appealed. irt of Giles County ind guilty, by the indictment. The ances in the case. motion was over- confinement in the ring the period of I the proof in the prosecuted to this constrained to say, before us, furnish BRAXTON V. STATE. 1013 no sufllcient ground, in our judgment, for disturbing the verdict of the jury. It, therefore, oiilj' remains to inquire, whether or not the legal principles applicable to the facts of the case, were correctly stated to the jury, in the charge of the court. The deceased was the wife of the prosecutor, and her death was caused by a pistol shot, discharged by the prisoner. It seems to have been a question, earnestly discussed on the trial in the Circuit Court, as well as in the argument here, whether the shot which resulted in the death of Mrs. Wilsford, was intended by the prisoner, to take effect upon her or the prosecutor. In reference to this question the Judge instructed the jury, that " if the defendant intended to kill the husband of the deceased, and undesignedly killed the deceased, the offense would be the same as if he had killed the husband ; that is, if the de- fendant had killed the husband of the deceased, and such killing would have been excusable homicide in self-defence, as already explained to you, then you should acquit the defendant ; and so, if he had killed the husband of the deceased under such circumstances, as would make the offense manslaughter or murder in the first or second degree, as already explained to you; then, tliough he undesignedly killed the deceased, it would be the same offense as if he had killed the husband of the deceased, and you should fix the punishment of the defendant accordingly." The only question presented upon the record is, whether the principle announced in the foregoing instruction is applicable to the crime of murder in the first degree, as defined in the third section of the penal code of 1829. That this principle is correct in reference to murder at the common law, is conceded, and that it is equally so, as respects mur- der in the second degree, and all the inferior grades of homicide, under the statute, is not to be questioned. But that it is wholly inapplicable and directly opposed to both the letter and spirit of the statute as regards murder in the first degree, we think is clear beyond all doubt. In order to a correct determination of this question, we are to inquire, what was the intention of the Legislature? What change of the exist- ing law, upon this subject, was contemplated by the statute? What particular evil was designed to be obviated or at least alleviated? The common law, which was in force here, prior to the statute of 1829, recognized no distinction in respect to felonious homicide, except that between murder and manslaughter ; the distinctive difference between which two offenses is, that malice aforethought either expressed or implied, which is of the essence of murder, is presumed to be wanting in manslaughter ; the act, in the latter offefise, being rather imputed to the infirmity of human nature. In regard to the latter crime, a distiaction, certainly reasonable and 1014 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. just iu itself, was also taken between voluatary and involuntary man- slau.'hter. But in relation to the higher crime of murder, the common law made no discrimination; all murders, irrespective of their greater or less malignity and atrocity, were, so far at least as respects the pun- ishment, on the same footing. And, without regard to the intrinsic nature of the case, or circumstances tending to enhance or extenuate its legal, as well as moral, guilt, the uniform and indiscriminate punish- luent was death. With a discrimination more conformable to the dic- tates of reason, justice and humanity, as well as to the spirit of the age, tlie penal code of l«2i), had in view, among other objects, the admeas- urement and adaptation of punishment to the different degrees of crime, according to their different degrees of malignity, as far as comported with the public safety and policy. In the accomplishment of this pur- crime of murder (the definition of which, contained in the ^ tion of the statute is borrowed in exact terms from the com- mon law), is divided into two grades, with a view solely to the gradua- tion of the punishment. The third section enacts that, " all murder whiel. 'hall '> perpetrated by means of poison, lying in wait or any other k- ul of willful, deliberate, malicious and premeditated killing ; or which shall be committed in the perpetration of, or attempt to perpe- trate any arson, rape, robbery, burglary, or larceny, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree." In this general definition, and enumeration of specific instances constituting murder in the first degree, there is a classification of various kinds of homicide, which it maybe of some importance to notice, with a view to the question under considera- tion In cases of murder by means of poison, or lying in wait, the most atrocious and detestable of all kinds of homicide, and the least to be guarded against, either by resistance or forethought, the crime is made to depend exclusively upon the " means " causing death. So, likewise in respect to cases of murder committed in the perpetration of, or attempt to perpetrate arson, rape, robbery, burglary or larceny; a class of felonies most dangerous in their consequences to public safety and happiness, which may be most frequently and easily committed, and to which there are the strongest temptations. In all these cases, the mode or " means " of destroying life, supplies a conclusive legal presumption of malice and guilty intention ; the crime, as well as the legal guilt of the agent, is mu.le to depend alone upon the fact of tak- ing life in either of the specified modes. In such cases, the question of malice or intention, as a matter of fact, is wholly irrelevant ; it need not be proved, and can not be controverted by the accused. But the remaining species of murder defined in the statute, namely, murder "by any other kind of willful, deliberate, malicious and premeditated »UALS. BRATTON V. STATE. 1015 ivoluntary mau- ler, the common of their greater espects the pun- to the intrinsic ce or extenuate iriminate punish- lable to the die- spirit of the age, icts, the admeas- [legrees of crime, ar as comported nent of this pur- contained in the ns from the com- ily to the gradua- liat, "all murder g in wait or any itated killing ; or ittempt to perpe- shall be deemed murder shall be ral definition, and in the first degree, which it may be of a under considera- lying in wait, the e, and the least to ught, the crime is using death. So, he perpetration of, ary or larceny; a es to public safety easily committed. In all these cases, a conclusive legal [me, as well as the on the fact of tak- cases, the question irrelevant ; it need accused. But the 2, namely, murder, 3 and premeditated killing," falls within the operation of a directly contrary principle. Here, the character ol the crime and guilt of the agent, are made to depend exclusively upon the mental status, at the time of the act, and with reference to tlie act which produces death. This accumulated definition of murder in the first degree, takes in all the ingredients of crime descriptive of the utmost mallgnit}' and wick- edness of heart, as well as of the highest and most aggravated species of homicide. If the universal principle of construction is to be regarded, that every word in a statute is to have meaning and effect given to it, if practicable, it results of necessity, by force of the terms employed in the definition of the crime, that to constitute murder in the first degree, it must be established, that there existed in the mind of the agent, at the time of the act, a specified intention to take the life of the particular person slain. The characteristic quality of this crime and that which distinguishes it from murder in the second degree, is the existence of a settled purpose and fixed design on the part of the assailant, that the act of assault should result in the death of the party assailed ; that death, being the end aimed at, the object sought for and wished.^ The "killing" must be willful; "that is, of purpose, with intent that the act, by which the life of a party is taken, should have that effect." * " Proof must be adduced to satisfy the mind, that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused sought. " ^ If, then, by misadventure or other cause, a blow, directed at a particular person and designed to take his life, take effect upon and cause the death of a third person, against whom no injury was meditated, can it be said, that the will concurred with the act, which resulted in the acci- dental death of such third person; or that there existed a specific intention to take his life. A grosser absurdity can not be conceived. The hypothesis that the killing was undesigned, concedes that the will did not concur with the act ; that in point of fact, no such specific intention existed ; no such result was either contemplated or designed. And upon what principle is it, that this would be murder at common law? Simply upon the principle of implied or imputed malice and intention. In such case, all the essential elements of murder at the common law concur. A homicide has been committed with deadly weapon, in the attempt to perpetrate a felony, by taking the life of another person, without legal justification or excuse ; and in such case, from the circumstances and deadly weapon, the law conclusively presumes malice and the intent to murder ; and, in like manner, the law conclusively presumes that the party contemplated the probable consequences of bis own act. I 4 Humph. 136, 139. 2 10Terg.SBl. • 1 Leigh • Rep. 611. 1 1016 CRIMES AGAINST THE PERSONS OT INDIVIDUALS. There is another principle applicable in such case, namely : the law by imputation, so to speak, refers the act of murder to the felonious intent existing in the mind of the agent towards the particular object of his revenge. " Thus," Siiys Blackstone,^ " if one shoots at A. and misses him, but kills B., this is murder, because of tlie previous felonious intent, which the law transfers from one to the other." But we have seen that murder in the first degree, as constituted by our statute, depends upon the existence of a specific intention to take the life of the particular person slain ; and that the existence of such intention, as a matter of fact, must be satisfactorily established. Hence, it is clear to a demonstration that all legal implication or impu- tation of such intention is excluded in reference to this particular species of murder. It is equally clear that all cases of homicide not falling within the principles here announced properly belong to that comprehensive class included in the statute, of "all other kinds of murder," and which are declared to " be deemed murder in the second degree." To murder of this class, as well as to all inferior grades of homicide, the common-law principle asserted in the charge of the circuit judge is still clearly applicable. We are aware that in Pennsylvania, upon a statute almost identical in its terms with our own, a different construction has prevailed. In the case of the Commonwealth v. Dougherty, it appears from the note of the case, to which only wo have had access, that the prisoner aimed a blow with an axe at his wife, and it fell on the head of a child which lay on her shoulder, and inflicted a mortal wound, of which it died. And it was held by the court that if the prisoner's " intent was to kill his wife, and killing her would have been murder in the first degree, killing his child will also be murder in the same degree." With defer- ence to an authority so respectable, we think it very clear, that no such conclusion can be legitimately deduced from the premises. We regret, that we have not seen the opinion at length, in the case above men- tioned. The brief extract before us, merely asserts the proposition we have quoted ; the process of reasoning by which the conclusion is sup- posed to be maintained, is not given in the note. We confess ourselves at a loss to understand in what sense it can be predicated of the act of the prisoner in " killing his child," that it was " willful, deliberate and premeditated," and more especially how it can be made out, that the will concurred with the act in such case. The contrary construction, we think, is alone compatible with the terms of the statute, whether we regard their proper or popular accepta- tion; with the obvious spirit of the statute which was to alleviate the punishment of murder, except in cases of the greatest enormity ; with 1 1 Bla. Com. 201. 7ALS. LANE V. COMMONWEALTH. 1017 ily : the law by 'elonious intent ir object of his ; A. and misses rioas felonious constituted by itention to talie istence of such ly established, cation or impu- this particular f homicide not belong to that other kinds of it in the second inferior grades e charge of the almost identical I prevailed. In } from the note I prisoner aimed }f a child wliich I which it died, intent was to kill the first degree, ." With defer- iar, that no such jes. We regret, case above men* e proposition we onclusion is sup- ionfess ourselves ted of the act of il, deliberate and ade out, that the patible with the popular accepta- is to alleviate the t enormity ; with. the benignant principle of interpretation, that in favor of life, a statute is to be construed most favorably in beiialf of the accused, and most strictly against him ; and finally with that intrinsic and fundamental distinction, in respect to the relative guilt of human actions, dependent upon the concurrence or non-concurrence of the will, which we trace as far back as the ''Jewish dispensation," under which cities of refuge were provided to the end, " that every one that killeth any person unawares may flee thither, and be secure from the avenger of blood." ^ The result is, that from the foregoing error in the charge of the court, and alone upon that ground, the judgment must be reversed. HOMICIDE — MURDER BY POISON — NOT PER 8E MURDER IN FIRST DEGREE. Lane v. Commonwealth. [69 Pa. St. 871.] Jn the Supreme Court of Pennsylvania y 1868. On » Trial for Murder by poisoa, the court below charged, " the life or death of this man is in your bands; there is no middle course, he must be convicted ot murder in the first degree or acquitted of everything. If your verdict is guilty of murder, you must atate of the flnt degree. If not guilty yon aay so and no more." Stld, to be error. November 4th, 1868. Before Thompson, C. J., Aonew, Sharswood and Williams, J.J. Bead, J., absent. Error to the Court of Oyer and Terminer of Allegheny County. Lewis Lane was indicted for the murder of his wife, Henrietta Lane. The indictment was tried June 17, 1868, before Stebret, P. J. and SxowE, J. The Commonwealth gave evidence that the deceased died by means of poison, and that it had been administered to her by the prisoner. The jury was charged by Stowb, J., who amongst other things, said to the jury: " The life or death of this man is in your hands. There is no middle course. Tf he is guilty of murder, he must be convicted of murder in the first degree or acquitted of everything. * * * If your verdict is guilty of murder, you must state of the first degree ; if not guilty, you say so and no more." On the 18th of June the jury returned a verdict of "guilty of murder in the first degree." The prisoner was sentenced September 12th, 1868. 1 1 Num., oh. 3S. 1018 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. By virtue of a special allocatur, a writ of error was taken out October 12th, 1868. The above portioa of the charge was assigued for error. W. T. Haines, for plaintiff In error. L B. Duff, District Attorney, for Commonwealth. The opinion of the court was delivered, November 18th, 1869 by - Thompson, C. J. The prisoner, Lewis Lane, was charged and tried at the JuneTerm of the Court of Oyer and Terminer of AUegoheuy County, for the murder of his wife, by administering poison to her , and the question now for our consideration Is whether the court below erred in the portions of the charge to the jury excepted to and assigned for error, which are as follows : — . j *u s- «,v " First The life or death of this man is in you hands; there is no middle course ; he must be convicted of murder of the first degree, or acquitted of everything." - If your verdict is guilty of murder you must state of the first de- cree. If not guilty you say so, and no more." The objection to these portions of the charge is, that they were per- emptory, and took from the jury their exclusive right and daty to find thede/ree, in case of a conviction of murder. It was contended on argument, that in all trials for murder, by whatever means Perpetrated it is always the province and duty of the jury, if they convict to find in their verdict the degree, and that this being the requirement of the statute, a binding instruction from the court to find a particula degree is an infringement of the duty intrusted alone to the jury and not to '""TheTeventy-fonrth section of the act of 31st of March 1860, which is a transcript of the provision on the same subject of the act of 22d of April 1794, enacts that," all murder which shall be perpetrated by means tf'pion,o; by lying i^ wait, or by any other kind of wiUf d, deliberate and premeditated killing, or which shall be committed in the perpetra- tion of or the attempt to perpetrate any arson, rape robbery or burg- lary, shall be deemed murder of the first degree, and all other land of murder shall be deemed murder of the second degree; and the jury bcforwl^om any person shall be tried shall, if they find -ch person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree." *-„„4.s«„ „a It must be admitted, we think, that the act makes no distinction as to the requirement to find the degree of murder between any of the modes by which it may be perpetrated, as defined m the statute. In all alike the requirement applies without any exception Even m case of a confession of the crime and submission to the court, no matter by what means it may have been perpetrated, whether by poison, lying m 1 ALS. ras taken out k9 assigued for ;h, 1869, by — rged and tried of Allegoheuy loison to her; lie court below ;o and assigned ds ; there is no first degree, or of the first de- they were per- ind duty to find 9 contended on ins perpetrated, convict, to find uirement of the irticular degree, jury and not to h 1860, which is he act of 22d of etrated by means rillful, deliberate in the perpetra- robbery or burg- all other kind of e; and the jury Ind such person e murder of the no distinction as tween any of the the statute. In 1. Even in case irt, no matter by y poison, lying in LANE V. COMMONWEALTH. 1019 wait, or in an attempt to commit either of the enumerated crimes in which intention to kill is not a mnterial inquiry, tiio court must, before sentencing, examine witnesses and determine the degree. The law is imperative, and it is indispensable in the trial of a homicide, that the degree of the crime be ascertained and appear on tlie record. This is to be done by the jury, where there is a trial, and l)y the court, where there is a sentence on a confession. It is as essential an clement of the verdict as any other fact to be found by it. It is tliis which ascertains and fixes the penalty to be atr :tbed to the crime, and hence it must appear by the record. Tilghman, C. J., in }V!nte v. Commontvealth,^ speaking of the form of the indictment under the act of 22d April, 171*4, said: " It has not been the practice, since the passage of the law, to alter the form of in- dictment for murder in any respect ; and it plainly appears by the act itself, that it was not supposed any alteration would be made. It seems to be taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the deg.ee by their verdict, or in case of confession, tlie court are to ascertain it by the examination of witnesses." Not- withstanding what the Chief Justice said, indictments continued to be generally framed according to common-law precedents, in which was always set forth the kind of instrument and the means of tlie killing. Since the passage of the Criminal Procedure Act of 31st March, I860,' it is not necessary that the " manner or the means by which the death of the deceased was caused," should be set forth, but only that it was done " feloniously, willfully and with malice aforethought." Hence it would seem to be more than ever material that the jury be charged with the responsibility and duty of finding the degree. That it is a material fact to be found is not to be denied or doubted. The statute makes it so, and with it all our decisions accord. But it is argued that where the facts bring the case within either of the modes of killing declared murder in the first degree, it being the duty of the jury to find a verdict in accordance therewith, a peremptory direction to find that degree is proper and right. To admit this would be to determine that this portion of the verdict is matter of form, and to substitute a court to do that which the law says the jury shall, upon their oaths, do. They have undoubtedly the power to fix a lower degree to the crime than the statute provides. I say they have the power, for the«act gives it to them, and no court can refuse their verdict if they do so, or set it aside, unless at the instance of the defendant. We need not speculate about why it was so provided. It is sufficient that it is so -written, and we can not change, alter or depart from it. In Rhodes ▼. 1681011.18). i lec. M. 1020 CHIMES AOAINBT THE PRR80N9 OP INDIVIDUALS. Com^mtwenlth,' this was a subject of thought and comment. Wood- ward, C. J., Bai.l, Jn the opinion of the court: "No doubt cases of murder in tlio first degree have been found in the second, but this must have been anticipated when the statute was framed, and has certainly been allowed under its operation ; and yet it has remained on the s^-^hite bo Jk since 1704, unaltered in this regard. Possibly the very dist' of dccrroes was invented to relieve such jurymen's consciences as suould be found more tender on the subject of capital punishment than on their proper duties under the evidence. Many men have been convicted of murder in the second degree who, really guilty of the higher crime, would have escaped punishment altogether but for the distmction in decrees, so carefully committed to juries by the statute." For myself, I have no doubt the object of establishing degrees was to ainx to the more heinous murders the highest penalty. But as the penalty results from the degree, the responsibility and duty of fixing that was assigned to the deliberation of the jury. We need not specu- late about the moving cause for this provis on. It is enough that it is of the law, and its workings have been but little complained of after an experience of three-quarters of a century. We must administer it as it is, and in the spirit of the enactment, without altering or weaken-«c it. In Rhodes v. Commonweallh the theory of the prosecution ' ^at the murder was committed by the prisoner, in perpetrating t le of robbery, for the prosecutor's house was robbed that day. The eifort was to identify him with the robbery, and the prosecution claimed a conviction so exclusively on that ground that the judge, in his charge to the jury, used almost the same language which the learned judge did in this case. The language was: " If you find the defendant guilty, your verdict must state guilty of murder in the first degree, in the man- uer and form as he stands indicted. If not guilty, your verdict will simply be, not guilty." The same reason was urged in justification of this instruction as was urged here, namdy : That the evidence exhibited a case of robbery by the hands of the prisoner, and, therefore, it must be murder in the first degree if any thing. For so instructing, this court felt constrained to reverse the sentence. Woodward, C. J. , after notic ing the change made by the statute in the common law, in respect to degrees in murder, and the duty of the jury under the statute to find the degree, said: " Yet the judge assumed the province of the jury and ascertained the degree in this instance, though this was a case of con- viction by trial, and not by confession. Nothing less can be made out of his words, ' If you find the defendant guilty, your verdict must state guilty of murder in the first degree. Was that," he asks " leav- ing the degree to the jury to find?" Most clearly not. It excluded all 1 12 Wright, »96. ^^ )UAL8. nment. Wood- doubt caseB of (1, but this must nd has certainly c(lonthe8^'t. It excluded all LANE V. COMMONWEALTH. 1021 chance of deliberation on the degree, and left to them only the question of "guilty or not guilty." •' It Is In vain to argiio," he further remarks, *' that this judge was more compotent to Hx the degree than the Jury, or that the circumstances proved the crime to be murder in the first degree, If murder at all ; for the statute Is hiiperatlve that commits tlio degree to the jury. It was proper for the judge to advise them of the distinc- tion between the degrees, to apply the evidence, and to instruct them to which of tliese degrees it pointed. But to tell thern they must find the first degree was to witlidraw tlie point from the jury and decide it him- self." It remains to inquire, in this case, w'm uier the charge as made was peremptory, tliat their verdict must bi; murder in the first degree if any- thing. I will not analyze the charge to prove tliat this was meant, for In all its parts, wherever conviction is spoken of as possible, this is indicated almost as clearly as in the last paragraph. We have also the learned judge's interpretation of this, as the position assumed by him, in his oiiinion on the motion for a new trial. The authorities he cites are to prove this position, and in the concluding portion of it, he says, after reviewing the facts, and the absence of evidence to mitigate the crime from willful, intentional poisoning, he adds: "If such is tlie case we were right, and it was our duty to tell the jury that they could not, under the law and evidence in the case, render a verdict of murder in the second degree." TLe charge being intended to be peremptory, as claimed by the pris- oner's counsel, and thus shown, we think it infringed too strongly on the province of the jury. It did not leave them free to deliberate and fix the degree. The judge did, as was said in the case above referred to, decide it, and not the jury. If a verdict of murder in the second degree had been rendered, it would have been great error to have refused it, and yet this would be the legitimate consequence of a failure to observe the peremptory direction of the judge. It has never yet been decided in Pennsylvania that a verdict of murder in the second degree might not be given in a case of murder by poison. That it may be given is as unquestionable as the power of the jury is under the act to give it and impossible for the court to refuse it. We have no refer- ence to the facts of the case in hand, as they appeared before the jury. We know nothing of them. It is only with the questions of law raised that we have to deal ; and only in the particulars discussed do we see anjrthing to be found fault with ; nor are we to be understood as find- ing fault with a practice which is entirely proper, of judges freely advising juries as to the duty of ascertaining that degree of murder towards which the facts seem to point, always leaving them, however, 1022 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. free to deliberate upon, and the duty and responsibility of finding the decree, if thev convict. , For these reasons, the sentence in this case is reversed, and a vemre de novo awarded. HOMICIDE-MURDER BY DROWNING -MURDER IN SECOND DEGREE. Johnson v. Commonwealth. [24 Pa. St. 387.J In the Supreme Court of Pennsylvania, 1855. 1. A Premeditated IntenUon to deetroy life i« indispensable in order to constitute mnr- dor in the flrst degree. , Th« Tiof 1704 Provide, that -all murder which shall be perpetrated by ™eansj* irr'a^forasTe IraJ iTdir- ^iSS^^^^^^^^^ *• ^f:.^^:Z t SttSoTize'd foTc'onviction of murder in the second degree. Error to the Court of Oyer and Terminer of Lancaster County. A bill of indictment containing two counts was found against Samuel Johnson. In the first count it was charged that he, on the fifth day of October, 1854, with force and arms in and upon one Elizabeth Thomas, feloniously, willfully and of his malice aforethought did make an assault, lU then and there, feloniously, willfully and of his mahce aforethought, did cast, throw and push her into a certain dam, wherein there was a great quantity of water, by means of which casting, etc. , she was then and there suffocated and drowned. In the second count u was charged that he feloniously, willfully, and of his malice afore- thought, did cast, throw and drag her into a certain dam, e c., and then and there feloniously, willfully, and of his malice aforethought did hold and restrain her in and under the water, by means of which throwing, etc., and holding and restraining, etc., she was then and there choked, suffocated an! drowned and died. V1DUAL8. JOHNSON V. COMMONWEALTH. 1023 sility of finding the rersed, and a venire lER IN SECOND , 1855. n order to constitute m«r- Barily murder in the first ted in the statute. 3 perpetrated by means ot liberate, and pre"\edltated attempt to perpetrate any in the first degee, and all degree," the jury, in case charging that the dcfeud- t a certain E. T. into a dam J, he wat tonnd " guilty in fendant was not convicted gree. the record remitted to pass le second degree. icaster County, found against Samuel lie, on the fifth day of ne Elizabeth Thomas, ought, did make an ly and of his malice t certain dam, wherein • which casting, etc., In the second count it of his malice afore- •ertain dam, etc., and i malice aforethought if, by means of which c, she was then and The jury found the defendant guilty in manner and form as he stands Indicted. The reason filed in arrest of judgment was that the judgment was that the jury had not in their verdict ascertained whether tlie mur- der, of which they had found the defendant guilty, was murder of the first Of uf the second degree, as they were required to do by the seventh section of the act of 22dof April, 1794. The motion was overruled after argument, and the defendant was sentenced to be hanged. It was assigned for error that the court erred in passing sentence of death, it not being warranted by the verdict. Brown and Atlee, for plaintiff in error. Patterson, contra. The opinion of the court was delivered. May 24, 1855, by— Lewis, C. J. The plaintiff in error has been sentenced to suffer death ; and the question is whether the recoi-d Justifies the sentence. The second section of the act of 22d of April, 1794, declares that " all murder which shall be perpetrated by means of poison, or by lying in wait, or Y • y other kind of wiilfull, deliberate and premeditated kill- ing, or which ?aall be committed in the perpetration, or attempt to per- petrate, any arson, rape, robbery or burglary shall be deemed murder of the first degree ; and all other kinds of murder, shall be deemed murder of the second degree ; and the jury before whom any person indicted shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree." The cases of the Commonwealth v. Earle^ and Commonwealth v. Miller^ show that where the indictment charges the murder to have been perpetrated "by means of poison," or " by lying in wait," a verdict of " guilty in manner and form, as the prisoner stands indicted," does " ascertain " the murder to be of the first degree. The reason of this is, that the indictment is thus referred to as forming part of the verdict and the letter thus " ascertains " the facts, which, in judgment of law, amount to murder of the first degree. On the same principle it may be conceded, for the purposes of the present case, that if the indictment had charged the murder to have been committed willfully, deliberately and premeditatedly, or in perpetrating or attempting to perpetrate either of the enumerated felonies, a similar verdict would also sufllciently " ascertain " the murder to be of the first degree. But the indictment under consideration is totally destitute of either of these averments. It merely charges that the murder was committed "feloniously, wiil- full, and of malice aforethought. ' ' This is the usual and proper descrip- tion of the crime at common law, and the language applies as well to the second as to the first degree. It does not necessarily import an 1 1 Whart. SS5. » Lewis Cr. L. 398, 401. 1024 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. inlentlon to kill. It is applied by construction of law to murders com- mitted without such intention. If death had ensued in the perpetration of any felony not enumerated in the section; or in an attempt to pro- cure abortion ; or been caused by purposely letting loose a beast known to be accustomed to destroy human life; or when the mmd of the prisoner from intoxication, or other cause, was deprived of the power to form a design with deliberation and premeditation, the offense would be stripped of the malignant feature required by the statute to place it on the list of capital crimes. But in all these cases, although the pris- oner, had no intention to kill, he is deemed guilty of killing " felon- iously, willfully, and of malice aforethought." On the principle that every one is answerable for the necessary consequences of his unlawful acts, he is adjudged guilty at common law of constructive '• malice aforethought." But constructive malice is not the " deliberate and premeditated kiUing" required by the statute to constitute murder of the first degree. A premeditated intention to destroy life is an indis- pensable ingredient in that offense. An unlawful killing may be pre- 8umed murder ; but it will not be presumed murder of the first degree. The burden of proving it so lies on the Commonwealth. The evidence produced by the Commonwealth in the case of Bridget Harmani ^ay have justified the instructions given to the jury in that case. But they were only advisory. There was no intention to take from the jury their right to fix the degree. It was their province to " ascertain ' ' it in their verdict ; and as murder by drowning was not necessarily murder of the first degree, it was required, even in that case, to ascertain the degree in the verdict. j * We have said that murder by drowning is not necessarily murder of the first degree. It is oot placed by the statute in the category with murder " by means of poison," or " by lying in wait," and the courts have no right to place it there. It is true that the indictment charges the prisoner with throwing the deceased into a dam, and holding her under the water until she was suffocated ; but this may have been done in the pursuit of some unlawful object without an intention to take her life. It may have been done in mischievous and cruel sport ; or it mav have been done for the purpose of procuring abortion. For aught weknow, the evidence given on the trial might have fully justified the jury in deciding that the crime was murder of the first degree. But, as they have not done so, the court can not look into the evidence for the purpose of ascertnining the character of the offense. This would be an infringement of the rigl.r oi trial by jury. They have found the prisoner " guilty in manner and form as he stands indicted " ^thout otherwise " ascertaining " the degree. They have thus made i4Barr,26». i^a^ rALS. murders lie perpetrati ttempt to pro- a beast known e mind of the 1 of the power B offense would itute to place it hough the pris- killing " felon- ! principle that of his unlawful active " malice ' deliberate and titute murder of life is an indis- ing may be pre- the first degree. The evidence it Harman^ may case. But they im the jury their ■tain" it in their ly murder of the ertain the degree ;sarily murder of ;he category with " and the courts dictment charges , aud holding her y have been done ntention to take cruel sport; or it rtion. For aught fully justified the ; degree. But, as the evidence for he offense. This jury. They have J stands indicted" !y hive thus made T com- I the tition I as STATE V. MAHLT. 1025 the indictment a part of their verdict, and we are to consider the case if they had found a special verdict, stating the facts precisely as they are set forth in the indictment. We have seen that the language of the indictment applies as ai)propriately to the second as to the first degree. If there was nothing else to restrain us from interpreting it to mean murder of the first degree, the rule of mitioH sensu would require us to adopt the milder construction. But.the clear and positive provisioas of the act of 1794 fix interpretation beyond a doubt. We have seen that the indicta ont is destitute of the averments required by the statute to constitute murder of the first degree. The case must therefore, of necessity, fall into the class provided for by the clause in the act which declares that "all other kinds of murder shall be deemed murder in the second degree." In this opinion we are unani- mous. It follows tliat the judgment must be reversed, and record remitted for further proceedings according to law. DEGREES OF MURDER— MUwDER IN SECOND DEGREE. State v. Mahlt. [68 Mo. 315.] In the Supreme Court of Missouri, 1878. Where the Only Evidenoe agafnst the prisoner is that he was known to have habitually treatea the deceased, an infuiit step-child, with shocliing brutality, and that the chUd was found dead on his hearth; keld, that be was either guilty o( murder in the flrat degree, or not juilty; that it was error to charge the Jury that they might And him guilty o( murder in the second degree. Henry, J. The defendant was indicted for the murder of Barbara Citawatca, his step-daughter, a child about three years of age. He was found guilty of murder in the second degree, and sentenced to im- prisonment in the penitentiary for a term of twenty-one years, and has appealed to this court from the judgment. The evidence for the State consisted of threats made by the defend- ant against Barbara, and of a course of the most brutal treatment of the cliild by the defendant, extending through a period of several months. Finally, on the morning of October 17, 1876, Barbara was found lying on the hearth dead, with evidences on lier body that her death was occasioned by burning. There was evidence tending to prove that defendant was guilty of murdering the child. 3 Defences. 05 1 1026 CRIMES AGAINST THE PEUSONS OF INDIVIDUALS. *«- fhA <;fatp tcstifiea to the truth, he was guilty of If the witnesses for the btate itsiuien lu tuv rri,„r„ ;, not a willful malicious, premeditated and deliberate murder. There s not r„"^ tcTd a sc nulla of evidence to authorize an instruction to the nrv in regard to any crime except that of murder in the first degree. 'ThrphSpal witness for the State, Jacinksy, testified to havjng seen del;Zron several occasions, hold the f '^; ^;^; ^f ^f J,",^: state, before a strong fire, until its skin was burnt '^^ ' ^f ^^ ^^^^^^^ in her torture like a worm, and this in his presence, and m the presence of BrWs mother, with;,ut so much as a word of remonstrance from : ther that he had seen the defendant kick the child, beat her with vl'.nd throw her out of the house, and that, on one occasion, her : rw:'b:oL:: ;; «. fan-, t^s, too, m the ^^^^^^^^^^^ M^ Un^i^l' to be found ta Ibe .ecor.,, of cn,»e. Aecor,h.g to Mrs. maniy, u starved flossed, kicked, roasted by the ? d^y »"" "^. u„,band of Its mother, M.d yet the court instructed ?::;;';: *~C° -a the ^ury aid, « th.t he was „n,y guiUy "Srh^'^I.J^drTwM uX *e eirea„st.nees detaUed by J.cin..y buitCage is >»»*rrdirrrr :irr i stzr; -,' a:";:.:::,:? r*,' ^r ir*; zzi^, .e ... .. eon ,„g .„ ■"»'™"'^°° ^ ^„, „„„„, „, eneouraBe the sentimentahsm of of which the evidence proves him guilty, Dy givui ,. them to .n. ^ ^^^ -I^on^'^'"- «' -"""' P' ST »; irlo " he -lee tend, to prove they sho^d .e,„.. *a „„I compromise »ith that doubt by fading l..m gudty of a lower t^:Z'^. regard to the icer grade,, not warranted by the evl- :als. e was guilty of . There is not struction to the ;he first degree. 1 to having seen perfectly nude and she writhed in the presence aonstrance from I, beat her with oe occasion, her } of the mother, terred for exam- ;en murdered by ;ly on his farm, bara, for twelve ustice for perpe- t say what credit tsy. That is not that the evidence t, in connection aara' 8 mother, as ity in ttte defend- by Jacinksy and e. According to I, roasted by the I by the incarnate e court instructed le was only guilty ailed by JacinkBy, )city of the crime ; arded as authoriz- e, we can not con- sentimentalism of the highest crime istructions author- which there is no ibt of his guilt of ihey should acquit, a guilty of a lower xrauted by the evi- STATE V. MAHLY. 1027 dence, operate as persuasives to juries to convict of one of those grades wiien they sliould convict the accused of the highest, or acquit him altogether. The court erred in giving the instruction defining murder in the second degree, because there was no evidence to support it.i Another complaint made by appellant id that the court permitted the prosecuting attorney, in his closing argument to the jury, to say : "Mahly was on the stand, why did he not tell us how the child was burned? It was incumbent on him to show how these things were. Did he tell us how slie was hurt? It was incumbent on hira to prove how she was hurt. The defendant wa? tliere, master of his own house, and it was incumbent on him to show that he did not inflict the burns." Again he said to the jury in that closing argument: " The preponder- ance of testimony was in favor of conviction and against the defendant, and upon s "h evidence they (the jury) must convict." Every one of these declarations was a gross misrepresentation of the law, and such conduct on the part of the prosecuting attorney has so often been con- demned by this court that the hope was indulged that the admonitions given would be heeded. It is not for prosecuting attorneys to declare the law to the jury. That is the duty of the court, and the State's attorney is as much bound by the law, as declared by the court, as are the jury and the accused. The cour^ declared the law, but the prose- cuting attorney, not satisfied with the instructions given by the court, made declarations of law to the jury in conflict with those given by the court, and manifestly and palpably erroneous. Can we say that the prisoner was not prejudiced by this conduct of the State's attorney? If he knew the law, and made these declarations to the jury in order to procure a conviction, his conduct was very reprehensible. If he knew no better, he should have accepted the law as given by the court. Persons accused of crime must be fairly tried, and when so tried we shall not interfere to prevent them from being punished ; but it is not only the duty of this court, but every officer of the State who has duties to perform in regard to the trial of persons accused of crimes, to see that they have a fair and impartial trial. The Circuit Court should have rebuked the prosecuting attorney, and told the jury that th^ law was not as the attorney declared it to be, and for not having done so, the judgment should be reversed. It wa. not error to permit the State to prove the conduct of the de- fendant toward the child, prior to the time of the commission of the murder, as alleged in the indictment. 1 state V. ScboenwiUd, SI Mo. 1S3; State «. Starr. 38 Mo. 269; Sute v. Alexander, te Mo. 148. i 1028 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. It was admissible to sliow malice, premeditation and deliberation; malice may be proved by acts as well as by threats. All concurring, the judgment is reversed, and the cause remanded. ji^yersed DEGREES OF MURDER- HOMICIDE COMMITTED IN PERPETRATING another felony. State v. Shock. [68 Mo. 666.] In the Supreme Court of Missouri, 1878. or other felony! shall be deemed murder in the flrBt degree." It w «"»' '» ""•"f*'!'''*; not to thoBO acts of personal violence to the deceased which are necessary and con Btitnent parts of the homicide itself. HoiTGH, J. At the May term, 1878, of the Cir- Jaurt of Calla- wav County, the defendant was indicted for murder in the first degree, for the killing of one Robert Scott. At Ihe November term following, he was tried and found guilty, and sentenced to be hanged. Stay of execution was awarded, and the case has been heard here on aPPeal- The evidence on the part of the State tends to show that, on the 6th dav of March, 1878, the defendant beat the deceased, who was a boy between five and six years of age, with a piece of sycamore fishing-pole, about three feet long and one and a half inches in diameter for some xninutes, accompanying his beating with oaths; that he left the room in which he was beating the boy, went into the yard, procured a piece of jrrapevine about one and one-fourth inches in diameter, returned to the Lse and resumed the beating, whichiasted in all about fifteen minutes^ During the beating, the child did not scream or cry, but groaned and moaned, and, after several days, died of the injuries - ---d ^t the hands of the defendant. An inquest was held, at winch the body 7^ examined. The child's head was found to be covered with bruises it. back beaten to a jelly, and its skull fractured. On the part of the defendant evidence was introduced tending to show that the deceased trvery weakfyand sickly; that the defendant did -t beat it on th. day named, and that the wounds on its head were caused by its falUng downstairs. iJa^ L8. deliberation ; 11 concurring, Reversed. SRPETRATINO aich gtaallbtcom- , robbery, barglary ror to charge that, a ot the defendant o him great bodily t the first degree." llateral felony, and leoessary and con- burt of Calla- he first degree, term following, nged. Stay of •e on appeal, that, on the 6th who was a boy ore fishing-pole, meter, for some left the room in cured a piece of returned to the fifteen minutes, ut groaned and } so received at which the body red with bruises, n the part of the hat the deceased lot beat it on the jed by its f alUng STATE V, SHOCK. 1029 The deceased was a son of a cousin of the wife of the defendant and it appears that it had been at the house of the defendant for about two months, but whether as a visitor or otherwise, the record does not show. In support of the motion for a new trial, an affidavit of one of the jurors was filed, which stated, in substance, that while the jury were considering their verdict, he was of the opinion that the case was not one in which capital punishment should be inflicted, but he was induced to believe that the court had the power to inflict a less degree of pun- ishment ; he and others of said jury were opposed to rendering a ver- dict in said case that would result in the death of the defendant. It will be sufficient to say on this point, that a juror will not be allowed to impeach his verdict on the ground that he would not have found the defendant guilty if he had known that the punishment fixed by law for the crime charged was death. The nature of the punishment had noth- ing to do with the guilt or innocence of the defendant. The only question of importance presented for our determination arises upon the action of the court in giving, at the instance of the prosecuting attorney, the following instructions : — "4. To constitute murder in the first degree, it is not necessary that the fatal beating, wounding or striking be given with the specific intent to kill ; it is sufficient if it be given willfully and maliciously, and with intent to inflict great bodily barm, and death ensue." " 13. If the jury believes, from the evidence, that it was not the intention of the defendant to kill the child Scott, by whipping him, but that he did intend to do him great bodily harm, and in so whipping him, death ensued, he i$> guilty of murder in the first degree." It is contended, on behalf of the State, that the foregoing instructions were fully warranted by the decision of this court in the case of State v. Jennings^ and in State v. Green.^ In the case first named, which was a most atrocious case of lynching, the infiiction of which was con- tinued for several hours, under circumstances of the greatest cruelty and brutality, there was no occasion for any effort on tlie part of the State to make a case of constructive murder in the first degree, as the facts of the case justified the jury in finding the defendant guilty of a willful, deliberate and premeditated killing. The following instruction, however, was given in that case : — " 6. If the jury believe, from the evidence, that it was not the in- tention of those concerned in lynching Willard, to kill him, but that they did intend to do him great bodily harm, and in so doing death en- sued, such killing is murder in the first degree by the statutes of this State." Judge Ryland, who delivered the opinion of this court, ap- 4t5. 66 Mo. 651. 1030 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. proved this instruction In the following language : ' ' The sixth instruc- tion is correct under the statutes of this State.* Homicide, commit ed in the attempt to perpetrate any arson, rape, robbery, biuglary or other felony, shall be deemed murder in the first. degree. The thirty-e.gh h section makes the person by whose act or procurement great oodily harm has been received by another, guilty of what is by our law called a felony ; that is, guilty of such an offense as may be punished by impns- onmenit in the penitentiary." , . . ,,i u- ^^a^ There are two errors in the foregoing extract, which will be made patent by reciting the two sections of the statute referred to. Section 1 is as follows: "Every murder which shall be committed by means of poison, or by lying In wait, or by any other kind of willful dehber- ate and premediated killing, or which shall be committed in the perpe- tration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder In the first degree.'' ^^ Section thirty-eight, now section thirty-three, is as follows: « any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or cul- pable negligence of another. In cases and under circumstances which would constitute murder or manslaughter, if death has ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not provided for, be punished bvimprisonment in the penitentiary," etc. It will be observed that the statute does not say that every homicide committed in the manner therein pointed out shall be murder in the first degree, but that every murder so committed shall be murder m the first degree. The object of first and second sections of the statute is to divide the crime of murder into two degrees, and they dea with that crime as it existed at common law. This is made manifest by the Ian- guage of the second section, which Is as follows: "All other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second decree " So that In every case under the first section, the first, though not the sole, inquiry to be made Is, whether the homicide was murder at common law. if not it can not be murder in the first degree under *** At'common law, a homicide committed In the willful and maUcious Infliction of great bodily harm was murder, though death was not in- tended; but this was not so because such infliction of great bodi y harm was In Itself a felony, In the perpetration of which the homicide was committed, but because such Infliction of great bodily harm was an 1 See crime, and PunUhmenU. R. C. 184S. » Whwrt on Ho«.. wc. 184. aeot. 1, 38. STATE V. SHOCK. 1031 ALS. sixth instruc- de, committed rglary or other thirty-eighth ; great 'oodily ur law called a ihed by impris- \ will be made id to. Section itted by means (Tillful, deliber- d in the perpe- iry, burglary or f 9 follows: "If )r receive great lurement or cul- imstances which as ensued, the ijury or danger or, be punished every homicide J murder in the )e murder in the of the statute is y deal with that lifcst by the lan- 1 other kinds of manslaughter, or ler in the second the first, though clde was murder irst degree under 111 and malicious leath was not in> of great bodily lich the homicide >dily harm was an lec. 184. act mnhim in se, and the pnrty was, therefore, held answerable for all the harm that ensued.^ But as such a homicide, death not being in- tended, is not a willful, deliberate and premeditated killing, and is not a murder committed in tlio perpetration or attempt to perpetrate any of the felonii'3 specially designated in the first section, but a simple un- intentional killing only, it has been universally classed as murder in the second degree, in those States having statutes identical with our own with the exception of the words " other felony." * But as murder in the second degree «;ith us comprehends only such homicides as are intentional, but witliout deliberation, it can not be 80 classed in this State.3 Hq^ jt gjiall be classed under our statute must depend upon the construction to be given to tiie words " other felony," in the first section. This brings us to the second error in the statement of Judge Byland. This error, which is the most important one, so far as the present case is concerned, consists in the declaration that the thirty-eighth (33) section makes the person by whose act or procurement great bodily harm has been received by another, guilty of felony. This is a very grave error. As before stated, the bare infliction of great bodily harm was not a felony at common law, and it is not made so l)y statute. The statute says, if any person shall receive great bodily harm by the i^ct, procurement or culpable negligence of another, ' ' in cases and un- der circumstances which would constitute murder or m.inslaughter if death had ensued, the person by whose act, procurement or negligence such injury ♦ • » shall be occasioned shall • • • be pon- ished by imprisoned in the penitentiary," etc., that is, shall be guilty of a felony, and punished as therein prescribed, if death does not ensue. Now, upon the supposition that this felony is one contemplated by the words " other felony," in the first section, let us add this qualifica- tion to the thirteenth instruction given in this case, and see what its legal effect will be. The instruction will then read as follows : " If the jury believe, from the evidence, that4t was not the intention of the de- fendant to kill the child Robert Scott by whipping, but that he did intend to do him great bodily harm, under circumstances which would consti- tute murder or manslaughter if death ensued, and, in so whipping him, death did ensue, then he is guilty of murder in the first degree." Would not such an instruction as this present a palpable contradiction on its face ? If the circumstances under which the bodily harm was inflicted were such as to constitute the offense of manslaughter, if death ensued, by this instruction it is, nevertheless, declared to be murder in the first degree. The language adopted in the supposed instruction is, of 1 Fost ssa. > Whart. on Horn., sees. 40, 190. 3 State V. Wilner, 66 Mo. 11. 1 T uestion ■ tlie two I c of the I g 1032 CRIMES AGAINST TUB PEHSONS OF INDIVIDUALS. course, not 8uch as wouU! be used to a jury, as it presents a qv of law. but it is pertinent and proper thus to bring together the provisions for the purpose of determining the construot.on of Statute. It would seem, therefore, that the offenses ment.onea n lie thirty-third section are not such as are meant by the words -other felony," in theflrst section. , . ♦!,„ We are of the opinion that the words "other felony," used m the first section refer to some collateral felony, and not to those acts of personal violence to the deceased which are necessary and constituent elements of the homicide itself, and are, therefore, merged in it, and which do not. when consummated, constitute an offense distinct from the homicide.* , . ^t. * Again, the first declares, that all murders committed in the perpetra- tion or attempt to perpetrate arson, rape, robbery, burglary, or other felony, shall be murder in the first degree. As this section, as before shown, includes only such murders aa were murders at common law, it may well be doubted whether the words " other felony " can be held to include offenses which were not felonies at common law. This point, however, we do not now decide, it being unnecessary in the present case But the statute evidently contemplates such " other felony " as could be consummated, although the murder should also be committed. It says murder " committed in the perpetration or attempt to perpetrate any felony. It were absurd to say that there could be an attempt to perpetrate a felony which could not be perpetrated. The statute, therefore, must refer, to such felony as may be perpetrated, although the murder is committed. The arson, rape, robbery, burglary, may each be perpetrated, and th^ murder also be committed. But when great bodily harm has been inflicted, and death immediately or speedily ensues therefrom, what felony has been committed, either at common law or under our statutes, in addition to the murder? The infliction of irreat bodily harm is, by the statute, only made a felony when death does not ensue, and when, if it had ensued, the whole offense, includ- ing the infliction of the bodily harm, would constitute either murder or manslau-L^er; but whether murder or manslaughter, would have to be determined the circumstances of the case, as in other cases of violence terminating in death, when the samewas not inflicted in the perpetra- tion or attempt to perpetrate some collateral or independent substantive crime ^ If the instruction given in this case can be upheld, it will convert many cases of unintentional killing, which are manslaughter only under other provisions of the statute, into murder in the first degree. 1 Whart. on Hou... Bece. 66. 67. 68. 62. » Kelly v. Com.. 1 Grant's Case. 487. IAL8. ents a question )getlier tlie two ruction of the entionea in the words "other r," used in the ,o those acts of md constituent rged in it, and 96 distinct from in the perpetra- irglary, or other iction, as before , common law, it ' can be held to iw. This point, ry in tlie present elony" as could i committed. It t to perpetrate " be an attempt to 1. The statute, etrated, although T, burglary, may tted. But when lately or speedily either at common The infliction of elony when dfath B offense, includ- I either murder or would have to be cases of violence d in the perpetra- ndent substantive !ld, it will convert ughter only under degree. Irant'8 CoBCi, 487. STATE V. SHOCK. 1033 These views are in accordance with Ww construction placed by tliis court upon ait analagous provision of the statute, relating to inferior grades of homicide. The statute delining manslaugliter in the first de- gree is as follows: "Section?. Theliilling ahuman being witliout a design to effect death by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or the at- tempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases where such a liilling would be murder at the common law, shall be deemed manslaughter in the first degree." It was held by this court, in the case of State v. Slonn,^ that the foregoing se'tt^on contemplates some other misdemeanor than that which is an ingredient in the imputed offense, otherwise that part of it relat- ing to an attempt to perpetrate a misdemeanor would be wholly nuga- tory ; that where an act becomes criminal from the perpetration or the attempt to perpetrate some other crime, it would seem that the lesser would not be a part of the greater offense.* On the facts of this case, we thinic the jury might properly have been instructed as to the law of murder in the first degree, on the tlieory of a willful, deliberate and premeditated killing, and also as to the law of manslaughter in the fourth degree. It was to be expected, of course, that the Circuit Court would, in pass- ing upon the instructions presented bt the trial of this case, be governed by the decision of this court in the case Oi Ihn State v. Jennings ; but the doctrine of that case and of the case of State v. Nueslein,^ in so far as it conflicts with our opinion in this case, is overruled. There is no conflict between this case and the case of State v. Oreen.* In the latter case the defendant, at the time of the homicide, was re- sisting an oflScer under circumstances wliicb made such resistance a collateral felony, both at common law and under the statute. True, the Jennings Case was cited in support of instructions numbered three and four, given for the State in that case, which omitted the elements of deliberation and premeditation ; but those instructions were unlike the sixth instruction in the Jennings Case and the thirteenth instruc- tion in the case at bar, and are in conformity with this opinion. Neither of them declared that if the defendant did not intend to kill the accused, but did intend to inflict on him some great bodily harm, he was guilty of murder in the first degree. The person killed by Green was an officer who had a warrant for his arrest on a charge of felony, and instructions three and four, above referred to, were to the effect that if the deceased read such warrant to the defendant, or notified him of his 1 4 Mo. 604. 2 l.de. People v. Bntler, 8 Park. Or. Kep. 3"; People v. Skeeban, 49 Barb. 217; People V. Rector, 19 Wend. 60S. 3 35 Mo. 111. « 66 Mo. 631. i 1034 CK.M.S A„A.N« T„r. ™,«OV» OP ,S>..V...«.». .,.Uo,U, .. an.,. .,„, a.„ .k; ;;;'-:- ^r « :^»'° -- „« .,„.h .rr.«t.h. 7^f''"'„™f«rtUor™,o,.horetot.>r. given. l„,truoUon. "o™ undou.tcUlj "'"•;' ^'^„,,„j „,,„u apparent. The .«Ifomu:e Lclween that ca, ""^^l'™ „ „„,„„,ed. Navton and Henry, J J., tontur, ^» J., diHsent. ieeuersed. HKsnv. J., concurring. The o^^^^^lr^'^^^^^^ :;rhlcidelt- act in relation to crimes and l>«n'«»'««f ^J ^'j^" ;,,, ,,y arson, rape, „.iUed in the perpetrat.on, <>r ^ em t ^ perp^^^^^^ J^^^^^^^^^^ ^^^^ robbery, burglarly, ««• ° '^^ ^ l^iJ '^t In- --^ classed with those should be dee.ned murder "" ;' * ;^^'tying n wait, etc. It wasnot xnurdors comr.itted by •-*'^; " '^^ ^jL^^^ but only to rec ii^tended to enlarge the class of -"" ™7 .^. i^,,, j^ the classiflca- og„izoti.ose designated '-^^^^^^^^^ contended for by the tion made by that sec ion. " ^^^^ J^^ ^^, .j ,1,, criminal code. For State prevail, it will ^^^f ^ Il^^^^uster to any woman, preg- instance: "Every person '''^'if^^l ^^^,, „,. substance whatsoever, nant with a quick ^'l^''^' "^"^ '"" ''\^^^^^^^ means, with intent or shall use or employ -.^ ^-^^^^™;;^/ ,L shall have been neces- thereby to destroy such chdd, f^^Tol shall have been advised by sary to preserve the life of 7^^^"^^^'' i;,,,u, if the death of such a physician to be -^Xreo? etl f^^^^^ the means so employed, be child, or the mother t^«'7'';°f"' "^cond degree.''^ deemed guilty of -^--''^^^J^'XmZ^<^^ ^n^eans, with the intent to If one administer medicine or «"H^oyo ^^^^^ ^^ employed, the oBen«i, IJ *» e «i1er tUe couslructioa placed ::nC.::tr.trrth:T:^^^^^^^^^^^^ mrnslaughter in the second degree. ^^ ^ , ,y none assault another wihn^ent^t^^^^^^^^ ^^^ under Wagner's Statutes.^ i. - « J^/^^^i/^,. ,,- of the seco- d liberate, and death ensue, the off^^e^o^'^ .uslaughter, uu b degree. If made in aheatof passioi^ '0^00! unUcr which It would, in thf doctrine of the ^n,nn^ l^'J^^TX^Zt^. com, .ssion of the rnT^idTwr rnr ;rre-l ^ a felony, thus making what was ,„ ..- J sec. 32, p. 449. a Wag. Stats.. socio, p. **<• |i »rt.2. i UAL8. (■cased In resist- aegree. Those crutofore given. ai>|>ai'ent. led. ., and NouTON, Reversed. cctlon 1,' of the y homicide com- auy arson, rsipe, r at common law, iassed with those , etc. It was not , but only to rec- 4 in the classiflca- ;lended for by the iminal code. For \ny woman, preg- itance whatsoever, teana, with intent I have been necea- ^c been advised by f the death of such 19 80 employed, be ,, with the intent to from the means so te statute, is man- jonatructiou placed liomicide was com- miirder of the first ires that it shall be I guiltv of a ' ly >,, T' but not de- 01- of the seco"! inslaugbter, un « .1 which ;t would, in he comi ission <>' **^® 19 making what was 8TATK V. SHOCK. 1035 1 sec. ■ i, p. 449. manslaughter at cotnmoii law, and murder In tiie second degree under our statute, murder of the first degree, u result not to bethought of hut with alihorrence If, when great bodily harm is intlioted, under eircurastanccs wliich, if deatli ensue, would constitute tlio offense of manslaugiiter, the offense is to be transformed Into murder by construction, how is tlio tliirty- sccond section to bo distinguisiied from the thirty-tiiird in tlie applica- tion of tiio construction placed upon the first and thirty-tltird sections in the. Tennings Case? Every assault witli intent to kill, provided for in section thirty-two, if death ensue, must also be transformed into nuirder of tlie first degree, wlietiier such killing would be murder of the second degree or man- slaughter under other provisions of the statute. I have seleeted these from many selections of the criminal code, which illustrates the force and conclusiveness of tlie argument of my associate who delivered the opinion of the court. If one be indicted under the thirty-tliird section for inflicting great bodily barm, it would be necessary for the jury to find whctlicr, if death had ensued, the party would have been guilty of murder or manslaughter. If the circumstances were such that, if death had ensued, the accused would have been guilty of either murder or manslaughter, it would be tiie duty of the jury to find him guilty of tlie felony defined by the section. If, however, death ensued, no case would exist for a prose- cution under that section, because then the offense would be murder or manslaughter, or excusable or justifiable homicide, according to tlie circumstance under which the homicide was committed, witliout regard to the second subdivision of section one. Section thirty- three, by its very terms, recognizes the law to be, that one in- tentionally inflicting great bodily harm upon another may, if death result, be guilty of murder or manslaugiiter, the grade of the offense to be determined by the circumstances attending the act, yet the con- struction contended for utterly denies that, if one intentionally inflict great bodily harm upon another, and without intending it kill him, he can be guilty of any crime but murder of the first degree. It is clear, from the whole scope and spirit of the act, that it was in- tended to mitigate the severity of the common law in regard^ to murder, but this construction of the first section would make our code more severe. The substitution of the words " neitlier excusable nor justifi- able," for the words "which would constitute murder or manslaugh- ter," in section thirty-three, perverts the meaning of the section and expunges that portion which brings it in conflict with section one. The words neither justifiable nor excusable," are not equivalent to the words of the statute, ' ' which would constitute murder or manslaughter, i 1036 CHIMES AGAINST THE PERSONS OF INDIVIDUALS. if death had ensueil," and such substitution is calculated to mislead and draw iitlenlion from the real question under discussion. We have to deal with the section as it is, not as it might have been. The section does not make the infliction of great bodily harm a felony when not excusable or justifiable merely ; but to constitute the offense a felony, it must also be inflicted " under circumstances which would constitute murder or manslaughter, if death had ensued." Section thirty-three not only contemplates cases where the infliction of great bodily harm would be neither justifiable nor excusable, but cases where, in the event of death the offense would be murder or man- slaughter under some other section. If the State had provided for cases where the iOiiictionof bodily harm was neither excusable nor justifiable, and where it was not declared by any statute to be either murder or manslau^^'iter, there would be no con- flict. If section thirty-three refers to cases where the homicide would be murder of the first degree, by the circumstances of the killing, there is no occasion to resort to the first section to make a case of constructive murder. If it refers to cases which, by the circumstances, would be murder in the second degree, or manslaughter in any degree, a conflict arises which nullifies the expi-ess terms of the statute, and adds to the class of murders of the first degree almost a.'' many constructive mur- ders as there are sections of the statute defining manslaughter in the different degrees. The Jennings Case has been acquiesced in for a number of years, and was expressly approved and followed in Nueslein's Case,^ and this fact, if the doctrine were n^t clearly wrong, should make this court hesi- tate to overrule it ; but the principle of stare decisis docs not obtain in criminal to the same extent as in civil cases. A number of adjudications one way indicates that the law '.^ as they have adjudged it to be. In civil cases, where rightc of property have been acquired under such decisions, they are adhered to, right or wrong. No sucli reason applies in crin - >jal cases. That there have been many adjudications announcing the same doc- trine on a given subject, is of force an argument that they correctly de- clare the law, but I apprehend that men are not to be hanged or imprisoned in the penitentiary on a clearly erroneous construction of a statute because many others have been so hanged or imprisoned. The doctrine of stare decisis has not always been reverently recog- nized by this court, even in civil cases.^ Believing that the instruction given by the court, based upon the thirty-tl ' d section, ia palpably eToueous, I concur in reversing the judgment. 1 25 Mu. 111. 9 Proctor V. Hannibal & St. Jo. R. R. Co., 61 Mo. 112. [VIDUALS. Icnlated to mislead icussion. it might have been. )dily harm a felony institute the offense !;ance3 which would sued." where the infliction nor excusable, but [ be murder or man> ction of bodily harm i not declared by any re would be no con- the homicide would of the killing, there I case of constructive imstances, would be ny degree, a conflict lite, and adds to the J constructive mur- maiQslaughter in the a number of years, lein's Case,^ and this make this court hesi- is does not obtain in at the law '.^ as they htc of property have id to, right or wrong. Dcing the same doc- it they correctly de- jt to be hanged or us construction of a •r imprisoned, len reverently recog- : that the instruction section, is palpably mibal & St. Jo. R. R. Co., PLIEMLIMQ V. STATE. 1037 MURDER— DEGREE OF OFFENSE WHEN PERPETRATED IN COMMIS- SION OF ANOTHER FELONY. Fliemlino V. State. [46 Wis. 616.] In the Supreme Court of Wisconsin, 1879. On a Trial for Kurder the Evidence tended to show that a mother and her three children were killed at night, while being in separate beds, by having their skulls crushed with some blunt weapon, and that their house was then burnt. The evidence was circum- stantial. The verdict was guilty of murder in the third degree, on the theory that the crime was committed in endeavoring to commit rape upon, or adultery with, the mother. The Wisconsin statute makes " the killing of a human being, without a design to effect death, by a person engaged in the commission of any felony" murder in the third degree. Held, that there is no such connection between rape or adultery and homicide as to make one the natural consequence of either of the others ; and that as there was no evidence to show that the killing was without design to effect death, the verdict was wrong. Okton, J. This is an information of murder in the first degree, with five counts, stated in common-law form ; the first count of whicli charges the murder of one Laura Van Vorhees, the mother ; the second of Ed- ward, her son ; the third of Stella, her daughter ; the fourth of Claudia, her female babe ; and the fifth, the murder of all four together. The verdict of the jury was, guilty of murder in the third degree, uiidpr the fifth count of the information. The facts in brief were as follows : In the evening of the first day of November, 1877, the small house in which the Van Vorhees family lived was burned ; in the smouldering ruins of which the partly bMrned re- mains of Laura Van Vorhees, the mother, of Edward, her son, of Stella, her daughter, and of Claudia, her female babe, were found. The mother was twenty-five years, Edward seven years, Stella four years, and Claudia seventeen months of age. They had evidently retired to rest for the night; the motlier, Stella an; Claudia side by side in a bed in one corner of the room, and Edward < n a lounge or coi in another corner, their usual sleeping places ; and their remains were found in the same position relatively as lying when asleep, with tlie bed and cot burned from under them. Parts of the cranium of each one was uncon- sumed by the fire ; and the great preponderance of the medical testimony tended to show that the skull of each one of them had been broken and crushed in by the use of some bluut instrument with great violence, producing death before the burning. Near some of tlie remains a hammer with a broken handle was found with which such wounds might have been made. The verdict of the jury, convicting the defendant of murder in the 1038 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. third dogroe of all of these persons together, rests wholly upon the as- sumption that he committed the deed substantially in the same manner and under the circumstances ibove stated. The relationship, sox, age and condition of the persons killed ; the time, place, and horrible circumstances of the deed ; the mother with her little daughter and female babe by her side in the bed, it may be, and quite likely, asleep; and the little boy on his cot in a distant cor- ner of the room, in the night time, with no appearances of struggle or resistance ; their skulls crushed in with a blunt instrument, used with great violence, producing almost instant death ; and the house set on fire to consume the bodies of the slain and to exterminate the evidence of the homicide — must all be considered in determining the character of the act, and the degree of guilt involved in its perpetration. There being no direct evidence whatever of the homicide, the case rested upon purely circumstantial evidence of the previous relations and conduct of the parties, and of subsequent discovery of isolated facts and circum- stances tending to connect the defendant with the homicide, which it is unnecessary to notice. From the e\'idence and instruction of the learned judge to the jury, it is apparent that the case was tried and considered by the jury upon three suppositions or theories: first, that the deaths were produced by the burning building ; second, that it was murder in the fiist degree ; and third, that the defendant did the killing without any design to effect death, while engaged in the com- mission of rape upon, or adultery with, the deceased Laura Van Vorhees, and was therefore guilty of murder in the third degree. The verdict must have been rendered upon the last theory or finding. We shall not inquire whether there was sufficient evidence to connect the defendant with the homicide, but assume that there was ; and we shall at first consider the case conceding that there was sufficient evi- dence for the jury to find that the defendant, when he did the killing, was engaged in the commission of rape or adultery. Murder in the third degree is " the killing of a human being, without a design to effect death, by a person engaged in the commission of any felony." ^ The three degrees of murder by our statute were comprised in the general crime of murder at common law ; and murder in the same de- gree must have the same requisites as murder at common law ; and the degree established by the statute is based, not upon the fact that it is any the less murder, but upon the character of the homicide, and the punishment to be suffered for the homicide, committed under such con- ditions and circumstances as would be murder at common law. The oftense of murder in the three degrees, as defined by our statute, 1 leo. 4349, Rot. State. [JALS. Ily upon the as- le same manner sons killed ; the the mother with bed, it may be, in a distant cor- 9 of struggle or mcnt, used with tie house set on ate the evidence iig the character itratiou. There jase rested upon I and conduct of icts and circum- icide, which it is itruction of the case was tried f theories: first, ; second, that it 8f end ant did the ged in the com- iraVanVorhees, ee. The verdict dence to connect ere was ; and we as sufficient evi- e did the killing, in being, without >mmission of any comprised in the ■ in the same de- lon law ; and the the fact that it is omicide, and the I under such con* non law. ed by our statute, PLIEMLING V. STATE. 1039 was so before the statute, and is but the adoption or introduction ii?ta the statute of the common-law description of the crime.' It is sometimes stated that t'lO object of this classification is to make a distinction between murder with express malice and murder with im- plied malice. In the killing, without the design to effect death, there can be no actual malice or intention in the act itself ; and in murder in the third degree such malice and felonious intent, necessary to make it murder, is derived from the felony by the commission of which, the killing happens. In the State of Maine, murder in the second degree is the same as murder in the third degree by our statute ; and in State v. Smith,^ the court says : " The malice is implied when the killing is com- mitted by a person when in the perpetration of a crime punishable in the State prison ; and if in the perpetration of that offense a killing oc- curs, the malice making murder in the second degree may be implied." This is substantially the definition given to this particular kind of mur- der at common law. " Such killing shall be adjudged murder which happens in the execu- tion of an unlawful action principally intended for some other purpose, and not to do a personal injury to him in particular who happens to be slain; " or, " Such killing as happens in tl.o execution of an unlawful action, whereof the principal intention was to commit another felony ; " or, " Whenever a man happens to kill another in the execution of a deliberate purpose to commit any felony, he is guilty of murder." " And not only in such cases where the very act of a person, having- such a felonious intent, is the immediate cause of a third person's death, but also when it in any way occasionally causes such a misfortune, it makes him guilty of murder." 3 So, also, at common law, "if a person commit a criminal misde^ meanor which is of such a sort as to endanger life, so that the element of danger occurs with the unlawfulness of the act, the accidental caus- ing of death is murder " * and this latter killing is by our statute man- slaughter in the first degree, and this explains what is meant by the clause in the section defining it, "inci> cs where such killing would be murder at common law." In the killing without design, while in the commission of a misdemeanor, which makes the crime manslaughter, precisely the same principle and evidence of similar effect, obtain as in murder in the third degree, the only difference being that between a felony and a misdemeanor, the felony imputing malice which makes murder, and the misdemeanor not; and in such case the "homicide which results from the perpetration of offenses below the degree of 1 People V. Enoch, IS Wend. U0. 3 U Me. 369. 1 1 Hawk. P. 0. 86, 69, 100. * 3 Biah. Or. L., aeo. 691. 1040 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. felony and without malice, is manslaughter." ^ '^^Z *^'°''"'%°* *t' Tcc^nized fully by this court in State v. Hammond,* and by ioster v. Jn;otle felony In this case, the felony, being rape or adultery, connection with it, as to make it i J' ^^ „^„„e, g^own by t:":;^:::::^ ™ *« ^-^^^ " Zt;:, ^^du;J^ry:S;he lamng are so distinct and di^onnected and fndepend nt from each other, in all the particulars of the kilhng Proved and all the possible particulars of the ravishment imagined or a sined that the degree of homicide could not be -t^f «/^ tesrened but would rather be enhanced by the commission of the ^'Sut'l'ettbe assumed that the act of rape, or adultery, is in itself da!g rous Ufe, and that the killing happened or occurred without ^ -^r Torn the kcl of rape or adultery, or during its commission, so " "Hot or Zl a ly Connection or relation with, the ravishment of 7Z. la thU ca», U .upposed to be the crime of rape or ..dulter, , '"^L^rrayTfoi'ttu* ^uLoe o, ,or.er ,.pro,.r relafoo, ^ t Je„ ".re^dant and Laura, casting .ome ausplcioo, perhaps, upoa the 1 State V. McNab.20 K. II. 160; BU88. on Cr. 52" ; 1 East'a Cr. L. 218. 1 35 Wis. 315. 3 SO N. Y. S98. JALS. PLIEMLINO V. STATE. 1041 lements of the cesaary to con- by statute, are nd by Foster v. yon. rder to make a le third degree, implied malice ve intimate rela- not be separate, constituting the te naturally con- ape or adultery, om it or in close felonious intent aanner shown by Bcessary to make and disconnected ars of the killing raent imagined or be mitigated or )mmission of the Itery, is, in itself, occurred, without its commission, so possible construc- ig, in the manner Q, of the little girl babe, be a conse- the ravishment of sign, or to transfer ninteutional killing or elements of this sioii of the felony, ( rape or adultery ; proper relations be- , perhaps, upon the chastity of both, and of some feeling of hostility and fear or dread upon her part, and some hostility or evil design upon his ; but there is absolutelj' no evidence whatever of any rape, or attempted rape or adultery, at the time of the killing, or of any other felony than what is constituted by the killing itself. It is a mere supposition, guess, or theory of a ravishment or adultery, or attempted ravishment, predicated solely i.pon the previous relations of the parties, wliich do not naturally or logically, and by no means necessarily, form the premises of any such conclusion. The case is as barren of all evidence of the commis- sion, or attempted commission of a felony, separate from the killing, as the above cases in 50 New York,* and 35 Wisconsin ; * and the act of killing in both of those cases, in respect to the instrument used, and the deadly consequence, is very similar to that in this case, and the learned opinions, in both eases, upon the manner of the killing, would have been more pertinent and have greater emphasis in this case, where the conviction is for the killing of four persons instead of one, and those persons the mother and her children. In the first case above last cited, the court say: "The refusal of the court to charge that if the prisoner intended to maim and not to kill, the offense was murder in the second degree, was proper, for the reason that there was no evi- dence upon which the jury could have found that the prisoner intended to fracture the skull of the deceased, as distinguished from an intent to kill him, • • • and while it was for the jury to determine with what intent the blow was inflicted, we can not, without doing violence to common sense, say that the prisoner may have intended to break the skull without producing death." This court said, in the opinion in the State V. Hammond:'^ " So, in the present case, it was absurd for the jury to find that the defendant sent a bullet crushing tbrough the head and brain of the deceased, without any design to kill him, but with a design to inflict upon him one of the specific injuries above mentioned, for which the perpetrator, on conviction, is liable to be punished by im- prisonment in the State prison." That there was no evidence of the com- mission of a rape or adultery, or any other felony than the killing of the four persons in the manner above stated, and that such killing could not have been without design to effect death, is too clear for further argument or authority. This being so, although the venlict is for an offense included in and less than murder in the first degree, for which the defendant might have been convicted under the information, upon sufficient evidence, if un- sustained by the evidence and by facts necessary to constitute the offense of murder in the third degree of which he was convicted, the ver- p. 896. 3 Defences. i p. 815. 66 'tupra. 1042 CRIMES AGAINST THE TOIffiONS OF INDIVIDBALS. die. .» erroneous, and the jadgment m„.t, for .hat reason alone, b. «. T^;:.ee.de..c„.e^^^^^^^^^^^^ sr::ri:-f'r>{ord^^^^^^^^ defendant was convicted of Una hornblc deed, in<^^ " • H SrLverd:_.,.s.e»pro.n.^o.*e^^^^^^^^^ prehensible, character ; and rf '"^ J«^» latlludlnarianiain in the compromise o. "««»'>*'*•- ^^f, l'" -^^iS if*e'.ria. of high proceedings or ultimate results. judgment reversed. MUEDER-MANSLAUGHTER-MtrrUAL COJOAT-HEAT OF PAS- MUKlJi!-n ^^^^ _^ DEGREES OF MURDER. People v. Sanchez. [24Cal. 17.] In the Supreme Court of California, 1864. ^. I. Oa.. Of Mutual combat ^'l^^L^T^ ^::^^^ '^-^^^^'^^l offense trom murder to "«"/'*"«"«'i" """ '^^^^^^^ by the defendant, lor U Bucb mony. ««•»•«• —In order to conBtitnte 4. What Oon.titute. Murder to ^^•*,^*^*„S^^*„te^"mallciou8 or intentional murder In the first degree there ™"*'''7°"*"'"f „,„!„» ,„ wait, or torture, or Bome oil' A.?r.= '•^rr.'.s.'rr .v^;r;. w. «... ., »,»«. >„«. u 1 See State t». Haran-ond. lupra, and State «.BricksoD.4SWis.tJ6. ■-•?«!. ALS. 1 alone, be re- 5 homicide, we d a reasonable at all, that the s quite evident able, if n^t re- 1, then the ver- arianism in the ,ve offense, and int, in order to he trial of high :ever influence, sibility in such d or attempted. in the adminis- lot be preverted ration of future ment reversed. SEAT OF PAS- 34. order to reduce the sontest was waged on defendant, for U such lurder. Iclent time has elapsed one of them kills the ury which Is not predi- e portion ot the testl- -In order to constitute lalicious or Intentional >it, or torture, or some It, or torture, which is PEOPLE V. SANCHEZ. 1043 wlUfnl. deliberate, and premeditated, or a killing which is committed in the perpetration or the attempt to perpetrate any argon, rape, robbery or burglary. Every other kind Of murder, which is murder at common law. is murder in the second degree. Appeal from tiie District Court, Third Judicial District, Santa Cruz County. SANUEKsojf, C. J. (omitting rulings on questions of practice). The next error assigned is the refusal of tlie court to give certain instructions asked on behalf of the prisoner. The first instruction is in the follow- ing words: "When, upon sudden quarrel, two persons fight, and one of them kills the other, this is voluntary manslaughter ; and so if they, upon such occasion, go out and fight in a field, for this is one continuetl act of passion." This instruction seems to be founded upon the theory that the killing was the result of mutual combat. It is doubtful whether such a theory is logically deducible from the evidence ; but however that may be, it is clear that the instruction was properly refused, for the obvious reason, even in view of that theory, that it ia not law. It ignores entirely the doctrine that in case of mutual combat, in order to reduce the offense from murder to manslaughter, it must appear that the contest was waged upon equal terms and no undue advantage was sought or taken by either side ; for if such was the case, malice may be inferred, and the killing amount to murder. The latter clause, which, it is presumed, was more especially intended to apply to the present case, is also erroneous, because it ignores the doctrine that such "going out to fight " must occur immediately after the quarrel ; for if suflBcient time elapse between the quarrel and the "going out to fight," to enable the blood to cool and passion to subside, the killing will be murder, and not manslaughter. The next instruction refused by the court is in the following language : "Under the indictment against the defendant, he may be found guilty of an offense the commission of which is necessarily included in that with which he is charged in tlie indictment ; that is, he may be found guilty of murder in the first degree, of murder in the second degree of manslaughter, of fighting a duel and killing his antagonist, and' of excusable or justifiable homicide." In determining this question of eiTor it is unnecessary to decide whether, under an indictment for murder, a defendant may be found guilty "of fighting a duel and killing his antagonist," inasmuch as the action of the court below must be sustained on other and sufficient grounds. The instruction was properly overruled for several obvious reasons. 1. All of it, except that portion which relates to dueling and excus- 1044 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. able or jusliflable homicide had already been given by the court, and the refusal was accompanied by a statement to that effect. 2 The theory that tlie homioide in this case was the result of a duel has no foundation in the evi.lonce. No instruction should be given to a jury which is not predicated upon some theory logically deducible from at least some portion of the testimony. Such instructions are only calculated to confuse and mislead the jury, and ought not to be ^' 3*.°it announces for the first time in the history of criminal procedure, the startling doctrine that a defendant on trial for murder may be found guilty of excusable or justifiable homicide. Upon this branch of the instruction comment is unnecessary. 4. Numerous objections to the instructions given by the court are next urged, most of which have more or less merit ; and one of them is clearly fatal to the judgment in this case. Tlie following definition of murder of the first degree is found in the charge: "Murder is divided by our law into two degrees — the first includes every unlawful killing of a human being done maliciously or intentionally." , . . « At best this is but a lame definition of murder, and contains none of the characteristics which mark the distinction between murder of the first and murder of the second degree. In effect, the jury are told that every unlawful killing of a human being done maliciously is mur- der of the first degree, and every unlawful killing of a human beuig done intentionally is murder of the first degree. Neither of these propositions is true; for malice must and intent to kill may exist, where the killing only amounts to murder of the second degree. In order to constitute murder of the first degree there must be some- thincr more than a malicious or intentional killing. Tliere must be a killin kill may exist, id degree, re must be some- riiere must be a ed in the statute jt be _a killing by r kind of killing , which is willful, committed in the rape, robbery, or ature intended to , all murders of a 11 other kinds of istablish a test by ■adily ascertained, lat is to say, inten- PEOPLE V. SANCHEZ. 1045 ttts; tiUf'notTlrT'"'''"'- " '' '^' '"^^ ««- "'"^ -'tl^- me nrst, an I if not, within the second degree There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the Legislature has enleTted n the statu e. and has taken upon it the responsibility of sayin. tJat thev shall be deemed and heldto bemurder of the first degree."^ These caes are of two classes. First, where the killing is perpetrated by means oJ poison etc Here the means used is held to be conclusive evidence of " premeditation. The second is where the killing is done in the trpetra' t on or attemptto perpetrate someoneof thefelonles enumerat iTn *?: statute Here he occasion is made conclusive evidence of premedi* a! tion. Where the case comes within either of these classes tToW question .^ Is the killing wiUf„, deliberate, JTre^Zll^^^^^^^^ answered by the statute itself, and the jury have no option, but to find the prisoner gn.Ity in the first degree. Hence, so kr as those two classes are concerned, all difficulty as to the question of degreels removed by the statute. But there is another and much larj Xsa of cases included in the definition of munler in the first degree? which are of equal cruelty and aggravation with those enumerated, ind whici owing to the different and countless forms which murde^ assumes ii IS impossible to describe in the statute. In this class the Le'rature eaves the jury to determine, from all the evidence before them Jhe degree o the crime, but prescribes, for the government of the r d 1 b- erations,the same test which has been used by itself in determ 1. the fn^.^ .^f'*ir*^"''*^'^^-*°^'*'*'»«<»^»l'«r-teandprecS^^^^ of the first degree are made to stand upon the same principle It IS only ,n the latter class of cases that any difficulty is experienced m drawing the distinction between murder of^he firsLnd murder of unlawfu killing must be accompanied with a deliberate and clear intent take Jife, in order to constitute murder in the first degree Thein ent to kiU must be the result of deliberate premeditatior i must be" ' formed upon a pre-existing reflection, and not upon a sudden hel oJ passion sufficient to preclude the idea of deliberation. There need be kZrre ''".' °' t-e Ween the intention to kill and the act of kiUing; they may be as instantaneous as successive thoughts of the mmd. ItM only necessary that the act of killing be preceded bv a concurrence of will, dellberatton, and premeditation on the par of Ihe slayer; and if such « the case, the killing is murder of the first degree! no matter how rapidly these acts of the mind may succeed each ofier or how rapidly they majr be followed by the act of killing. * We have carefuUy read the entir^charge of the court, for the pur* 1046 CRIMES AOAINST THE PERSONS OF INDIVIDUALS. pose of ascertaining whether this objection is cured in any other part; and although we i\m\ other attempts at definition and illustration, we arc satisfied tliat the distinction between the two degrees of murder is nowhere drawn with that perspicuity whieli is necessary in order to render it distinct and clear to the comprehension of a j ury. This leaves to U8 no option but to reverse the judgment and order a new trial. Ordered accordingly. DEGREES OF MURDER -MURDER IN FIRST DEGREE -MURDER IN second degree. People v. Long. [39 Cal. 694.] In the Supreme Court of California, 1870. L Murder In the PlMt Decree. -Murder In the Hrst degree, unless oommltted In per- petVa" nfor attS't 1"« to perpetrate arson, rape, robbery or burglary 1. the unlawful killing, with malice, nn.l with a deliberate, proraedltated. preconceived desijsn to take life, though such design may have been formed In the mind immediately before the mortal wound was given. 2. Murder in the Second De»ree.-Murder In the second degree is the unlawfu kiUiag with malice, but without a deliberate, premeditated or preconceived design to kill. 3. Inetruction. to Jury -Practice on Appeal. - When ^the evidence is not brought up in t~?ran" ipt the Judgment will not usually be reversed for an «'«8'«»«"°' '''''"' Ltructions ; but where U.. court gives an Instruction which is clearly contrary to law on a particular point, it will be orosumed that there was some evidence requiring an instruction on that point. Appeal from the District Court of the Second District, Tehama CJounty. The facts are stated in the opinion. Raymond & Stratton, for appellant. . The charge is in the very teeth of the doctrine held by this court in People V. Sanchezy^ People v. Foren,^ and People v. Nichol^ In effect, the jury were told that if the defendant, with mahce, intentionally killed the person slain, they must find him guilty of mur- der in the first degree. The vice in this is, that the mere intent to kill is made the distinguishing test between the two degrees of murder, yet the intent to kill may, and often does exist, and the killing only amounts to murder in the second degree. J. Hamilton, Attorney-General for respondent. In its charge, it was the intention of the court to convey to the minds of the jury the idea tliat premeditated intention could form no 1 U Cal. S8. 2 25 Cal. 361. S3iCal.3U. JALS. iny other part ; Uudtration, we 8 of murder is iry in order to '. This leaves new trial. accordingly. — MURDER IN I committed in per- larr, Is the unlawful lived deiign to take lediately before the I the unlawful killing d design to kill, ice la not brought up alleged error in tlie arly contrary to law, ridence requiring an )i9trict, Tehama by this court in iehol.^ nt, with malice, Q guilty of mur- lere intent to kill 19 of murder, yet ing only amounts to convey to the on could form no S34Cal.3U. PEOPLE V. LONG. 1047 part of the crime of murder in the second degree, but that it was an ingredient of murder in tlie first degree, which was correct.* Ckockett, J., delivered tiie opinion of tlio court. Tlie defendant was convicteil of murder in tlie first degree and lias appealed from tlie judgment. On the trial, tlie court, after reading to the jury from the statute the definition of murder of tlie first and second degrees, cliarged as follows: "Murder, therefore, of the first degree has in it tlie ingredient of malice towards the person Itilled ; and also a deliberate and premeditated intention to take life. In mur- der of the second degree there is the same de;^ree of malice as in murder of the first degree, and the killing is done unlawfully, but with- out the intention to take life." After defining the crime of man- slaughter, tlie court then proceeds as follows: " Thus, you have the gr.ides of crime included in this indictment; first, murder in the first degree, which is an unlawful killing, accompanied by malice and by a premeditated intention to take life, murder of the second degree, which is the unlawful killing accompanied with malice, but in it was no inten- tion of taking life, for tlie reason that as soon as that ingredient enters into the killing it becomes murder in the first degree." This charge was excepted to by the defendant, and is relied upon as error on the appeal. The different degrees of murder are tlius defined in the statute: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate or premedi- tated killing, or which shall be committed in the perpetration or attempt to peqietrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder in the second degree." " Section nineteen of the act defines murder to be " the unlawful killing of a human being, with malice aforethought, either express or implied." The court, therefore, correctly charged the jury, that, to constitute murder of either the first or second degree the killing must have been unlawful and accompanied with malice; and the charge that to constitute murder of the first degree, there must have been a deliberate and premeditated intention to take life, is perhaps not objectionable, as applied to the facts of the case, though not as broad as the statutory definition, which includes also killing committed in the perpetration or attempt to perpetrate arson, rape, robbery, or burglary. But the court, in its definition of murder in the second degree, not only fails to define it correctly, but may have confused the jury in respect to the definition of murder in 1 People V. Bealoba, 17 Gal. 39S ; People v. Foren, 29 Oal. 365; Com. v. Green, 1 Ash. 296; PennsrWania v. Lewis, Add. 279. 2 statute concerning Crimes and Puniab- ments, sec. 21. 1048 CRIMES AGAIN8T THE PEUSONS OP INDIVIDUALS. the first degree. The jury was told in substance, that the only differ- enco between murder of the first degree and of the second clegr«o.s. that In the former there must be an intention to take hfe, whilst In the latter there is not. But to constitute murder of the first degree there must be not only an intention to take life, but it must also bo a de- liberate and premeditated killing ," nor is it true that in ^""1" °' f^« second degree there must, of necessity, be an absence of all intention to take life. On the contrary, the true distinction between the two grades of the offense is, that in murder of the first degree, unless it w«» committed in perpetrating or attempting to perpetrate arson, rape rob- bery, or burglnrv, the killing must be deliberate and premeditated, whilst in murder.f the second degree, the killing is not deliberate or premeditated. In the one case there is a deliberate, premeditated, precon- ceived design, though it may have been formed in the mind immediately before the mortal wound was given, to take life. In the oth^ case there is no deliberation, premeditation, or preconceived design to kill. In bo h however, the killing must have been unlawful and ^-^-^^Ttvyt malice. We think the charge of the court may have misled the jury in respect to the proper distinction between the two grades of the offense The evidence is not brought up in the transcript, and usually in such cases the judgment will not be reversed for an alleged error in he Lstrue ions. We must assume, from the fact that the court instructed the u y in relation to murder in the second degree, that there was some evtdenee in the case requiring an instruction on that point ; but as the instruction is not and can not in any conceivable state of the evidence De a correct definition of murder in the second degree, we can not say that the error was not productive of any injury to the defendant. Judgment reversed and a new tnal ordered. MUEDER IN THE FIRST DEGREE -PREMEDITATION NOT PROVED. People v. Monoano. [I N. Y. Grim. Rep. 411.] In the Supreme Court of New York, 1883. , . «w 1.1-1. In KffiMt states that to constitute murder In the first degree, "o P«- L A Oharve whloh in Bffeot '•""■*,*',,,,„_ ■_ _,hich to deliberate and premeditate, ■ exception by the prisoner. 1 People*. Sanchez. 24 CaL 88; People v. Foren. » Cal. 361; People •. Nlchol, M Cal. SO. J UAL8. the only differ- icond degree is, fc, whilst in the rst degree there , also be " a de- i murder of the of all intention ctween the two ;e, unless it was irson, rape, rob- d premeditated, lot deliberate or editated, prccon- jind immediately 1 other case there to kill. In both, Bcompanied with lisled the jury in s of the offense.* 1 usually in such !ged error in the ! court instructed it there was some point ; but as the e of the evidence e, we can not say defendant. 10 trial ordered. )N NOT PROVED. ?S5. ;he first degree, no par- lerate aod premedltate> 1 presents no ground ot PEOPLE V. MONOANO. 1049 2' Where, In Respona* to » BequMt by the prisonnr to charge that the word " deliber- ate " has a dilforont mounlng anil ulgnlllcatloii from the word " promoditatod," the court says : " I suppose there Is a slight shade of dilf erenco, I will so charge ," no question Is raised by a goiioral oxcoptlon, If tho prisoner wishes the terms defined with greater minuteness, hu must make a direct request to that effect. The Jury are not authorized to arbitrarily draw an Inference of premeditation as tboy see fit; Ihu tacts must point to and warrant It, othorwisu a verdict can not stand. i The Execution of the Oulltjr purpose Is required to be settled and dotorntlnod upon refinclion, before the crime of murder In the first dcicroo can be committed, and a free and determined purpose Is rendered necessary, as distinguished from a mere Impulsive fatal act. B. The Facts in thla Oaaa reviewed by the court, and hold insulBolent to establish pre- meditation. Appeal by defendant from judgment entered upon verdict of jury, and from an order denying a motion for a new trial, made under section 465, of the Code of Criminal Procedure. The facts and exceptions appear in the opinion. Francis Larkin, Michael J. Keogh and Isaac N. Mills, for the appel- lant. f C. Frost, for the People, respondent. CuLLEN, J. The prisoner, a life convict, was convicted of murder in the first degree for killing a fellow-convict, Williams, at the Sing Sing State prison. Two exceptions were taken to the charge of the court. It is urged that it was error to charge "that no length of time is required" previous to striking the blow in which to premeditate and deliberate. If it were conceded that such a statement standing by itself were erroneous, I do not think the exception here well taken. The expres- sion was not a single isolated proposition submitted to the jury, but must be construed in connection with the whole contents of the charge on that point. The district attorney asked the court to charge in the language above given. " By the Court. I will charge that no par- ticular length of time is required, but that no time is required I will not charge. (Defendant excepts.) Mr. Baker. I mean no appre- ciable length of time. The Court. I will charge that no length of time is required, but there must be deliberation and premeditation. (De- fendant excepts)." Taking all of this together, the charge was unobjectionable in my opinion. In effect, it was that no particular time was necessary, pro- vided there was deliberation and premeditation. Upon being requested to charge that the word " deliberate " has a different meaning and sig- nification from the word " premeditated," the court said: " I suppose there is a slight shade of difference ; I will so charge." To the first statement the prisoner excepted. We think there is substantial differ- ence between those two terms as used in the statute. But we think no question was raised by the exception. The court charged as required. \: 1 1050 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. It had already defined the meaning of these terms accurately. If the prisoner wished such definition made with greater minuteness, there should have been a direct request tv that effect. We think, therefore, neither exception tenable. But the question is presented to us, a motion for a new trial having been made, that the verdict is against the evidence ; that is, that there was no suflftcient evidence of deliberation to justify the conviction in the first degree. Formerly, in criminal cases courts could not grant new trials on such ground. Now, by the express terms of the law a motion for that purpose may be made, and an appeal from the judgment brings before us for review the decision of such motion as well as the proceedings upon trial. The power of interfering with the verdict in a criminal case is doubtless to be exer- cised with caution, especially where the question of fact to be deter- mined is one incapable of direct proof and only to be established by inference from other facts. The old decisions denied not only the power bat the propriety of vesting such power in the courts ; l)ut the Legislature having cast upon the courts such duty, we are bound to exercise it. The history of this case is brief. There is little or no conflict between the witnesses or dispute as to the fact. Its salient features are beyond dispute. The deceased, one Cornetti (an Italian), and the prisoner were all at work In the prison peeling potatoes. Cornetti applied some opprobrious epitliet to the deceased, upon which the deceased struck Cornet* i with a stick. Cornetti then seized a stick or stool and attacked the deceased. While this altercation was transpiring, the prisoner picked up a broom and also attacked the deceased. One Coburn, a convict, but a sort of overseer over the others, slipped between the parties to stop the conflict, and seized the defendant. A convict named Cash took the broom from the prisoner and thrust him aside the distance of two or three barrels, when the prisoner immediately took the knife which he had used «n his work, rushed towards the deceased and struck him, in- flicting the fatal blow. It was proved there was no dispute or ill feel- ing between the parties prior to this occurrence. The whole affray lasted, according to one witness, five minutes, the others place it at from two to three minutes. The time that elapsed between the dis- arming of the prisoner by Cash and llie striking of the blow with the knife was, according to one witness, "half a second," according to another it was "instantly." This is substantially the whole occur rence. Now, is there sufficient e^^dence in it to warrant the finding of the jury of deliberation on the part o. tlie prisoner? It is true that suc'b deliberation is incapable of proof, save as an inference from other facts. But that does not authorize the jury to arbitrarily draw such inference, as they see fit. The facts must point to And warrant the ;dual8. 13 accurately. If minuteness, there think, therefore, esented to us, a [lict is against the 56 of deliberation irrly, in criminal id. Now, by the nay be made, and ;view the decision il. The power of ibtless to be exer- fact to be deter- be established by lied not only the 3 courts; but the we are bound to ire is little or no fact. Its salient netti (an Italian), peeling potatoes, aased, upon which then seized a stick oner picked up a a, a convict, but a parties to stop the led Cash took the distance of two or ,he knife which he sind struck him, in- dispute or ill feel- The whole affray others place it at I between the dis- f the blow with the nd," according to ■f the whole occur rrant the finding of er? It is true that if erence from other bitrarily draw such to And warrant the PEOPLE V. MONOANO. 1051 inference, otherwise a verdict can not stand. This undoubtedly is the rule in civil cases. It should hardly be less potent where life is in- volved. The inference is generally proved by the nature of tlie occur- rence, the manner in which the crime is committed, the weapon, threats, or expression of hostile feeling toward the deceased, or preparation on the part of the prisoner. But this case seems barren of all such fea- tures. There is not ground even for suspicion that prior to the alter- cation the prisoner meditated an injury to the deceased. When the fight between deceased and Cornetti occurred the prisoner attacked the deceased, but with a weapon not calculated to inflict fatal or even seri- ous injuries. For while many blows wrre struck by Cornetti and the deceased, who were similarly armed, no serious results followed to either party. When disarmed by Cash, tlie prisoner took from his person the knife, not possessed by him for any unlawful purpose, but used in the work in which he had been engaged, and immediately stabs the deceased. The use of the deadly weapon and the thrust at the vital part would wan -it the conclusion that the prisoner intended to take life, aid therefoiv that the act was premeditated. But there Is nothing to show deliberation, but on the contrary, the facts of the transaction negative that conclusion. As vfG lave said, there is a substantial difference between premedita- tion and deliberation — a difference more readily appreciated than to be accurately defined. An apt statement is to be found in the opinion of Judge Daniels in People v. Leighton, speaking of tlie elements neces- sary to constitute murder in the first degree, he says : ♦' The execution of the guilty purpose is required to be settled and determined upon re- flection, before the crime of murder in the first degree can be committed. A full and determined purpose is rendered necessary as distinguished from a mere impulsive fatal act." No particular period of time is req- uisite for the deliberation, but still deliberation must take place. We do not say taat in no supposable case could deliberation be consum- mated in so brief a period as that occupied by the broil : i which thi-j crime was committed; but we do say that in this case there is nothing to show deliberation, but rather a passionate vicious impulse. The re- sult of these views is that the prisoner obtains practical immunity for his crime ; for being a prisoner for life nothing save a capital execution can increase his punishment. We can not but think that this considia-- ation affected the verdict. But the law recogniws no distinction be- tween one in the condition of this prisoner and a free person. Iif it he necessary for the purposes of priwn discipli». or to |)ro««ct the lives whether of keepers or convicts, that offenses «t>ramitt«i by prisoners shall be punished more severly than those committed by others, the remedy is witk the Legislature. The court* auwt carry out tlie' law 1052 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. as they find it, and not strain it to punish even the greatest of offenders. , •■ _ *^„i The conviction and judgment should be reversed and a.iiew trial ordered. MURDER IN THE FIRST DEGREE -PREMEDITATION. People v. Conroy. [2 N. Y. Crlm. Rep. 247.] In the Supreme Court of New York, June, 1884. — . . ^ T-.ii.4-.«or>4- DVnmed under the first aubdivlBion of Bection 183 ot deliLratlon and premeditation, the verdict can not be anything more than murder in the second degree. ^ , . _ , „ J i_ *i.« tH-M^ TtaffTAa under such an indictment can only he '• '^:o^X%rLT^Z'::^:.'^^^T:r::^^:.io. ... premeditation antecedent S the ict which intentionally eifects the death, and of which the Intent alone Is not sufficient evidence. . 8. Voluntary Intoxication may bo Oon.lderod upon the question of premedltoUon. r Appeal from a judgment of the Court of General Sessions of the City and County of New Yorlc, of December 6, 1883, convicting defendant, William Conroy, of murder in the first degree. The facts appear in the opinions. Wm. F. Howe, for defendant, appellant. Peter B. Olney {John Vincent, assistant), for the People, respondent. Barrett, J. Conroy was convicted of murder in the first degree, upon an indictment charging liim with the killing of one Keenan. The indictment is under the first subdivision of section 183 of the Penal Code; and it avers that the killing was from a deUberate and pre- meditated design to effect the death of Keenan. We have gone over toe evidence with care, and we are of opinion that the r.lement of deliberation ia entirely wanting. The learned judge should, as reque*ted, have withdrawn the question of murder in the first degree from the consideration of the jury. His instructions upon the law of the two degrees of murder were entirely accurate. But he failed to apply the facts to his definitions, and consequently th? jury fell into the quite natural error of treating the many brutal and atrocious I features of this homicide as the equivalent of legal evidence of delib- eration We find enough to warrant the submission to the jury of the quesiion of murder in the second degree ; that is, of killing with the design to effect the death of Keenan or of some other person, but [JALS. he greatest of ad a. new trial PEOPLE V. CONROT. 1053 [■ATION. '884. Ision of section 183 of > effect dcitth, but not more than murder in liotment can only be tetlitation antecedent le intent alone is not 1 of premeditation, f ssions of the City Lcting defendant, iople, respondent, the first degree, me Keenan. The 183 of the Penal ^liberate and pre- we are of opinion ng. The learned ii) of murder in the \ instructions upon accurate. But he sequently tb? jury ratal asadt. atrocious evidence of delib- to the jury of the 3f killing with the other person, but without deliberation and prerar litation. Enough, too, if the indict- ment had been framed under the p.* jnd subdivision of section 183, and had charged the killing by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although with- out premeditation, to have justified the submission of murder in the first degree. But for the evidence of deliberation, we have sought in vain. Upon the contrary, the strongest testimony against Conroy points no farther than to sudden impulse. Between the impulse and the aot there was no reflection, however slight or brief. There were, in •fact, none of the indicia of deliberate purpose ; no hesitation, no doubt overcome, no choice made as the result of thought. Indeed, the grav- est question was, whether the shot was fired with any distinct and specific intent, or merely with a reckless and wanton disregard of human life. Conroy 's acts throughout were those of a ferocious ruffian inflamed liy 'ink; but the law expressly declares that voluntary intoxication, tliougn furnishingr v. excuse for a criminal act, may be considered by the jury upon the questions of intent and of tho degree of crime.* If voluntary intoxication may be considered upon the question of intent, a fo^iori upon that of deliberation. The defence of insanity in our ' iiigment entirely failed and was properly overruled by the jury. Un- dv^ubtedly Conroy was responsible for his acts in every legal sense. "But the evidence upon that head, while failing to establish irresponsi- bility, indicated an abnormal sensitiveness to liquor, resulting from sunstroke, a fall from a loft and other incidents, fully accounting for the extraordinary mental disturbance caused by two glasses of bar- room sherry. An exhibition of violence followed each dram, and fol- lowed it almost instantly. Nothing of the !:ind preceded the drinking. Certainly Conroy had no homicidal intent when he entered Cody's saloon. That event was purely casual. He happened to be passing, and he was invited in to drink. He then seeded to be sober. The people within were either his friends, ordinary acquaintances, or per- sons with whom he was entirely unacquainted. At all events, he found no enemy there. After taking a glass of what was called sherry wine,'> he became quarrelsome, accused a man named Cantwell of having pre- viously betrayed his improper presence in a drinking saloon while on duty, and upon Cantwell's retorting, offered to fight. In a few moments, he seemed to get entirely over his combative spirit, became, as one of the witnesses described it, "happy," and invited all present to drink at his expense. Again he took a glass of the so-called sherry ] wine, again he became quarrelsome. At first he questioned the price of 1 Peuai Code, sec. 22. 1054 CRIME8 AGAINST THE PERSONS OF INDIVIDUALS. the drinks. Then Cody, to pacify him, reduced the charge from one dollar to seventy cents. Still he seemed dissatisfied, mqumng of sev- eral about him, if they had drank. He then asked a man named Mc- Gninness what he had taken, and upon McGuinness replying mixed ale " Conroy called him a liar. McGuinness retorted, " You are an- other," and thereupon Conroy struck him with his fist, knoctang h.m down; and while McGuinness was down kicked him about the hjps. This ;aised a tumult. The crowd "hallooed" at Conroy to let M- Guinness up. and began to close in around him Conroy then drew h^ club, and the crowd retreated ^o a card-room in the rear. As they le- treated Conroy also drew Ins revolver, holding the club j" o^ card! the revolver in the other. Some one then put h.s head out of the card- room door and Conroy threw his club at him, missing tl^ man s head, but smashing a pane of glass in the door. Almost i-mediately another pane of glass was broken from the inside of the card-room. Tins evn dently startled Conroy and precipitated the firing, for mstantly he "wheeled to his left" with his face still towards the card-room door, and as a friend (Keating), who undoubtedly perceived the danger ys imminent, fe.asped him by the shoulder, the revolver, to use the lan- ffuacre of Ue witness Buckley, ' ' at that instant went off. This descvi'^tion is slightly varied by one of the witnesses, who says that Conroy. after breaking the pane of glass, stepped back two or three paces, placed his club in his belt, threw open his coat, and with 8om6 difficulty got at and drew his revolver ; that, as he did so, Keating ex- claimed, '' For God's sake, Billy, dont fire; those are fnends of and that, notwithstanding this warning, Conroy, according to mine; " and that, notwithstanaing xuis wuiuiug, ^^ — j, ---= the witness Caatwell, " turned round and let go that way as quick as ^'^irilUhi's there was surely not the slightest indication of a deliberate purpose. Conroy had no quarrel of any kind with the unfortunate man who received the bullet. In fact, he scarcely knew this man. Even the dispute with Cantwell had been composed. McGuinness had fled and was not in the saloon. Conroy was then his own worst and only enemy. It is palpable either that he fired without mental concentration upon any individual object, but recklessly and in utter disregai^ of human life (for which offense as we have seen he has not been indicted), or /that fearing an attack he acted upon a sudden impulse to strike terror ! into the crowd by firing at the first person who stood before or about him. The extreme rapidity of Conroy's movements, the absence of threats, pre-existing ill-will or motive ; the presence ^J f^-^^^^^JZ Bion and sudden violence ; the inappreciable space of time between the act and the earliest previous raomcni when it is possible to assume the DUALS. jharge from one inquiring of sev- man named Mc- replyicg "mixed d, "You are an- ist, knocking him L about the hips, lonroy to let Mc- roy then drew his ear. As they re- lub in one hand, d ont of the card- T the man's head, aaediately another ■room. This evi- for instantly he B card-room door, ed the danger was r, to use the lan- ofl." itnesses, who says I back two or three »at, and with 8om6 lid so, Keating es- se are friends of •nroy, according to lat way as quick as tion of a deliberate le unfortunate man T this man. Even Conroy was then concentration upon lisregard of human b been indicted), or ulse to strike '.error )od before or about nts, the absence of of self-aroused pas- )f time between the ssible to assume the PEOPLE V. CONKOY. 1055 flash of design ; the unreasoning, senseless, and frenzied condition of his mind; all tend absolutely to txc'.ude the idea of deliberation, even within the most extreme construction which, in the interests of society has been or can be given to this word in its present statutory rela- tion. X The law must not be nullified, strained or perverted to meet an ex- ceptional case nor to ma':e an example of a particular offender. In all the cases to which we have been referred, there was undoubted evidence of a deliberate purpose. They differ in every essential partic- ular from the present. In Hovey's Case,^ the evidence of deliberation consisted of the pur- chase and loading of the pistol, followed directly by its use in the com- mission of the deed. In Sindram's Case,^ it consisted of previous bad blood and threats, followed by preparation, the prisoner's seeking the deceased, and the deliberate firing of a second shot after the failure of the first. In Majone's Case,^ it consisted in the exhaustion of any possible im- pulse upon the previous killinor of his wife, and his proceeding with the same weaji'jn from the room where his first victim lay, directly to the deceased. In Cometti's Case,* it consisted in the prisoner's taking advantage of an opportunity to secure the knife with which the crime was perpe- trated, and, in shortly afterwards, without a word, approaching the de- ceased and stabbing him to death. In Leighton'a Case,^ it consisted of previous threats to injure the deceased, Mary Dean ; of the prisoner seeking her out with the razor in his pocket ; and of an all-potent motive — jealousy, and her abandon- ment of him for another man. The distinction between these cases and the present is marked and obvious. It is the distinction between premeditation and impulse — between the cold-blooded or deliberate assassin and the brutal or reck- less bar-room brawler. The Legislature has chosen to make this distinction. It has enacted that the one offender shall suffer death, the otlier imprisonment for life. Courts and juries must not be wisor than the law. It is suflicient that it is the law, and it should be enforced loyally and with submission to the legislative will. ^ We have net, been unmindful of what transpired after the homi- cide — the prisoner's wanton shooting in the street, his stupid lying to his brother officers, his outrageous behavior to the deceased, and hia 1 29 Hun, 382; 1 N. Y. Cr. Rep. ISO 2 88 N. Y. ine. « 91 N. Y. all ; 1 N. Y. Cr. Rep.M. « 92 N. Y. 86; 1 N. Y. Cr. Rep, » 10 Abb. (N. C.) 261. S03. 1056 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. declaration to Sergeaat Ca^sidy that he " tried hard enough to shoot Keenan." All this, however, has a more important bearing upon Conroy's men- tal condition as affected by the two glasses of sherry than upon the question of deliberation. In truth it is almost inconceivable that a roan capable of a deliberate murder and conscious of having committed it, should have closed the door to all hope by clubbing his dying victim, shooting at other innocent people and avoiding anything like plausibility in the preposttsrous falsehoods which were put forward to account for what had happened — falsehoods which any one capable of even the lowest order of reflection would have seen must be instantly and com- pletely exploded by every witness of the occurrence. As to Conroy's statement, so earnestlj' dwelt upon by the learned District Attorney, that he " tried hard enough to shoot Keenan," it is impossible to give to it the force of a confession of a deliberate pur- pose. At the utmost and treated literally the words convey nothing beyond An intent to kill, formed at the moment. They do not necessarily import deliberation ; and thus they really add nothing to the actual occurrence as narrated by the witnesses. If in fact the whole scene, as thus laid down before us, excludes the respon- sibility of deliberation, the value of such a retrospect is limited to its bearing upon the question of murder in the second degree. But in truth Conroy thereby intended not to confess his guilt, but blatantly to pro- test his innocence and to boast of his prowess. This is apparent from Sergeant Cassidy*s testimony. We quote : — Q. What did he tell you? A. He told me that he bad arrested this man for being drunk and disorderly. Q. Arrested Keenan? A. Keenan for being drunk and disorderly ; he was attacked by a crowd there and his prisoner rescued ; I says, "Conroy, is this man shot? " " Well," he says, " I don't know, if he is or not," he says, ♦' it is not my fault; I tried hard enough to shoot kim." Under the circumstances, to treat this expression as evidence of de- liberation would require not only the straining of language, but its en- tire misapplication — that is, its transposition from the imaginary seene it was intended to color to the real occurrence which it sought to con- ceal ; and then ascribing to it as thus grafted, the sincerity and truth which it originally lacked. Hard cases sometimes produce bad logic as well as bad law. If the re» gestae had supported the claim of delibera- tion with sometliing less insignificant than a want of ease in drawing the revolver and the failure almost at the moment of the shooting to heed a rALS. tough to shoot Conroy's men- tban upon the ible that a roan committed it, i dying victim, ike plausibility to account for le of even the mtly and corn- by the learned Keenan," it is deliberate pur- lothing beyond I they really add tnesses. If in des the respon- s limited to its e. But in truth latantly to pro- is is apparent eing drunk ant^ attacked by a oy, is this man not," he says, evidence of de- tage, but its en- imaginary seene t sought to con- cerity and truth lice bad logic as aim of delibera- e in drawing the ooting to heed a PEOPLE V. CONROY. 1057 bystander's exclamation, we would probably never have heard of this subsequent straw. The truth is, that it was simply an idle phrase, meant to be cunning but really transparent, put forward to color the equally idle falsehood that he had arrested Keenan for being drunk and disorderly ; and that he had then been attacked by a mob in the street and his prisoner rescued. What he meant in his besotted way, to convey to Sergeant Cassidy was that he had shot Keenan in the faithful performance of the duty which devolved upon him to prevent, by every means in his power, the escape of a rescued prisoner. Plainly this and nothing more. Whether, then, this shocking affair be regarded in the light of what transpired after, before or at the time of the shooting, the absence of deliberation is equally apparent. The result is inevitable. Under the law as it existed prior to 1873, Conroy would have forfeited his life. There was then but one degree of murder, and to constitute it, pre- meditation alone was required. The courts had construed the law so that premeditation and intent were substantially equivalent. The Leg- islature then divided the crime into two degrees, requiring intent with deliberation and premeditation to constitute the first; intent without deliberation and premeditation to constitute the second. Conroy's case, therefore, comes clearly with the second and not within the first of these degrees. But the error below was not unnatural. For if ever there was a case where the judgment of a right minded court, prosecut- ing officer or jury might readily be obscured by a feeling of just indig- " nation, it is assuredly the present. The tendency of its horrible detail is to make the citizen deplore the alteration in the law. It cries aloud for a judicial view of deliberation from which, under other and less ag- gravated circumstances, the mind would instantly revolt. The fact that ' the prisoner was a police oflicer, employed to protect the people from violence and to guard them from outrage, can not but intensify this sentiment. Beyond question, Conroy richly deserves all the punish- ment which can lawfully be inflicted upon him. Less than this would i be a miscarriage of justice. More, however, would be lynch law, un- i der the forms of law. What, after all, is more important than Conroy's * death or imprisonment for life, is accuracy in the administration of jus- j tice — precise conformity to the law. The latter it is our duty to ex- act, and in doing so to stand, if necessary, between the vilest wretch \ and even the righteous indignation of those who would add one jot to ' his punishment beyond what the law prescribes. Such a duty is now plainly before us, and it can only bo faithfully performed by the rever- » sal of this judgment and the direction of a new trial. -^ Davis, P. J. I have given careful attention to the conflicting opio- 8 Defences. 67 1058 CRIMES AGAINST THE PEHSONS OF INDIVIDUALS. ions of my brothers Brady and Barrett, and a most painstaking examina- tion of the evidence in the case, bearing upon the question in conflict, between them, and my mind is brought to the conclusion reached liy my brother Barrett, that there was no sufficient evidence in tlio case of such premeditation and deliberation on the part of the prisoner, as is required by the present law of this State to justify a conviction of mur- der in the first degree. At common law all felonious killing of a human being with intent to take life was murder, and of that crime there were no degrees. By the former statute of this State this rule of the common law was sought to be modified by requiring, in murder, proof of a de- liberate design to kill. But the courts promptly held that the statute was satisfied whenever the evidence showed to a jury that the act of homicide was the result of a fully formed intent to kill, although the intent was concurrent with the act and had no appreciable antecedent period of deliberation or consideration. This was practically reinstating the law sought to be modified ; or in other words holding that the common-law rule had not been changed in substance. It may well be doubted whether the courts would have deemed themselves forced to, or justified in such a construc- tion, if the statutes referred to had created degrees of murder and de- fined the second degree to be a homicide with design to kill but without deliberation. Subsequently the Legislature created two degrees of the crime of murder. The first they declared to be the killing of a human being (unless it be excusable or justifiable) when perpetrated with a deliber- ate and premeditated design to effect the death of the person kiUed, or of another person ; the second they defined to be the killing of a human being with intent to cause the death of the person killed, or another, but without deliberation or premeditation. To the first of these degrees they attached the penalty of death; to the second the absolute penalty of imprisonment for life. It is impossible now for the courts to hold that the killing of a human being with design to effect death, not accompanied with deliberation and premeditation, is anything more than murder in the second degree, how- ever clear and manifest the design which accompanies and induces the act may be. It would now be manifest error to charge a jury upo \ a trial for mur- der that a clear and laanifest design to effect death is itself sufficient evidence of deliberation and premeditation to constitute murder in the first degree ; for that is the exact thing which the statute declares shall be murder in the second degree. Hence, there must be, in addition to proof of design, some satisfactory evidence that it was a " deliberate kingesamina- ion in conflict, )n reached by in tlio case of prisoner, as is iction of mur- with intent to frees. e common law roof of a de- eld that the > a jury that led intent to act and had consideration, modified; or had not been iier the courts uch a construe- nurder and de- :ill but without f the crime of a human being with a deliber- erson killed, or ing of a human ed, or another, )f these degrees bsolute penalty ling of a human leliberation and nd degree, how- and induces the a trial for mur- ) itself sufficient e murder in the te declares shall !, in addition to IS a " deliberate PEOPLE V. CONROr. 1059 and premeditated design " before the crime of murder in the first de- gree IS proven. If psist constructions disarm the word " deliberate " of any portion of the normal significance, they do not, of course, impair the just sense of the word " premeditated," which is new to the stat- ute; and the conjunction of the two words, in a form which requires the satisfaction of both, especially when accompanied with the creation of a new degree of the crime of murder, which itself requires the pres- ence of an actual and established intent to kill, leaves no door open to doubt that murder in tiie first degree can now only be shown by proof of some amount or kind of deliberation and premeditation antecedent to the act or blow which intentionally effects the death, and of which the intent alone is not adequate evidence. The intent or design is of course, necessary in both degrees. It alone is sufficient in the second : butm the first it must have the characterization of deliberate and pre- meditated design. There are many modes in which this characteriza- tion may be shown; as, for instance, by procuring and administering poison, by lying in wait, by arming or preparing for the deed in ad- vance, by seeking an opportunity or advantage, by threats of revenge or hate, or, in short, any form of words or action which indicates thought and conclusion of a considered purpose to effect a design My brother Barrett has shown how clearly the cases cited by the counsel for the People fall within this rule. It is not necessary to repeat what is so well said. In the case at bar I am unable to find any evidence to justify a find- ing of deliberate and premeditated design to effect the death of the per- son killed, or of any other person. The prisoner was a policeman, but the Jaw of murder for him is no different for that reason. He was charged with duties and trusts which made misconduct a crime on his part peculiarly odious; but that fact, while it may expose him to the dangers of popular prejudice, and in a sense excuse clamorous con- demnation, can not in law change or affect his guilt or innocence of murder in the first degree. He is not on trial for violation of official duty, but for a felony affecting his life, and in its definition of that crime and its requirements of proof to establish it, the law knows no scale of adjustment that fits a brutal policeman but does not fit other brutal criminals. The Legislature has not so provided ; and that is an answer to every suggestion of undue severity because of official do- sition. , ^ To my mind tlie evidence against the prisoner fails to show that he " entered the drinising saloon of the witness Cody for any purpose of ' crime or violence. He went for the purpose of driniting on "the treat " of a candidate for office. He dranic what is called sherry, and it IS not difficult to imagine what sort of vile concoction bore that name 1060 CRIMES AGAINST THE PEKSONS OF INDIVIDUALS. in that place. The evidence shows that he was peculiarly susceptible to the effects of drink, and he speedily showed its effects t.pon him A colloquy and controversy sprung up between him and another, which led, on his part, to an offer to fight any person present for money - but this passed over, and the prisoner invited every person present to drink. They all drank, a dozen or fifteen in number. The prisoner again dra.ik sherry ; when he asked what he had to pay he was told a dollar. The price angered him, and he asked who had drank. Cody told him aU, but the prisoner disputed, and turned to one person, asked what he had drank ; he answered, " mixed ale." The prisoner called him a liar, and the lie was given back to him. That party approached the prisoner, who immediately struck him and knocked him down, and commenced kicking him while down. At this several persons de- manded that he let the person up, and all gathered around the prisoner. The party knocked down got up and immediately fled from the saloon. The prisoner, as soon as freed from those holding him, drew his police- man's club, and went toward the " crowd," some of whom retreated into the " card-room," and shut the door ; the prisoner went toward the card-room, and struck with his club, breaking a light of glass in the door ; immediately a light was broken from the other side ; the prisoner stepped back and drew his revolver and cocked it, and although seized bv one person present, who said, - Don't shoot, Billy; those are my friends," he turned partly around and fired in the direction of three persons standing near each other, and hit the deceased, with whom he had had no controversy, in the abdomen and inflicted a wound from which he afterwards died. The deceased exclaimed that he was " done for " and fell over — but no one seemed to think at that time that the bullet had taken effect. This is the substance of all that took place up to the time of the shooting. It is impossible, I think, to see m it any •• deliberate and premeditated design" to effect the death of any per- son There was nothing of deliberation or premeditation in the affair. The madness of drink operating upon a brain and system physically and morally weak and wicked, perhaps was there and very hkely a drunken and reckless intent to kill, quite sufllcient to justify a convic- tion of murder in the second degree ; but it seems to be in vain to look for evidence of deliberate and premeditated murder. What afterwards occurred gives no different color to the actual trans- action. , It was in substance this: When officers came m, the prisoner pre- •tended to be performing his official duty. The officers examined the deceased and did not discover that he was shot. One proposed to send for an ambulance. The prisoner exclaimed "ambulance be d— d, the man is not shot," and he gave into their custody two young men whom y susceptible ta upon him. aothcr, wbicii for money — m present to The prisoner he was told a rlrank. Cody person, asked irisoner called ty approached lim down, and 1 persons de- d the prisoner. 3va the saloon, rew his police- horn retreated ent toward the }f glass in the e ; the prisoner ilthough seized those are my sction of three with whom he a wound from t he was " done it time that the t took place up :o see in it any ath of any per- >n in the affair, stem physically i very likely a ustify a convic- ! in vain to look he actual trans- lie prisoner pre- rs examined the )roposed to send ice be d— d, the oung men whom PEOPLE V. CONKOY. 1061 he charged with disorderly conduct, and he himself dragged out the deceased to take him to the police station. On the wny he beat him brutally with his club, but those Injuries are shown to have had no effect m causing his death. At the station he stated that he had arrested the deceased for drunkenness and disorderly conduct ; that he was assaulted by a mob and his prisoner was recovered and that he shot the prisoner to prevent his escape, and afterwards when he was told the prisoner was really shot, he said in substance he ought to be for he '• tried hard enought to shoot him." His statements were wholly false. He had not arrested the deceased. There had been no mob — no rescue, or attempt at rescue, and no shooting on such an occasion. Tliis was all a falsehood invented as an excuse for his misconduct as an officer, and the statement that he tried hard to shoot the deceased was not intended to be anything more than an assertion that he tried hard to do his duty as against a mob of res- cuers and an escaping prisoner. It is not to he detached from its con- text and distorted into an admission that he tried hard to shoot the deceased, while he sat quietly on a whisky cask in Cody's saloon at the time he was wounded. To do so is to make the prisoner's false declar- ation that something took place that would justify a shooting, a con- fession of something in conflict with the testimony of every witness on the part of the People. The actual shooting was clearly the act of an infuriated man, firing with a reckless intent to kill any one who might chance to be in the "*" way of his bullet — but there is not, I think, a symptom of proof that he "tried hard to shoot" his victim, who by chance happened to be in the range of his reckless aim. There are several questions in the case arising upon exceptions which seems to me of serious importance; but I prefer the decision of the case should be put upon the ground that as a matter of law there was not sufficient evidence of deliberate and premeditated design to effect ' death to justify the conclusion, so that the Court of Appeals may re- view our decision and correct it if wrong. I concur, therefore, in a reversal of the judgmeut and a new trial. Bkadt, J. Tlje controlling facts upon which the appellant was con- victed are these: He had by his aggressive conduct driven nearly all the persons from the saloon (fourteen or fifteen in number) in which the deceased was shot, some of them taking refuge in the card-room, which was separated from the saloon by a partition, having a door partially of glass opening into it, and others in a rear room or hall. Those who re- mained in the saloon were the proprietor, Cody, his wife, CantweU, Keating and the deceased. The appellant approached the door men- tioned, and observing that one of the persons who had retreated was 10(52 CBIME9 AGAINST THE PERSONS OF INDIVIDUALS. Keating seeing th.s 8uul to »»!" ; JJ^^ ^^^^^ „„ ,tte some one of tlie peisoii. " , Keatta», a result natural in strengthened doubtless by ' 'V':.^;'^^'^^^."! ,.irit wMoU then ia- r "?h':' TZ ri tlCot «:lL,dl„g Ue had no ::::;! Ifronthlml »>, »»» m danger by act or *-a. o. any one design. HIS puipus towards whom it must have been pomted , his weapon at the deceased, towards wnom ouT^yi Shot, - .--rrn^iJbrrdLCiotx f; shot at the deceased, a fact demonstraieu uy ;.,.nt '- '--/rTtisTurrdVri^^^^^^^ -"cbt ;t r^Sdnht-^dlc^-rvrand Whether it was right or not Is the aJIIlsLrryl, that 1. ,«o.Un '-^-^I" LHrLtS :ri;rrar;vr hti u:^:.^^^^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I i^ accept such nent, and the I by it. The cult to recon- the judgment who said the n mistaken, as ised and with- by the statute 1 or not is, as ppeal, none of ! was elaborate id experienced us requests to Irawn by him. n of this case, y, I am unable lio presided at b's satement at thdraw the ele- ry. The queS' ;o determine on if a reasonable M' DANIEL t?. COMMONWEALTH. 1065 view of the evidence sustains their finding it should not be disturbed. Judgment reversed. MURDER IN FIRST DEGREE — BURDEN OF PROOl' McDaniel V. Commonwealth. [77Va. 281.] In the Supreme Court of Appeals of Virginia, 1883. 1. Oana on Froseontion to Show Karder Is In the First Decree. — To consUtnte tb* offense of marder in tbe first degree, the killing must be predetermined, and not under momentary impulse of passion ; though the determination need not have existed any partiealar length of time. Prima facie, all homicide is murder in the second degree. Omu is on prosecution to raise the offense to the first degree. S. Wbat the Beoord must Show. — To sustain aTerdictof murderin the first degree, the record must show proof, direct or inferential, sufficient to Justify the Jury in coming to the conclusion that the death of the deceased was the ultimate result which the con •urring will, deliberation and premeditation of the prisoner sought. I. Osse In Jadffment. — A quarrel had taken place between the prisoner and the deceased, in which both had used Tiolent language, and the former had given tbe latter the lie ; they then separated, and fifteen or twenty minutes later the deceased, cairying a light oane, approached the prisoner, declaring that he would not stand what the prisoner had said ; the prisoner picked up s large stick, and upon being asked by the deceased why he stood holding that stick, said, "If yon come hero, I will show you;" the deceased then raised bis cane to parry a blow from the prisoner, and struck at or struck the prisoner, who then atmek the deceased two blows with hi* stick, from which be died about two boora afterwards. SeU, not gnlUy ol murder in the first degree. Error to the Circuit Court of Amherst County. For plaintiff in error. L. S. Marye and W. B. Tinsley. For the Commonwealth, the Attorney-General. HiNTON, J. This is a writ of error to a judgment of the Circuit Court of the county of Amherst, convicting Frederick McDaniel, the plaintiff in error, of murder in the first degree, and sentencing him to be hanged therefor. The accused moved the court to set aside the ver- dict and grant him a new trial ; hot the court overruled the motion, and to this ruling the prisoner excepted. The bill of exceptions contains a certificate of what is stated to be the "facts and all the facts proved upon the trial." Tbe only assignment of error is, the refusal of the court to set aside the verdict and to award a new trial. 1066 CRI3IE8 AGAINST THE PERSONS OF INDIVIDUALS. Upon an application of this kind, iliis court is always loth to disturb the judgment of the trial court. On this point Cliristian, J., dehver- Z he opinion of the court in Pryor's Case,^ said : " This court U-. always acted with great caution in granting new tnals m cases where the new trial is asked solely upon the ground that the verdict x. con- trary to the evidence, and great weight is always given, and justly so, to the verdict of the jury and judgment of the court m which the case i8 tried. The cases are very rare in which this court interferes ; and it is only in a case where the evidence is plainly insufflciont to warrant the flndin- of the jury." I fully recognize the salutary influences of this x^le, Ind have'no purpose U> relax its operation. But I Jlunk we -y remand this case for a new trial without being amenable to the charge of violating its sinrit or provisions in the special circumstances of this ^'T proceed to state as briefly as I can some general doctrines of the law of homicide, which wiU, I think, materially assist usmamying ata correct conclusion upon this point. Every homicide under our statute is, pnma/acie. a case of murder in the second degree. And it is incum- bent upon the Commonwealth, in a casr like the present, where the offense was not committed by any of the ..)ecific means enumerated m the statute, that is, "by i^oison, lying in wait, imprisonment or starv- ing," nor in the commission of, or attempt to conimit " arson, rape, robbery or burglary," in order to elevate it to murder in the first de- «ee to prove by evidence, either direct or circumstantial, beyond Stional doubt, that the kilUng was " willful, deliberate and premedi- tated " And on the other hand, the burden is upon the accused, if he would reduce the offense below murder in the second degree, to show the absence of malice and the other mitigating circumstances nee essary for that purpose. ,.* . ^ wii5„„ »» Now to constitute a -willful, deliberate and premeditated killing, it is necessary that the 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 whether he would kill or not; and that be 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 consideration, and not a sudden killing under the momen- tary excitement and impulse of passion, upon provocation given at the time or so recently before as not to allow time for reflection. And this design to kill need not have existed for any particular length of time^ It may be formed at the moment of the commission of the act. With i I -21 Oratt. 1010. i Klng'8 Case and note, 2 Vt. Cae. 84; Whlteford's Case, 6 Rand. 721; Jones' Caw. 1 Leigh, 598; HUl's Case, 2 Gratt.695; How- ell's Case. 26 Gratt. 995; Weight's Case.M Gratt. 881 j Wright'3 Case, 78 Va. 914. ^^i LS. M'DANIGL V. COMMON>*'EALTH. 1067 th to disturb , J., dtUver- his court has 1 cases where irdict is con- ,nd justly so, ■hich the case •feres ; and it ;o warrant the nences of this tliink we may to the charge .ances of this jtrines of the in arriving at a ' our statute is, id it is incum- ent, where the enumerated in [ment or starv- " arson, rape, in the first de- tantial, beyond and premcdi- Lhe accused, if ond degree, to umstances nec- itated killing," )n purpose, and it have reflected >t; and that be ction, before he \ predetermined ider the momen- tion given at the Btion. And this length of time. the act.* With e,2 Gratt.B95; How- 95; W'ighfs Case.M ise,78V8.914. these familiar principles of the law of homicide in mind, we now come to examine the facts of this case. From the certificate thereof it appears that the prisoner, who lived in a cabin in the yard, and upon the land of the deceased, near Pedlar Mills, in the county of Amherst, went, on the 24th day of January, 1882, to a mill a few miles distant, and that one of the horses which he drove to the wagon on that occasion was loaned to him by the deceased ; that he returned with the wagon about two hours after sundown, and at that time tlie decea8e do some great cond degree, in t not a case of prisoner and the I unhitching: the risoner to strike ) that time. On water, and is in b as he arrives at 3d had just been entreaties of his (u and bent upon ffairs, instead of blow with which of comparatively d-pile. It is true lolding that stick how you." But this language, in the light of what subsequently happened, can only be interpreted to mean something like this, namely : Whilst I shall not seek you, ytjt if you shall attack me with that cane, I shall repel your attack with this stick. This language, instead of revealing a deliberate and preconceived purpose to kill, would imply, it seems to me it raiglit well be argued, that in the event the deceased kept away from Lim it was not hif purpose to bring about a difficulty. At any rate I do not tliink that from this language, even if coupled with the blows inflicted on the deceased, without any other acts or declarations shedding light upon the inteiition of the prisoner, that the jury were warranted in finding, or that this court could 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 first degree. It is not intended to intimate in anything that has been said in this opinion that the stick used by the prisoner in his encounter with the deceased was not a deadly weapon, for the fatal effect of its use ia this case but too surely establishes its deadly chai'acter when used by a per- son of the prisoner's strength ; nor is It intended in any wise to con- travene that wise and wholesome rule: " That a man must be taken to hitend that which he does, or which is the natural and necessary conse- quence of his act." ^ All that I do mean to say is, that giving to this/ rule its proper scope, in the meager and peculiar circumstances of thi», particular case, this court is not warranted in presuming (from the/ mere use of this weapon, without any words, other than those hereto-' fore mentioned, or circumstances, either before or after or at the time of the killing, going to show the intention of the prisoner) that the purpose of the prisoner was neither to forcibly repel the attack of the deceased, nor to inflict grievous bodily harm upon him, but to kill him. i For these reasons, I am of opinion that the judgment of the Circuit Court of Amherst County be reversed and annulled, the verdict of the jury set aside, and that a new trial be awarded the plaintiff in error. RiGHABosoM and Fa0iitlerot, JJ., concurred. Lewis and Lact, JJ., dissented. 1 Murphy's Caae, a Gratt. 972; HUl'a CMe,2 0ntt.SW. 1070 CB1ME8 AGAINST THE PEB80N8 OF INDIVIDUALS. MUBD.Il IN FIRST DEGREE -PREMEDITATION -DELIBERATION. State v. Robinson. [73 Mo. 306.] Jn the Supreme Court of Missouri, October Term, 1880. i. Wh.r. th.r. 1. •'••«»»»': «'»»7jfitueUhe7n.^rdermthe«r.tor..oon^ appropriate inrtructlon* on the»e oifeMei. Appeal from Clinton Circuit Court. ta the «,cond degree without P'«»'«''»i'°°- ' "° iT^r has been »» '^^^ however short." Premeditation is a necessary ToLrnt : rr:;rrtrsecona degree, as there can ^^^ -;^^: rthe second degree which was not murder at common law, and there the r'''°''2,der at common law unless the act causmg death wa. 1 TO Mo. 694. ! tupra. ALS. STATE V. K0BIN80N. 1071 LIBERATION. 1880. ,at tb« kUllng took ret or ieoond degre* refuM or f»U to gtv* degree, and wm jccsBary to state ng instructions: lant feloniously, premeditatedly, guilty of murder r the State, is to to the definition Curtis.^ It was san be no murder i which has uni- lasifying murderi ►f beforehand for a is a necessary can be no murder an law, and there sausing death waa malice and pre- the same as that ot mean that the constitute murder ad its natural con- itated; but in all d be premeditated The Legislature and "deliberate" . The ttimple fact ler considerations, shows that one of them was intended to have a larger signiflcation than the oilier, and this larger signification has, in recent cases by this coui-t, been assigned to the word " deliberate." * The distinction thus drawn between murder in the first and murder in the second degree is a rational and just one ; one vhich can be observed in practice, because in harmony with tliat discriminating sense of right which, in calm times, will always control the juries of any enlightened and law-abiding community in the enforcement of the criminal law. This distinction is well illustrated in the case put in State v. Wieners.^ We will instance substantially the same case: If A. and B., being friends, should casu- ally meet upon the street, and, in the course of a conversation, which gradually assumes the character of a heated controversy, A. should, in apparent anger, apply to B. some degrading epithet or impute to him some act of criminal baseness, and B., stung to madness by the insult, should, upon the instant, strike and kill A. with some deadly weapon, this would undoubtedly be murder ; but under the classification made in the Curtis Case, it would be murder in the second degree. The act causing death would have been inten^'onal; and as no act can be intentional unless it be previously thought of, it would, therefore, have been premeditated ; B. would be held to have intended the natural consequences of his act ; from the fata! use of the deadly weapon the law would imply malice ; there was no lawful provocation, and, conse- quently, no technical heaC of passion ; in short, the killing would have been a willful killing with malice aforethought, — that is, with malice and premeditation, — but it would not fill the measure of the definition of murder in the first degree, because it would not also 'be deliberate. And it would be against our common sense of right and the presumable intent of the Legislature that a murder so committed should be visited with the same punishment which the law inflicts for a murder com- mitted by lying in wait or by poison. The provocation being insuffi- cient in the eye of the law to reduce the killing to manslaughter, yet being such as would naturally rouse the passions and excite the mind, wouM prevent the homicide from reaching the highest grade of murder. The only direct testimony in the case at bar as to the manner in which the deceased was killed was the testimony of the defendant him- self, and that tended to show that it was accidental. The killing took place in the upper hall-way of a dwelling house, in which the defendant and deceased, who were brothers, resided together, and there was no witness to the difficulty. But there was other testimony from which the jury might have inferred that the killing took place under such cir- cumstances as would have made it either murder in the first degree or 1 State V. Wieners, 69 Mo. 11; State v. Stupra, p.2S. Curtis, 70 Mo. 604. 1072 Ca.ME8 *0»IN»T THE PEI..ON!. or mDIVIDUAW. ri,tlgme». -ill be rever.e.1 .ud the C.U.. rem«,ded. The other judges concur. BEOREES OF MUUDER-MUBDEB ■» ^^SSu^Er" " ""^ ERATION NECESSARY -MAN8LAUOHT11.K. State v. Curtis. [70Mo.6i>4.] In the Supreme Court of Misaowi, 1879. Appeal from Livingston County. Attorney-General Smith lor State. Shanklin, Waters & Dixon, for appeUant. ^ ^; one Cl...e. P-'V^* rXSt^inTht- 1„ the Mcond degree. In . difflenlty "* * ""['»"" 4 „„ .^bbed „tb., 00 the nlgl.t ot the 2Tth »' /" >;• ^^/'^ * J^Mowing died 0. „a „,or«-ly wounded «.d on the »*^J"°™''a.fe„a.„t .nd on. the wounds thus received. The deee^e". ">• 1 SUte V. Edwards, 70 Mo. 480. Adk ILS. For the error [Jegree, and iu [ourth degree, 8TATR V. CUKTI8. 1073 REE — DBLIB- the blood, li murder sommltud wltb pre- I " and " premedlt*- jertitatlon, In a cool irlthout deliberation le prUoner 0. and 3. yard* fell, and «oan C. offered to prove by the sheriff to the ladmUilble. at degree for the vLcted of murder le house in Chilli- jased was stabbed following died of fendaiit and one light in which wa* in adjoining room, was knocked from ed, and a struggle d. The testimony tended to fasten the crlmo upon tlie defendant. The deceased immedi- ately after being 8tal)l)od left the house and walked about one hundred yards, when ho fell and soon after beciuno insensible, and so remained until after six o'clock the next morning. The defendant offered to prove by the sheriff that he arrested Stonen and took him to Powell's room between nine and ten o'clock on the morning of the 'iSfh, and that Powell recognized Stoner as the man who cut him. Tliis testimony was rejected by the court and its exclu- sion is assigned for error. The defendant also complains of tlie action of th« court in giving the following instructions on the part of th« State. " 1th. The jury are instructed if they believe from all the facts and ciicumstancos bej-ond a reasonable dou»)t, that tlio defendant willfully and with his malice aforethoujrlit, but without didiberation smr? premed- itation, stabbed and killed the deceased, Charles Powell, a? < li:ir<,'ed in tlie indictment at the County of Livingston and State of Missouri, then they will find him guilty of murder in the second de. Com., 44 Pa. St. 56. • People V. Vance, 21 Oal. 400. ^tfi IDUAI'f?. STATE V. CURTIS. 1075 as (lying declara- [ — nor could they 3 of a party to the 1 prosecutions the I as will render bis ite.^ Immediately he declared Curtis the place where he wished to be taken, (ie until nearly four 3 on the morning of sciousness from the hen the declaration of the res gestm even State is erroneous, h -re is no murder in sditation. No homi- was not murder at itute murder at com- [ "willfully and with iry VIII.,' expressed thought" and"pre- ited " or thought of mean that the rotdice tate V. Wieners,* that ,f the mind ; but they r his malice to commit id, and if such act so ist be premeditated.^ luivalent to the words a II the jury that if they litation and malice but leceased, they will find itradictory and absurd, aing wremeditation and fined, nor is the term e is defined but there is a substantial difference between malice and malice aforethought.' In Regina v. Griffiths,^ Alderson, B., said: "By the term maliciously, is not meant 'with malice aforethought,' because if it were with malice aforethought, that would constitute a still more grave offense as that vTould show an intent to murder." In Bradle;/ v. Banks,^ it is said: * * * "Although the indictment or the appeal says that the defend- ant murdravit such a man, if it does not say malitia prcecogitcUa, it is but manslaughter." That we have assigned to premeditation, its proper place may be shown by examining tlie question from another point of view. Murder at common law was ar homicide committed "willfully and of malice aforethought." Our statute in substance declares that any willful, de- ^ liberate, and premeditated killing being also murder at common law, shall be murder in the first degree. Every other homicide, being mur- der at common law and not declared to be manslaughter in some of its degrees, is murder in the second decree. In State v. Wietiers,* it was said, "premeditation and deliberation are not synonymous, and a homicide may be premeditated without being deliberately committed." It is further held in that case that "murder in the second degree is such a homicide as would have been murder in the first degree, if com- mitted deliberately." If these views be correct, it must necessarily follow that all intentional homicides committed with premeditation and malice, but without deliberation, must be murder in the second de- gree. The word " deliberation," as used in the statute, implies a cool state of the blood, and is intended to characterize what are ordinarily termed a cool-blooded murders ; such as proceed from deep malignity of heart, or are prompted by motives of revenge or gain. These are classed as murders in the first degree. On the other hand, premedita- tion may exist in an excited state of the mind, and if the passion or ex- citement of the mind be not provoked b}' what the law excepts as an ^ adequate cause, so as to rebut the imputation of mahce, an intentional killing under the influence of such passion will be murder in the second degree. If the party act upon sudden passion, engendered by reasona- ble provocation, the e'^istence of malice will be negatived, and the kill- ing, though intentional, will be manslaughter in the fourth degree.^ To make our meaning plain, we will recapitulate our classification of intentional homicides : Where there is a willful killing with malice afore- thought and deliberation, that is, with malice and premeditation in a cool state of the blood, the offense is murder in the first degree. This 3. J. 70. . Com., M Pa. St. 56. Vance, 21 Oal. 100. 1 1 Bish. Or. L., see. 429. 2 8 C. A P. 248. 3 YelT.206a. * $upra, ' state V. Edwards, decided at present term. 1076 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. definition is not intended to include cases in which acts are mf^^Y statute made murder in the first degree. Where there ,s a wil ful Ull- ing ^ith malice aforethought, that is with °»'\1'«« l^'^ ^^7 rntl; but not with deliberation, or in a cool state of the blood, the offen.o .8 murder in the second degree; nor can any homicide be murder m the second degree, unless the act causing death was committed wita maUce afor^^thouSt, that is with malice and premeditation. Where there »s a . willful killing without deliberation, and withoutmalice aforethought, the offense is manslaughter; but whether manslaughter in the second or he fourth degree, will depend upon whether the facts bring the kilhng within th! twelfth or eighteenth section of the chapter on homi- ''^ We deem it necessary to examine the views presented in the elab- orate argument of the counsel for the defendant in regard to the eighth Ltructfon. It is almost a literal copy of an instruction which received the approval of this court in the case of Statej. West:^ ^his instruc- tion though in the form in which it is usually given, it »-t be con- fessed, is not happily worded, and while its phraseology n^'ght be im- proved without impairing its force, we do not think it calculated to mis- Ld. Men of orLary capacity will readily understand it, and can intelligently and properly apply it to the facts of every case in which there is any necessity for giving it. „„^«iioa We perceive no error in the tenth instruction. It more than complies with the requirements of the rule laid down in the case of State v. Alex- rlr.3 After stating in the first paragi.ph that malice will be pre- sumed from a willful, premeditated and deliberate killing with a deadly weapon, the succeeding paragraph expressly requires the jury to find from the evidence beyond a reasonable doubt, that the killing was ma- liciously as well as willfully, premeditatedly and deliberately done with a deadly weapon. This paragraph renders all reference to legal pre- sumption wholly superfluous. . . , . „;ii For error committed in giving the fourth instruction, judgment wiU be reversed and the cause remanded. The other judges concur. 1 state t>. Edwards, lupra. i 69 Mo. 401. > 66 Mo. 148. i^^a STATE V. SHARP. 1077 specific by- willful kill- meditation, e offcnsj is irder in the with malice re there is a thought; the ■cond or the : the killing • on homi- in the elab- :o the eighth Ich received :his instruc- nust be con- might be im- lated to mis- it, and can lase in which han complies State V. Alex- a will be pre- with a deadly J jury to find Uing was ma- ely done with I to legal pre- judgment will ioncur. > 66 Mo. 148. DEGREES OF MURDER — DELIBERATION— INCORRFX'T DEFINITION OF TERMS. State v. Sharp. [71 Mo. 218.] In the Supreme Court of Missouri, 1879. 1. To Oonatitute Uurder In the Firat degree, the killing must buru been done wlUtally, deliberately, prL-incditatedly and with malice aforethought, and these different words must bo deflncd by the Instructions o{ the court. 3. An Inatraotion which Beflnea the word " Deliberately " to mean Intentionally, purposely, cimHideratcly, is insulllcient. " Deliberately " nieauH in a cool state of the blood, and a willful, premeditated killing is murder in the second degre«. The defendant was convicted of murder in the first degree for having shot and killed one Martin Edward Plogin. It appears from the testi- mony in the case that the defendant was charged with the crime of forgery, a felony, by complaint before a justice of the peace, and a warrant was issued and placed in the hands of an acting deputy conata- ble to be executed ; that said constable requested one or two persons to aid in making the arrest, among others the deceased, who had also been acting as constabl*^ on special occasions. Two or three other persons afterwards joined tne posse, and assisted in looking for defendant. The defendant, having learned that these parties were seeking his arrest, made some effort to escape, and declared that if they attempted to ar- rest him tiiey would get hurt, or he would hurt them. Some of tiie party discovering the defendant passing through the town (a newly laid out town on the C. B. & St. L. R. R. ) in tlie direction of the livery stable, called to him to halt ; he immediately answered this call by firing two shots at the person baiting him, and this person then snapped his re- volver at defendant. Defendant then fited two more shots at another member of tlio posse who was near by, and then went to the livery sta- ble, and in the office of the stable (this being after night), reloaded his revolver by putting four loads into it, saying at the same time that if they bothered him they would get hurt, that he had not killed any body and had not committed forgery , and would not be taken by that crowd from Possum Walk, and kissing his revolver he passed out of the ofilce into the stables. He sent word to the constable by one Brown, a friend of his, that if tliey would let him alone until morning he would go down otlie justice's office, but if they attempted to arrest him that night, he would kill the first man wlio attempted to arrest him. The constable and h\a posse resolved to arrest him forthwith, and Hogin, the decensed, remarked to some one in the posne to give him a revolver and he would arrest him without any trouble, and upon receiving the revolver he 1078 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. Started toward the livery stable, inquired at the office for tl»e defendant and wt told that he was l.a.k in the bar... and not to go m there he would set hurt, but he valked in and called to the defendant: hharp, whe e Ire you? I want youV " Sharp answere.l : ^. Danm you, .ake U thi '' and thereupon three shots were fire.l in quick succes.,on, ono of which Tnflieted ipon the deceased the wound of wh.oh he d.ed in abou t^n hours. Upon hearing the shooting the other persons rushed ^ Id tund defendant down on his back, deceased upon hun hol.hng mm down while defendant had his revolver in his hand pomting it at ^rtrd of he deceased, niaking an effort to shoot him in the head. Whente crowd rushed I. defendant called out • Adams ,s tha you ; don't let them hurt me ; they are trying to kdl me The ^^ef^J ta secured and disarmed, and the deceased was assisted uito the office Id pTuced upon a bed and a physician sent for. Deceased was sho throuTthe upper part or the thigh, the bullet cutting or injuring the sSf .1 e "w d caused him great pain and suffering until he passed n comatose state, and died in that condition about ten hours after he was Tot Shortly after the shooting defendant asked to see Hogm. a d wL tatn to hisUe-e in the office, and there is a -n-ng cor. versation between them, Sharp said, " Hogm, you shot first Hogin deXd this. Some one said a load had been shot out of Hogm s pisto and two from defendant's. Hogin said if his pistol was discharged i went Iff accTdently in the scuffle, that he did not shoot. Defendant Td ^IfThad had you where you had me I would have b^ .W.15W d d brains out, and if I had had my finger on the tngger instead of On S;:guarrwouUl have blown your d-d brains out.';^ He said it migh 1 hard with him, but he di.i not give a damn. He also said he was f:rry t hid happe'ned , that Hogin was to blame and t'-t e ought no^ o have rushed on me as he did ; he mi.ht have ^^^ ./^^^ ^^ J^^ ^„ flhoot" Hocrin said: "I arrested you all the same. When taken before the justice, defendant pleaded guilty to the charge of forgery and was committed for that offenne. There was evidence of some "her statement by defendant, boasting on his manhood and the kind of man he was, etc. The court gave the following instructions : - - 1. If the ju.y believe from the evidence that on or about the 9 h dav of October, 187!., in thi. county, the defendant, Otto Sharp, d d tiUful V deliberately premeditatedly, and with malice aforethought Tioot a^d kill one aLun Edward Hogin with a pistol, the ury shou d fi^d the defendant guilty of murder in the first degree, and so state in *^''2' Wnifuily means intentionally, and not accidentally, therefore tf toe TeLdant intended to kill, such intention was willful, DeUber- rt^i STATE V. SHARP. 1079 defendant, u there, he it: "Sharp, n you, lake cession, ono h he died iu •sons rushed him holding )ointing it at in the head. is that you; lie defendant nto the office ised was shot • injuring the itil he passed ;n hours after to sec Hogin, running con- rst." Hogin login's pistol discharged it . Defendant ire b. >wn your instead of On I said it might so said he was , lie ought not that I would When taken irge of forgery dence of some d and the kind »r about the 9th )tto Sharp, did e aforethouglit the jury should , and so state in ally ; therefore, illful, DeUber- ately means intentionally, purposely, considerately; therefore if the defendant foiinod a design to kill, and was conscious of such a purpose, it was deliberate. Prcmeditatodly means thouglit of beforehand for any length of time, however short ; and malice signifies a condition of the mind, an unlawful intetition to kill or do some great bodily harm to another without just cause or excuse ; aforethought means thought of beforehand for an3'' length of time, however short. "3. To constitute murder iu the first degree there must have been an intention to kill ; the killing must have been willful at tlic time of the alleger any length of time however short. Malice signifies a condition of the mind, an unlawful intention to kill or do some great bodily harm to another without just cause or excuse. Aforethought means thougut of beforehand for any length of time, however short." That mstruc- tion is clearly faulty in that it does not correctly define the word de- ^^m ,s. kiU wiUf ully rith a pistol, leditated by if murder in I his pimiah- ;e peiiod not ain from tlie defendant is in the first or ence and in- to the f ai:t as the evidence itedly, and of n defined and I him with a first degree, d said Hogan liberation and a the second Irst or second er in tlie first alleged in the 3gin. On trial der in the first to the verdict. » the degree of rror as having lotion, tlie sec- iction read as ' ; tbcref ore, if D*'! ^'•"'■''telv piiipc , isr»»5 (htri" sr any )ndition of the bodily harm to means thought That instruc- the word " de- 8TATE V. SHARP. 1081 liberately." To constitute murder in the first degree, there must concur wilfuUness, deliberation, premeditation and malice aforethought. The first instruction clearly stated in general terms what was neces- Bary to constitute murder in the first degree, but the terms used in that instruction needed to be explained so that the jury might fully under- stand their import. This explanation of the words used in the first instruction was attempted in the second instruction, but with a signal lack of satisfactory results. "Deliberately" is said to mean that ' which is done in the cool state of blood. A homicide may be thought of beforehand, that is premeditated and intentionally done, and still if the elements of deliberation be lacking the homicidal act will be only murder in the second degree. So that it will be readily seen that " de- liberately " does not, as defined in the objectiopable instruction, mean intentionally or purposely done, otherwise every act of intentional killing done with premeditation and malice would carry with it the ele- ment of deliberation and amount to murder in the first degree. For it is held that " all intentional homicides committed with premeditation, . but without deliberation, must be murder in the second degree," and that murder in the second degree is such a homicide as would have been murder in the first degree if committed deliberately, and we do not consider the definition of the word "deliberately" as made any clearer by the words which follow the word '« purposely " in the same clause. Even if we grant that tlie word " considerately " is a synonym of "deliberately," " considerately " is not defined, and the jury were as much in the dark as if the word being defined had been merely repeated in the explanatory sentence. Nor do we think the matter is helped by the addition of the words, " that if the defendant formed a design to kill, and was conscious of such a purpose, it was deliberate." Be- cause every intentional killing — a killing with premeditation, as seen, only makes murder in the second degree, and it is impossible to conceive of such a killing, unaccompanied by a previously formed design to kill, or the forming of such design without a consciousness of its purpose. Then the jury were in effect told tliat deliberation was an ingredient of murder in the second degree, that therefore there was no distinction between the two degrees of murder. Had the jury been told that deliberately meant in a cool state of blood, and that in such a state of the blood the defendant formed a design to kill, the act would have been deliberate. The instruction, taken as a whole, and in connection with its other definitions would perhaps have been unobjectionable. As it is we can not give our sanction. The foregoing views are fully supported by the cases of StaU v. WeiMrs > and State v. Curtis.* 166 Mo. U. • 70 Mo. 094. 1082 CRIMES AGAINST THE PEKSON8 OF INDIVIDUALS. In relation to the roint that there was variance between the name of the decease.! and that mentioned in the indictment, it is sufficient to say that 8»ch variance is immaterial unless the trial court found it ma o- trial to the merits of the case, and prejudicial to the defence of th'^ de- fondants." There has been no such Injury in the case. Judgment reversed and came remanded. All concur, excopt Judge NoKTOS, who disBents. MURDER AND MANSLAUGHTER-INTENT TO KILL. People v. Freel. [48 Cal. 436.] In the Supreme Court of California, 1874. # 1 Wh.th«*Homlolde Amount. tomarderortom»n.la«ght6rmerely.doeBnot depend upon the presence or absence of Uio Intent to kill. t,,i ar the 2. lueithT murder or man.la«Bht.r. there may >.e a pre.ent intention to k.U at the moment of the commiesion of the act. Appeal from the District Court of the Third Judicial District, city and county of San Francisco. , ^ u The defendant was indicted for the crime of murder, alleged to have been committed at San Francisco, on the first day of November, 18-3 by killing one Edward W. Allen. Allen kept a saloon, and a crowd o nersons having collected there so as to obstruct his doorway, he went from his place behind the bar with a cane or stick to clear the passage- wav A difficulty tookplace during which he waskllled. The defend- ant claimed to have been justified, but the testimony ^^^^ of «uch a character, that it became a question, if he was not justified, whether the offense was murder or manslaughter. The defendant was convicted of murder in the second degree, and appealed. C B Darwin, for the appellant, agreed that if there was no mten- tlon'to kill, there was no crime unless there was criminal negligence. Attomey-Oeneral Love, for the People. B>, the Conn, NiLF.3, J. -The court instructed the jury as follows: ♦' You will abjo observe that the difference between murder and man- slaucrhter is, that in manslaughter there is no intention whatever, either to kUl or to do bodily harm. The killing is the unintentional result of 1 BeT. Statt. 1879, p. SOT, see. IBM. State ». W»mm»ck, decided at present term. ^rfa L8. the name of Ilcient to say id it "mate- ce of th" clc- Bxcjpt Judge DALY V. PEOPLE . 1083 ILL. r, does not depend Ion to kill at tbe AT ft sudden heat of passion, or of an unlairful act committed witliout due caution or circumspection." This is clearly erroneous. Whetlier the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or ab- sence of tlie intent to kill. In either case there may be a present Inten- tii.n to kill at the moment of tlie commission of the net. But, when the mortal blow is struck in the heat of passion, excited by a quarrel, sud- den, and of sutllcient violence to amount to adequate i rovocation, the law, out of forbearance for the weakness of human nature, will disro- giird the actual intent and will reduce the offense to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder. Under tiie circumstances of this case, as shown by the testimony, it was important that the distinctions between the several grades of homi- cides should be correctly stated to tlie jury. Tliey could harly fail to be misled by the erroneous instruction we have noticed. Several other points were uade by the counsel for defendant, which we do not deem it necessary to discuss. Judgment and order reversed, and cause remanded for a new trial. 1 District, city lUcged to have (vember, 1873, md a crowd of )rway, he went ar the passage- . The defend- was of such a ed, whether the as convicted of e was no inten- d negligence. ury as follows: urder and man- whatever, either ntional result of MURDER IN THE SECOND DEGREE - INTENT TO KILL MUST BE SHOMTN. Daly v. People. [32 Hun, 182.] In the Supreme Court of New York, 1880. XjDon a Sunday eTenlng the defendant and four person, all more or less under the Infln- ence of liquor, assaulted one Daly, threw him down, struck him with a stone and cut him with knives. Daly had been drinkinff with them, and the cause of the disagreement was not shown, nor was there any evidence to show that they Intended to kill him. The wounds and cuts Inflicted were not considered, by the j.hyslcian who attended him, to be of a dangerous character. He died the next night, and a post mortem examination showed that his death resulted from meningitis, and that his disease hud probably been produced by an Injury to his head reHultIng from the blows or a fall. Held, that there was no evidence to sustain a conviction of murder In the second degree. Writ of error to review the judgment of the Court of General Sessions of the county of New York, by which the plaintiff in error was con- victed of the crime of murder in the second degree, and sentenced to imprisonment in the State prison for life. 1081 CKIME8 AGAINST THE PEK80N8 OF INDIVIDUALS. Wm. F. Kintzing, for plaintiff in error. ,i^rp„dftnt in John VincU, Assistant District Attorney, for the defendant ia degree. Tins ^'^^ /";'^"7" " „ . ' g.^idence it was made to appear tod' c,»cO. They h„l Uim down upon the .tree. , one o< th.m hta „i.l> a ^tone, and ot..e,-» cut ^'™ "'* '''-'^'^ ,,^ „^„„„ „p„„ Mm Whiit caused the r d sagrecment out ol wuicn lue «= i =>r j.-;t.- -- "r:r3fS^ with .ny intention to l.'"; .■«« h» ""^'f -.^^^'T;'" «oru "»■> «,Miimled bv a p stolshot The couri re prisoner ^^'uvlty of murdtr llrrert: -.S *« Be„,anun dua froM *e wouad, ..d no. of°the court and counsel in regard to the separation of the jury, the tnai ^as conducted in the absence of the «^««^"«^^; ..^he only ade- Among other charges the court gf^ *J« '^""r^^.jii^ J,' ^^ ,„ate causes fixed by our ^-;'> -^"2^;^.^ ^^^^^^^^^^ the to manslaughter are an assault and battery, reuung au 4 A^i JALH. lie from murtlor to tide tut, I'aiclial'i imrt of the »UTf con y cun not ( id Dot from the inkl- on. L. LiSDSAT. Ted Benjftinin. 1, the latter w:i» cr, swearing lif n ,i_a rebel Bon (1, but nn fix aw\ by a pistol sliot be abdomen and 1 sewed up the live plaster on the consented to the ; until next moi n- oining room sick, Ing doctor during ndcr the charge of ; rooms under dif- criff, five colored ne white juror at asked the accused Q him, or if he had \ Dusent to the jury ind that he desired jplication of appel- iv -guilty of murder the wound, and not t up to and includ- )urt and the action )f the jury, the trial jg: " The only ade- killing from murder ting and quoting the BROWN V. 8TATR. 1087 four ftdcqiiftte causes named in the code,' and proceeding: "These are :ill tlio cuust'S whicli our law allows as adequate causes to reduce t..j killing of a human being from murder to mnuslaughttT. If any one of these causes is found to exist, from the testimony, tlien the crimo would be simple manslaughter. In the absence of all of them the crime is murder, of the first or second degree, as t\u\ jury may determine from' the evidence." There was a verdict and Judgment of guilty of murder in the second degree, and assessing the punishment of appellant at five years imprisonment in the penitentiary. P. E. Pearson, for appellant. The Attomey-Generalf tor t\ioSt&{e. Walkeu, J. There Is some novelty in this case. Wiiero a defendant in a prosecution for felony is taken ill on the trial, and the court is satisfied, by tiio opinions of pliysicians or otherwise, tliat he is too ill to bo present in open court at every stage of the trial, the cause should either be temporarily continued to await his convales- cence, or a juror should be withdrawn and the cause continued for the terra. The accused should not only bo within the walls of the courc- house, but ho should be present whore the trial is conducted, that he may see and be seen, heard and be heard, under such regulations as the law has established. Under our Code of Criminal Procedure it is competent, on the trial of a felony, for counsel to do certain things in the presence of the de- fendant, but these things strictly pertain to professional acts ; but that article of our code » which provides that a jury maybe allowed to sepa- rate, by consent, in charge of an officer, limits the consent to the defend- ant alone, so far as ho is concerned. It is not an act, either by practice or by our code, brought within the province of counsel. Had the prisoner consented to tlie separation of the jury con- templated by the statute he would not be bound in this case, for the separation which took place was not such as is contemplated by the law. When a separation takes place by the consent of the accused, every juror should bo under the protection and control of an oflScer, that no communication may be had witli. other persons in any wise touching the cause on trial. It is the practice of the courts to permit a juror to retire from the panel for a temporary or necessary cause, and this practice grows out of necessity; but this court should be watchful and vigilant to see that the law is executed which forbids all Improper conduct on the part of jurors, and all intermeddling or tam- pering with them by parties interested in the suit, their friends, or other persons. art. 8254, Pasc. Dig. s 3070, PaBC. Dig. a .OMNST THE PERSONS OF INDIVIDUALS. ao88 C.IMES AOMNST ^^ ^,^ ,„„,,,„ ,.e assignment Exception is taken to the «\*'g; ^^/^^J, on the trial; yet in a of er ors,but no special «««i;^''^"J^^;eturt to examine the genera to" case it has been the Vr-^^^^^^^--^^^ ^^ ^«^" '"^'^ '" t clar^re in order to determine ^yhcthcrth ^^^^^^^ reverse a judg- The°court ^iU not, however, m c^-^oj ^ ^^ ^^^ „eral charge, lent on account of the ^^'^'^''''''llZ, I" b^^^ ««^««« "^ ^"T rCs L exception he taUen ^^;^;^,^ ,,, ,„ eapiUl cases^he court -will look at any *' uiisled the juiy- ^ , , . . i° dence in tl.e ca,= really waB ^^ „.„,e, «Mob it „m error to ln.truct tl,c 1"'? °° °;. ^^^ ,„„, ,„„voking caase. Jull reduce murder *? """''"J,^": ^ cauaea wMcl. could reduce ru„erated in article 2^54 we-- the °»^V ^__ ,^ ^,, ^,,„ ,, "'^-'""tTrra.rrr'B/article n.^ *« '-P"*'"" rdXer«.:--"^o,ua«c=.ae_: ^^^„ „,„„„ find many more means of outragmg ^^^^ language "than those four ^^^^rt sly P-^ne. vulgar and abusive^ eTpMed by the deceased ^^f^flJ^,,,,nce of his friends and TWas applied to the appellant m the^ ^^^^^^^ .^ ^^^^^^^ to ^li;:borr; ^t-^ -hjanguag^-^-^^^^^ ,„^,, ,^e and men of ordinary temper, was cai resentment. ,„, „,,_ i„^ 3 to refuse giving the charge It\as error in the court, under '>^'^''\'\^^^^ „y the physician as asled%oncerning the treatment of the Jo J ^.^ ^^^^^ ^^ ,La,»re.uU,ngJo.tU^«^;^ ^^^^ ^ „,^^, .,d tl,e cau , , R„.'e 26 Tex. 107 ; 25 Tex. 1 vmareal r. Stu.e. ^ ^O Tex. ■.^.TrX"... «"•=="• ^^M viduals. in tbe assignment the trial; yet in a examine tlie general asbeenlair'.ytried.i inor. reverse a judg- the general cbarge, such cases a written b in capital cases the ischal's Digest. The the jury. There was , deceased should first 1 to the minds of the onception of what the adequate cause, which our provoking causes .3 which could reduce , unius est exchmo alte- j 2252 th« Legislature ^nt such as would com- .ntment or terror, in a . the mind incapable of vicious men can and do ilting others of ordinary •le 2254. The language ,„e. vulgar and abusive^ ,enceof bis friends and t instances, if applied to produce anger, rage and ;o refuse giving the charge wound by the physician, re come to bis death. Our ommon law, the theory of jury should be held guilty, y no other would have fol. I , reversed and the cause| Reversed and remanded. m'cann v. people. HOMICIDE — KILLING AFTER PROVOCATION PASSION. 1089 AND IN HEAT OF McCann V. People. [G Park. 629.] In the Supreme Court of New York, 1867. The Prisoner waa Oonvloted of marder. The eTldenoe showed tbe homicide was com- mitted by stabbing the deceased \rith a knife, in immediate retaliation tor insulting words and a violent blow-strack the prisoner by the deceased. Beld, that, in the absence of premeditated design, which was olearly wanting, the conviction was unauthorized. Error to the Columbia Oyer and Terminer, in which court the pris- oner was tried and convicted of murder. The questions involved sufficiently appear in the opinion of the court. C L. Beale, for tlie plaintiff in error. J. M. Welch, District- Attorney, for the defendant in error. Ingalls, J. At the Oj'cr and Terminer, held in and for the County of Columbia, in April, J 866, Barney McCann was tried and convicted of the murder of Edward Pye. Tlie prisoner, with several others, met at thr house of one Mrs. Riley, and indulged in drinking liquor. Pye was present, and a dispute arose between him and the prisoner in rela- tion to some tobacco. The witnesses agree that McCann asked Pye for a chew of tobacco, which was refused. One witness states that Pj'e, in answer to the request said, " I would sooner hit you in tha face than give you a chew." Another witness gives tlie following version: *' Pye said. No, you dirty Irish son of a bitch, get on the floor and I can lick you." Immediately after these words, Pye struck McCann, and knocked him nearly or quite down, and McCann got up and rushed to- wards Pye, making a thrust with a knife, which inflicted the fatal Wound. The evidence showed clearly tliat the whole transaction oc- cuiTed within a few moments, and that McCann could not have advanced more than six or ei^ht feet when he administered the blow with the knife. Shaffer, a witness for the prosecution testifies: " The whole transaction occurred in about a minute ; it was all right along." Stafford, another witness for the People, testified: "Did not see McCann fall ; he went back three or four paces, and the next I saw, I saw him (McCann) coming with a knife. This was but a few moments after Pye struck McCann." It is apparent that McCann was in a vio- lent passion, amounting to a paroxysm of anger induced by the insult- ing language of Pye, accompanied with a severe blow, which nearly or quite prostrated the prisoner. The evidence shows that the attack by Pye was' wholly unprovoked by the prisoner, and that the injury was .1 Pefkn-ces. 69 1090 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. inflicted by McCann while he was in the heat of passion, induced by sudden, violent, and unjustifiable provocation. Under such circum- stances it is unreiisonable to conclude that time had elapsed sufficient lor passion to cool and reason to regain control, so that a premeditated design to take the life of Pye could have been proved, which is indis- pensable to constitute the crime of murder in the first degree. We are inclined to the conclusion, that the prisoner might with propriety have been convicted of manslaughter in the third degree. Certainly not murder in the first degree. It may be well to examine some of the au- thorities bearing upon the questions presented, with a view to arrive at a correct conclusion in regard to the grade of crime which the evidence shows was committed. ^ ' ' Manslaughter at common law is of two kinds. 1st. Voluntary manslaughter, which is the unlawful killing of another without malice on sudden quarrel or in heat of passion. When upon sudden quarrel two persons fight and one of them kills the other that is voluntary manslaughter. And so if they upon such occasion go out and fit'ht in a field, for this is one continued act of passion. So, if a man is greatly provoked by any gross indignity, and immediately kills his agcn-essor, it is voluntary manslaughter, and not excusable homicide, not being se defedendi; neither is it murder, for there is no previous malice. In these and such like cases, the law kindly appreciating the infirmities of human nature, extenuates the offense committed, ami mercifully hesitates to put on the same footing of guilt, the cool dehb- erate act, and the result of hasty passion. "^ " When the defendant, having been violently beaten and abused, ran to his house eighty rods, got a knife, ran back, and on meeting the de- ceased stabbed him, it was held but manslaughter. "3 «' If on receiving such a deadly assault, he suddenly leave the scene of outrage, procure arms, and in the heat of blood consequent upon the wrong, return and renew the combat, and slay his adversary, both beinff armed, such a homicide would be but manslaughter. For the law from its sense of, and tenderness towards human infirmity, would consider that sufficient time had not elapsed for the blood to cool and reason to resume its empire over the mind smarting under the original '''sec 987 : " When death ensues in heat of blood on immediate prov- ocation there having been no previous malice, the oflense is man- slaughter." . , ^ « Same section: "The indulger.ee which the law extends to cases of this description is founded on the supposition that a sudden and violent exasperation is generated in the affray, so as to produce a temporary 1 Wliftrt. on Horn. SS. 8 Wbart'i Or. U aeo. WA (4tb ad.) 1 leo. UO. ^^a , induced by uch circum- ed sufficient •remeditxted lich is indis- ee. We are opriety hiave Jertainly not le of the au- V to arrive at the evidence uf two kinds. g of another When upon other that is asion go out on. So, if a icdiately kills ble homicide, 3 no previous )reciating the nmitted, and ,he cool delib- d abused, ran eeting the de- »ave the scene uent upon the M'CAXN v. 5'EOPLE. 1091 versary. both Iter. For the firrnity, would od to cool and er the original imediate prov- fense is man* kds to cases of len and violent :e a temporary laeclM. suspension of reason. And tliat the transport of passion excludes the presumption of malice." Wliartonon Homicide:^ "Any assault in general, made with violence or circumstances of indignity upon a man's person, if it be resented immediately by the death of the aggressor, and it appears that the party acted in the heat of blood upon that provocation, will render the crime manslaughter." Taunton, J., in Taylor's Case, defines manslaughter as follows: " Manslaughter — homicide, not under malice, but yrhen the blood is heated by provocation, and before it has time to cool." In Bex. V. Taylor,^ after a quarrel an attempt was made to expel Taylor from the house, and he drew a sword and stabbed Smith, the deceased, and inflicted a mortal wound. The court, after deliberation, pronounced it manslaughter. That case is often referred to with appro- bation. In the case of Rogers v. People,^ much of the reasoning of the court applies to the case under consideration, and some of the circum- stances are similar to those in the case at bar. The homicide was com- mitted under circumstances of much less provocation, and there is evidence in the case cited to the effect that only words preceded the fatal blow. In this case there is no conflict in the evidence. All the witnesses agree in saying that words and blows constituted the provocai- tion. Judge Sutherland, in the case cited, remarlcs: *' If the prisoner struck the fatal blow in the heat of passion, without the intention or design to kill, he was guilty of one of the degrees of manslaughter." Again : " But the violent homicide for which the prisoner was tried had different degrees, depending on the intent to kill, or the absence of such intent. The statutory definition of two of the degrees of man- slaughter implies, not only that a homicide committed in the heat of passion may have been committed without the intention to kill ; but that also such heat of passion is likely to prevent the reasoning, calcu- lation, reflection or design implied by a particular intent." * In this case the prisoner and the deceased engaged in a flght in the public highway, and the prisoner knocked the deceased down, and then took a large stone from a wall, and with -both hands threw it upon the head of the deceased, breaking the skull and causing death. The prisoner was convicted of murder, and such conviction was reversed, and the reasoning of the court shows conclusively that the crime was regarded manslaughter and not murder. Barculo, J. , says : " We suppose that an erroneous impression may thus have been produced upon the minds of the jury. We consider the second subdivision wholly inapplicable to a case where there is reason to believe that the killing was in the heat of 1 p. 186. > S Ban. 9791. • 15 How. Pr. 068. * People «. Johnson, 1 Park. Or. Bsp. aitk 1092 CRIMES AGAINST THE PERSON'S OF IXDIVIDUAL8. passion, for such killing never was murder at common , and the revisers did not intend to increase the cases of murder." This remark of the learned judge bears with force upon the case at bar. In People v. ClarTi,^ the court recognizes the distinction between cases where there is a provocation and heat of passion, and where those features do not exist, in determining the grade of crime. The court says: "In th., case be- fore us, there was no provocation, no mutual combat, no heat of pas- sion which the law can recognize." Turning to tlie ease at bar, we find all these features, mutual comliat, gross provocation, and conse- quent heat of passion without time for such passion to cool, before the fatal thrust. The parties did not separate from the commencement until the termination of the affray. How can it be reasonably con- tended under such circumstances, that there could be premeditation? If not, the case is wanting in an indispensable element to constitute the crime of which the prisoner was convicted. The jury must have mis- conceived the directions which they received from the court, for upon no other reasonable hypothesis can we account for their verdict, which is in direct conflict with the facts proved, and the law, which was cor- rectly pronounced by the learned justice. There accompanied the verdict positive evidence of the reluctance with which it was rendered, in the written communication containing an unusually urgent appeal on behalf of the prisoner for the exercise of executive clemency. Tlie judicial mind can not apply the law to the undisputed facts of this case, and fail to be convinced that the prisoner has been convicted of a crime of which he was not guilty, and which stands wholly unproved against him. It might be insisted, certainly at least with plausibility, that the facts proved reduce the offense to manslaughter in the third degree, as defined by section 12,^ which is as follows: "The killing of another in the heat of passion, -without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed manslaughter in the third degree." It is not pretended that there is evidence of express malice, and in my judgment it can not be implied from the facts proved, and the law apphcable thereto,. And hence the design to effect the death of the deceased, as contemplated by the statute referred to, did not exist. Foster, in defining what constitutes imi lied malice, says : " And I believe that most, if not all, the cases which in the books are ranged under the head of implied malice, will, if carefully adverted to, be found to turn upon this single point: that the fact hath been attended with such cir- cumstances as carry in them a plain indication of a heart regardless of social duty and fatally bent on mischief." There is not a fact in the 1 7 N T. 8». 1 p. 940, Tol. S, Rev. stati. ^iM L8. e revisers did tf the learned le V. Clark,^ 3 there is a do not exist, til'- case be- i heat of pas- se at bar, we I, and c6nse- il, before the mmencement isonably con- cmeditation ? jonstitute the ist have mis- urt, for upon erdict, •which hich was cor- mpanied the vas rendered, ent appeal on mency. The facts of this een convicted bands wholly at least with manslaughter is as follows : it a design to such wherein or excusable, malice, and in J, and the law i death of the not exist. ys : " And I ranged under I found to turn with such cir- ; regardless of ; a fact in the M. M CANX V. PEOPLE. 1093 whole case which proves the existence of those qualities in the prisoner. All who testify as to liis general cliaracter and demeanor speak favora- bly, and the history of the fatal affray shows that he was not the aggressor. In People v. Johnson,^ Barculo, J., says: " Thus it appears by the terms of the statute the killing of a human being, in three specified cases, is murder, unless it falls within some of the inferior classes of homicide, from which we deduce the inference, that if a case comes within any d^^ree of manslaughter, it can not be deemed murder, although it is accompanied by some of the circumstanceb which make up the latter crime." — The fact that the prisoner used a knife and death ensued, does not necessarily raise the presumption of malice or that within the meaning of the statute there existed the design to effect the death of tlie de- ceased. This has been shown by the authorities wliich have been cited. When we reflect that there was a violent provocation, and almost instantaneously thereupon the fatal injury was inflicted by the prisoner, we may properly hesitate before declaring that the prisoner's crime was not manslaughter in the third decree. It is, however, only neces- sary to satisfy ourselves whether or not the prisoner was guilty of mur- der in the first degree, and the other considerations are only important so far as they aid in determining that question, except possibly they may furnish some guide in a future trial. The reflection that the life of a human being is even jeoparded by the verdict of a jury, erroneously, although conscientiously, rendered, ia revolting to every sense of justice and dictate of humanity, and calls upon the court to interpose on behalf of the prisoner, to the extent of its power, in the exercise of judicial discretion. It is said by counsel, in substance, that it was the province of the jury to determine whether there existed a premeditated design to effect the death of the deceased, and having rendered a ver. diet which implies such finding, this court is powerless to grant relief^ although satisfied that such verdict stands unsustained by any evidence which even tends to prove the crime. We can not give our assent to such a proposition. Suppose the jury had rendered a verdict in this case, pronouncing the priaoner guilty of treason, this court would not, I apprehend, hesitate a moment to set aside such a verdict, and order a new trial. It may be said the case put is a strong one, and improb- able — nevertheless it tests the power of the court to interpose, in the exercise of that general control which it possesses over its own records and proceedings. Conceding that the case is not improved in every particular which enters into a conviction for the crime of murder, and 1 1 Park. 291. 1094 CHIMES AGAINST THE PERSONS OF INDIVIDUALS. • ««nt8n.r in one indispensable element to constitute the ?ZmHw»MrSvetb.tthe leaned Jurtic. charged the Ju-T, wnoDg rer'Z l:;rr:oU.te *» c™. ». »u«.r .he« ^ h^ .o^ of passion a man striKes a uiu ^^^^^ ^^^^^^^^ follows then it is manslaughter in tbe tnira uegi^r. Sns as has been before remarked, were probably misconceived by he tions, as uas oeeu u -^„,i«.red a verdict unauthorized by the jury, and as a consequ-ce tl-y --lere^^^ ^^ .^^ ^^^^^ 'Ttotllly the determiMtton »f . qu«tlon of Uw upon undUpottd ohTge to the jury, or in .ny ruliog »po. ^^^ J^'.'lfL' „J opinion that the conviction should be awirdea ana a "Ito^ and HOOEBOOM, W., concurred in the reanlt. 1 HllUrd on New Tr., p. 853, «eo. 86. 1 U N. T. ^ttm PRICE V. STATE. 1095 L8. !onstitute the laughter, and premeditated e purports to pon the triali 5 jury, among must be some if in the heat ill, and death rhese instruc- iceived by the lorized by the I which tended tras produced, ■mination. In a prisoner is nee of a crime onstitute such the same, this f opinion that e it should be pon undisputed erial point, and the ground that ncer,^ Allen, J., ould be clearly ton the assump- ice, either in his We are clearly knd a new tria HOMICIDl -PROVOCATION -HUSBAND AND WIFE -ADULTERY. Price v. State. [18 Tex. (App.) 474 ; 61 Am. Rep. 322.] In the Court of Appeals of Texas, 1885. — . ^.. T Tw-fci—hnmioldo by a husband lustlflable When committed;©!! one taken Under the Law KaklBB homicide by a nusoanu J separated, it la Bufficlent II of the marriage bed. and not habitu.U carnai Intercourse. Conviction of manslaughter. The opinion states the case. Dowell & Wooten, for appellant. J. H. Burts, Assistant Attorney-General, for State. White P. J. Appellant was convicted of manslaughter committed upon one William Chandler; his punishment being assessed at two years* confinement in the penitentiary. . « , .x. Before the homicide, appellant had evidently become dissatisfied with the familiarity which had existed for some time, as shown in the conduct of his wife toward deceased and the deceased toward his wife. He may even have entertained suspicions that all was not as it should be between them, or to say the least of it, he felt that their conduct was highly "°OnthI night of the homicide he had evinced this state of feeling of dissatisfaction and suspicion in more than one particular when deceased and his wife had been seen whispering and " carrying on together before he retired to his bed, leaving his wife, the deceased and his mother still sitting by the fire. But he retired and went to sleep. Not long after. Chandler, the deceased, left; and not long after he had, ostensibly, gone to his home, defendant's wife, complaimng of feeling sick, went out. She was gone so long that defendant's mother became uneasy, woke defendant up, and told him he had better go and see what was the matter. Defendant finally got up, and hearing persons talking in his corn pen, went back into the house, got his gun, went into the com pen found the door open, went in and asked "who was there? " After this question had been repeated three times by him, his wife, who was lying down with some one in the crib, got up and answered " It's me. Price," and said she had gone there to get some corn. Defendant told her to come out and asked " who was with her She replied " no one." Defendant insisted there was some one. hhe said "no," and went out at the door. Defendant again asked who was there and deceased got up and caught the gun. Defendant backed out ot the door, the parties struggUng over the gun. After getting out iiij|ffe> niipM*" 1096 CRIME8 AGAINST THE PERSONS OF INDIVIDUALS. Of the door defendant said, " let go of the gun and let nie go about niy business," the wife begging her husband not to shoot nm. Chandle» then turned loose his hold of the gun and defendant shot h.m. After the ^hootin'^ ^hen a light wa. struck, the coat of the deceased w a. found spread out in the crib, at the plaoe where he and defendant's wife had been Ivinff down. In his voluntary statement, which was read by the P'^f ««»»<>" «^«7- dence at the trial, defendant says :" I do not know what they (Chan manslaughter. le act of adultery though this was a civil law (if the and also among ly ranked in the )le rape, but it is t; and, tlierefore, liand to be gently ation." 8 j:."If a husband lie wrong, instantly cide is only man- tty),eide p. 191. PRICE V. STATE. 1097 slaughter. But if on merely hearing of tlie outrage, he pursues and kills the offender, he commits murder. The distinction rests on the greater tendency of seeing the passing fact, tlian of hearing of it whea accomplished, to stir the passions; and if a husband is not actually witnessing the wife's adultery, but knows it is transpiring and in an overpowering passion, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to m.anslaugljter." ' Our statute uses the expression, " taken in the act of adultery with the wife." The question is as to the proper meaning or construction of these terms. Do tlie words, when properly construed, mean that tlie husband must discover, find, or see the wife and adulterer in the very act of illicit intercourse or copulation in order to constitute the offense denominated " taken in the act of adultery." Such positive proofs of the commission of the crime of adultery are not required and are rarely attainable. As a crime adultery it^ielf may be established and proven by circumstantial testimony. ^ Should the law hold the husband to a greater or higher degree of proof than itself requires to establish a given fact? It is a late hour of the night — the parties are found in a corn crib some distance from the house, lying down in the dark. They refuse at first to answer when called ; then when the wife answers, she denies tliat any one is with her — when deceased gets up he clutches the gun — defendant finds that the one whose previous conduct and ''carrying on " with his wife has excited his suspicions is the one be has thus found in company with his wife. What would any reasonable, sensible man have concluded from these circumstances? In otiier words, how did the matter reasonably appear to defendant? To him are not tliese facts " confirm- ations strong as proofs of holy writ?" Could it have been otherwise tiian that he had caught the parties in the act of adultery, either just as tiiey were about to commit, or just after they had in fact committed it? His voice when lie called perhaps had arrested them in the very act of carnal coition, and if that were so, then were not the parties caught or taken by him in adultery? Docs not the law always estimate a man's right to act upon reasonable appearances? Taking into consideration the res gestae — taking the acts of the parties and their words coupled with their acts — and were not the appearances of a cliaracter such as would have created the reasonable apprehension and conviction, in a person of ordinary mind, that the parties thus taken were taken in the act 01 adultery? We are ot opinion that the correct doctrine is that enunciated in I State V. Pratt. ^ In passing upon the construction and application of 1 2 Biah. Cr. L. (7th ed.), seo. 706. 2 Richardson v. State, 3t Tex. 142. a 7 Honst. 8*9. 1098 CRIMES AGAINST THE I'ERSONS OP INDIVIDUALS. a statute substantially similar to ours, except that \n Delaware the homicide under such circumstances would only have been reduced from murder to manslaughter instead of being justifiable, as witli us, it was held: " If a husband find another In the act of adultery with his wife, and In the first transport of passion, excited by It tlien and there kills him, It will not be murder but manslaughter only. It Is not ncjessary, however, that he should witness an act of adultery committed by thorn. If he saw the deceased In bed with bis wife or -.'avlng it, or found them together in such a position as to Indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then about to commit it, the effect will be the same; and If under such circumstances the mortal blow was then and there given, the kill- ing will be manslaughter merely. But no other knowledge on the part of°the husband, however positive, otherwise acquired of their adulter- ous intercourse can suffice to mitigate and reduce the crime from murder to manslaughter." ' As to a proper construction of the expression " taken In the act," we can not believe that the law requires or restricts the right of the husband to the fact that he must be an eye witness to physical colMon of his wife with the other party. As we have seen, adultery can be proven by circumstances and the circumstances In this case were not hearsay so far as this defendant was concerned ; they transpired In his own presence, sight and hearing. A mistake may possibly exist as to the fact; " but if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he Is guilty of no offense ; " ' provided It be such mistake as does not arise from want of proper care on his part.3 A party may always act upon reasonable appearances, and his guilt depends upon the reasonableness of the appearances, judged of from his own standpoint. Mr. Bishop's rule as above quoted also commends Itself to us as both just and proper: •' If a husband Is not actually witnessing his wife's adultery, but knows It Is transpiring and in an overpowering passlou, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to manslaughter." * If the offense would be manslaughter at common law and In most of the other States it would be justifiable homicide under the special provisions of our statute.^ In his charge to the jury the learned trial judge instructed them fully and ably upon the law of murder of the second degree (murder in the first degree being abandoned) and manslaughter. His charge 1 See 8»me OMe in 1 Cr. L. Mag. H09, 810. * Penal Code, art. 45. 3 Penal Code, art. 46. « State V. Hplmes, 54 Miss. 153; Biggs v. State, 80 Ga. 728; Cheek v. State, 86 Ind. 493. And to the same effect ie Maher v. State, 10 Hich. 312. * Penal Code, art. 676. 4-iMW^^.-Mt»^W'W^WtV.W ' M i wW^ ^t^m >UAL8. in Delaware the en reduced from s with Hi, it was ry witli 'lis wife, n and there kills is not nt'jessarj'^ imittcd by thoiu. it, or found them )le certainty to a dulterous act, or ae; and if under •e given, the Itill- ledge on the part of their adulter- I the crime from iken in the act," 9 the right of the > physical coiMon , adultery can be ;hi8 case were not ' transpired in his jftsibly exist as to as to a particular al, he is guilty of >t arise from want ; upon reasonable onableness of the tself to ua as both [nessing liis wife's powering passiou, T-doer, the offense . be manslaughter mid be justifiable e instructed them id degree (murder fhter. His charge ibeek v. State, 35 Ind. me effect is Maherv. .676. PRICE t;.4ITATE. 1099 upon justifiable homicide, predicated upon the statute, was in these words, viz. : "If the jury find that the defendant shot and killed the suid Chandler at the time and place as alleged, and it also appears from the testimony that defendant shot and kilbul said Chandler when taken in the act of adultery or carnal intercourse with the wife of the defendant mid before they (Chandler and bis wife) had separated, then they will find him not guilty." The very gist of the issue made by the facts in the case was as to whether the f. lets tended to shrtw that the parties were " taken in the net of adultery," and in all sut'li cases we imagine tlie principal con- test will be as to tliat fact. Such being true, it i.s a part of the law of such cases that the jurj' should be properly instructed as to what is meant liy the expression " taken in the act." Without some explana- tion of the phrase, a jury would scarcely be able to comprehend and understand its import, so as correctly to apply it to the facts. They would perhaps be most likely to interpret it as meaning that the parties must be taken in the very act and process of carnal intercourse and copulation. Again it was important that the jury should have been instructed as to the meaning of the other expression used in the statute, " before the parties to the act of adultery have separated." Giving the lan- guage a too literal construction, they might infer that it meant that the parties must be physically united with the rem in re, in the act of cop- ulation, and that it woul i be a separation though they might still be ill tlie same bed or same room. Evilently the statute means no such thing, and contemplates only that parties are seen together in company with each other, after the act, when the homicide is committed. Again it is most clear that the word " adultery " as used in the stat- ute can not be or mean, the adultery which is defined as a specific offense by the code, and which is the " living together and carnal inter- course with each other, or habitual carnal intercourse with each other," etc., of a man and woman, etc.^ It can not be that a statutory adultery must be shown by a husband justifying under the law we are discussing. Evidently ecclesiastical adultery is meant, adultery as it is known in common parlance " viola- tion of the marriage bed," whether the adultery consisted of one or more acts, or whether the parties lived in habitual carnal intercourse or not. It was part of the law of the case that " adultery" as used in this statute, should have been explained to the jury. There were no special exceptions to the charge of the court, but the defects of omission pointed out are, in our opinion, fatal to the suffi- ciency of the charge, which under tlie statute must set forth distinctly I Penal Code, art. 833. 1100 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. the law uppHcablo to the facts. Defendant's counsel submitted sev- eral reque8te«l instructions which should have called the attention of tlic court to the omissions in its own charge, though it might not feel in- clined to (^ve said instructions as presented and requested. For the errors in the charge of the court as above pointed out, the Judgment is reversed and the cause remanded. Iteveraed and remanded. MURDER— MANSLAUGHTER- r^ OVOCATION — ADEQUATE CAUSE. Hudson v. State. [6 Tex. (App.) 6C5.] In the Court of Appeals of Texas, 1879. 1. Th« Oharce of tb* Court upon the law ot manslangbtar, In deflntng " adequate e«nie " M arliing from the u»e of IneuUing langaage toward* a female relatUe by the deceaied told the Jury that §uch language, unle«8 it was uwd In the presence of the female, did not constitute " adequate cause " within the meaning of the statute. Bttd, error. 2. The Defendant in » Vurder Trial can not put in evidence the dangerous or desperate character of the deceased in Justiflcation, but he may prove it in excuse for the killing, provided he first shows that the deceased manifested a purpose of attacking him, and he was aware of the dangerous character of the deceased. Appeal from the District Court of Bell. Tried below before the Hon. L. C. Alexander. The indictmer' charged the murder of J. J. Crow. The conviction was for murder in the second degree, and the penalty imposed was ninety-nine years in the State penitentiary. The dying declarations of the deceased, made without solicitation, and in anticipation of t(oa*h, were testified to by several witnesses. The substance of them was, .!iat on the evening of the 1st of April, 1879, the deceased startiwl to Dr. Russell's for medicine for his sick family. His route lay l>y che school-house where the defendant was teaching. School was in session, and the deceased saw the defendant in the school as he was passing. From Dr. Russell's he went to Little River City, and when he stepped into Fletcher's store he saw the defendant. He was somewhat surprised, as it was early, and the defend- ant usually dismissed school quite late. From Fletcher's store the deceased went on to Hale & Wilson's saloon, to get a bottle of whisky. While in the saloon, behind a partition, talking to Hale and Dave Rob- ertspD, the defendant came in and looked behind the partition. Pres* r^ff?5?s?**y-i<'i«^' ■^-''' ' i^JWWiJtWja ^ Att^'JUMaiM ^^k DUALS. HUDSON V, STATE. 1101 1 submitted sev- J attention of the light uot feel lu- sted, pointed ont, the md remanded. IQUATE CAUSE. 9. Ing " adequate eanie " male relative by the n tbe pregenca of the oi tbe statute. Btld, langerouB or desperate excuse for tbe killing, ' attacking him, and he below before the The conviction alty imposed was ihout solicitation, several witnesses, the 1st of April, icine for his sick lie defendant was saw the defendant i he went to Little store he saw the y, and the defend- etcher's store tbe , bottle of whisky, lie and Dave Rob* partition. Pres- ently the deceased came from behind tlie partition, bought liis whislty, uud lilmself and Robertson, who lived in the same direction from the ti.wn, got on their horses and started liomc. They had traveled some little distance, when, looking back, they saw defendant coming towards them. Defendant rode up on tlio side of Robertson, and the three roile on abreast until they reacliod a point in the road wiere Robert. sou's route diverged. At this point Robertson took a drink from doooased's bottle, and left the parties. The defendant declined to drink. Deceased then remarked: "If we can't drink together, we can ride together; " to which the defendant assented, saying thai he never refused to ride with any one. The two rodo on together, In f rlen( 1 ly dls- ciisslon of thn school matter about which they had previously disagreed. When near Thornton's residence, defendant checked up his horse, and, as the deceased turned his face to observe the cause, he received a slot in the right side of his face. Deceased fell, and for some time remained unconscious, but finally recovered sufficiently to reach a neigh- bor's house, from where he was taken home. The evidence of the deceased taken at the preliminary trial of the defendant, upon a charge of assault with intent tj murder, comports with tlie above ; but adds that, when discussing the school matter, the defendant asked him why he thought that he (the defendant) " had n-t treated lilm (the deceased) right; " and he answered, " I know you are no school-teacher, in the first place, and you have married a liiostitute." He did not at that time say to defendant, " God d— n your soul, I will bring you to time yet." The witness Wilson corroborates the statements as to what occurred at the saloon, and the witness Robertson made the same stateuient of the occurrences from the time the deceased entered the saloon until they separated at the forks of the road. Thomas Clegg testified, for the defence, that in the preceding Feb- ruary the defendant and the deceased met at a party in the neighbor, hood, and engaged in a quarrel. The deceased asked the defendant If he had said that he had arrested his (the deceased's) father for horse- stealing, —following up this question with tlie statement that, if so, he had told a d— n lie, and he would kill him for it. Defendant answered that he had arrested one Zeke Crow for horse theft, and that if deceased had a brother of that name, then he had said it. Deceased responded that he had tx:ld a d— n lie, —that he Lad never arrested a man named Zeke Crow. The testimony of this witness is corroborated by Jasper Wiley, who testified, in addition, that on the second Saturday of the previous March the deceased read a letter to him, and asked him if he had ever heard defendant say anything about him. Being answered in the negf- 1102 CBIMES AGAINST THE PERSONS OF INDIVIDUALS. ative, the deceased then said, "Hudson and I can not live in the same country. ' ' Another witness detailed the quarrel between the deceased and the defendant at the party, in substance as above set out. These state- ments are disputed by A. J. Smith. Smith testified that he went with deceased to the house of Shaver, where the party was give i (not know- ing there v. as to be an entertainment), to see Shaver about a report that the defendant had told him that he had arrested deceased's father for horse stealing. Witness went with deceased, at his request, to hear what might be said. Ou their return homeward they met the defendant near the fence. Deceased asked the defendant there if he bad circu- lated such a report. Defendant answered that he bad arrested the father of one Zeke Crow for that offense, and that if deceased had a brother of that name, then he had arrested his father for such offense. Deceased merely answered that defendant had " better go slow " when he slandered his .old father, who had been dead forty-two years, and before defendant was born. He did not threaten to kill defendant. If such threat had been made, witness would have beard it. It was in evidence that deceased was one of the school trustees. Thomas Ball, Assistant Attorney-General, for the State. EcTOB, P. J. The defendant was indicted by the grand jury of Bell County, for the murder of J. J. Crow. He was tried, found guilty of murder in the second degree, and his punishment assessed at confine- ment in the penitentiary for ninety-nine years. Defendant filed a motion for new trial, and in arrest of judgment which were overruled, and he has prosecuted an appeal to this court. We will briefly refer to such portions of the evidence as we deem neces- sary to a proper discussion of the questions presented in the record, and on which the defendant relies for a reversal of the judgment. The evidence shows, beyond all question, that the prisoner killed the deceased. Defendant was a school teacher in Bell County, and the deceased was one of the trustees of the school. These parties had been unfriendly for several months. Some time in January last, there was held what is termed in the statement of facts a school meeting, in the school-house where defendant kept school. The defendant and Crow were there. Defendant asked Crow to explain something he had said about his family. Crow refused to explain anything about it, and said that "this was not the place; some other time would do." Shoillj after this. Crow, in company with a friend, called on the defendant in regard to certain remarks which he had been informed Hudson had made about his (Crow's) father. Crow asked defendant what be had said about arresting his (Crow's) father for horse stealing. Defendant told him that he had said he arrested Zeke Crow for horse stealing, and . ..uiMii^iii^/iM tiaiimmmemtiimmtiia >ivf DUALS, not live in the same ihe deceased and the it out. These state- ed that he went with T&s give I (not know- ?r about a report that deceased's father for his request, to hear ley met the defendant here if he had circu* he had arrested the at if deceased had a uher for such offense. »etter go slow " when forty-two years, and bo kill defendant. If beard it. It was in eea. iie State. he grand jury of Bell tried, found guilty of t assessed at confine- X arrest of judgment appeal to this court, ice as we deem neeea- sented in the record, )f the judgment, the prisoner killed the Bell County, and the 'hese parties had been muary last, there was chool meeting, in the I defendant and Crow )mething he had said ling about it, and said would do." Shortly il on the defendant in nformed Hudson had efcndant what be had I stealing. Defendant for horse stealing, and HUDSON V. STATE. iioa that be bad not arrested bis father for horse stealing, unless his father had a son named Zeke Crow. Crow said it was a d— d lie ; and some of the persons present say that Iw threatened to take the life of defend- ant. On the Ist of April, 18Vd, Crow left home, going to see Dr. Russell, who lived in Little River City, to get some medicine for a sick family. His route was by the house where defendant was engaged, as he passed, in teaching Bchool. Crow stopped at the house of Dr. Ruseell a short time, and then went to a store to buy a bottle of whisky, and saw Hudson in Little River City. Crow left there in company with the witness Robertson, and both of them traveled the same road a part of the way home. After^row and Robertson bad ridden a short dis- tance, Hudson caught up with them, and the three rode along together until the road forked, one part leading to Robertson's home and the other to Crow's, via Thornton's house, where Hudson was boarding. Crow, before separating from Robertson, pulled out his bottle of whisky and asked him to take a drink, which he did, as the three were halted in the road. Crow also invited Hudson to take a drink, and he declined, saying he never drank. Robertson here parted with Crow and Hudson. Crow then said to Hudson, if they could not drink to- gether, they could ride together. Hudson said, all right, — that he never refused to ride with anybody, and the two rode off together. After they had ridden some distance Crow testified that defendant pulled out his pistol, and fired suddenly and unexpectedly upon him, shooting him in the right side of his face, in his temple ; that when he was shot he fell off of his horse, and lay insensible for some time ; and finally, when he came to his senses, succeeded, after much delay, in making his way to a house about a fourth of a mile distant. Counsel for the prosecution read, on the trial, the testimony of Crow, given in evidence before a justice of the peace sitting as an examining court, where the matter under investigation was the shooting of Crow by defendant, from which we make the following extract, to wit: "After riding about a quarter of a mile, the subject regarding the free- school, about which we had had some trouble, was raised. I was a trustee of the school community. No angiy words passed between us. I told him I did not want any trouble about it. We had no quarrel before he shot me. Defendant asked me, on the road, if I thought I could ' get away with him.' I said, ' No ; I did not want to harm any one.' We had been riding side by side until we neared the place where I was shot. • ♦ * The defendant checked his horse, which threw him about half the length of his horse in my rear. I turned my face towards him, and saw him throw up his right arm. I immediately heard the report of a pistol. I fell from my horse after I wa» shot. • • • I w.^ powder-burnt on the right side of my face —the ^•*, 1104 CRIMES AOAIKST THE PERSONS OF INDIVIDUALS. l! li ■1 1. side on which I was shot — by the firing of the pistol. The ill-feeling of the defendant towards me has existed for about three or four months. ' ' Crow, on cross-examination, also testified that, '* I did nut say, in the conversation referred to in direct examination, ' Hudson, you have not treated me right.' I told him I knew he wan no school-teacher, in the first place ; and he had married a prostitute. I did not say to defendant, 'God d— n your soul, I will bring you to trouble yet,'' Crow was shot about dusk in the evening of the 1st of April, 1879, and the shot produced his death on the 13th of the same month. On the trial of the cause in the District Court, after the defendant had introduced all his evidence, which is set out in the statement of facts, his counsel stated to the court he had no testimony to offer to show that Crow had done any act manifesting an intention to injure the defendant at the time of the alleged homicide ; and then asked R. P. Talley, one of the defendant's witnesses, the following question : *' Was J. J. Crow a man of dangerous and violent character? " To which the counsel for the State objected ; which objection was sustained by the court, because, in view of the evidence adduced, and the above state- ment of the counsel of defendant, said evidence was irrelevant and immaterial. We do not think the court erred in this ruling. It is a good general proposition that the character of a person does not justify a taking away of his life, when the act would be otherwise unjustifiable. Yet there are exceptions to this general rule. The gen- eral character of deceased for violence may be proved when it would serve to explain his actions at the time of the killing. The actions which it would serve to explain must first be proved, before it would be admissible as evidence. The Supreme Court of Louisiana, in the case of the State v. Robertson,^ say: "The defendant, who is on trial for murder can not introduce evidence of the quarrelsome or danger >us character of the deceased, in justification ; but he may introduce evi- dence of such character in excuse for the killing, provided he first shows he was actually attacked by the deceased, and that he was aware of the latter 's character." However bad and desperate the character of the deceased may have been, and however many threats he may have made, he forfeits no right to his life, until by an actual attempt to exe- cute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character and threats, he induces a reasonable belief on the part of the slayer that it is necessary to deprive him of life in order to save his own, or to prevent some serious bodily injury from being inflicted upon his person.^ l80l4LAn.840. > SMvana •. SUM. 1 Tax. (Afp.) S»l; Horbach v. State, 43 T«x. SS4; 1 WhUt.Or. Ik. MO. eU; 3 BUh. Or. L.ei9-«W. - ■-it ' A ' i-i- ..■t-y! * * rrr ; 4:,.,y^ ' - y *H.l -.■,aifiii?M«ij/;-i««*»«?-f>*«*v^'-'i'"''»**'''«'':.<«»«'*'»" )UALS. The ill-feeling ; three or four did nut Bay, in adeon, you have cbool-teacber, in [ did not say to ;o trouble yet,'' of April, 1879, ae month, er the defendant the statement of iimony to offer to ition to injure the then asked R. P. question: "Was " To which the sustained by the , the above state- a irrelevant and ruling. of a person does ould be otherwise ,1 rule. The gen- •ed when it would ing. The actions before it would be isiana, in the case 'ho is on trial for ome or dangerous lay introduce evi- irided he first shows t be was aware of ,te the character of ireats he may have lal attempt to exe- at the time of the threats, he induces it is necessary to revent some serious axes. 154; 1 Whut-Or. , cr. uea-tat. HUDSON V. STATE. 1105 We believe the court did not err in refusing to permit the counsel for defendant to read in his argument, on the trial of the cause, the cases referred to in defendant's second and third assignments of error. It appears that counsel for defendant offered to read to the court below the case of Marshall v. State,^ which the court declined to bear, because it was sufficiently advised of the law of the case. Counsel for defendant also offered to read to the jury the case of Horbach v. Statt,^ when the court stated that the eounsel might read so much of the anme as illustrated this case or discussed the weight, of evidence. Whereupon the counsel proposed to read the whole of the case to the jury, which the court refused to bear, because the court was fully advised, and understood and remembered said case. The extent to which counsel may read from legal authority, or from works of general science, rests within the sound discretion of the court, and the manner of exercising the judicial discretion will not be revised on appeal, except in a clear case of its abuse. It has been held, both by the Supreme Court and this court, that it is better for the protectioD of the rights of the parties that the exercise of this privilege should be regulated by judicial discretion than that it be left to the unlimited dis- cretion of counsel, governed by the powerful motives of interest aod ambition. 3 The fourth assignment of error is, that " the court erred in the eighth paragraph of bis charge to the jury." This assignment presents a question which, we believe, has never before been passed upon by a court of last resort in this State, and upon which there is quite a difference of opinion among many of our best lawyers. In order fairly to present the question here made, we will copy the seventh and eighth paragraphs of the charge, which the court gave as instructions to the jury on the law of manslaughter : — "7. By adequate cause is meant such as would commonly produce » degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. In- sulting words or gestures are not adequate cause, in the legal meaning of said phrase. Insulting words or conduct of the person killed, towards a female relative of the party guilty of the homicide, is ade- quate cause, provided the killing took place immediately upon the happening of the insulting conduct or words, or as soon thereafter as the party killing may meet with the person killed, after having been in- formed of such insults, and providing such insulting words or conduct 1 33 Tex. 664. >43T«X.M2. 8 DlFESrCBS s 8m Dampnr v. Bute, 3 Tez. (App.) 4W; Hinear. SUte.S Tez. (App.) 483, and Mtliot- IttM there cited. 70 1106 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. were the real cause of the killing, and produced the state of mind above described in subdivisions 6 and 7 of tliis charge. "8 But insulting words of, about, and concerning a female relative^ who is not present, are not insulting words ' towards ' a female re:ation- as used herein before, and would not necessarily be ' adequate causS , as fixed by the law ; but, if a person used insulting words to anotjier . about a female relation of the latter, and in the opinion of the jury the y words such are as would commonly produce a degree of anger, rage or \ resentment in a person of ordinary temper, snfficient to render the mind incapable of cool reflection, and such condition of mmd is thereby produced, and such second person, at the time of such provocaUCn, killed such first person, the act would be manslaughter." We believe that the first part of the eighth subdivision of the charge of the court was not a correct enunciation of the law, and was well calculated to mislead the jury. In telling the jury -that insulting words of, about, and concerning a female relation who is not present are not insulting words ' towards ' a female relative as used herem, and would not necessarily be adequate cause as fixed by the law we think the court committed an error. In our judgment, the Legislature never intended, in subdivision 4 of article 2254, Paschal's Digest, to restrict the insulting words of the person killed, - towards' a relative of the party guilty of the homicide, to remarks made to her or m her presence, but intended to include insulting words about a female relar tive, whether she was present or absent. ^^ Mr. Webster, in his Unabridged Dictionary, gives "toward, when used as a preposition, the following meaning, to wit: - Toward- 1. In the direction to. 2. With direction to ; in a moral sense, with re- gard to, regarding. 3. With ideal tendency to. 4 Nearly. If Uie Legislature had intended that such insulting words must be used by the deceased to or in the presence of the female, i° o'd^^*^ '«;'"^* the killing to manslaughter, some other word than - towards, and one that would have better expressed the idea, would have been used in the statute. It appears clear to us that, on the plainest principles of jus- tice and reason, it could make no difference, so far as the provocatiou is concerned in this instance, whether the deceased to^ th«^»'« °'J' * de .ndant that she wa8 a prostitute, or her husband that ho had ma^ ried a prostitute. The extent of the transport of passion, to extenuate the euilt of the homicide, would be as great in the one case as in the other And in every case when such a defence is relied on to reduce rekiUingto mansU^ghter. the jury must beat liberty to determnie whether, under all the circumstances, the insulting words were the rea^ cause which provoked the killing. The court did not err in overruling defendant's motion in arrest of judgment. LS. ate of mind male relative^ male reiatibn-* quate causS ' « Is to another . the jury the y ,nger, rage or \ to render the nd is thereby proTocatiOn, « of the charge , and was well that insulting is not present id herein, and the law," we he Legislature il's Digest, to •da" a relative 3 her or in her a female relar toward," when '« Toward — 1. sense, with re- sarly." If the ust be used by order to reduce rards," and one )een used in the inciples of jus- the provocation the wife of the hat ho had mar- an, to extenuate fie case as in the ed on to reduce rty to determine ds were the real err in overruling STATE V. MOORE. 1107 As this case must be reversed on account of the error in the charge of the court, it is unnecessary to notice the other assignments of error ; they will not likely occur on another trial. The judgment of the District Court is reversed and the cause remanded. EeverKdand remanded. HOMICIDE — MURDER— COOLING TIME. State v. Moore. [69 N. C. 267.] In the Supreme Court of North Carolina, 1878. 1. Ooollnv Time is a question o' law for the court and not a question for the Jurjr. 2. Ooollns Time — Case in Judgment. — The separation of two persons engaged in h Sat fight, wh 'cb eventuully terminates in a homicide, to justify a verdict of murder must be for a time snfBcient for the pneeions excited by the fight to hare subsided, and reason to have resumed its sway. Hence, where one witness testified that the prisoner was "absent no time," and another, that after the first fight he started to go home, and look- ing back the parties were again fighting, AeM, there was not such sniBcient cooling time to justify a verdict of murder. Indictment for murder, tried before Loqam, J., at Spring Term, 1873, of the Superior Court of Mecklenburg County. Prisoners were indicted for the murder of one Robert Smith, and having severed in their trial, Charles Moore was tried and convicted. It was contended for the prisoner that the crime committed was man- slaughter. The evidence for the State was substantially as follows : — Sarah Ann Davidson testified that she lived a short distance from the deceased on tho same wde of the alley ; the prisoner lived on the oppo- site side of the alley, and opposite the house of the witness. Tv'hen the fight took place witness was opposite prisoner's house, and the deceased was going along the street towards the bouse, and when oppo- site tiie gate the prisoner said, "Who is that?" Deceased answered, ''It is me." Prisoner said, "What do you want?" Deceased replied, " I don't want you, but want to see Mary " (living with pris- oner as his wife). Prisoner then said, " You were listening to my con- versation." Deceased replied, "That he was doing no such thing." Prisoner replied, "You are a damned liar;" to which deceased said, " You are an infernal liar." Curses followed. Deceased was in the street, and said to prisoner, " If you come out and curse me I will hit you." Prisoner went out, he and deceased continued to quarrel, pris- oner alleging that the deceased was eavesdropping, and deceased deny- 1108 CRIMES AOAIN8T THE FER80N8 OF INDIVIDUALS. ing it all the while ; then they both went together fighting ; were not long engaged in a fight when they stopi)ed ; prisoner's so-callcH vrlfe called him into the house ; he went in, but remained (in the language of the witness) " absent but no time." Deceased was still iu the street ; witness wallced off ; heard deceased say that prisoner had killed him ; the parties were still close together ; deceased tV.en went home ; be was stabbed in tue left side ; it was about eight o'clock p. m. ami cloudy ; witness saw no knife ; deceased and prisoner were not friendly ; they did not visit. On her cross-examination the witness testified : At first the parties did not appear mad ; witness heard all the talk ; they made considerable fuss; heard prisoner say to deceased: "I will report you to the Mayor." J '.'>'tb, a daughter of the deceased, testified that when she went o'j ' •< ^e fighting ; she tried to get deceased home ; went between thuia aanx iiied to separate them ; deceased walked off ; prisoner said : "If you bit me again I will sicken you;" Mary Moore, prisoner's wife, Bu'A, " J..e+- »'-«^m fight," and pushed the prisoner to the deceased and thej^ wen), logech^r fighting; deceased jumped away and said, *' Charley has killed me; " deceased went home and fell in the door; he was stabbed in the left side and lived an hour and a half. Other witnesses were examined for the prosecution, but no new facts were elicited. The prisoner offered no evidence, but through his coun- sel asked his honor to charge the jury : — That if the jury are satisfied that the parties upon a sudden quarrel got into a fist fight, and the prisoner, before separation, gave the fatal stab, it would be manslaughter. That a mutual combat with fists is a legal provocation, and reduces a slaying by a deadly weapon (not shown to be unusual) to manslaughter. That the evidence discloses that there was not sufficient " cooling time" between the fights. Other instructions were asked, but as the case in this court turned upon the last, they are not necessary to an understanding of the decision. In answer to the last instructions, his honor charged the jury that if parties engage in any affray, or thet«) is other legal provocation, and they become separated, then if there is sufficient " cooling time," it will be murder ; that if one of two parties, after separation, goes off and then returns and again engages in an affray, then if there was sufficient time for the passions to cool, it would be murder. That it was the duty of the jury to apply these principles to the evi- dence, and if they were satisfied that the prisoner was guilty of murder, they should so find ; otherwise to find him guilty of manslaughter. LS. ig; were not io-calle(^ vvife the language i still in the ler had kUle<1 I went home ; ick p. m. and mot friendly; 8t the parties e considerable b you to the when she went went between prisoner said : ore, prisoner's lO the deceased way and said, U in the door ; talf. ut no new facts rough his coun- sudden quarrel ) gave the fatal a, and reduces a manslaughter. Hlcient " cooling his court turned rstanding of the the jury that if provocation, and ling time," itwUl on, goes off and lere was sufficient nciples to the evi- guilty of murder, laoslaughter. STATE V. MOORE. 1109 Verdict, guilty of murder. Rule for a new trial ; rule discharged. Judgment and appeal. Pumell, for prisoner. Attorney-General Hargrove, for the State. BoTDEN, J. We thinlc his honor erred in refusing the sixth prayer for specific instructions, to wit : That the evidence discloses that there was not sufficient cooling time between the fights. The whole testimony shows that there was a sudden quarrel resulting in blows with the fists ; that at length the combatants separated, and the evidence as to the length of time they were separated is first by the witness, Sarah Ann Davidson, witness for State, who says that *'the prisoner was absent but no time." William Smith, another witness for the State, testified that he saw the parties fighting ; deceased told wit- ness to go home, and witness started baclc ; prisoner and deceased had separated ; witness looked back and saw they were fighting again, then heard the deceased say that the prisoner had killed him. It is well settled in our State that the question of cooling time is a question of law to be decided by the court, and not a question for the jury. It is also settled that if such a question is left to the jury, and they decided the question as the court should have decided it, this error forms no cause for a new trial. So the question is distinctly raised : Does the evidence show that in law there was sufficient cooling time? The court here are of opinion that there was not sufficient cooling time. The two witnesses for the State, and the only ones that testified upon this question, state the fact that the prisoner was absent no time, in other words, the separation was so short that she could not compute the time ; and the other witness says the prisoner and the deceased were separated and deceased desired witness to go home ; that he started, that he looked back and they were again engaged in the fight. It seems to the court that this testimony does not show that there was a sufficient time during the separation for the passions excited by the fight to have subsided, and reason to have resumed its sway, and on this ground there must be a venire de novo. This renders it unnecessary to notice the^other questions made in the case. Peb Cubiak. Venire de novo. „i«SLiUOH«B-«SE O. DEADIT WEAPON. People v. Crowey. [56 Cal. 36.] to « an «nlawf "1 ac ^^^^^^ .^ ^^^^^^^ due caution or «lrc«m«pection ^8 co"rt r ^^^^^^^^^^^ erroneous. Whether the homicide amounts to mura Lrelydoes not depend upon ^^^ P^^^^^J.^^^^ln to kill at the kill. In either case there may be a present intentio ^^^^ ^^ moment of the commission of the act. B«*J^*'";J^^„ ^^^ of suffl- .truck in the heat of ^-f^^^^^l'^^^Z^,^, thetw, out of for- cient violence to wnount to udeqaitB P'"'*^" ^.'r^rd the actual ta- Lrance for .be -eata,e» o« '■um»J«^e. »•« *33e, although teut,«.d,mml»cetheoHcn«toB™Uughter^ in ^^^^ the intent U> Wl «i»«». " « ?" '''"'i'StuHcr " The., case. ,hich i. an c»en.id f -»' ■» ^t^'^rj o^^e "eapon u.ed that .ufflclenUy •'»•**'''' "fJJl'tutHU the p«.enl= or ab«.ce r«"^.r tr:::ee*"t:r;::» the cr.». ».«-».-' « "ut ci-»«i, .uh.hai.0. t^f •«trnr:ir».tu» i:,:^ s:^ tt i„.U.y the Jury In Hading the ««*■'*"' 8^*^^^ ' ^ ^„p„„ Jrder to th. «rBt or '»^^: ,^» S"^' Sent for », to ».y, „y opinion upon the evidence, and it .m M • ^.^j ,„ J, tlere wa. — «f ™- r't^^t^^ coXt', .hat ho.h .ide. not the aggreaBor ; that there WM «in ^^^ ^^ ^ „«d deadly weapon., "* ™™«J^,^^.''„,'„an.UughUr. give*. Jury, correct dtfmuonofttem „^„«,, .. th. ,nJU" -^^ - - -^^' *' '"°" "■"*'°'' '° " *"' iiiBtnictions. Judgment and order reversed. SHABPST.W, J., Md MTBioE, J., concurred. i48CaI.4Se. LS. STATE V. EMMERICH. 1118 Icr, yet snch quarrel and I some form ; , may be evi- b below was , bccaase the ion virtually el." e jury as fol- D murder and ;lon whatever, >ntional result nitted without rhis is clearly manslaughter f the intent to to kill at the mortal blow is jn and of sufD- iw, out of for- d the actual in- 1 case, although nalicious intent " These cases >apon used that ence or absence lanslaughter or hing in the case less degree than rpose to express nt for us to say, le defendant was that both sides y of the court to ftughter. assigned, as the ined in the above order reversed. manslaughter in first degree — attempt to commit abortion. State v. Emmerich. [1 W«st Rep. 780.] In the Supreme Court of Missouri, 1885. I. An Xndletment Ibr Xanalanvhtor in the flr»t degree, bronght under the Bevited Statutes o( Missouri i wliicii doei not ■■.JirKe tliat tliu killing whs done without » design to effect death, nor while the doer of I... act was engaged in the perpetration or attempt to perpetrate any erima orotisdemeanor not amounting to a felony, is Insufllclont. 3. An Zndlotmant brought under tee. 1241, for the crime of manslaughter in the first degree, perpetrated In the attempt to commit an abortion. Is bad, whore the descrlptlTO words " pregnant with a quick child " are not employed ; nor is it good under section 1368, which defines the crime of abortion; since that section, at the time of the criminal aet, did not apply to a ease where death ensued in consequence of the criminal act. Appeal from St. Louis Court of Appeals. Indictment for manslaughter in the first degree, in perpetrating the crime of abortion. The case is stated in the opinion of the court. B. O. Boone, Attorney-General, for appellant. The defendant attempted without a design to effect death, to produce abortion, and the death of the woman ensued from such attempt. This was murder at common law.^ The defendant was attempting to perpe- trate an offlense which in itself was a misdemeanor under our statute ; from his act a killing resulted which was murder at common law, and he was properly indicted under section 7,^ for manslaughter in the first degree. Chas. P. Jb John D. Johnson, for respondent. Under the indictment there could be no conviction of manslaughter^ either in the first or second degree.* The verdict should have been for a misdemeanor under section 84, ^ and not for manslaughter in the first or any other degree. To destroy or to attempt to destroy a " quick " unborn child is made a felony by our statute ; while to destroy or ta attempt to destroy an unborn child not '* quick," by way of abortion, is only a misdemeanor." In 1879, and in the Revised Statutes,^ they have amended section 34," by adding the following clause: "But if 1 sec. 1S38. 3 1 Hale's P. 0. (Ut Am. ed.), sees. 439, 430; Reg. V. Gaylor, 7 Cox. C. C, 9S3; 1 Whart. C. L. (8th ed.), sees. 316, WO; Whart Horn. (2d cd), sees. 41, 192; Com. «. Keeper ot PriBon,2 Ashm. (Penn.) 297; Com. v. Jack- son, IS aray, 187; State v. Moore, SO Iowa, 128. i p. 778, Qen. SUts. ; teo. 1338, Rev. State, « Wag. Stats., ch. 49, art. 3, sees. 9, 10, 84. • sec. 84, ch. 42, art. 3, Wag. State. • Wag. State., aece. 9, 10, 84, oh. 43, art. 3. ' see. 1268. • oh. 42, ark 3, of Wag. State. •MUD MMMP 1114 CUIMKS AOAIN8T THE PEHSONS OF INUIVIUU' LS. the .leatl. of such woman eu«ac from the means so employed, the person 1 nff.MulhiLr shall bo deemed guilty of manslaughter iu the secoiui Z; rut hows conclusively that when this all^g;^ -- -,; c S:Uted there was no punishment for it but nndej -^^^^^^^^^^^^^^^^^^ Wmrnor's Statutes, which made it a misdemeanor. If the ch Id had Dten ' ou ck ' aTresi^ondent had tried to destroy it by abortion and b-^ ki Utaud he mother too in the attempt, he could only have b of - uuick child " In law, see Wharton on Homicide,' Rennm v. Wii,« Burden of proving quickening U <>" ^^f '' J ' fourt is^Uo referred to the able opinion given in this case by B.KEW.... J. , of the Court of Appeals. » , .u .f Shehwood, J., deUveredthe opinion of the court. The indictment in this cause is as follows : — s». State of Missouki, City of St. Loiis, St. Loris Criminal Cuubt, March Term, 1S79. j , . .u u j «* Tlie grand jurors of the State of Missouri, within and for the bod' of the City of St. Louis, aforesaid, now here in court duly impa , fwor^ and charged uix,n their oath, present that Charles P. Lmr Me of St Lours City, aforesaid, on the 80th day of December 18. ., I th force and armsf in and upon the body of one Maggie Gibbons, a woman there and then pregnant and big with child, in the P-ce of « e Ce thou and there being, did willfully, feloniously and «nlawfuUy Late n ssault and then and there unlawfully and Jjlou.ously use and Znlov in and upon the body and womb of the said Maggie Gibbons, a Tr n^^nlr of hard substance, the nature and descript on whereo is to these grand jurors unknown, by then and there ^^^^'^'^fl^^'l' nir and forLg the said Instrument into :he private parts and womb of h! Z\A Slle Gibbons with the intent then and there and thereby to ;rrtraLtion or -^^^ f ^^^^^^^^ 1 see sec. W. oh. 42, art. a, W«g.8t»tt..aiMl ao the law stands to-day; tut sec. U41, »•▼• Stats. i p. 339. S 8 C. & P. 863. 4 pp. 353, 177, 278. • i p. 498. • 3 Camp. 74. 7 Evans ». People, 49 N. Y 86; Com. v. Thompson, 108 Mass. 461. • State V. Emmerich, 13 Mo. App. 493. LH. STATE V. KMMERICH. 1115 d, the person 11 the i4ecoiul 'd crime was section .^4 of iliildhad been rtion and l'"'' ily have b ) the meaniug ua V. Wyher- irisprudencc,* Stato.' 'IMu- by Bakewell, tor the bod- of uly irapa 3 P. EniP lecember, I84V, 5gie Gibbons, a he peace of the and unlawfully (uiously use and ggie Gibbons, a cription whereof iserting, thrust- rts and worab of and thereby to bbons, the same ;ie Gibbons, and the purpose, and 96 of saii instru- rles P. Emmerich 49 N. Y 86; Com. v. m. ;h, 13 Mo. App. 492. aforesaid, slic, the said Moggie Gibbons tlien and tliere became gravely wounded and mortally diseiisod of her Ijudy, and from tlio said 3 6 Gen. Stata., p. 7S1, seo 34., amended. aen.SteU.781. 1116 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. It is insisted by counsel for the State that the indictment is sufficient under section 1238,* which reads: — Sec. 1238. Manslaughter in the first degree. The killing of a hu- man being, without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the per- petration or attempt to perpetrate any crime or misdemeanor not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first de- gree.* An examination of this section will, however, readily show that the indictment was not framed or intended to be framed upon it ; and if it were so intended, it does not contain the constituent elements in that section set forth. It does not charge that the killing was done without a desigr. to effect death nor that it was done while the doer of the act was engaged in the perpetration cr attempt to perpetrate any crime or misdemeanor not amounting to a felony. These things may be inferred from the allegations made, but this will not answer ; this is no case for inferences. And although the grade of the offense specified in that section is mansiaughter in the first degree, and punishable by imprison- ment in the penitentiary, ^ and therefore a felony,^ it is nowhere charged in the indictment that the act itself which caused the death was feloniously done. It is true that it is alleged that the assault was made feloniously and that a eertain Instrument was used feloniously ; but it is nowhere charged that the thrusting, etc., of such instrument was feloniously done. This itself would be a fatal defect.^ There is no rule of criminal law more firmly established than that which requires an indictment bottomed on a statute to contain all these forms of expression ; those descriptive words, which will bring the de- fendant precisely within the definition of the statute." There are cases where a less degree of certainty will answer than in others ; where descriptive words are not used in defining the crime ; where words of equivalent import making the chaise certain to a certain extent will be sufficient ; but this case falls short of either standard. And there are cases where the pleader attempts to draft am indictment under one section and blunders into another; in such case the indictment may still charge an offense after rejecting surplusage.'' But this is not the case presented. All redundant words may be stricken out from the indictment and still there will not be enough left to make a valid indict- ment under section 1238. Nor will the indictment fare any better when 1 R«T. SUto. i Oen. StaU. p. 778, mo. 7. * Rev. SUU., MO. mi. * lb., HO. 1676, * SUte V. FflMtor, 38 Mo. SSt. • BUM V. Helm, e Mo. M3; SUte «. Bom SSMo.428. ' BU,;« o. Seward, 43 Mo. 206. DUALS. Dent is sufficient killing of a hu- ;, procurement or gaged in the per- nisdemeanor not fould be mujder in the first de- ily show that the upon it ; and if it it elements in that was done without the doer of the act trate any crime or gsmay be inferred this is no case for e specified in that lable bj* iroprison- is nowhere charged ath was feloniously us made feloniously ; but it is nowhere snt was feloniously jtablisbed than that 5 to contain all these I will bring the de- >o will answer than in defining the crime ; I certain to a certain of either standard. 1 draft am indictment icase the indictment le.'' But this is not tricken out from the make a valid indict- f «re any better when tor, as Mo. 8M. 1, 6 Mo. 843; StaWV.BOM, ird. 43 Mo. SOe. COMMONWEALTH V. FITCHBUHG R. CO. 1117 examined by the light of the other sections already quoted. It is bad under section 1241,i because the descriptive words : " pregnant with a quick child ' ' are not employed. Nor is the indictment good under sec- tion 12G8, since that section at the time of the commission of thecrimi- nal act did not apply to cases where death ensued in consequence of such act. 1 u It follows that the defendant was improperly convicted of manslaugh- ter in the first degree, and would have been improperly convicted of any deo-ree of that offense, as the indictment is insufficient viewed in any li^ht or from any standpoint. I regret to be compelled to arrive at this conclusion, as thisrecoTd is stained with a crime most atrociously cruel and brutal. . . • j It only remains to say that the judgment of the Court of Appeals and its order discharging the defendant are affirmed. All concur except Henbt, C. J., who dissents. MANSLAUGHTER- RAILROAD COMPANY -NEGLIGENCR. Commonwealth v. Fitchbcro R. Co. [120 Mass. 873.] In the Supreme Judicial Court of Maasachuaett$, 1S79. 1 Wh.N an Indlotment charges a lingle offense in eeTeral countt as commltwi to ^flewn" ay "nconsistent with each olher. a general venllct .honld be "t«'f^« «««»» ?hrwLleindi;tment.a.fora.lngleoffeu.e.oraverdlctolguiUyupon*^^^^^^ It either U proved, and not guilty upon all the other. ; and it is a mistrial to allow me JaS to rlrn a virdict of Juiltyupon each count; and.if such a v''-'"'/' '«*«"J t^V gOTernment Is not enUUed to enter a noH. protevU a. to all the counts but one. and retain the verdict as to that count. 2 Th. De«M of KwUgenc. on the Part of the servants of a railroad corporation ^uSSSTb^prowd^an indictment under the General 8t.tnte..« is not changed by I^^tuto of lEand. on an indictment under the Utter statute, if negligence of the secants of the co^poratt^n Is relied on. gross negligence must be averred and proved. , T* T..ii«»«.«n« AjMlBBt a Ballr'w^ corporation under the General Statutes,* and "?.SS:^mi.^-ot .SSSthe^eglect on the par. of t^e corporatlonto ilv/meXaU required by law contributed to the death of the per«.n kiU.d. evidw-. of such neglect is inadmissible. 1 supra. < elt. 6S, see. 98. tolkSSl. « ch. 6S. sec *eb.sas. „a AnATN'ST THE PERSON8 OF INDIVIDUALS. 1118 CRIMES AGAINST inb ri^n „te of 1871,-^ to recover for the us « the -clow ^^^^ ^^^^ ^^^ ^^^^^ Keniston, a fine, by reason of ^J^^ of cars, of tbe defenaant, at T^::^^^^^::^^^!^^^ ^ai^oaa .osses Par. of Massachusetts, - ^^^^J ^^^St ^^^^^^^^^^ this Common- Company, a corporaUon d«ly j;^^^^^^^^^^^ ^^ pel engines and cars, wealth, and dnly authomed lf'^^^^^l\ \^ railroad thereafter by the power of steam, along, ovei and upo ^^^^ ^^^^^ ^^^ described, was on the seventh day -l^'^^^'J^,',,^ j,, the owner of thousand eight huncked and -v-^J^^^^^^^^^^ ^U,^, i^ the county of a certain railroad leadmg and extendmg^^^^^^^^^ ^^ ^^^ Suffolk in this Comnionwea th to a„ci «,^o^^^^^ ^^ ^^^^ j^ f,,u in this said county of Mi< cl ese, t" ^ raUroad, and was a common occupation, possession and use of ^?^ ^J"^^ and merchan- carrier, over, along and upon ^^^ '-^J^^f^^^^^^^^ i„ such posses- aise, and that said l^^^^^j;^^!^^^^^^^ ^'"'^'^ «ion,useandoccupat.onof s^draUro^^^^^ ^^^^ ^^.^^ ^^^^^ ,„ at SomerviUe aforesaid, by f^^^J^^^^ the business of said corpora. 1 .1, «3 aec 98: ■• If by reason ol the neg- engine, or «'»""'"'*",„„ of a public way ryrr1rrn'rnaVedand^x.y.^^^ ehown that, m addition " « mere '^^^^^^^^ a^wra^hSof theLuulon. gv.Uy of LTor wUlful negligence, or was acting U^ltlon oftuelaw.andthat Buch gTo« or wlUlul negligence or unlawful act con rii'un^e of al least eighty -d' '-« J* nlace where the road oroBaea a turnpike, Sghwryor townway.uvon the Bame level lacb bell Bh.U be -"« "'other oTnttB" .ounded. either one »' »f« "j,»,^*;;!^„, "a. r;Ld\"rsrrortra,eiea place." and the stat- ren of Charles leing run o'vcr defenuant, at crosses Park Commonwealth iburg Railroad this Common- igines and cars, road thereafter f our Lord, one 3, the owner of in the county of r of Somerville, ras then in full was a common irs and merchan- il in such posses- enthday of May, ley being there to 3s of said corpora. e were legally en- on to a mere want of lenon injured, or the 1 ol his person or prep- of the coUislon, guilty gUgence, or was acting w, and that such grosi B or unlawful act con- f." lec.l: " Every railroad juso a bell, of at least n weight, and a steam )d on each locomotive I its road ; and such bell ich whistle sounded at Mt eighty rods from the tad crosses a, turnpllie, ly, upon the same level like manner when the ivelod place, over which Hired to be maintained, ion eighty-five ol chapter 1 General Statutes; and I rung or such whistle le or the other, oontlnu- ly, until the engine has nplke. way or traveled COMMONWEALTH V. FITCHBURO R. CO. 1119 gaged in the business of said corporation, run, propel and drive by the power of steani. a certain locomotive engine over,along and upon said rail- aiid that by reason of the unfitness and gross negligence and carelessness of said servants and agents, while engaged in said business as aforesaid, said engine was then and there run, propelled and driven as aforesaid, rashly and without watch, care or foresight, and with great, unusual, unreason* able and improper speed, and that the said engine then and there was, by reason of such unfitness and gross negligence and carelvy said Fitchburg Railroad Com[)any has become liable to a fine not exceeding five thousand dollai-s, nor less than five hundred dollars, to be recovered by indictment, and to be paid to tlic executor or ad- ministrator of said Charles Keniston, for the use of the widow and children of said Charles Keniston ; and that Eliza Keniston, of said Somerville, widow of said Charles Keniston, has been duly appointed, and now is the administratrix of the goods and estate of said Chailes Iveniston and tuat said Charles Keniston had at the said time of his decease two lawfully begotten children, both of whom are now living. Against the peace of said Commonwealth, and contrary to the farm of the statute in such case made and provided." The third count was as follows : — "And the jurors aforesaid, for the Commonwealth of Massachusetts, on t'leir oath aforesaid ; do further present that the Fitchburg Railroad C )mpany, a corporation duly and legally established in this Common- wealth, and duly authorized and empowered to propel engines and cars, Ity the power of steam, along, over and upon the railroad, hereinafter described, was on the seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, and still is, the owner of a certain railroad leading and extending from Boston in the county of Suffolk, in this Commonwealth, to and through the city of Somer- ville, in this said county of Middlesex, and further, and was then in full occupation, possession and use of said railroad, and was a common carrier over, along and upon said railroad of passengers and merchan- dise, and that said railroad, in its line and course in and through said Somerville, then ci'ossed and intersected, as now it does, a certain public townway of said Somerville, frequented by and open to all the good citizens of this Commonwealth, called and commonly known as Park Street, at the same level with said townway ; that said corpora- tion was then and there bound and required by law to give warning of llio approach and passage of every locomotive engine there passing upon said railroad, by either ringing a bell or sounding a whistle from or upon such engine, giving either one of said signals continuously, or the one or the other alternately without cessation, during the passage of 8 Defences. 71 1122 CRIME8 AGAINST THE PERSONS OF INDIVIDUALS. riUe, -.M traveling over, .long and u„on . ul to»™.y. bem ^^ tor. seated in Lis carriage, and I""" " '" °;'°;, „d co neided point of said «.y «l.ereat -« -'2' *;:, ^w." as aforesaid, :::rr i:r,a:.:irrnd"^ ^^^^ toy being thereto directed a,^ tang ton . d* re^ J,/,„„„,^, business of »-V?''rT»;er of stea^" cerUi" loeOMOtlve engine drive and propel, by ^J^^^J J^'^J' ,,, „ore than eighty rods along, over and ui»n said radroad, tro^n 1 townw.y, r trrntthrs:rrrro"S':n7;'ai7t:»n.ay the„ and there in- at said pomt 7'^«'^7 ^j.^ ,,eii provided for said engine said ^orvo^^^^j^l^l^yj^^^ warning, "'V rLT no bdl : e'nld theil rung, and no whistle was then :fd\Irrsou"^ed during said passage over said space of eighty rods; t !k t iTKeniston being so lawfully traveling upon said way, as and that said ^emst^n bemg J ^^ ^,^^ ^^^^^^^^^ ,, aforesaid and not ^^g then ^^^^^ J^^ ^^^^^ ^^ ^^.^^^ ^^ ^ said engine, - the said en i , s ^^.^ ^^. ^^^^ ^^ ^.^^ and unusual speed, did t^^'^'^^d there, by r ^^^,^^ ^^^ ^^^^ said warning '^J'^'^''^ ^^ l^2rZle Zng drawn and traveling as ':^tr, irKtr.rrn: aLld t^ne », said eoUision gniUy LS. (ursc of such •oad and said f 3aid Somer- ing then and and upon the ind coincided as aforesaid, iway, and was lation of law ; its and agents, ;ngaged in the said business, motive engine in eiglity rods said townway, 11 and there in- or said engine of said engine course toward, whistle upon, iiuously during •n«ng given by t such bell and ion of warning, vhistle was then of eighty rods ; )on said way, as the approach of driven at a great d failure to give y strike and col- and traveling as lises, wounds and ton, whereof he, the jurors afore- ston, on tlie said lusand eiglit hun- srson and thereby corporation pass- at the same level Bsaid, to give the ed to said injuries lid collision guilty COMMONWEALTH V. FITCHBURO R. CO. 1123 of gross or willful negligence nor then acting in violation of law, nor contributing in any way, either by gross or willful negligence or by any unlawful act to such collision or injury whereby said corporation has become liable to pay a fine not exceeding five thousand dollars, nor less than five hundred d(tllars, to be recovered by indictment and to be paid to the executor or administrator of said Charles Keniston, for the widow and children of said Charles Keniston ; and that Eliza Keniston, of said Somcrville, widow of said Charles Keniston, lias been duly ap- pointed, and now is, the administratrix of the goods and estate of said Charies Keniston, and that said Charles Keniston had at the said time of his decease two lawlully begotten children, both of whom are now living. Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided." Trial in the Superior Court, before Alduicii, J., who allowed a bill of exceptions, which after stating that Keniston was killed at the time and place mentioned in the indictment, by a locomotive engine of the defendant, and that there was evidence that the said engine was going at great and unusual speed, and that no bell or whistle was heard by those near the place of the accident, at the time the locomotive engine approached and passed the crossing, set forth the evidence on the ques- tion of due care on the part of the deceased, and the evidence on th« question whether Park Street had been established as a public way (which is omitted as immaterial to the point decided), and proceeded as follows : — The judge instructed the jury that before they would be authoriztd to convict the defendant, upon the first count, they must be convinced by the evidence beyond every reasonable doubt that Keniston, at the time he lost his life was in the exercise of due diligence, f»nd that his life was lost by reason of the gross carelessness and negligence of the servants of the defendant corporation ; that the instrument contained no charge of negligence or carelessness on the part of the corporation itself or of unfitness on the part of his servants, and that therefore the jury, before they could convict on the first count must find that the gross carelessness or gross negligence of .the servants of the corpora- tion was the sole cause of the death of Keniston, and that his want of due diligence in no manner contributed to his death, that if they enter- tained a reasonable doubt as to the afflmative proof of either of these propositions they should return a verdict of not guilty upon the first count, and that the burden of proof in support of both of the fore- going propositions was upon the [)rosecution. In relation to the second and third counts, the jury were instructed that if they should be satisfied beyond a reasonable doubt, upon all the evidence, that the corporation did not give the signals required by the 1124 CRIMES AUA1N8T THE rEB«>K« OT ,»mV.D«ALS. corUuo,> to eWo B»i.l signal. 7"' '';;^\;1': :, ,,,„,,,., u*» H?,,,^,,. „r „n,aw,„, «- -^rl .V': ^ oJ'lu count .„. The iu,y mTO lUreeteil to ";""" '° „. ,„ „ ,„ji„t „, guilty on eaul, ,.,ely »hiel. tUey dM -•»'^';°B^' " ^ mWI exception,. The case was argued at tbe bar, ami w written arguments. defemlant. G. A. SomUery an. ^^-f-^! ;;7'j;^. ^d,^, with them), lor the Commonwealth. po,,tained five counts, and, as Louu, J. The imlictment m t^"« -^^/^'f J^^^^ ^„,„,,, .ui^ough it appears by the bill of exce,. urns, ^ ^ /- *»^^^^^^^^^^ :„„, ,,, aifferent is not alleged, as somet.mcs ,t , that tUe >ar ^^^^ .^^.^^ modes of cl'^'g^'g <''« ^*™^ "**'"'"\ j jem^^^^^^ i„ different counts this Commonwealth to cl.aj-ver^^ of the same ind.ctmen , -^ ^o^^^ ^ , ^^..,, ,,, ,,.„« effect as if a aev iral eount», in tlio same maiui .iianre It lias also sep,.r„to indictment ha.1 been "=""•"«'! "l"'"'""'' *Xge. , a, com- Je„lou,e,tabUabea tl,at •^'<^"'r^::^^ZX^'>^ <»«"'« evidence is applicable. person named The first count charges generally a »^'"*"S of the P crossing at grade of a highway in feomerviUe, by reason °i;rt« count .3 - - -- r»zi e-r.: 1 ch. 81, Bee. 1. L8. COMMONWEALTH V. FITCHBURO K. CO. 1125 jHry),an{l if le part of the f Keniston's junta, unless on to tt mere it ti;e time of ir willful neg OS9 or willful lb count sepa- guilty ou each tions. ibmittcd upon them), for the jounts, and, as ise, although it ts ftrc different the practice in lifferent counts ments upon the 3 effect as if a re. It has also larged, as cora- k-arious distinct ;uilty upon such a single offense, ent to which the 3 person named gross negligence of a locomotive ly collision at the ason of the same id, either by the ts, by collision at md that it was by reason of neglect of the servants and agents in charge to ring the bell or sound the whistle upon api)roaching said crossing as required by law. It is not necessary to refer to the other counts, as there was a ver- dict of not guilty upon them. The jury relumed a verdict of guilty upon each of the first three counts, 'i'lie court are all of opinion that tliis must be deemed to have been a mistrial. But one offense was ciiarged, and tiio jury should have been instructed to return a general verdict of guilty or not guilty, upon the whole indictment as for a single offense, which would have been in conformity with the long and well established practice in this Commonwealth, or they should have been instructed to return a verdict of guilty upon the count proved, if either was proved, and not guilty upon all the others. As the record now stands, the defendant coipora- tion was charged with five distinct misdemeanors, of three of which it was found guilty and of two of which it was found not guilty. The bill of exceptions, however, shows that but one offense was committed and it is suggested, that a voile lyroaequi may be entered as to two of the counts and judgment upon the other. It is obvious that inasmuch as the several counts may be supported by different evidence, and as they are, at least to some extent, inconsistent with each other, it is impos- sible to determine which was proved, it being certain that all could not have been. The verdict must therefore be set aside. Several questions were raised at the argument upon the sufficiency of the several counts of the indictment in the matter of form. In refer- ence to the first count, whether it is sufficient in form, and, if not, whether the objection was oi)en at the time of the trial, appear to the court upon consideration to be questions of much difficulty ; and as a new trial must be had upon other grounds, in the course of which these questions may not be material, no opinion is expressed upon it. As to the third count, it does not allege gross negligence upon the part of the servants of the corporation, except by implication. It charges that the death of the party was caused by the neglect of the servants to ring the bell or sound the whistle, but it does not charge that such neglect was gross negligence on the part of the servants. The learned judge who presided at the trial correctly instructed the jury, that inasmuch as the first count of the indictment contained no charge of negligence on the part of the corporation or of unfitness of its servants, that count could be sustained only by proof of gross neg- ligence by its servants. Suck gross negligence must be averred if re- lied on. Mere neglect to ring the bell or sound the whistle may be the act either of the servant or of the corporation. If it be a corporate act, one done under the direction of the corporation, it is an act for 1126 CRIMES AGAINST TlIK PERSONS OP INDIVIDUALS. ■^n'tllnalTrS^tSwon U cUnrgc.. U, have been .t ™ no chanre that the bell wi» not rung or tbe wlurtlo sounde. . lUe ;," , eSuou. reports a- in,tr,.cUon given upon the ■e-"" «»- 2w.,.l .« think must have been admitted by inadvertence. The rasti iii. r tr tb« H the ory were satisflert that the neglect on the part of was not in fault according to th« meamng of the law. But the count did not aver the neglect. Exceptions austaintd. MANSLAUGHTEB-BAILttOAD CORPORATION - KILLING PASSENGER. Commonwealth v. Fitchbuuo R. Co. [120 Mas>8. 472.] In the Supreme Judicial Court of Masmchusetts, 1879. . . * - v.iiwtB^ rornoratlon under the Miusachuietto L Under An Indiot«.nt f,'^'*^* J^^S^e She ser.anU » of ihe corporation Statutes which alleges as the only «^'"' "J"f°"^7ch,care or foresight, and with great. ran a locomotlye engine -rashly "»^ ;*'"';^' Jj^'J'^^^^^^^ to show that the 8 Gen. Stats, ch. 68, sec. 98; Stat. 1871. ch. 1 ch. 88S. , jgjj gge the provtslont in full, aii««i p. * eh. 81. 4 ch. 68, sec. 98. COMMONWEALTH U. FITCHBUKO K. CO. 1127 ILS. dictment. H e corporation t is not neces- ent. If, liow- iCi\:int9 acting I scope of thfir lUst be charged erhaps entirely iippo8ed by the lense, so fur ns whether or not conduct of the to have been at '3 railroad there I sounded. Tlie le second count je. The instruc- ct on tlie part of ite of 1862,'' con- arized to find the the person killed But the second iions sustained. .INQ PA8SEWGEB. Co. etts, 1879. inder the Maesachusetto vanta » ol the corporation :orealght,and with great, missible to show that the le whistle. ral Statntea,* charging the relesineiB of lt« aerrantt . 63, sec. 98; Stot. 1871, ch. ialona in fall, tmU, p. while engaged in Its businosB, by vuniilng ii locomotlTO engine with groiil, iinuitunl. unrc»8onal>lo iind Improper op ud, l8 ncil nuHtnlnod by i>ri><>f tlial ill Uiu liiin^ t.l the Isill- ins, H'u ontrliio whs run nt ii liJKh riilo of npoud, In the iibsenco of eviUenoo tlial the servants in so ilolng wore acting In violalUm of their duly. ^ 8. If a Jury has once been Impaneled in a criminal case, it is loo late to move to quash the Indictment for formal defects apparent on lis face, althoHgh tho motion Is mad* beforo the Impaneling of the jury for a now trial of the ease, the former verdict having been set aside. Indictment on the General Statutes,' and tlio Statute of 1871,' to recover, for the use of tho widow and children of said Charles Ken- iston, a fine, by reason of the loss of his life, from being run over on May 7, 1874, by a locomotive engine and train of cars of the defend- ant, at a place in Somerville, where the defendant railroad crosses Park Street, so-called, at grade. Tho first and second count of the indictment, upon which alone the case was tried, a nolle prosequi having been entered as to the third count, are given in full in the report of tho case at a former stage ; ^ and the material parts of them are stated in the opinion. After the former decision, and before the jury were impaneled, the defendant filed in the Superior Court two motions to quash tho indict- ment. Pitman, J., overruled the motions. The case was then tried, the jury returned a verdict of guilty, and the defendant alleged excep- tions, the substance of which appears in the opinion. O. A. Somerby and W. S. Stearns, for the defendant. T. II. Sweetser and O. S. Knapp (J. D. Adams, with them), for the Commonwealth. MoKTON, J. The first count of the indictment charges the killing of the person named therein, within the city of Somerville, by reason of the unfitness and gross negligence and carelessness of the servants of the defendant while engaged in its business. The negligence alleged is that the servants who were running an engine, ran it " rashly, and without watch, care or foresight, and with great, unusual, unreasonable and improper speed." The second count varies f i-om the first only in charging that the killing was by a collision at the crossing at grade of a public highway in Somerville, called Park Street. Neither count alleges any negligence of the corporation; neither count alleges as negligence of the servants that they did not ring the bell or sound the whistle, as required to do at grade crossings ; or that they did not seasonably close the gate at the crossing. Upon these last points evidence was admitted at the trial, and it was competent upon the issue whether the person killed was using due care ; but it was not competent and could not be considered by the jury upon tho issue ch. AS, arc. 98. 1 ch. SBS. SiaOMaM.Sn. 1128 CRIMES AOAIN8T THE PER.SON8 OF INDIVIDUALS. of tho gross negligence of tlie servants of tlie defondnnt. Tlie only negligence siilllcicntly cluirgod is that the servants ran tlie engine witli great, iuuisuhI, uiircasonal)le and imiiroper speed. Tlio addition of the words "rashly and without watch, care or foresight," can not enlarge the allegation so as to make it eciiiivalent to an averment that the servants neglected to ring the liell or sound tiic whistle. It does jiot inform the defendant with reasonable certainty that sucii negligence is intended to l»o charged. It does not follow tliat the indictment is to be quashed. It contains the substantive allegation that the servants of the defendant ran the engine with unreasonalilo and improper speed ; mid no objection to the generality' of the allegation having been reasonably taken, if the government can prove that such servants, in violation of their dntv, ran the engine at great speed, under circumstances which made hucIi running gross negligonce on their part, a verdict of guilty might be justifiable, althoiigh such 8er\'ants rang the bell and sounded the whistle, or although they were not required to do either. But the government is confined in its proofs to the allegations of the indict- ment, and having alleged one act of negligence, can not claim a ver- dict upon proof of another act not alleged. We are thus brought to the question whether, upon such of the evi- dence in this case as was competent to bo considered by tho jury, their verdict was justifial)le. The bill of exceptions purports to state all the evidence material to the exceptions. Upon a careful examination of this evidence, we flml that all the competent evion this issue, e engine were '^as no compe- le servants of ailega- it fails to iiicii appears et of th'' ser- kid, cou. 1 not ire both made COMMONWKALTH V. BOSTON A MAINK R. CO. 1129 after a jury had been sworn in the Superior Court, and the objections to tlie indictment are for formal defects apparent on the face thereof. We are, therefore, of oi)inion that they were riglitly overruled. As the view we have taken ai.i)lies equally to the firnt and second counts, it is not noeossury to discuss the (juestion whetlier there was evidence of the establishment of Park Street as a pu»)lic highway. Exceptiona austained. MANSLAUGHTER -NEGLIOKNCE OF SERVANTS OF RAILROAD - NEG- LIGENCE OF RAILROAD. Commonwealth v. Boston & Maine R. Co. [133 Mass. 383.] In the Supreme Judicial Court of Massachuaetta, 1882. A- T.rfintment Asainat a Sallroad corporAtlon under the Massachusetts SUtuto ol ^1^4 ' °or"ming a ,m^^^^^^ that the death was caused by the failure of ho CorS t,^ reduce the rate of speed of o..e of It. engines and to g've -rt.ln lignaU. U «it .npported by proof that the Heryant. of the corporation neglected to do so. Indictment in four courts, on tlie statute of 1874,no recover, for the use of tlie widow and only child of Sherburne T. Sanborn, a fine, by reason of the loss of bis life, from being run over on September 22, 1880, at a place in Wilmington, where the defendant's railroad crosses a highway at grade. At the trial in the Superior Court, before Gardner, J., the judge sub- mitted tlie case to the jury upon the third and fourth counts only. > Tcneral verdict of guilty on these counts was returned ; and the de- fendant alleged exceptions, the substance of which appears in the opinion. , , - , i. D. S. Richardson and O. F. Richardson, for the defendant. W. Gaston and L. J. Elder, for the Commonwealth. C. Allen, J. The first question to be considered in this case is, whether the'third court of the indictment is good in Itself, or is sup- ported by the evidence. The court in substance charges that at a cer- tain place the railroad crossed a highway upon the same level ; that one Sanborn was traveling on the highway, and in the exercise of due dili- crence; the locomotive engine attached to a freight train was passing the place of intersection; that a locomotive engine was coming in the 1 St 1864, ch. 250, sec. 1; Com. ». Brig- bam, iOd Mass. 457. ' ch. 372, sec. 163. > cb. 372, sees. 163, 164. ^k^.^i*M^ai 1130 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. . V f!«n . tl.-iL while the corporation was thus running the opposite direction; that wmle tne ^ J the corporation, when last named locomotive engine it ^^^.^^^.^^^y^J^.'^^fp^^^iUon if said '"Thfs'cornt is founded on the statute of 1874,' which imposes a penalty or of anv person being in the exercse 01 due aui^.i.L , o or Of any pti „ emulovment of said corporation, is lost. The of these statutes the ne„^g^^^^^^^^^^^^^ ^^^ corporation rf* id ^ottr arts "'order to make the corporation punishable cases winch are loportea, wuor^ h„^„ o„(i Worcesler either of tbese statutes. In Commonwealth y. Boam ana yro t^a.' the indictmeut, ^Uoh «as .ounded "P°" f""" '„; .i'^^n- road." The indictment in Commonweartft v. East Boston Ferry i.om 1 ch. 372, nec. 163. t ch. 80. 3 ch. 63, sec 97. 1 ch. iU, ieo. 1. * cb. 63, see. 98. • 11 0'i8b. 613. T ch. 80. 8 10 Allen, 189. » ch. 63, sec. 98. 10 106 Mass. 7. U ch. 63, see. 97. U 120 Mass. 373. U 136 UmB. 61. 'li^tHJ-i f-nflSt*-' ^ [DUALS. thus running the corporation, when e position of said reduce its rate of it the corporation an over and killed . imposes a penalty carelessness, or of servants or agents being a passenger nee, and not being tion, is lost. The ness or gross neg- e corporation, but E liability to indict- i upon this subject. >f a passenger were se respecting liabil- , were the statute of a were blended to- ; is framed. In all servants or agents of the corporation poration punishable iserved in all of the I been founded upon mton and Worcester I the statute-' 1840,' ts aud agents in run- laib-oad,^ the indict- js,^ contained similar sachusetts Bailroad,^'^ [ Statutes," contained in Covimonwealth v. ston and Lowell Rail- H Boston Ferry Com- B. 98. f3. L. COMMONWEALTH V. BOSTON & MAINE R. CO. 1131 pany » which was founded upon the General Statutes," imposing a similar liability upon other carriers under like circumstances, set forth that tlie loss of life occurred through the negligence of the corporation itself, in not providing a suitable drop connected with the landing place, for passengers on the boats of the corporation. It thus appearing that there is a distinction between the negligence or carelessness of the corporation itself, and the gross negligence or carelessness of its servants or agents whib engaged in its business, it becomos necessary in framing an indictment, to select and set forth with accuracy the ground which is to be relied on. The negligence of the corporation itself is one thing, and the gross negligence of its ser- vants or agents is another thing, and an averment of one is not sup- ported by proof of the other. In many cases, it is true that, as a corporation usually acts by agents, an averment of neglignce on the part of a corporation may be supported by proof of negligence on the part of its agents. But this is not applicable to a liability imposed by statute which expressly distinguishes between the grounds of liability as does the statute now under consideration. In such a case as the present, negligence on the part of the corporation can not be estab- tablished by showing negligence on the part of its servants or agents and by invoking the aid of a presumption that their negligence must be presumed to have been in pursuance of orders of the corporation itself. The statute makes a plain distinction ; the pleader selects the ground on which the liability of the defendant is to be made to rest ; a lina of precedents recognizes and illustrates the distinction between the two grounds ; and to allow the pleader to select the negligence of the corporation itself as the ground on which its liability is to be main- tained, and to support it by proving merely the negligence of servants or agents, and by asking a court or jury to infer the existence of negli- gence on the part of the corporation from mere proof of negligence on the part of its servants or agents, would be to obliterate the distinction expressed in the statute, and to depart from the comraon rule of pleading.3 Looking at the third count of this indictment in the light of these principles, we are of opinion not oniy that it was unsupported by the evidence in the case, but that it is not a good count in itself . There was no proof, and there is no averment, that the corporation, by gen- eral rule or otherwise had given to its servants or agents any instruc- tions which were improper or unsuitable, or had so far failed to give proper and suitable instructions that the omission could justly be attri- buted to it as negligence ; but the evidence, and, by fair implication, 1 18 Allen, 589. I oil. 160, ■•& 84. s See Com. «. Fltehbnrg BaUroMl, 198 Mms. t7S. ^^—^^^^a^tm .«.INST THE PEU80N8 OF INDIVIDUALS. 1132 CRIMES AGAINST TH«- _^^ ^^ ,,e avcment show tbat ^Ue -f ^X'^tc^^^^^^^^^^ r. hat ought ^--^^Hs Ts'^o^^^^^^^^ *r-"CeTs particular o^'^^^^"" ' ^^^'Vlht trai^ at a highway crossing. There « unexpectedly meeting a ^^^'g^^J^^'J^^^ the rate of speed for either of no averment that the ^^^P^^" ^^^^^^^^ tb . trains as it was run ; or that, ^'^l^f'^"^^^^ ,^ .^eet at that place ; t'Jorporation, the trains - -f ^^^^;^^^^^ aud that it was the or tlmt such an emergency was l.Kely ^^^^^^^^ i,y suitable rules duty of the corporation to ™f^« ^l^, ..a that this corporation had or instructions to its ^.'^^-f; « ^f^f^; that the corporation, m view Neglected to do its duty m t^"* 'Xus'power to re^luce the speed of the of the special emergency, l^'^*^. ^^ ^^j^^ ^r that the corporation ought ;lrTcuJr train or to f^^'^^^o^.,. for the betteM^ro- to have provided a gate or flag°>»" of ne^rligence is simply that it tec on of travelers, but the ----^Xlof ,« l--^^^ *>' *^" *"^'' las the duty of the co^P^f ^«;' ^" X passenger train, and to give Iraiu, to reduce the rate f ^^^^^ ngl^-e wh'^h is specified issim- proper signals and -rmngs. The „eg g ^^^ ^^^^ .^ ^ .^^ , ply the neglect to do what ««Sht to u ^^^ ,^ee of the emei-ency. These acts of '''^^'"^^^^,^^^^^^ „d Ime/t to be acts of «- -7.XX„ey called for a reduction not of the corporation it.eW. « ^« ^ ^f^ J, earnings, there »n^ of speed, and the gmng of «P^"*J f ^^ j^, servants or agents to presumption that the -rp-a ^^^^^^^^^^^^ „„d warnings-, but i^^« Lke such reduction, or to 8-^ ;; ;,,ts, if such omission existed plain that the omission to do such i I ^^^^^^^ ^^ ^^^^.^ „ so, in \oM prima facie be *^'"^"*;^'' * ^ for their negligence, U nrrler to hold Che corporation respon that such neg- :^ddblecessary,underthestatute,toave^^^^^^^^ ^^.^^^ ^^^^ ^g nee was gross. J.. ^'^^^^J^^:;^:,,^,. arespecified in the third onlv such acts of negligence or «»»«7'"r negligence or careless- : fntmust either charge themasactsog^^^^^^^^^ ,, ^t nessonthepart of ^^JfJ ^ ^ e«ect to m^ corporation ,et forth other facts which ^'^^ ^* carelefisness. responsible as for its own BegUgence or c ^^ ^^^^ ,^to the Tf , passing from the averment of th« ^^^ ,t appears, that m evidence by which it was «°"g^* ^''J' 'Xted to meet at the place point of fact, the two ^^^^^ 7'ZX^7^^^-ot\nr.^ ^« «'°^ '"'' '""^ There the loss of life occurred, '^^^ '^'Jj ^^,^,, to reduce the speed lorporation was -spo-ible * or t^-^«^^^^^^^ ^^^„j„g,, ,,eept the evi- JALS. lie omission to jurastances of a passenger train ssing. There is eed for eitlier of or time-tables of [■t at tliat place ; ad that it was the by suitable rules 3 corporation had rporatioii, in view e the speed of the Borporation ought :or the better pro- is simply that it tion of the freight train, and to give is specified is sim- 1 view of a present n the face of the lie corporation, and lied for a reduction arning8,therei9no (rants or agents to warnings ; but it is ch omission existed, ar agents. If so, in their negligence, it prove that such neg- it, which sets forth specified in the third gligence or careless- corporation, or must make the corporation unt, we look 'nto the id, it appears, that in to meet at the place jthing to show that the re to reduce the speed rnings, except the evi- lose acts on the part of COMMONWEALTH V. HARTWKLL. 1133 ts servants and agents, and the reference sought to be drawn from such omission. It was suggested in the brief for the Commonwealth, that no motion was made to quash the indictment for informality, and that under tlie statute of 18G4,i it was too U've, upon the trial of the case, to raise tlie objection to this court. Under that statute, an objection for a formal defect, apparent on the face of the indictment, must be taken before tlie jury has been sworn. The objection to this court is not of that charac- ter. There is nothing on tae face of this count which would enable the court, on inspection thereof, to determine what shouM be added or changed, to meet tlie _case intended to be relied on. The statute on which the count is founded allows two kinds of negligence to be set forth ; negligence of tlie corporation, and gross nogligcnce of its ser- vants or agents. Apparently, the pleader intended to rely on the former ; and in that case, it is necessary to aver some substantive additional facts, in order to show such liability. If, however, the negligence of servants or agents of the corporation was intended to be relied on, the oinissioa of a direct charge that there was gross negligence or circum- stances on their part can not be considered as merely formal. In either case the objection w^s well taken ft the trial. manslaughter — clonductob of railroad train. Commonwealth v. Hartwell. [128 Mass. ^15; 35 Am. Rep. 391.] Ill the Supreme Judicial Court of Massachusetts, 1880, Tha Prisoner, a Conductor of a Freight Train, •s'»« indictee! for manslanghtBr. The indictment clmrgcd Ihut the prisoner negligently omitted wliilo crossing with his train from the outward track of the road across the inward track to a side track, and again across the inward to the outward track, to ^ ^nd forward any t ignal to warn the driver of a passenger train which the prisoner well .i;?w wa» due and about to arrive at that part of said railroad, whereby said passenger tram collided with the prisoner's train, caut^ing the death of a passenger. There was no proof given on the trial that the prisoner knew of the approach of the passenger train. J7«{""*«> arrive at the Wollaston Station. On tlie contrary, it appeared by the evidence that he then understood it was in Boston, and stated to his engineer before he left Boston that it had arrived. Amon- other instructions requested, the defendant asked the court to rule, that the averment that Hartwell well knew that a certain tram u was then and there lawfully traveling and being propelled on and along the said inward track of said railroad, and was then due and about to arrive at that part of said railroad in Quincy aforesaid, near the Wollaston Station aforesaid," was a material averment, which must but proved by the Commonwealth, and there was no evidence in the case to support that averment. , . •■ j u *».„ The court declined to give this ruling; and it is contended by the Government that this averment need not be proved as laid, but can be rejected as surplusage. But we are of opinion that '.he ruling should have been given, and that the defendant's exceptions on this point must be sustained. , The precise question is whether this averment can be rejected as mere surplusage, or whether it is of such a character as not ""Iv « ^e descriptive of the negligence charged, but in it%««""«f ^ "f'^^^'i^, other parts of the indictment, is notice to the defendant of the exact charge wliich he has to meet. The defendant is charged with the crime of manslaughter, and the specific nature of the charge is that, by reason of his culpable negli- gence and omission to perform his duty, Patrick Reagan was killed^ ilis guilt, therefore, depends solely upon the question whether he waa negligent, and failed to perform his duty upon a given occasion, and ^v^*'****^**'*'^*****^ 1136 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. and extent of the negligence, which connects him witii the deatli of Rea- gan, fully and plainly, substantially and formally described to him in the indictment. This the indictment does or attempts to do, and charges in suhstance that, well knowing the rules of the road, and his duty in that regard, and what signals should be given when an engine or train from the out- ward track crosses the inward track, and also well knowing that this particular train was tlien due and about to arrive upon that track, he neglected to give the required signals, and the death of Reagan was the result. The pleader has made the knowledge of the defendant that the express train was due, as well as his knowledge of the rules and his duty in regard to them, an essential and material portion of the descrip- tion of thlacts and conduct of the defendant, which go to constitute the ne^Tliijence charged, and the negligence charged is not merely that he failed to give the signal required to notify any approaching tram, but that he failed to give it wiien he knew there was an instant and pressing necessity for so doing, this particular train was then due at that point. , ,. ui ♦ This was not an impertinent averment, or foreign or inapplicable to the charge, because proof of such knowledge would estabhsh the most culpable°negligence. The gist of the indictment is the defendant's neg- li. ottier queelion. fuUy wd .bly .rgned at tUe ^^'-^^^^ ^„i^. NOTES. .. , Mnrder muBt be committed by some piS:l:rwe==--r'.", ..c..o,t.„o.c....t.. murder.* ^, _„ It i, not murder to give false testimony §678. Murder- False 8''««rtf«--"/;^°* "Convicted and executed.^ Jereby one on trial lor a '^'^P'^f J^'^^^ ^tL trlld before Mr. Justice At the Old Bailey, In "^4, one Joshua K^de^w ^^ ^^^ ^^^^^^ ^ FOSTER, for robbing Mary Jones, widow, «° tj«^ « ^J swore very positively crown, and two shillings and six pence. J"^; P^^^^^^^^ ^, ,^, .^bbery, In which to the person of the prisoner, and to the ci'^J^Un ^^^^^^^^ ^^ ^^^^^ she was confirmed by one ^^'J; JJ" J^^^t^e first of March following, t^ witnesses, was convlctedand e^J^^f ' 'J'J ^i„ ^„d Mary, « to those who reward of forty pounds, 8'7J"''yJ/;f,Ld between the prosecutrix Mary Bhallconvlct a highway robl^r, was dlvldea^^^ The history of a conspiracy and contrivance to obtain the rewar „i^„,„t3 concerned Diligent search was accordingly made to JPP'J^«° j„ j„„, gesslon, 1766. lu this extraordinary transaction, and at the o^^* (^^^^^ before Mr. Jus- Stephen Macdanlel, ^^-^'''\^^,.fZ fhe wlWu xnurder of Joshua Kldden tlce roster, present Mr- faronSmythe for t^e^^J ^^,^^,y recused, tried, in maliciously causing him to ^e «n]«««y^ ^P'* ;, „, ^^e fact laid to his convicted, and executed, well ''»°^»°8J''^^^^ ^he reward, etc. The prisoners charge, with an intent to share to **'«?'^'^^*" ^^^Ltory evidence of the fact; tre c;,nvlcted, upon the «>«««f .J^f^^/U^t^^^^^^ unexampled. The and a sense of depravity was ^ff^^^^'^l^^^r^et^^er an Indictment for mur- judgment, however, was respited ''P^" * J°"^;^;,,, ^ere accordingly entered L would He m this case. T^^P^^^tnTfiuXg o7 the jury, «« That Justice upon the record, together with an add tlonainn^ ^^ ^^^^^. Hall, m the Old Bailey, Is situated ^'l*''" f^ """"^x. from time immemorial and ihat felonies ---"»«\»" ^^^ 7,° T j^ order Sthe point of law might have been accustomed to be triedthere in order ^^^ ^^^ ^^^^^^ be more fully c<>'»l<^«"'*' TLZ^d iL ar^fu »nd prisoners were at ii«ni»r the attorney-general, declined to argue IV, » fsJbsCnt L-^n discharged from that Indictment. 1 Com. V. Webrter, 5 Onrt. Deo. 711 (MM). 395; B2 Am. t B. ». Macdanlel. 1 Leach, M (1756). > cb. 9. MA. tupport It, the ) consider the nt sustained. MURDER — ELEMENTS OF THE CRIME. 1139 mmltted by some terror can not be re false testimony d and executed. * efore Mr. Justice one guinea, a half ore very positively 5 robbery, In which dence of these two arch following, the iry, ' to those who prosecutrix Mary r. The history of tors until the 9th of Blackheath having )vered to have been ilscreants concerned 1 June Session, 1766, cted before Mr. Jus- erof Joshua Kldden, ilsely accused, tried, of the fact laid to his , etc. The prisoners evidence of the fact; IS unexampled. The tt Indictment for mur- e accordingly entered le jury, " That justice the City of London; rom time immemorial He point of law might nent. But Sir Robert the prisoners were at lel.l Leach, M (1756). Sir William BlackBtone, however, says, that there were grounds to believe. It was not given up from any apprehension that the point was not maintainable, 6ut from other prudential reasons. In May session, 1859, they were again put to the bar, upon an indictment for conspiracy to defeat the pubUc justice of the kingdom, in causing Joshua Kldden to be executed for a robbery which they knew he was Innocent of, with Intent to get into their possession the reward oftered by act of Parliament; but no evidence appearing, they were all acquitted. § 679 Mew Bom inftmt— Inlantlclde. -To constitute a human being, the subject of murder, an infant must be fully delivered, and have an Independ- ent circulation from that of the mother.^ There must be an Independent clrcu- lation in s new born child to make its kUling murder ; that It has breathed is not enough.' I eso Death Must Take Place Within a Year and a Day. ~ " Mnrder 18 a com'plex term denoting several facts of which the death of the party is one •1 the most essential. The mortal stroke or the administering of poison does not constitute the crime unless the sufferer dies thereof within a year and a day " » The Indctment must show that the death occurred within a year and a dayafter the wound or It will be bad.* The crime Is committed not on the day when the victim dies, but on the day on which the fatol injury le received.* ( 681 Homicide— Death Must be in Ooneeauenoe of Prleoner'a Art.— In JB V Hilton* the prisoner was indicted for manslaughter. It appeared by tne evidence that it was his duty to attend a steam engine. That on the occa- sion in question, he had stopped the engine, and gone away; and that, during his absence, a person came to the spot, and put It In motion, and being unskll ed ^as not able to stop it again. It further appeared that in consequence of the engine being thus put In motion, the deceased was killed. Alderson, B., stopped the case, observing that the death was the consequence, not of the act of the prisoner, but of the person who set the engine In motion after the prls- oner had gone away. That it Is necessary. In order to a conviction for man- slaughter, that the negligent act which causes the death, should be that of the party charged. S 682 Homicide -Death Oocaaloned Partly by a PredlspoBln* OfcttW*--- In i? V Johnson,'' the prisoner was Indicted for manslaughter. It appeared in evidence, that he had been lighting in the house where he lodged, at Knaves- borough In the scuffle he struck his antagonist, Edward Cattln, on the stomach, upon which he feU. The surgeon who opened the body, was exam- ined and deposed as follows: "The muscles of the stomach were distended, and the vessels of the brain were in a like state. On the external surface of the stomach there was a slight discoloration; a blow on the stomach In this 1 state V. Wlnthrop, 48 Iowa, 61t. And Me Wallace v. SUte, 7 Tex. (App.) 670 (1880). s R. V. Enoch, 5 0. * P. 689 (1838) ; B. ». Poulton.e O. & P. 8» (18SS) ; B. ». SellU, 7 0. A P. 860(1889). 3 Parker, O. J.. In Com. v. Parker, 3 Pick. 668 (18M). « SUte •. OrreU, 1 Dev. (L.) 139; 17 Am. Dec 668; People ».GI11,6 Oal.687 (1866); People «. Aro, 6 Oal. 208 (1866). e People «. Gill, 6 Oal. 687 (1866). • 2 Lew. 214 (1838). t 1 Lew. 164 (1827). 1140 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. State ol things, arislnR from passion and Intoxication, wan calculated to oc- caslon death, but not 80 If the party had been sober." HULLOCK, B., directed an acquittal observing, " that where the death was oc- casioned partly by a blow and partly by a predisposing circumstance, it was Im- possible so to apportion the operations of the several causes, as to be able to •ay with certainty that the death was Immediately occasioned by any one of them in particular." > 6 6820. Homicide- Death Oooaeloned by One of Two Oaueee, But which Uncertain. -In B.y. Wrigley,* the prisoner was Indicted for manslaughter. It appeared that ho had been lighting with the deceased, and, that, when the deceased was doWn, the prisoner struck his head against the ground The de- ceased was afterwards laid at full length on a form or stool, from which he fell bodily to the ground. .. ^u *u ^- The surgeon on his examination said: " I think It uncertain whether the de- ceased died In consequence of the bruises he had received, frora his head being knocked against the ground, or from the subsequent fall from the stool j but that It was more probable he died from the knocking of his head against the *'baylky, J., doubted whether this was evidence to go to the jury; but he allowed It to go to them, at the same time intimating, that In the event of the conviction, he would respite the judgment, and take the opinion of the judges. The jury acquitted the prisoner. 8 688 Homicide - Death from Subaequent Medical Operation.- In Cofman V. bomnionwealth,^ In the Court of Appeals of Kentucky, the law was laid down as follows The court said : '< The evidence tended to prove that the appellant Inocked tke deceased down with his fist, and that he fell with his head against a cost from which a nail protruded one-half or three^iuarters of an Inch, and that his head struck the nail and the scalp was cut; that the appellant stamped Ipon he bod, of the deceased with his foot, and that the latter was Insensible ?rom that time until his death, the symptoms Indicating that there was com- JreTslon of the brain. A medical witness testified that he cut Into the skull at Se wound made by the nail, but discovered no evidence of injury to the bone; int he. and^ther physicians, believing there was compression or extravasation o? biood on the brain, and that the patient would die unless he could be relieved Sy trephlnlns, they as a last resort sawed out a piece of the skull bone about an Kn dlame er and removed it. and found clotted blood resting on the brain; Sat Sey did not remove the blood, but placed the piece o bone in the aperture and left It there. This was a day or two before the patient died In view of this evidence the court gave the following instructions, viz. : -The court in fltructe the jury that though they may believe the death of Harrison was caused ?, tS^surXToperatlon. yet If the operation was performed by physicians as 1 Note. - the learoed Judge cited from his notes the following caies, viz. : — Brovm'$ Gate, April, 1824. Indictment charged with kUlIng, by •trlklng. Jury found that the death was occasioned by over- exertion in the fight. The Judges held that the prisoner was entlUed to an acquit- Anonytntnu. Indictment charged with kUling by striking with a brick. The Jury found that the deceased was killed by tail- ing upon a brick In consequence of a blow. The Judges held, that the Indictment was not supported by the finding. i 1 Lew. 171 (1829). » 10 Bush, 495. And see, Livingston's Case, 14 Oratt. 593. L8. :ulated to oc- death was oc- Dce, it was Im- 8 to be able to by any one ol e«, But wblob manitlaughter. tlmt, when the ound. The de- m which he fell whether the de- i tils head being the stool ; but ead against the le jury; but he the event of the I of the judges. on.— In Cofman V was laid down lat the appellant his head against I of an inch, and ipellant stamped ir was insensible there was com> Into the skull at ury to the bone ; or extravasation could be relieved [11 bone about an Ing on the brain; le in the aperture died. In view of : ' The court in ■rison was caused by physicians as HOMICIDK — IMPROPKR MEDICAL TREATMENT. 1141 a remedy for the wounds iutlicted by the defendant, they can not acquit him on that ground.' We ciin not approve this as a principle of the law of the land. The nicri! fjict that the operation was performed by physicians as a remedy for the wounds Inflicted by the appellant, without any reference to the question whether such an operation was reasonably deemed to be necessary, or was per- formed by men of ordinary skill as Hurgcons, or in an ordinarily skillful manner, can nut render the appellant legally responsible for the death of Harrison, if in fact the operation and not the injuries inflicted by him caused his death. The rule deducible from the authorities seems to be that where the wound Is appar- ently mortal, and a surgical operation Is performed in a proper manner, under circumstances which render.lt necessary In the opinion of competent surgeons, upon one who has been wounded by another, and such operation is itself the immediate cause of the death, the person who inflicted the wound will be re- sponsible.! But If the death resulted from grossly erroneous surgical or medi- cal treatment, the original author will not be responsible." It should, there- fore, have been left to the jury in this case to say whether the operation per formed on the deceased was such as ordinarily prudent and skillful surgeons, such as were to be procured in the neighborhood, would have deemed necessary under the circumstances in view of the condition of the patient, and whether It was performed with ordinary skill; and they should have been told that if they found the affirmative of these propositions, the appellant was responsible, although the operation and not the wound Inflicted by him caused the death; but that, if they found that the operation would not have deemed necessary by such ordinarily prudent and sltlilful physicians and surgeons, or If it would have been deemed necessary and was not performed with ordinary skill, and the death resulted from the operation and not from the injuries inflicted by appellant, they ought to acquit him, even though they might believe such In- juries would eventually prove fatal. For the errors indicated, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. "Judgment reversed." Where a person in loco parentis whips a child and compels It to work beyond its strength, and the child dies of consumption, its death being hastened by such treatment, it will not be murder in him, but manslaughter, although the punishment was cruel and excessive, It be believed the child was shamming Illness and was able to do the work.^ 684. Improper Medical Treatment — Texas Statute. — Under the Texas Criminal Code, If there be gross neglect or improper treatment, which aids the fatal effects of the injury, the death of the injured party is not murder in the party inflicting the original injury.' a brick. Tlie Jury 1 was killed by fall- sequence ol a blow, the indictment wa» iding. 1 »ee, Livingston'* § 686. Corpus Delicti Must be Proved. —Before a conviction of homi- cide can be bad, it must appear that the body of the murdered person has beea 1 Com. V. McFlke, 3 Cash. 181 ; Parsoni v. State, 21 Ala. 3M. * a 21 Ala. 300. 8 R. v.Oheeseman, 7 O. ft P. 416, (1886). * Morgan v. State, 16 Tex. (App.) S9S (188i). w j n' -" p w ' mii {tmmim .„. .o»lS8T THE mSBSOSS OF INDtVIDUAUl. ol Mr.. Loretody, between *. '»"" " ^a.,, «>lHn|l W». W"!' " '° ™ lire and had burned up. ^^d ,ound Mrs. ^ovelady dead. The witness thereupon ^«°* *"*\*°* ," within one or two leet ol the rS»et.o.lc..«.-"..ut sending for a coroner to hold an inquest, but did not know who made the suggtstiop. He heard Crane ^ay that if it was his case he would send to Winnsboro for Coroner Oarlock and two of the best physicians to be had, and have the matter investigated. The defendant, in reply, complained DUALS. com US DELICTI NOT PROVED. 1145 illver dollar. This ill or effect of fire death. iSHing each other at nd \ra8 about three e first, running in a smooth cuts to the the crossing point ouid produce death, peared to have been of the opinion that was not fractured, wound on the cheek Inion of the witness, le did not regard the us wounds, and they velady. He did not, >w, what caused the ecided as to how the fall or a burn. He wn mind. The skin, d, and the skull was ver the skull is about were badly scorched jiuod had settled and It was possible that of the fire alone, the igulate as it does in a bruise than anything quoted in the opinion as follows: *ple8 were burned off, e breast and the back, 1 other." ;d that at the death of one hundred and fifty laut's house that night He was then making a Witness heard several luest, but did not know was his case he would ) best physicians to be ;, in reply, complained that to have two doctors from Winnsboro would involve him in too much ex- pense, and suggested that Doctor Perey, who lived some two miles distant, be sent for. ▲ little later than this, the defendant invited the witness to walk with him a short distance from the house, where he asked the witness, " What in the d— 1 do you suppose Capt. Crane wants with a coroner's jury and two doctors from Winnsboro? " When the witness saw the body of the deceased it was wrapped in a sheet and lay on a plank in the back of the house. Cross- examined, the witness stated that he and his wife left home on the Saturday before Mrs. Lovelady's death, which occurred on Monday, and the defendant knew that fact. Witness and his family were the neighbors nearest to the de> fendant at the time of the death of his wife. The witness did not know whether or not the defendant was actually weeping at the fence. On the next day before tho body was removed f orl>urial, the defendant " got to carrying on " — cried or pretended to cry. Witness saw no tears, ar.d to him defendant did not ap- pear like a man weeping. The defendant then went to the grave with the burial party. W. L. Stevenson next testified, for the State, to the effect that he lived near and worked for the defendaut In 1881. He did not know that the defendant had any weapon about his plac<3 at the time of the death of bis wife. He had an iron wedge, a hatchet and a pocket knife about his premises in 1881. The wit- ness did not know t, the deceased at any time left the defendant, though he was so lUformed by tiie defendant himself. The deceased came to th house of the witness during the fall of 1881, and got an umbrella, at which time the witness understood that she was leaving him. About plowing time during the summer of 1881 the defendant slapped the jaws of the deceased. The defend- ant told the witness that his wife quarreled at him for not helping her cook ; that he tried to help her cook and undertook to grind some coffee, when his wife grabbed him and he threw her off; that she grabbed him again and he spilled the coffee, whereupon he slapped her jaws and she fell against the smoke house. Cr6ss-examlued, the witness stated he heard the slap given by the defendant to the deceased. He, the witness, was sitting on hia gallery at the time, from a hundred to one hundred and fifty yards distant from the defendant. He did not and could not see the slap from where he was. He did not know that it was the defei^dant who did the slapping, or that it was the deceased wlio was slipped, until, as above stated, the defendant told him in the tall. At this point the witness was confronted with his written testimony given before the examining court, which on the subject in hand reads as follows : "I was coming through the field belonging to Capt. Crane, and heard a racket v .■ :toise toward Mr. Lovelady's house, and heard him slap his wife's jaws aiifl L r crying after- wards." Asked to explain and reconcile these two statements if he could, the witnest replied; " I know 1 was sitting in my gallery leaning back against the wall. Capt. Crane's field is near defendant's house, and I heard the noise as I walked along, and when I got home I heard the lick or slap." The witness stated that, as he had a defective memory, he eoaird not now say exactly how the defendant came to confess to him that be bad slapped his yrH^'t jaws. It came about, however, in this manner: Th« witness went into the woods about a quarter of a mile from defendant's bo«*e, where the tVlendant was catting blocks for house sills, md the defend*** told blm about tb« matter in the manner related in his testimony in chief. T^is was tlM<«a)y time def^-nd- ant had ever teld him about it. The witne»*s wa.x i«re reque^teii to reconcile this statement with one he made before the exaiisiiif court, which was read as 1146 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. follows: *' The defendant told me that he slapped his wife's jaws. He came to our house and there told ine that he slapped her jaws the summer before; that she grabbed him while he was grinding coSue and caused him to spill it, when he slapped her jaws and slung her up against the smoke-house." The wis ness stated that hia memory was bad and he could not explain the vari^ince be- tween the two statements. He was not mad at the defendant. On Saturday before the death of Mrs. Lovelady the witness attempted to obtain credit in Winnsboro, but was refused in default of an order from the defendant. The witness bought no goods on that day, nor did he utter threats against the de- fendant. He sent his mother to the defendant when he got home on that Satur- day night, but made no threats. The witness left the defendant's premises and did no more worlc for him. Green Fevey, the defendant's family physician, testified, for the State, that he was called to treat the deceased about the middle of September, 1881, and made one or two visits between .! at time and her death. She was a strong healthy woman, but was then pregnant, and In the course of nature would haM given birth to a child within two months later than the time of her death. About the middle of September, 1881, she came to the witness' house, sobbinK and weeping, and apparently in great distress. She complained to the witness of a bruise on her left side. She remained at the witness' house that day and night, and next day until evening, when the witness persuaded her to return to her home, which she did, or at least she started in that direction after the witness refused her request to remain at his house until she should recover from her bruised side. She was then suffering from hemorrhages of the womb, caused, the witness believed, by the bruise on the side, which then seriously threatened abortion. The witness treated her for this disarrangement, off and on, up to the day of her death, and prevented abortion with great difficulty. Up to the time that she received this bruise she was free from hemorrhage or other symptom of abortion. The witness did not examine the bruise on the day that the deceased came to his house and informed him of it, but in a month or two thereafter the witness visited her and examined it. It was then about the size of a silver dollar, and was of a blue or darlc color. The witness treated her for hemorrhage of the wonjb for four or five months, and up to the day preceding her death. She and the defendant were separated on the occasion of Iior visit to the witness, but they afterwards became reconciled and lived together, The witness attended upon hi-r on the day before her death by direction of the defendant, and left six duses of Dover's powders for her totalie leaving direc- tions as to how they should be taken. The witness knew the deceased before her marriage to the defendant, when she was Miss Auna Wood. She lived with the defendant t'len, who waited on her and paid her bills — at least he paid her doctor's bills. The defendant always appeared to be a kind and affectionate man to his w'.fe and family, so far as the witness, who had good opportunities for doing so, could judge. The families of the witness and the defendant were intimate. The six powders left with the deceased by the witness were intended to allay pain and to prevent abortion. Mrs. Lizzie RichardSt for the State, testified that in October, I88I, the de- ceased passed her house, weeping bitterly. On the Sunday week before her death, witness called upon her &t the house of the defendant, and found her sitting by tbe flre weeping. She displayed, and complained very much of a red bruise oa the side of her face near the ear. She had her head tied up, but ex- hibited the bruise to the witness. The defendant was not in the house at the ILS. CORPUS DELICTI NOT PROVED. 1147 laws. He came fummer beforo ; him to spill it, ise." The wit- the variance be- On Saturday >btaiQ credit in llefeadant. Tlie against the de- ou that Satur- 1*8 premises aad the State, that imber, 1881, and le was a stroii;: bure would hew e of her death. house, sobbinK to the witness o( se that day and her to return to afterthe witness ecoverfrom lier e womb, caused, ously threatened >ff and on, up to ifflculty. Up to lorrhage or other i on the day that I a month or two m about the size s treated her for tie day preceding a^ion of her visit lived together. f direction of the >ke leaving direc- deceased before She lived with leattt he paid her and affectionate ckI opportunities defendant were 88 were intended )er, 1881, the de- wee|{ before her , and found her •y much of a red tied up, but ex- tfae house at the time. On the Friday following the deceased was at the house of the witness and the bruise was not then visible. _ O' Saturday, which was two days before her death, the defendant passed the house o* 'le witness very early after day- light, going from home. Some hours later, at about eleven o'clock, the wittiess saw the deceased going towards her home. She was weeping violently and, seemed In great distress. She said she was going then to get her clothes. Mrs. Stephens, a neighbor, persuaded the deceased to remain and not to leave the defendant. Cross-examined, this witness stated that she did not see the de- ceased leave home on the Saturday before her death — only saw her as she was returning. Witness did not know of her own knowledge that the deceased had then separottid from the defendant. Mrs. Etha Browning testified, for the State, that she went to the defendant's ho'ise on the night of the death of Mrs. Lovelady. She saw no weapous at the lojse. She saw, but did not particularly notice, an iron wedge which was picked up near the bed. She also saw some smoothing irons, but saw no hatchet or knife. The deceased was at the house of the witness some time during the fall before her death. She came one evening during the absence of he witness, and the witness did not see her until next morning. She said that tshe ca 'i'< from Doctor Fevey's. When she met the witness next morning she threw hui arms around the ''fitness and wept violently and begged the witness to go home with her. ^'.^ at the same time showed the witness a bruise on her side, of which she complained very much. It was tiien uncovered, having neither plaster nor medicine on it. After remaining at the house of the wit- .iis ■: for a while the two started to the defendant's house. When tliey got there 'M ! jfendant was in the flel(1, but being called by one of the children, he came lo t^ie bouse, when the deceased, who was then crying, told him that she had come for her things and was going to leave him forever. The defendant began crying and begged her not to leave him. The deceased replied that he had so abused her she could not live with him; that he had kicked her out of the door and made that bruise on her side, which had nearly killed her; that he had always Imposed upon her, and made his daughter Luella abuse and mistreat her; that it she remained with him he would eventually kill her. She told the witness In the presence of the defendant that the defendant was good and kind to her in the presence of company, but at other times wag abusive and cruel. The defendant did not deny or reply to any of these reproaches, but hung his head, and appeared to be crying. Witness left the deceased talking, and both of them crying. Cross-examined, the witness stated that she looked at the bruise on tlie morning of the occurrences deposed to. .t was on the side, above the hip, and appeared to be nearer the back than the stomach. The deceased theu walked without assistance, and did not appear crippled. She did not limp. The witness accom^^anied her to her house at her requjst. W. F. Richards testified, for the State, that lie reached the defendant's house on the night of his wife's death at about nine o'clock. While the crowd were standing about the fire discussing what was best to be dene. Captain Crane suggested that the coroner and two of the best doctors in Winnsboro be sent for. The defendant, in an aside, asked the witness, •' Why in the d— 1 does Crane want the coroner and two doctors? " The witness thereupon called Crane, and the defendant said that Winnsboro two doctors would cost too much — , that Doctor Pevey, who lived near, would answer every purpose. The defend- ant had both hands wrapped up, and complained more of them than anything else. During the night the witness asked the defendant for au account of liis 1148 CRIMES AGAINST THE PERSONS OF INDIVIDUALS. wife'8 death, and heard him give ♦,hree separate and diSerent accounts of It, One of the accounts was to the effect that all of his family had gone to bed, himself and his wife sleeping together; that some time after he retired his daughter Luella aroused him, when he found the house full of smoke; that he sprang from his bed, opened.the door and then discovered hls.wlf e In the tire and pulled her out. A second account which he gave to Willis Richards was that when his daughter awakened him, he Immediately discovered his wife in the fire, her clothes burning, when he pulled her out. His third account was that, when arouaed, he was enabled to see his wife in the fire by a small blpze, when he spravgnp, dragged her out and then opened the door and gave the alarm. During the night the defeudant " took on ftod made a great fuss " over his hands. Just before day the defendant requested the witness to select a convenient place to bury the body, and to get It interred as soon as possible. This was after Browning and Robinson had returned from their trip to Wlnnsboro after the coroner. The witness did not see the deceased until she was taken from the fireplace and laid out. C. B. Gorman testified, for the State, that as one of the coroner's jury, in company with Mr. Oarlock and Doctor Skeen, he reached the body in the after- noon on the day following the death. The witness assisted Doctor Skeen In making the examination, and first called the doctor's attention to the bruises on the face, hoad and neck. The bruise just below the cheek bone was nearly as large and w.de as the witness' hand. It was a very severe brui se, blue or black of color, and exten-'.ed below the cheek bone. The doctor lacerated the bruise disclosing, after 'uttlng through the bruised parts, white flesh that resembled pork fat. The blaik spot on the back part of the head commenced just above or a little below tht point where the hair Is usually " done u p." It was longer than a ruan's hand, and ranged down the back of the neck between the shoulders and Immediately over the back bone. At its topmost point a space the size of » silver dollar was cut to the skull. The bruise Itself was very deep, the flesh was reduced to a jelly or mush, and was black with bruised olood. This condi- tlon was confined to the circle of the bruise. When the knife passed from this circle, the flesh, as to color and solidity appeared natural. The cuts on the top of the head formed a complete cross, and were well defined, clean and clear, and conformed to the description given by Doctor Skeen. No bruises, black or mashed spots, were found near the cross cuts. The chimney, to the fireplace, was constructed of sticks and earth, except the back, jambs and hearth, which were of brick. The hearth had sunk some four or five Inches below the level of the floor. There were no rough places anywhere about the flre place. The fire- place contained two old andirons, the end feet of which were broken off. The andirons, though somewhat rough at their broken parts, had no sharp edges. The witness examined for but found no weapons, other than an Iron wedge, such as are In use for splitting wood or rails. This was either a new one or H had been recently " set." Its head was square and unbattered, and the point to sharp for an iron wedge that the witness believed that it had never been usee' In splitting wood. The witness examined but found no blood on the wedge, or elsewhere In the house, save a very little on the hearth. Cross-examined, the witness stated that the wound on the back of the head was at least three inches wide. He inserted his finger to the distance of an inch or more and extracted clots of blood and hair. It extended fu'ly six Inches down, and when cut the flesh all fell out. The skin was not cut off all around this bruise. At the point where It was cut to the skull, the wound yia filled with hair and blood— kLS. iccounts of it, (!one to bed, he retired his smoke; that he In the dre and hards was that kvifn in the Are, was that, when birze, when he larm. During ver his hands. >nTen!ent place This was after sboro after the taken from the roner's jury, in ly in the af ter- octor Skeea in > the bruises on I was nearly as le, blue or black rated the bruise that resembled iced just above It was longer in the shoulders ace the size of f^ ■ deep, the flesh id. This coudi- )a88ed from this cuts on the top lean and clear, ruises, black or x> the fireplace, i hearth, which slow the level of ;)lace. The flre- roken oS. The no sharp edges. \ an iron wedge, a new one or H and the point to never been useO in thti wedge, or is-examined, the ast three inches 'e and extracted id when cut the bruise. At the lair and blood ^ CORPUS DELICTI NOT PROVED. 1149 the Are having left the hair longer at this point than elsewhere on the head Thi. skin was not burned. At this point the State closed. Mrs. R. M. Feden, the mother of the defendant's iirst wife, testified, for the defence, that she had known the defendant SiUc j he was four years of age. He lived in her household for three years, in Mississippi, and the witness had lived in his, in Texas, for two years. She liad always known him as a peaceable man and as a quiet, kind and affectionate husband and father. The witness visited the defendant and the deceased in August, 1881, remaining with them three weeks. She saw tliem daily, and throughout her stay with them the deceased appeared cheerful and content. The witness did not h'ar during that time a single word of discord between her and defendant. The witness visited them .;galn some time after this, and found them living togetlier pleasantly and agree • ably. Sh9 had never heard anything of the sickness or bruises of the deceased. The witness lived within three miles of the defendant during the deceased's lifetime. She visited them no oftener than stated, because she was in bad health and had no means of transportation. She lived with the defendant dur< Ing the lifetime of his first wife, who was the witness' daughter. She had no iiard feelings against the defendant's second or third wives. Captain F. M. Crane was the next witness for the defence. He testified that, being sent for, he arrived at the defendant's house about nine o'clock and found the body lying on the floor near the fireplace, with the feet extended to- wards the back o' the house. He described the chimney, fireplace, hearth, etc., as they had been described by other w'tnesses. A slow wood fire was burning when the witness arrived, and the defendant was wringing his hands and crying. Some one, the defendant perhaps, suggested the propriety of sending for thj coroner and two doctors. While this suggestion was being discussed. Buck Richards, who was t'lon talki;ag with the defendant, called the witness, and the defendant complained that two Winnsboro doctors would entail too much ex- pense, and asked why Doctor Fevey would not do. The witness merely replied that if he were defendant be would have the coror ac and the two best physicians obtainable. Later, Browning and Robinson started to Winnsboro for the coroner and doctors. The witness followed them to the fence and directed them what to do. The witness knew nothing about the separation of the de ceased and defendant, and knew nothing about how they had got along together. He did not know who directed Browning and Robinson to go to Winnsboro. He did not, in the first instance, but advised with them after they had started. J. A. Lovelady, the defendant's brother, testified that he was told of the death of the defendant's wife about twelve o'clock on the night that it occurred, by Browning and Robinson. He started at once to his brother's house, but changed his mind because of high water in the creek, and then pursued and overtook Browning and Robinson en route to Winnsboro, and traveled with them until their return to defendant's house at daylight, when he found his brother's wife dead. This witness, who had occupied the defendant's house since his arrest, described the chimney, fireplace and hearth as they were de- scribed by other witnesses, except that he stated that some few bricks were loose in the flreplacr>. The defendant and his wife always got along well so far as he could see or knew. He knew nothing of his own knowledge of a separa- tion between them. Luella Lovelady, the thirteen-year-old daughter of the defendant, testified, to: the defence, that on Saturday, the second day before the death of Mrs. Love- lady, the defendant went to Quitman and remained all day. If the deceasad 1150 CRIMES AGAINST THE PERSONS OP INDIVIDUALS. abandoned the defendant that day or entertained an idea of doing so, the wit- ness knew nothing about it. She, the deceased, folio ved the defendant to the gate, and afterwards went to Mrs. Stephens' house and got two smoothing Irons, with which on her return slie went to Ironing. The defendant was told to go by Doctor Pevey's place and send him to see the deceased, who was then, and had been for some time, quite ill. Doctor Fevey arrived at the huuse later, and left six doses of powders for the deceased to take. These w.:re placed on the mantel piece, and two of them were taken by the deceased during the next day. On Monday the deceased was worse than nsual, and walked about the house only with the assistance of the witness. She had swimming of the head. She lay down shortly before night, and the witness did not see her get up again. The defendant worked about the place all of that day, returning before night and assisting In the preparation for supper. The witness' two little sisters went to bed shortly after supper, occupying places in the witness' bed. The defend- ant next went to bed with the deceaaed, occupying the front part of the bed. The witness read her school book awhile, and having latched the front door, retired and went to sleep. There were two beds in the room on the same side. The one occupied by the witness and her sisters stood in the corner, with the head towards the fire- place and the foot towards the back of the house. The one occupied by the defendant and the deceased stood with the foot towards the foot of the witness' bed, and the head against the side of the house. When the defendant went to bed he asked his wife how she felt, and she replied that she felt worse, and was in great pain. The defendant asked her where the pain was located and she told him. The witness did not hear them speak again. After a time, she did not know how long, the witness was awakened by a smoothering sensation, and found the room full of smoke. She called twice to the defendant before he awakened. He sprang from bis bed, ran to the door, opened it, and tlien exclaimed; "Lord, have mercy I Anna is in the fire I" He then pulled the deceased from the fire on to the floor, burning his hands severely. The clothing around the deceased's neck was then burning, making a faint light. The defendant then blew a horn from his door to arouse the neighbors Mr. Browning arrived shortly, and was followed by others after a while. Three doses of the powders were found on the mantel piece. Cross-examined, the witness stated that the bedsteads were low — not xbovo eighteen Inches lu height. The footboards were low. The deceaaed, as usual, slept behind that night, and the witness could not say how she got out oi bed without awakening the defendant. There was an iron wedge in the house used for propping the door open. There were two borrowed smoothing irons in the house. The defendant owned a hatchet, which was In the yard on that night. The motion for a new trial averred that the proof tailed to show the use by the defendant, or other person, of any of the deadly weapons charged in the indictment; a total failure to show express BMlice: and that the evidence, in Its circumstantial or other character, was insufficient to inculpate the defendant beyond a reasonable doubt. WxLLSON, J. I. It was not error to permit the State's witness. Doctor Skeen, to answer the hypothetical question propounded to him by the district attorney. That question was as follows: " Suppose thata person should strike another on the back of the head at the place described by you, where the skin was off the size of a dollar on the back of the head of deceased, with the large end of an iron wedge, sufficiently hard to tear off the skin and open AL8. ling so, the wit- lefendant to the two smoothing !cndant was told I, who was then, the house later, w.:re placed on during the next wlked about the ling of the head. her get up again. ling before night little sisters went ed. The defend - part of the bed. 1 the front door, e one occupied by towards the flre- e occupied by the )ot of the witness' iefendant went to elt worse, and was i8 located and she ras awakened by a 1, She called twice 3d, ran to the door, ina Isintliefire!" burning his hands en burning, making door to arouse the id by others after a tel piece. ire low — not \bovc deceased, as u^ual, she got out ol bed ;e in the house used }othlng irons in the ard on that night, to show the use by tons charged In the lat the evidence, in ilpate the defendant '8 witness. Doctor I him by the district person should strike by you, where the id of deceased, with I the skin and open CORPUS DELICTI NOT PROVED. 1161 the wound to the skull, and produce a bruise down the back of the neck several inches long, so that the blood would settle there, would such a blow produce death?" This question was answered by the witness as follows : "Of course such a blow would produce death instantly. At this particular portion of the cranium la the scat of life; a concussion here will injure the spinal column and produce paralysis and death." It was objected to the question that it waa hypothetical, and not based upon a state of facts already iu evidence ; and that It did not involve a question of science or skill such as would warrant the ad- mission in evidence of the opinion of the witness. In putting hypothetical questions to an expert witness, counsel may assume the facts in accordance with his theory of them; it is not essential that he state the facts to the witness as they have been proved.' Of course, as stated by Mr. Wharton, if the facts ou which the hypothesis is based fall, the an- falls also.* Nor would it be a proper practice to allow hypothetical questions having no foundation whatever in the evidence in the case. In the case atba-*, the witness was shown to be a medical expert, and it was further shown that there was a severe wound upon the back of the deceased's bead, which could have been inflicted with an iron wedge, and that au iron wedge was found near the body of deceased shortly after her death. We can not say that the hypothetical question objected to had no foundation in the evl- deuce in the case. It was the theory of the prosecution that deceased was killed by a blow inflicted upon the back of her head with an iron wedge in the hands of the defendant, and it was proper to submit this theory to be supported by the hypothetical question cbjected to. As to the other objection to the question, it is also untenable. This precise question is discussed and settled in Waite v. State,* in which case the authorities in support of the admissibility of such evidence are cited. 11. We nowapproach the principal and most diflScult question in this case. It is as to the sufficiency of the evidence to support the conviction. Circumstantial evidence alone is relied upon by the prosecution. Is it of that cogeut, satis- factory and convincing character which the law demands to sustain a conviction of crime? It is unnecessary for us to reiterate the rules of the law inregard to the nature, strength, sufficiency, etc., of circumstantial evidence. They have been so often and so fully stated and explained in previous decisions, that we need only refer to the case of Pogue v. State,* where the authorities upon the subject will found cited. In prosecutions for murder, the State must establish clearly and satisfactorily the corpus delicti. This corpua delicti consists of two things : flrst, a criminal act; and second, the defendant's agency in the commission of such act. Thus, in the case at bar, the burden of proof was upon the prosecution to establish, first, that Anna Lovelady was dead, that her death was produced by the crimi- nal act of some one other than herself, and was not the result of accident or natural causes; and second that the defendant committed the act which pro- duced her death.* Mr. Wharton says: "It has been already stated that the corpus delicti includes two things ; flrst, the objective, and then the subjective elements of criminality; iu other words, flrst, that the overt act took place { 1 Gaiterman et al, v. Liverpool, etc., Steamship Co., 83 N. T. 85t; Oowley v. Peo- ple, /tl»«V%\"ff ^ponant matter be left In doubt, the consideration of the case; or ^J s X„^ and the superstructure loundatlon of the P'08e^"«°V; tTe "v'^ence that the deceased was In an can not stand. It Is shown by the evwe ^^ ^ ^^^^^^ ^^ , Tdvanced state of P^g"'*"!^^ "T *^" Vdeathjthat she had been afflicted with health for some months P""'/; ^^' J'^^^t s^e was under the treatment excessive hemorrhage from the ^o^^' ;J*\^,„ threatened with abortion; of a physician, and had '«' ««^«'»\7^:X walk about the house without that she was weak and unable a^ ^^^^^^een taking medicine prescribed help; that on the day of ^«'f^**^ j^f"/ ^er death she complained of being by her physician; that ^-^^JJ^ .".^^J^offlnlshed taking aU the me^^^^^^^ worse, and In much P^^"' J'f '''* J „-^^^^^^ six powders or doses of medicine Tcrlbedby her physician; ^J''* ^l^^f/^X^ thTdo^^ lour yet to be ,or her to take; that sue '^^^.^^'^^'^eXe over the fireplace. When her dead taken, and these were upon the ^^^^'^^^^°^^^^ i„,tront of the fireplace and body Us found. It was upon the floor ot^^^^^ ^odyitsel was near to it; the '^^othii^^''^^'>^,'^^Z^^^^^ terrlblyburned; ^^^j^f ' ^f . "n?d to t^^ hollow and the breasts were con- both on the back and In ^'^''''^"^s were discovered upon the body, oneof the • sumedbytheflre. B^^^f ^"^7"^ two cl on the top of the head, crossing cheeks was badly bruised; tt'*" ^1'*;^^^^^^^ produced by some sharp In- each other at right angles, ^^^^^^J^" ^ bruise on the back of the head and strument. There was a "v«re wound or ^^^ ^^,^ ^are the skull, and neck. Just where the head i«l°« ^^^.Jf^i J^^ the region of it, and extern ing was ll large as a silver J^^^'^^^^^f .^^^^^^^^^^ discoloring the body at that 1 Whart. on Horn., sec. 641. «lBUh.Or.Pr.,1067. 3 1 Bish. Cr. Pr., sec. 1069. ALS. Ide, therefore, It )uld bo shown to been proved to le that In capital tn his confession shown, to justify lat his death was ispects U proved, 1 It Is perfectly Idence," but, as is as to the corpus part of the case is s case to establish ,11. It establishes I the corp«« delict i This is the first irlly settled by the the criminal actor lo farther with the I left In doubt, the the superstructure leceased was In an i delicate stote of 1 been afflicted with Qder the treatment ined with abortion; the house without medicine prescribed omplalned of being aU the medicine pre- I or doses of medicine avlnR four yet to be ace. When her dead it of the fireplace and d the body itself was the body was In places, the breasts were con- ,on the body, one of the > of the head, crossing ced by some sharp in- back of the head and aid bare the skull, and on of it, and extending lorlng the body at that actureotthe skull. ,e top of the top of the r fell the deceased, but r., sec. 1069. OPIMON IN LOVELADT V. STATE. 1153 that the wound upon the back of the head was sufficient to cause death. This physician also stated that he did not know what caused the wound at the back of the head; he had examined the wounds, and he says: •« lara now, and have always been unili^clded as to how any of the wounds came there. It may have been done by a fall or burn. It is possible it may have been done by the fire. I am unable to decide how, satisfactorily to my own mind." Again he says : " The settling of the blood down the neck and back of deceased may possibly have been proiUiced by the burn alone. The burn on deceased at the back of the head, also between the shoulders on the back, and that on the breast and face, would have produced death almost instantly without any other cause." This constitutes the only expert testimony as to the probable cause of the death of the deceased. What does It establish? Nothing more than that there were wounds upon the body which might have beeu produced by violence In- flicted by another, or by an accidental fall, or by burning. There Is no cer- tainty in testimony like this, and it is entitled to but slight consideration. This expert was present soon after the death, and examined the dead body and surroundings, and he candidly admits and states In his testimony that his mind has never been satisfied as to how the wounds upon the body were produced. We certainly can not hold that the testimony of this witness establishes the essential fact that the death of deceased was i^used by the criminal act of an- other person. What other evidence is there In the case tending to establish that fact? It was proved that some months prior to the death of deceased, her husband, the defendant, had Ill-treated her; had in fact struck and kicked her; that her death occurred early In the night, between eight and nine o'clock; that the bed upon which the defendant claimed to have been sleeping on the night of her death was found to be smooth and unrumpled when the neighbors reached the scene on that night ; that there was an iron wedge found In the house that night, which instrument was capable of inflicting such wounds as were found upon the body of deceased; that the children, who were claimed by defendant to have been asleep in the house at the time of the tragedy, were up and dressed and had on their shoes .when the nearest neighbor reached there that night; that the body of deceased was cold and stiff when the neighbors reached it between eight and nine o'clock at night, and that there was no fire in the fire- place except a bed of V.,e coals. We have recited in substance every fact tes- tifled to, as presented in the record before us, which in our judgment even re- motely tends to prove that the death of deceased was caused by the criminal act of another. Unexplained, this state of facts might be held suflScient proof that deceased lost her life by the criminal act of another. We are not called upon, however, to determine this question. Much of this evidence, which might otherwise appear inconsistent with the innocence of the defendant, Is, to our minds, explained in a manner which very much weakens its cogency. Thus It is shown that there was a live bed of coals of fire In the fireplace on that 1 night; that the fireplace was a large one; that the hearth was lower by four or five inches than the floor'of the room ; that there was a mantel-piece above the fireplace on which were the four doses of medicine which the deceased had yet to take; that after her death three only of the four doses of medicine were I found upon the mantel; that the back and jambs of the fireplace were brick, [and the brick were broken out of the back and had faUen Into the fireplace; 3 Defences. 78 1154 CU.MK8 AUAINST THB PEUSOXS OV INDIVIOUALS. .nattUore were two. ro.euauairoa.ta the nre place. a.u, o..e o.- two ol. iron ^7;rr ;Ueo. o. t.. ae.nce ---^nLfl ZeJ^Z.^r; went to tlu. Ih-cplace to get a dose «/ ;"; ", ^^ u.cea by lalllug upon the the rtr... ana that the woun.ls upon '«;>f 7;;^ ',,,,, ^, „y the actlou ol the .roken andlro„«. ^"^^^Z^^;^ ^^'^^Z^^^ P-POunCe,! upon this flre. Is this theory Improbable oi « ™\ ,^ „„aer such clrcumstauccH? Btate of facts? Mljjht not such '^" ^ ';' V o n I the house had been kept It was proved that the iron wed.c ^^ ^^ /2' ,\,y ,,,,i„,, ,„d no bled thero to prop open the ^»"" • '^ '^^^^^^^^^^ "^ lulllctlng wounds was found upon or other Indication of ^^'^^"^^.^^I'^.n ho awoke the body of deceased was ,t. It was claimed byjl^' "^ he , nmed it f rom the.tlre on to the floor and in lu the (ire and J"-'";, anclj^^^^^^^^^^ ^^ ^,^^ ,, ,,,er and threw doln- so burned hU hands «^vereiy " corroboration of this, it was proved it upon the body to extinguish ^J^f/^^/^".^?,; ^° ^^.^ the dead body, and that that a bucket with some ^^'^^^^^ j" " ^j^^^^^*-^^^^^^^^ ^Iso proved by the thlr- the defendant's hands were severely burned^ n wa i ^^^^ teen-year-old daughter of ^•^^''"f " :;';;j,;'l'l\'Ld she awoke her father, ^^■hen she awoke the house was «"'^,^7/.'^^ '" "''Jt'^^l.^ased out of the flre, etc. and he sprang out c. j;;^^;;;^ -,7,"^'^^^:^ and himself lu regard to the '''^f J" ^^'^'^^^^^^^^^^^^ ^^h and unrumpled, there Is no expluna- were sleeping on that "^^'^ ^^^Jf /J^^ ,^,, ^ed is testified to by but one witness. r^nr;sC:::.rthi^^^^^^^^^^^ res gestce. ,. .. ,,vldence. we find our minds in After a very careful «=«««»f j^f ""J^,^" '^^ol or Skeel We are unable to the same condition as that of ''^\^^^?^^^;^ZToX'^h^t means the death determine from the facts before us ^^J^^f .7"";'^,"'i /J.^s. accident, or the of the deceased was ^lf;^^\'^'^\Z,^X^^^^^ criminal act of anotlier person. There is <=^"*'" f' ' ^ ^^^ produced „..„otthatmoraIcertaint^^^^^^^^^^ rin'tu su^'Lses imperatively by the criminal act of *°°^^^';'''°'''" "^ „„^t ....gu^e the defendant innocent the evidence of the ^f-^'';''%^^'-}^^^\^Z upon by the Lte to sup- that such is not the character of J^; ^J f /^^^^^^^^^^^^ verdict of a jury upon port this conviction. We always hesitate *« ^'^*"'° "*, J;^gi„ie„t evidence to ?he- facts of a case, and we never do so -J- the™ ^-^^^^^ ^^^,,,, sustain the verdict, even where the great ^J^^';'^^''!'^^^ ^'^l^^^y msafflclentto the verdict. But, where in our j.geme^t^^^^^ ^^ ^^^ ^^^ Bupporta conviction; where it J^^J^/ * ^^^ ^^^ and of reason; where it leaves ^^^'^^''^^2^'''"''^^^ u does in this case, a reasonable theory of State V. Coleman, Q Rich. (S. C.) is.i. • 2 Rev. Stats. 657; Darry v. People, ION. Y. 210 (1854). ^ For a collection ot these statutory pro- Tisioiis see, 18 Am. t)ec. 774 et seq., note to Whitelord v. Com., 6 Rand. 721 ; 18 Am. Dec. 771. H Fields V. State, 52 Ala. 348; Keenau v. Com., 44 Pa. St. 61, 56. n »«4IVv;T the PKUSOXS OF INDIVIDUALS. 1156 CUIME8 AOAINhT Tllf- i r » ......Hill But Intent alone Is meditation and deliberation,! ♦ Prim* Faole Murder In Flret Degree. - Prima J 696. A. Killing not P^"* f *f ' *. ^^j the om, U on the prosecu- f^ie a killing U munl.r In the second .egreo. Son tor.l.e theoflonse to the flrnt degree. Prflmedltatlon. — Premeditation 5 C97. --»«-rrTn\te'rc:;d JeTee-Tu^here can he no murder ot thla laeseentlal to murder In the seconu ucb'" grade without this requisite.^ In Piekett V. Statti^ on a § 698. I-Plle* -•""^-■"°°**raSS°' whenever It Is conclusively trill lor murder the jury -«- ^"'^^'^^^f^ "^^.Z not appear beyond a rea«. ahown that one person has killed »»« * ^^^ In pursuance ol a design sonable doubt from the ^'^^j'""! ^Jf, ^^ " ^you. and where there Is no evl- deliberately lormed, as »^"«'f ''^^f" "^X^^^^^ to manslaughter or negligent dence which reduces or tends to reduce the ^^^ ,, deemed In law homicide, or which excuses or jusUfls the kming, this wa. held error, the tohavebeen done with express malice. on pp court saying : - convicted of murder ol the first degree, HOBT. J. The appellant Pickett ^'■'^^^J^ ^^^ penitentiary lor llle. his punishment being assessed a conflne^^^^^^^^ ^elow charged as loUows. " ith Upon express and Implied "'^ f *»'« ^^ ^^ate mlud and a deliberate and Express malice Is when one, with a/=alm ana s ^^^^^ ^^^^j^,^„ Lmed design. In P-r^'/bv'rx^rnaf clrcultlnces. such as lying In wait of mind is usually evidenced j'/ « «'"^'^\i^^^^^^^^ acts ol preparation, etc You antecedent menaces, lormer g-^^jse^' f '"''^7 ^p^ess malice, that In order to will notice Irom the loregolng f «" "°",^^^^^^ the slayer must be cool and constitute a killing upon ««P'« » ^^Jf^'^^^^^^^^^^ the design to kill, and sedate, and while In this <^°f "^^^.J,^ ""^^^^^^^^ such lormed design-, or, II the have actually WUed the party In pursuance ot ^^^^ ^^^ .git^ted, then, lu design to kill was lormed ^l^^^^'^^ ^f ^^^^^^ there must have been time lor order to make the killing upon "P"*"^™*""'' u^erate upon the character ol tiemlnd ol the slayer to cool andjr ^ J» ^^J^'g^'oee^^^^^ And II the killing the act he was about to commit, belore the kl ling ^^^^^^ ^^ ^^^^ ^^, occurred while the mind ol *f ^^SJ''^';^^^^^^^^^^ character ol the act he v.a. same was Incapable ol f f „'f;'"°° "^t Ve uP""^ "P^"'' ""'"°*' ^^ about to commit, then the ''f °8 J^^^^^^f,,,; the mind must be entirely Iree ruSuo^^oiir^^^^^^^^^^ nature ol the act. 1 people «. Sancue*. 24 Cal. 17 {19S4); Pamore V 8Ute.29 Ark. *«; State .Fo.. ter.ClMo. 649; People •. Walworth 8 Alb. L J 19; People v. Batting, 49 How. Pr. 892, Peip ''r.Foren.25Cal.361; S.ate :rown W Minn. B38; Fahnstock v. Statv ' Ind. 231- Nye «. People. 85 Mich. W; SulKvan v. PeoDle 1 Park. 0. 0. 847 (1852); Clark v. JSle". 1 P"" O- C. 3M C1852) ; people v. Mongano. 1 N. T. Or. Bep. 4U (18^ PeoJ V. Conroy. 2 N. Y. Or. »«P- *" ^'^^jf » " OurtlB.70Mo.54; State -■^^"^'^^?;^l i McDanlel v. Com., 77 Va. 281 ^l'so3), PUomimg V. State.46 WIS. 516. 3 State V. Robinson. 73 Mo. 306, State v. Curtis, 70 Mo. 64. tllTex. (App.) 86 (1882). 'iu ^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■^"21 12-5 |50 "■'^ 1^ ^ iU III 2.2 ^ tiS, 12.0 '^^^^ 7 Hiotographic Sciences Corporation ■y 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 '^J^ ^* c ! ( CIHM/ICMH Microfiche Series. CIHM/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques iioMiciui: IMl'MKI) MALICE. .!57 "6th. Implied malice Is wh^re one party kills another without the clrcum' stances and formed desis^u as a: > required to constitute a liilling upon express malice, but under such circumstances as do not reduce the killing to man« ilaugliter or negligent homicide, or which excuse or just'fy the killing. "(Jtii. Whenever it is conclusively shown that one person has killed another, and it does not appear beyond a reasonable doubt from the e lence, that the killing was in pursuance of a design delil)erately formed, i..-. hereinbefore de- lined to you, and where tliere is no evidence wliich reduces or tends to reduce the killing to manslaughter or negligent lioraicide, or which excuses or justifies the killing, the killing is deemed in law to have been done with express malice." This sixth paragraph is clearly erroneous; so palpably so that it requires no analysis to n.,.ke the error appear. If Implied instead of express had been in- serted, it would not have been objectionalile as a charge upon Implied malice. From the preceding paragraphs and its own context, we believe this charge was intended to apply to implied malice, and that the word express was not in- tended, or that there was a mistake in the transcript. We, however, must be goTerned by the record. Assuming this charge to have been given, which we ftre compelled to do, the judgment must be reversed." § G9!). Implied Malice — Erroneous Obargra — Wbltaker «. State. — In Whitaker v. State,^ the conviction below was for murder in the second degree. On appeal the following opinion was delivered by the court: — WiLLSON, J. The law of this case can not be properly discussed and under- stood without first reciting the facts in evidence. In September, 1873, E. Town- ley died at a store or grocery house kept by one John Henderson, in Denton County. For the purpo.ses of this opinion it will be assumed as a fact that his death was caused by a wound inflicted upon his head with a rock weighing two or two and a half pounds, and that the fatal blow with the rock was stricken by the defendant. The deceased went to Henderson's grocery on the morning of the day of his death, and drank whisky until he became somewhat intoxicated. Henderson, Hood, Snider, Adkins and Horton were at the grocery. It seems that all these parties were more or less under the influence of liquor, and Snider, Horton and the deceased were very much under its influence, Horton and deceased had a flght, which resulted in Ilorton's getting whipped. This occurred before defendant went to the grocery. Horton was defendant's brother-in-law. Defendant went to the grocery in the afternoon, /ind after reaching there took two drinks of whisky, one a large drink. He remarked when he first went to the grocery that he had heard that some of them had been Imposing on Horton while he was drunk, and that they couldn't do that while he was there. Henderson told him that no one had Imposed on Hortoti — that it was a drunken row, and that Horton had only got what he deserved. The defendant replied then that it was all right. Deceased, at the time of these re- marks, was playing on a fiddle, and if he heard the remarks, seemed to pay no attention to them. Snider, being quite drunk and boisterous, Henderson pro- posed to tie him. Snider went to a tree and told Henderson to come and tie him. Henderson took a rope and wrapped it around Snider and the tree. This was all in fun. Hood and deceased started to go to Snider to untie him. Henderson and defendant interposed to prevent them from untying Snider. 12 Tex. (.Vpp.) 436 (1882). 1158 CIUMKS AdAINSr Till. 1 1 _ all in fun — Hood trying to get «..rt anrt Henderson scuffled with each otuei defendant was sit- foSni "unnehi,n.and "-- «' ^^"^ '^""" ":raho t elM feet stooped and plcked up Snider. He got up. and after go.n;^ about e.u ^ ^^^^^ ^^^ ^_^^^^,^ ,^,„ ,. f ockorrocKs. Witness thou h t^U h. ^^^ ^^^^^^^^^^^^ ^^^,. , , r,.roaq..d went to Snider as If to u"i ,. you shan't unlle mm." T)f- re:::a^v\th the roc.s in his haj.d and s d. You s ^^^^^^^ ceased Haid he reckoned he won drefenda ^^^^ started again towad. and said he'd be d-d It he should untie him. 1 ^^^^^^^^^ ,, ^ted d ookednpat witness and fughed and^«^^^ ^^^^^^^^^ „,,„, ,,eighmg ;:' think of this case.'. ? wl^a 1 tl^^^^^^^^^^ "^''^ ^'^^"^'tld a^d about 150 or IGO pounds; he was a little 1 ^.^^^^^^ ^^^^^ ^Id and and his punishment assessed at AvO « defendant's counsel, in the pro- No less than twenty errors a.e a-' '^ «« - necessary to discuss and de- ceedlngs In the court below, ^e do not think ^^^^^^^ ^^^^ ^^^^^ Smln! all the ^"-^^Va'sruTe^^^^^^^^ a^^we deL of importance with ret- our opinion to such of the assi^nt »rpnce to this particular case. , t^e court which Is as "one error assigned points to "^ P^'^'^'^" ° ^^^^^ ;. I'hlch results lu the death lollows : " It an Injury be Inflicted in a J "e^^^W instrument not likely to of hrparty injured, though it was 1"^' ^^^^^^^'^^nilng will be murder if com- proSnce death under ordinary f '="";; J^^^^^^^;^, ^o you In fifth section of these mltted upon implied malice as heretofore dclhieat y ^^^^^^^^^^ ,,uh li.s rnstri' tlons.. and if yoa believe ^--^f^^J'i ^ upon said E. Townley, wi h ^^m IMl'LIKO iMALICi: — WHlTAKKIt r. STATK. 115U il trying to get ulant was sit- .itud to ""'i*' iiul ricked up 11 each 'viiHl. WL'Ut up to He nim." !>«- [leceased b;\ck, 1 again towards et-eased started looked aud saw to strike. I did t know what lie vi<:lit liaiid. He of Ids head, aud the paim of his ill to the ground. 9 hand." There ide ol the head, les long, anil the 3 o'clock p. m.' Ith deceased, got iscd until he died. 3 all right as soon he got to the gro- e side ol Townloy, and see what you lar umu, weighing le defendant at the :cn years old and te was twenty-one detendant left the Missouri, in 1879, urtli^r of Townley, ,n the second degree ,e penitentiary, coansel, in the pro- y to discuss aud de- sel. and shall confine Importance wUh ref- he court which Is as li results m the death trumcnt not likely to ill be murder If com- i fifth section of these e defendant, with his laid E. Townley, with hlch he died, you will • This charge was ex- 9 bill of exceptions. We tliink tlie charge is correct as an abstract proposition of law.' '• Implied malice" is malice presumed liy law from tlie commission of .my (lelil)crate and cruel act, liowcver sudden, done or coinmitted witliout just cause or excuse.'-^ If t!ic injury wliich caused the death was iiitlicted in a cruel manner, the law wonld certainly ii.iply malice, notwithstanding the instrument used in inflicting tlie injury lie one not likely to produce death. It is the cruel manner in which the act is committed that stamps.it as malicious. If, then, the evidence in the case before us warrants the clmri;e under discussion, we are of the opiidon that It Is unobjectiouable. But it is ct)nteiided that there are no facts in this case which authorize such a charsjo, and that therefore, it was error to give It. We have searched the statement of facts carefully to find evidence which would authorize the court to .submit to the jury the issue ns to whether or uot this homicide was perpetrated in a cruel manner. We can see nothing in the facts and circumstances of the killing which fiive to it the character of cruelty, anymore tlian is found in most cases of homicide. It is cruel in one sense to take human life under any circumstances. But when we speak of the cruel manner in which a homicide was committed, we mean that the killing was done In an unusual way, —that there were circumstances surrounding the tragedy which rendered the act peculiarly heinous, and showed in the slayer a wicked, malicious heart, — a mind fatally bent upcm mischief. In t'- - case before us the defendant struck the deceased but a single blow, and made no attempt to strike again. He might have stricken other blows; there was nothing to prevent his doing so. The manner in which he inflicted this single blow did not evince cruelty in the sense in which the law regards that word. As soon as deceased fell, and the defendant ascertained that he was injured, he at once busied him- self to assist him, and sent lor a physician, and stayed by the wounded man. nursing and caring for him the best he could until he died. We can not agree that these facts justitl d the charge in the language in which it was given, and we think it was well calculated to mislead and prejudice the minds of the jury, to the injury of the defendant's ri;,'hts. And what makes this portion of the charge more ol)jectionable than it other- wise would be is the fact that it is followed by another paragraph embodying to some extent the same Idea, thus: " When the circumstances attending a homi- cide show an evil or cruel disposition on the part of tlie party committing the homicide, or that it was the design of the person offending to kill the deceased, and If he commit the homicide upon his Implied malice, he Is guilty of murder in the second degree, although It may appear that the means he used were not in their nature calculated ordinarily to inflict death." Tliis Is also a correct law, and would have been unobjectionable in tliis case if it had omitted the word cruel; but in using that word it submitted to the jury an issue which was not raised by the evidence, and following as it did the previous paragraph in which the cruelty of the manner ol committing the act ol homicide is relerred to, It made the leature of cruelty still more prominent aud was calculated to impress the jury with the belief that the court viewed that particular homicide as a cruel one, and therefore murder in the second de;?ree. The tenth subdivision of the charge upon this branch of the case was a proper charge, applicable to the facts, and was entirely sufficient. The charge ol the court Is also objected to because it does not sufficiently define murder In the second degree. It very lully and clearly deflues murder in 1 P. 0., arts. fiU-617. ' Jordan v. Stale, 10 Tex. 479. 1160 rU.MK« AGAINST THK VEUSONS OV INDIVIDUALS. t.e fl.t decree. a„a i„..uct. tUe Jury t-t unjler ^e ovU,.>ce t- .c^nda^i^ not guilty of murder iu t'- "-^ ;^^«^- ;, ^^^;; "^^^^^ au- malice as follow. : " I."pl cd ma c ^^ .^^» ;^;;";,.^^ ,,,,,^ to constitute a other Avithout the formod design a, d « '^^''^^^ ; "J"^,, eir u.nstauces as do not UllUng on e-Pr-s -allce but tu>der >^^^^;^^^,,^^ „, ,,,,eh do not ox- reduce the killing to manslaughu-i or °efe"^ dellnition of murder in cuse or ).Atlfy the killing.' Th.s Is the ^''^^^^ ^l\^.^ ,^,,^,,,,,, i^,t,u,ted as the second degree as given in ^"" '^J'^'^'^ ./'l" ;;\h, uilling to manslaughter. to the state of circumHtauces vrhich wou d red"- t^^^^^^^^^^^^ ^^ ^,^ It is contended by counsel for ^^'^^f^.^^^^'^'^j ,f ^ j*^," ^ ,„rther definition of second degree, as given »«/'--»''^'-8''' * '^^'^'^S'^JeouM the jury know, with- rtt^Uonfrrir^^^^^^^ ilrcumstanees won. reduce the ^^r^ll^g^lnXMens .e 1- ^ ^ ^^ ^^^^^ .- second degree if It '«. -'^-\-S\^^^;,7?^'^°leb t se'ms to us that, to have flable homicide. Having told the l^-^y^^f'j ."^"^/^^..d.r in the second degree, constitute all the lower degrees of l^°™;*;;j^..„_t homicide that it concludes by It is also f iected to t.e c arge u^n^^^^^^^^^^^^ ^^^^ ^^^ ^^,^„,,,, instructing the ]ury that, if ^' ^ ^"Z "^* * . . j^ him, as that oflense was ^as guilty of egllgent '7;';':^^^' f ^'^ .^^^IS i by 'defendant's counsel barred by tY statute of *'"'*;^;" . /^/^.^a^^^e^nd calculated to injure the that this was a charge upon the weight « ^^^^^^^^ ^^^,,^,,ci the defendant defendant by telling the jury, m effect. '^''^^^^i;^^J^,,,^,^^y, There was avi- of murder in the second degree ^^^^'J ™" J ^^^.'^^^ ^ the defen^^^ dence in the case to show that mmediately ^f^^^^J^^J'';^ ^^^ ^i,^, that absent the country, and was *«--f !, "^ f^^^^^; J/'^^^^u^n^tment in September, in the State of Missouri until after « « "^^ "''J';; ^^^ before the i.ulict- ,8;o.-the homicide J- "«,;;- "/tS 20700^ Criminal P.^cedure. ment was presented. It is provuiea "y «" ' - g is absent from the ..That the time during which a person a«°"«f ,°^,J" °°^? NegU-ent homicide ant. assumed as a fact ti^^t^*- ««---: ^n Im It^od 'rthe juryfor their rr;rn^t!:nr V^ZZ^^^. - statue . such case positively demands a "^^^'^'^^.f; j^f^ich we will not discuss, as they are There are other questions In th s case ^^ich w ^ determln- not likely to occur upon another trial. And it Is not neces y atlon of this case that they should be decided . jjenerted and remanded 5 700. implied Mallce-BrronsouB Charge -Reynolds v. State.- In i^ey- ■! Code Cr. Proc. art. 686. 1 Code Cr. Proc, nrt.2iH). !VL8. he defendant Is ixpliiiu Implied lonallykill au- l to constitute a :iiuce8 as do not , hich do !iot ex- un ol murder In ro instructed as manslaughter. 1 murder in the ther definition of jury know, with- oukl reduce the lot murder in the icusable or justi- us that, to have le second degree, acts which would ,at it concludes by hat the defendant 3 that offense was fendunt'8 counsel lated to injure the cted the defendant y. There was evi- ! the defendant left id after that absent ent in September, 8 before the indict- !riminal Procedure, is absent from the Negliaent homicide d be barred by the rable to the defend- »e evidence left that to the jury for their of evidence. While rror, yet the charge, statute in such case t dlscuBS, as they are (Bsary to a determln- verted and remanded la V. State. — In Bey- IMl'LIED MALtCK KEYNOLD9 V. ST\TE. 1161 nolda V. State,^ the indictment charged the appellant with the raurc'er of J. H. Barnes, on tlw eighteenth day of September, 1878, in Frio County, Texas. His trial resulted in a conviction of murder in the second degree, and he was awarded a t'jrm of five years in tlic penitentiary as punishment. W. C. Daugherly was tlio first witness for the State. He testified that he was in the town of Frio on the eighteenth day of September, 1878, wlien tlie de. fendaut shot and killed James U. Barnes. Tlie witness went down Into the cellar under Bibb's store just before the shooting. On coming up he saw the defendant slttlu:| on his horse In front of the store. The defendant spoke to the witness as the latter came up, and said : " What kind of people have you got here tliat they will beat up an old man like the one over at the grocery? " About that time the deceased, who was drinking, and, in the opinion of the witness, drunk, came up to the wituess and the defendant, and of the latter asked : ''Do you take It up? " The defendant replied: " I don't know but what I do." It was the impression of the witness that the defendant then took out his pistol. The deceased then laid his right hand upon or around the horse's neck, and his left hand on the defendant's leg about his pants' pocket, of which he took hold. The defendant once, or perhaps twice, ordered the deceased to release him which he did not do. Thereupon the defendant struck the deceaseci over the head with his pistol. The deceased released the horse's neck and the defend- ant's leg, and caught the bridle reins of the defendant's horse with both hands. The horse wheeled around and the defendant fired, the ball taking effect in the shoulder and near the neck ol the deceased and ranging downward. The wit- ness took hold of the deceased and eased him down, and with the assistance of other parties carried him into a house near Bibb's store. He never spoke after he was shot, and was dead by the time the parties got him into the house. Tlie pistol which was here exhibited to the witness was the pistol which was worn by the deceased at the time he was shot. Then, as now, it was tied into the scabbard with large white buck skin thongs, without untying and removing which It could not be withdrawn from the scabbard. The deceased was in his shirt sleeves when he was shot, and bis pistol so tied in the scabbard was plainly in view. The deceased made no effort to strike the defendant nor to draw his pistol, nor other hostile demonstration that the witness saw, nor did he make any other remark than that stated. The defendant lived at that time In Uvalde County, and was but slightly acquainted In Frio County. The witness saw the defendant and the deceased together that day, and saw them take a drink together. D. J. Feehan testified, for the State, that he was present when the deceased was killed by the defendant. While the witness was standing In front of Bibb's store, the deceased passed along in front of the store, going from the direction of Harkness' grocery. He passed around the corner of the store, and out of sight for the time. He was drunk and staggering. A short time later the defendant rode up to the front of Bibb's store from the same direction, and the witness heard him spv-ak to some one. The de- ceased, who had returned from behind the store, walked up to the defendant, and put his right hand on the horse's neck, and his left on the defendant's thigh. The witness did not hear what was said by the parlies, but saw the defendant strike the deceased over the head with his pistol, knocking the ramrod and guard off the weapon. The deceased staggered back and fell in front of Bibb'* , art. ( 1 M Tex. (App.) 427 (1883). 1102 CUIMKS AUMNST THK IMCUSOKS OK 1Nn.vn>UAI-S. l„g tl>e deceased In the .houKler -■" ^''^ ^^J;^ ";,,, alter he .-us shot. The took the deceased iuto the houso^ *;: ' , tUolceased until he went to ns.ist witness did not see Daugherty take 1 old f the . c ^^^^^.^^^ ^^ ^^_^_ ^_^^^,^,,^ in carrvini? him in after he ^va. "''"^V ",;.,;',';;„, ^t all. U". ^M not know all the-tlme. He did not see ^'-^^;"- j;' .^rcease.l first appro.che.l hiuK that the defendant drew h..s p.stol 'f f°'''' ....^ck the deceased on the hoad Witness llrst saw the P'«^«V' %rrttodr v M Pistol.to strike the defendant, withit. Thedeceasednmdeno.cfforttod.awiP Deceased was or to do him violence <^l -^l^Z^^^^^on. ^^^y '^^ ^'^'^ '^''^ ''y^ *rS:^:^e state. .avesn.s.a,n.^^^^ as that given by Daugherty. addmg -'^ ^ ,^ ^ ;,,,, „,,,,« he llred. Ul^ tes- hls order to the deceased ^»f ^^^ .^.f "ieopinion of the conrt. tlmony, however, is set ont In if''^'^^^^'^^,,^, of the killing, testified, for A. S. Curetan. a justice of the peace at ^^' ^^^„„,,,, „ut reached the State, that he was not in town -;'^;'-;;^^,° ,« , ,,as getting ready to town just afterward. He was ^; '^ °' ^^^^.^'"^.u^'g «„ uis hor.e In front ol go an., arrest the ^l^'t«"''';"^\^^f,,^rred and with pistol in hand rode toward ^Bibh-s store, when he. defendant u u-d aM w ^^P^^^ ^^^^ ^^^^^^^^ ^^ ^ the house where witness was. "^J^^'y "^^ ,^ Ben White : "Come on Ben ; r::; r E::rS ;!:;rr ST^eTsfrulu mo town.- ue then rode off, ^^bnidley testified for the SUJ. 1^ ^ ^ ^^n^^^^^^X C the defendant rode up to the door an ^ «' v "^ ^ .. ^^oever did that is ^bere he had been knocked down Thc^l ftnd ^^ ^^^ ,, ^ ^^^^^^ ^^^„ a d-d coward, and I can whip 1^^™- W,'^"'^^ ^olped." The defendant then U, Bill ; it has been done now and ^^^^ ^"^ .^^f„„^ J,, ^e was going to .ee BUI s id that he would not. He then roc^ ^,f ^'^^ o"rtLe. He did not tell the de- Daughcrty. The witness heard a ho xn ash ^^^^^ cross-examined, the lendant who the man was that l^'^/* ^°'"J'° ^. on the floor. He wrfs very witness said that old man Everett ^^^^^^ "^J^ ^^ ^ ,uort time before. The bloody. He had been l'»"«>^«'^,^«;'"^Vnnd Everett were acquainted, v^itness did not tiunk that the f/^f^J^" ^J^^ter "e Iceased left his saloon the J. C. B. narkness testified that ^^^J^^ j";^';;„,,, „« to Bibb's store. Wit- defendant rode up and spoke to RuHey. ^;^»^^;°;; ^ defendant. He saw him fels was induced by -^^^ «^f ^/^^^Vst " erC and then shoot. Parties strike the deceased over the head, and J^a-e' ^^ ^^,„ off up Frio R.ver. rushed in and around tl- deceased and the ^^^^- ,^^,. The witness went into Blt)b's store and saw xn shooting. He gave, ^'john Henman testified that he ^^^'-^f^.^.tlSess Daugherty. except that in detail, an account similar to t^ja' S^ven by t^^^^^^^ i,,„g,erty. De- he said nothing about the words ;™Pf;"* ^^^^ ^ J defendant that the witness ceased made no hostile d^^^'^f ^'^'^^';° ^'J.t^JVa" t e^ 1° ^he scabbard, for he Lw. Witness knew that the deceased P °\^;^\,, ,,„„ard while riding ^rfk iiiu flrcrt, strlk- ertyuuiloiliiTS wusshot. Ttiu : went to »9>i«l igattlK' I'iii'tii''* 1,! dill not Ui'.i'W pproiiclifil liim. isuil on thf hoiul etho defendant, Deceased was Ixty yards apart, ty having a diffl- unt of the affray A times repiated e fired. III!* tew- llng, tcstlfled, lor rred, but reached i getting ready to hor>e In fi'>nt ol hand rode toward distance in a t^low i; "Come on Ben; He then rode off, kness' saloon when t lying on the floor, iVhoever did that is a: •.le ho.nieide. And in this ease it was insisted. In he .n..t on 1., .,„t the eourt erred in its cliar-e upon impUed malie.e, uml in ;:ui:g t: ::i:t,;":;:;in.e to man...hter. ---'v'p;.u tue -p. ose^sround that, there was evidence presentinf; manslaughter. II ^l'*- « ^^^ ' ilf . te din- to present the issue of manslaughter, anern.neous Instruction :i;'t^t^on ,;;::^l nuUlee nu.y ..ave worked an Injury to f -o -lofen^u. ; L ft ere was snch evidence, n.ost evidently a. failure to charge the law ap- m a le to th t cie-'ree of culpable homicide was calcuiate.l to injure defendant, !.;'::hTn om!:;sU.nClng the effect to con.lue the jury to the higher degrees, and to force tlu.m to convict of the higher or aeqn.t al ogether. be murder In the second degree." T . * 1.,. fi... iih.«tvitions siiven by the learned judge, anci see u luty pui of implied malice, luenrsiis. ^r iu^^fy the act, the evidence sufficient to show express malice, no ^^ .7;;;;;?'^. J^-^j J„„ 1, binder »^^«SB-V?*l3*^»'™»*»' ■■ UG4 CU.MK. AOMNST THE PKUSON. OK INUIVIDUALB. „e,U«ent ho.uicUlc or -'"--f ^'^ ;^,.^^; Jf .u,^...,. L.uidCe. a part of raised by cvldcuco la this case ^^ '^-;;: ' J,. .,, ,„ltructiou8 a.kc.l by cK- tuero beln« no objections '"'""^^^f .\.,'; f ^ . ,, a different standpoint. The fendunt. wo would treat the ^^'I'^^^^TL.^ ont of tbe case -whether question would then '^^ " '^' V*^^^, .' \';;' " rupou implied malice, or upon I failure to Bubmit a P^'-^'-^'^ ^^ ?,f ,';''rniury to defendant? Let «. now malice of the second de^ee, ^vrou^ t a.» '^^ ,„anslau,d,tcr as an issue proceed to ^^^^^^J'^-J^::'^:^:;::.. evidently calculated to injur- in the case; for II so, iul ciiuit, lously aflect the rights of defendant ^^^ ^^^ ^^^^ ^j ev- It appears from the f^-;;"j;;,/;:;:;r deceased, in Ilarkness' saloon, erett had been knocked ^'«^^'". f , °';' J^.'^ofendant rode up, looked in thesa- and while he was lying "P"" ^.^^''"""^''r^ floor, said ...vhoever did that was loon and, seelngthe old '"'"^'^'f 7*'" '^' i.nvWphlm.'' The witness Ridley a d-d coward, and that he (defeud.^^^^^^^ -^ ^^ jl^lpl ^^^ ^^ ^^ ^^^^ ^^^^^^ spoke to defendant, "telling ^ " ^h'tt ^ w°u ,^^ ,,o„ui not, stating that he conld not be helped." 1]^'^^'^^ '^^Ctl,^^ ^^^^ When defendant wanted to see Bill I>a«Shtery, an rode over t ^^ ^^ ^j^^ of people have got to Blbb'9 store he spoke to ^^"3" >-y and sai K ^^ ^^^ ^^^^^^^^ „ ^o« got here that will beat ^ -J'*;*;;", ' and asked defendant if he took iboutthat time, Barnes, the J «« J «d « ^^,^,^, ^^^,,,^, .. i don't know ,t up. The witness D''"«f ;7 . '' "^^j the witnesses are not harmonious. but what I do." As to ^^ilat «>1«^^ '^^ .. i ^as present when James H. T. B. Bibb, a witness for ^J^^ ^J'^*^' 'J ^^ ^^^, ,„town that day on busfess. Barnes was killed, deceased and Benman cam ^^^^^^^^^ ^^^ When I came up out of the cellar Ij«»f ^J^7„\\„ ^r. Daugherty, and asked Reynolds rode over to the «tore and spok^, I hm ^^^ ^^^ ^^^^^^ ^^^^^ „ hat was the way they treated f^\^';^^^'l,^.^,,al and caught Mr. Rey- him if he took it up, and ^^^'^f^^^^^^.n hand, and with the other he took nold's horse by the mane "^ ^^ ^^ 'Jip . and the horse Mr. Reynolds was on hold of him somewhere on the ^»"Sh '^'^'P ' ^j^s told Mr. Barnes to turn him whirled around once or ^--^^-^^JJ^.fj^ruck him over the head with his loose. Barnes did not ^'« J\' ^"^,f *\";„es staggered back toward the gallery, Uol.andwhenhestruckl^M.Barne s^^ ^^^^^^ ^^^^^ ^^^^ and still held onto 'l^^ '^'•'^"" °*;^';",,;„d Mr. Barnes came up again, and and it seems to me *^« ^^^^^^ ^^.^tfj^, and Mr. Reynolds told him sev- the horse whirled around t«o or three u. ^^^ ^^^^^^^^^^ ^^^j^^own, eral times to turn him lose ; and M'; «^> "^ ''J^ ,,.^ ,„d laid him down. I do and some one, I tj^^^^^^^^-^..^ fwheti r he died after we carried him in the rr^^^^rHr S^X^ -fled: .. was there whe. Cr<.ss-e«.n.l»oy the *'"'«»•* 7;;1.„ .„, „.«1«B to get bin to tak. Z!::'^:'jTZJ risrr»o.>a .« .„t„ t^u... ^ .».. . 1 13 Tex. (Apr.) 536. ^M ALS. (Ifgrecs, to wit, niclile, a piirt of ssed lu Meijland ghtcr Is (in Issue .U'd by eviiU'iice, ions nisked by tlt- iitiuulpoliit. The ecuse — whetlur inallco, or upon It? Let us now ijlhtcr as an issue ilculated to hijur- y the name of Ev- Ilarkncss' saloon, , looked in the sa- ocver did that was Mie witness Ridley as It was done and lot, stating that he When defendant {Ind of people have r at the grocery? " lefenilant if he took ed: "1 don't know harmonious, sent when James H. lat day on bus\iie88. cultyonhand. Mr. lugherty, and asked id Mr. Barnes asked id caught Mr. Rey- th the other he took Mr. Reynolds was on ■. Barnes to turn him ,er the head with his It toward the gallery, , Avith both hands; s came up again, and eynolds told him sev- [r. Barnes sank down, laid him down. I do we carried him In the 1: <«I was there when •iug to get him to take rouble. The reason I l.AIPLIEI) MALICK — KHIJOXEOIS < IIAHUK. 1105 thought he woul.l get into troul)le was on account of what occurred with Barnes and old man Kv.iett. When Reynolds came up ho sj.okc to Mr. Daugherty. When deceased w.nt toward Mr. RoynoMs he went iu a southwest direction from my store. He can..- from a northeast direction, and caught the horso ol Mr. Reynold's by the mane or bridle with one hand. Mr. Reynold.s tried to null the'horselooHe from him. an.l I don't think he turned the bridle loose. I don't know whether ho was trying to get hold of Reynolds or the pistol; it looked to me like he was trying to get hold of Reynold's pistol. After he w^s struck I can't sav what. I do not know exactly how long I have known the de- fendant. I think I met him some time after I came to Texas, which was sev- eral years a-o. I .lo not remember how long it Is. I had known Barnes several months; he lived at Mr. Crouch's ranch In this county. Reynolds is a cattle man, and lives at Uvalde. Mr. Barnes was not drimk when he left my store. I hallooed at.Mr . Reynolds not to shoot, but he did not hear me, for just as I spoke the pistol llred." ^ »u * Instead of proving that defendant knew that Barnes was the party that knocked old man Kvcrett down In the saloon, the evidence leads to different conclusion. It will also be borne In mind that defendant made the remarks lo Daugherty in referenci! to this matter, and not to the deceased. But .suppose there is evidence tending to prove that defendant provoked the dilllculty, this would only present another phase of the case. The question tha^ IS decisive of this case is whether there is evidence tending to raise the issue of manslaug! >r. Suppose the jury should take the view of the case which Is presented by the testimony of the Blblj? Or, to present the point in another ight, suppose the evidence of Bibb constituted tlie case the whole case? ^^ oukl it not have been the duty of the trial judge to have submitted to the ]ury, by proper instructions, the law of manslaughter? We think so. Defendant was seized by Barnes, he, Barnes, being armed with u pistol, and his (defendant s) own weapon being attempted to be taken from hlra. He demanded repeatedly to be released, and to effect his release, struck Barnes with his pistol. This falling, ^ While I™may be true that Barnes' pistol was fastened to its scabbard so that it could not be drawn, this fact Is not shown by the evidence to have been known by the defendant. He mayor may not have known It. The testimony being silent at this point, what is the presumption? It is in favor of the defendant, as all presumptions are in his favor until they are eliminated by proof. We win not enter upon a discussion of the facts, but will say that in our opinion they tend to present the question of manslaughter. This belug the case, what Is the rule? We do not believe that a clearer statement of the correct rule upon this sub- ject can be made than is made by Mr. Thompson in his little work on charging the jury. He states it thus : — "The judge instructs hypothetically upon whatever state of facts there is evidence tending to prove. It is error for him to submit to the jury a fact or state of facts which there is no evidence tending to prove, or to give an instruc- tion with reference to a sUte of facts not in evidence. But, In order to justify him in giving an instruction predicated upon a supposed state of facts, it is not necessary that he should be entirely satisfied of the existence of such facts; but, if there Is evidence from which the jury may Infer them to be true, it is his duty to declare the law thereon, and it Is not error for him to do so even when the evidence is very slight." The principles enunciated by Mr. Thompson lice. CKIMKS AdAINST TlIK I'KliSONS or INDIVIDUALS. arc sustained by .i Io^k \\w <-( dccisiuns l.y our Supremo as well as this ''^ Because the court ern-M in its charge upon Implied raallee, anil because the law cf manslannhter was not ^'ivun in chui'Ke to the jury, the juilymeut is i.- vtrsed uua the chuso remanded. ^^^^^^^^^^ ^^^^^ remanded. S 701 Evidence Insufflolont to Convict of Murderln First Degree - Cox V Btato.- In O..C v. StaU;' tlic indicln.enl diarjied the ai-i-elUml with Ih.^ nnu-- Uer (if I' W. Uai.d..ii.h, en February 8, 1878. The State first Introduced Jam,. Itandolph, a oonsiu of the deceased, who testltled that himself, hl.s brother .[ohn. nnd one Bob Wilev were i-re-eut at the mill of witness' father, in ^^ alUer County, when the killing,' occurred. Wiley waslnor about the mill, and witn.v., his brother John, and the deceased were lyin- on the ground, whlttlini; with their pocket-knives, when the a|,pellaut came up behind them and said they ou-'ht to piy him for the turkey which the do-s of the party had killed. De- cc^^ed replied : "Our do-s did not kill your turkey, it was my dog tliat did it. Appellant said that ho was in the habit of killinj? do;,'s that killed his turkeys, and that if he was not i,aid for this turkey, somebody's do- would come ui- misaiu". Deceased then said, " If you kill my do;:, you had better hunt your hole " When the deceased said this, appellant came arouud by witness, draw- in- his knife - a pocket-knife witli a bla.lc about the leu-th of witness' linger - hoUliu-' it with the blade to the back of his hand, ttud stoi)ped In front of de- ceased? a step or two dis'ant. He appeared to be very angry, anpe - lant he would have to hunt his hole it he killed his (deceased's) dog. Appel- lant did not retreat or give back during the difficulty. The witness was present some three weeks before, when deceased's dog killed or injured the appellant s turkey. They were driving stock by appellant's house, when the dog got after the turkey and crippled or killed it. Deceased whipped the dog and tried to pull him oS from the turkey. During the conversation on the evening of the killing, appellant said he ate the turkey; and deceased, after telling him that he whipped the dog at the time, and tried to keep him from injuring the turkey, said he did not think, since appellant had eaten the turkey, that he (deceased) ought to pay for it. 1 A Tex. (Arp) 193 (1879). MUUDKi: IN 1II;,ST Dr.dltl'.K— lysl'KKIClKNT I'lJOOl' IICJ LS. 1 wrll as thi.x 111 l)('iausc tlic luttsmeiit Is n- ul remctndcd. Deirreo — Cox , Willi the iiiui- roducuil Jaiiu .^ ) brolliorJohn, lior, ill Walkor II, ami wltiu'^s, whlttliiit; Willi anil said they ad killiHl. 1)1- og that did it." ■d Ills turkeysi voiild comu uii tlur hunt your witness, draw- Itness' linger — I in front of de- ,nd s -111, ■' G— pellant, luit pushed him witli Ids lelt hand, when apiiellant stablied lilin. John Handolpli tesiiiled, for the State, that lie was present at the Ivilling- Soini; three weel;s pie\ ions, liiinself, James Handolidi, and deceased were diiviiig stock past the house of the npi'ellant, when d.eeased's dog ran after ap|iellaiit's lurkey, and elllier killed or erl|>pled it. Deceased whipped the dog, and tried •o imll Idin off the turkey. On the eviniug of the klUi'ig, tlie some three were lMii:igin_' on the ground in front o[ tlie mill, where they all worked, whittling with their knives — two blades of the knife of di'ceased opened at either end of the handle, and about one-third of each was brok. ii off. Ap|>ellaut came up behind them, and said their dogs had killed Ids turkey and he oiiglit to be paid lor it. Decea-^ed said, " Don't say ' we; ' It was my dog that did it," Appel- lant said ho wa.s iu the habit of killing dogs that killed his turkeys. Deceased answered that he had l)eaten li'.'^ dog and tried to keep him off the turkey. Appelhint aiisweriMi, "Asilwasyoiu dog, I'll reckon I'll have to let him off," and turned awav. Deceased said, "1 /■ ckoii you will have to lei him off; " and appellant turneil back and said, " If I - ^^tTirom 'rind through to the ducking pantsjM'^-hw ^^^^^^^^ ^,„ 'f/'^iuy -"er the day on which The skeleton l'-^^ J^'"' ,^^ McKluuon horse well, ^^'''l ,^ ^orse at a .vater- iront. Witness l^"^;^ '\^^,,,, ^he .vltness saw MeKluuou s ^^^^ ^^^^^^^. these parties P*^''"^^ ''^^^^^^^^^^^ the body was ^««"^- Jf^hese two men on the hole about one nide i^o " v;hcr ^^^^ ^^^^^^^^^ ''^rone armed man. twoen two and ^^J^^^^, .as then a-J i-ow ^ ^ 1 atTsUeker, shoes. McKlnnon »'»";• J^^'.^erlff and jailor, te^tlfled th^t th , ^^ ^^^ ^^ ^,^ L. A. Scoggln, deputy « evidence, were tiuncci ,purs, --or-;^rw - iu tl'samc condition as vj- he/- ^^ ^^^^^^^^ ness, arrested the '»«t«^° ' ^, p^aro Garcia j^^^ ^nown the charging W'« ^^'^^1" ™or the defence, that for ^^^:^^l^^'^y ue left the em- Frank Hall tcf'title^l. tor tn ^^ ^Uy good cl^f'^'^J^'-. ggg ,,^a returned defendant the latter lu.d borne a g ^^ „ J^J^ ho le'it witness in ploy of the v'ltness to wjk^ ^^^^^^ .^^^ ^''f^^l; an amount he said he \o work for ^^^"'"f^Jfiy dollars with which to pay an ^^^ ^.^^^^^^^ This he did on S«P\^™°"'^ j^^^i ^„feed for him .rrest ou October 5, 1882^ ^j^^^ ^^6 defendant hatt ^^^^ '"j. M.Campbell testified or t^.e^^^^^^.^^^^ ^ "SVa'lng l m lorty-one at different times since 1877^ H^^^^,^ ^^^ „, •'"'^' if'S^or the witness. • --^ ^""^'^d :;« c-X; mce Which time he has n ^ .orked^ ^^^^ ^^^ ^^^^^ dollars and live <^',7 ' ti,e witness said: The speaking of his character, ^^^ ^^^^^^^^^ ^^ ^ nlng." ,„ . .„, the State, that the reP^^ation ^^^^ ^^g. The motion for new ^^^ ^^^^^^^ ^,j tue conn dence, and denounced as punishment in the second degree. ,,,,™ of murder of the first degree, tne p HURT, J. This IS a convict on om^^^^^y j„, uje. Jng aBsessed^--r;r 1'^^^^^^^ i-y a c^J';5-r:jrdX^^ I>^'- The trial udge failed to s ^^^ ^^^^^r of the se ^^ ^^^ ia cases of murder "PO'^,^™^"^ j^^u „,otlon this Is express y made ^^^ ^^^ endant moved a ne^ trlaj. and m ^^^^^ ^^ f^^^^Xhre plicated I., grounds. Itbelngthe du^^y on ^^ ^^^^ ,,, ^Ce whole evidence -- re- Ippllcable to the^«^a««;j^^^^^^^^ ^^ ,t,, evidence the whole ^^ ^^^^^ ^^^ :rrerarge--utoi:"^erof the second de.ee, rALS. ranch leading to est. He»awtlie ro blooily insWi: d through to the the day on which horse at ft water - ,ciy was found bo - ,0 two men on the armed man. ,at, slicker, shoes, ver to him by the ^celved tUem. m Mr. Morgan, the aed them over to Idence to Mr. Mar- er'sjury. He, vrit- County, on a capias xs he had known the jr." Ue left the em- i 1882, and returned he left witness in ,1 amount he eald he ,ack to the witness, ,0 work out bl9 debt, workedout that debt. the witness until his ,nt had worked for him ,9 in July, 1882. Wlt- , paying him forty-one orked for the witness, exicans call him Ugbt- 1 of the defendant as a id '« ready to make des- [or trivial things. He is supported by law or evl. Jo charge npon murder t degree, the punishment le^on the law governing i the second degree. De- .vnresslv made one of tnt '^ll to charge the law aycases, tocnaig question here presented , the whole evidence --re ; II the case Is such, or, MLUDKU IN FIKST DKORER — INSUFFICIENT PKOOF. 1173 What Is the same tliini:, if the evidence Is of that character us to place it alone within the sphere of murder in tlie llrst degree, and tliat tiie l^illing was upon express malice, or done in the perpetration, or tlie attempt at the perpctnition, of certain offenses named In article 006 of the Penal Code, the trial judge sliouid conlluc tlie charge to such a case, so made by the evidence, omitting instructions aiiplical)le to all lower grades. From tlie above proposition it follows that the correct rule is this: To relieve the trial judge of tiie duty of charging upon lower degrees of culpable homicide, tlie evidence (tlie case) must estal)lish tlie highest degree. For, if there be reasoniiblo doubt, the court can not solve the doubt; this must be done by tlie jury. We believe this rulo«to be correct, whether applied to cases of homicide or to all cases In which the greater includes lesser degrees of cul- pability. To establish murder in the first degree under the evidence In this case, the State relied, and was forced by the case to rely, npou proof of express malice, or that the killing was done in the perpetration or attempted perpetration of robbery. Hence the State must prove one or the other of these grounds so con. clusively as to place the existence of one or tlio other beyond a reasonaijle doubt. The burden is upon the State, not only to prove that defendant killed deceased, but, where she demands a conviction and punishment for murder of the first degree, to prove that the killing was with express malice or In the per- petration, etc., of some of the offenses specifically mentioned In the Code. When the trial judge comes to submit his instructions to the jury, he should carefully look to all of the evidence, analyze and weigh tlie same, and if the killing is not shown to have been with express malice, or under the circum- stances which would make the homicide murder of the first degree, he should charge upon the lower degree or degrees, as indicated by the evidence. To justify an omission to instruct upon lower degrees, he should be able readily, without pressing or straining facts, to grasp the facts or circumstances which place the case alone wUhln the sphere or boundary lines of the highest degree. No presumption from facts or a combination of facts can be Indulged, unless they lead to the conclusion sought, and to no other. For If such cogency is wanting, the jury might doubt; or If the evidence or any part thereof lead to other conclusions, uncertainty appearing, the jury might take that which is not so unfavorable to defendant, or might have a reasonable doubt as to which is the correct conclusion. Looking, then, to the record In this case, can we point to a fact or a com- bination of facts or circumstances which lead to the conclusion that the defend- ant is guilty of murder of the first degree? Does this appear so evidently and conclusively as to justify the court below in withholding this matter from the consideration of the jury? We think not. , In order that there may be no misunderstanding of our views upon this sub- ject, we win Illustrate. I 1. Suppose the case is one in which murder of the first degree Is clearly and conclusively established in the opinion of the trial judge, but there is evidence tending to rebut this conclusion or to establish murder of the second degree, Sliould the judge submit a charge upon the lower degree? Unquestionably he should. Wliy? Because it is the province of the jury, and not that of the court, to pass upon the credibility of the witnesses and the weight of the evi- dence. 2. Suppose the evidence Is of that character as to leave no doubt that the homicide was of the first degree, and there Is no evidence tending to reduce 1174 CRIMES AOAINST THE PEUSOSS OF INDIVIDLALS. th.. offense. Must the trial judge submit a charge upon the lower degree? We ^^crrr:itheguida^.t.3^.tr.ug^^^^^^^ ^Thelr duty is culte distinct ^/^ „^-\ ^^^ ^ant r n. the Lw as given the guilt and the degree of the guilt of the «'-«""''• ^„ ^y^, them by the court and the evidence f;'"-^.:P°;^;t^^:.l„ ^o the evidence, of the credibility of the witnesses and the v.^lght o be given ^^^^ ^^^ This can not be done by the ^^^ " J^'^;^",,; .^^f^^^^^ viewed as a applicable to every phase of the case presenieo oj ""wc Z«lTi:2: .h. ,v,<„„.e, b.U«,„g th.t „or. Ugh. <»» ^ ^«;',"P»" .taghter, H.l.cy Gl..., .n.l 1>« e ^"'"° '"„„,", u,, hoU8eoa.be same woman I am looking lor. >i ■ j^ ^i j think secrets and I have kept then.. > ■ -.^^^ Jj^ ^^^ ;^^^^g ^^^.^ you are a g«°f J^..^;;:;/ ,>,:, :,:.aaovertheheadlastnlghtandllked Washington, witness' brotuer) = . . w. . ... ^^^ j ^^^^ to have killed her?" Witness th.r i^^^^*^; ;°;^' ,f^^»aon'tgo, Iwasnot goingrlghtdowntoseeabo^Ut^^ -^^^^^^ Defendant then :rbS:;rdH;nryrcirT.ai^,n^^^ «--^- 16Tex.(App.) 347 (1884). ^^H MUUDEll IN FIKST DKOUEE — INSUFFICIENT PROOF. 1175 tlugree? We rce, or If the ! by llie Irlnl )e given upon Igliest to the cou't, autl by •ges upon the •ge8 preferred sc. The jury Infer that the I the evidence. ni the ear had I been dressed ituess saw no 1 closely, dls- : with which a \o"el, and that tnemselvus to le last witness, jr of kerosene , He found no dy and made a ury of inquest, niall laceration d sun and heat Heatstroke is QOtion and self- irery is complete juenlly ensue as like character, eurism of either imonitory symp- ikull. Epilepsy, ra a post mortem i brain. d, in addition to of that jury, that lai lie saw a small four-inch wound he skull broken, to the same effect. , testified, in sub- to witness' house hichshe said had 1 a rag, sugar and It was the same Qd serious ; it was md saw the body of coal oil about rleudly oa Thurs> MUUDEU IX FIKST DEOREE — INSUFFICIENT PUOOF. 1177 Fred. Berry testified that he had heard the deceased and defendant " ore than once quarrel ai.ont llcnry Washington, and in one quarrel heard .lefendant '" K;lh\v:'i;i';r;;^"rv's brother, testUie.. for the State, in substance, that l.otL a au in 1 1 ouse, exu.nlned ,he body, and both saw au.i smelled coal olo tlet>dyafU.r d.,at .. Wlu.. he romark..!. after examining ll.o body : ". n^i ord JeJuH Christl This won.an Is murder...; and "f ";7"';::;;; ;;'« keroscned," Henry Washington put his hand in hU pocket and said ; " M ut ui , J ion-t w;.t such talk around hor-." Witness was nut on «-;'' ^ ' ^ ^ his brother Henry. Nelth. :• Sank nor Sandy Washlr.ton wore ' * \^^"^^ wh.le witness w.s there. Some time prior to Jane's der h defe dau t^ Id^lt „e.s that Jane had gone to Marlln and abused her, anu that .he would kill Jane '" Th:r:u;r ™r::;timony of .eter CrutchfleUi, for the State, was .la. he passed Henrv Washington's house between one and two o'clock on Novem- b r's 8 "and saw defendant and her daughter washing some llf tc.n o.- twenty Tps from the h.nise. The house was closed ^^^^ "-'^''^^1^ Tu and ing out of the chimney, and the witness smelled a strange odor, like lags and "Tttatell part of the testimony of Dick Payne, a witness foi^ thc^ State was, in effect, that he occupied a portion of the house «^'="'' ^ .^J' 'j^^' '^^;;, He knew that the defendant and Henry Washington were very intimate. Henry paid rauentions usually paid to a wife. Witness had nej.r ^^^^ defendant in bed together, but had often gone to bed leaving them m defend anteroom together The defendant and deceased were constantly quarreling aboutHenry Witness had heard the defendant threaten to kill the deceased^ On'ne ocllon. in May, 1883, defendant, with a hatchet and ^'-J^t' -;^^J° George Ann O'Neal's house looking for Jane. On her return she said tha she Wished God would provide her a dark night, that she might put on a bla k dress and imeher aim. Witness had never told this until now He";^^;^. tn lorJo deLndant was rather constant. Henry and the defendant had a tentlon to ««»ena'inj oefenuant came out of her house with a n:ZT.Z^tZ:Xr^^n, Henry. She said ^^^^-o.^l^^^^t] that day - would kill from the largest to the least. Je.se Blocker testified, for tSe StaL that some time before Jane's death he saw defendant standing n the roacf w ith a club i" her hand, daring Jane to breathe. He remembereendlng at the time of r to state what the de- ,g her nearly to death. MUKUKU IN 111!>*T UEUUlir.— INSfl't'ICIENT I'UODF. 1179 This w.s hearsay, and was no part of the rex gestk, a.ul 1.. no way connected :l;;Vde:::S::U, ;vas m ..xpianatlon of her then sickn..s. a., was a part o, ^'Turr^;;;;!:""^::' appellant's ..unsel that the cou. .red ... I. , . . .1,.. inrv or in refusini? special Instructions reciuesto.l by t lo d. Itna ::;S:r whatever that Violence h.id heenu^ ^ ^ ^^^^ "^^^ ,nade no outcry that was heard and no "«;;• ' ''^^^^;;';;, ^.^ ^, ,,,.,,„, within house at the time of her death; and >^^'.'' ''^^^.^J^ .^Z, \, „ J„ ,vho wem-hed hearing of the place of lu-r death at the '^'^'^■^'^;^l,, apparently one hundred and thirty or o.e ''''"•^'•^"V' 1. lu le tia sl^^ h ve been in good health. It is not reasonable to conclude hat she cou nairdered without a stru^-gle or an outcry on her pait, and evidence of violence being left »P«» ^er Person It was the theory of the prosecution tl"^\'';-''°««^*' °" ^^ "'\vi.ile it Is ^os- a„dthatshewastlienUirownlntothei.an^^u^^^^^^^^^^^ sible that this theory is correct, It s not est dusil ' ■ ^^.^^^ the contrary, to our minds, the -^^^----^ \ ^^ fl C'bu one chunk of „.as thus produced. There --J^^'j"/^ ' ^•^;''; ^.^ ^lic aln^ in or about the lire, as some of the witnesses ^^^^'^^ 'Z^^/-, " ^^'^^ta^^ u.^d which was being flre-place of a struggle; a pot and a ^^lllet, contal^^^^^^^^ i. ^^^^ cooked, were In the flre-place. -"^ J-;' "^^^ found about the house, though some °* « ^^^'"^^'''o .trwltnesses, however. it, and one witness said he savv some °" ^^^"""^ .j^j;;,"^ ;;, fl ,or, and conld testified that they examined closely and «7 °« f " ;«; j; Jii,ed, or nearly smell none about the body. Bu . it is said P'^^^^^^^^' ^^^ „^ ^ ^eon the Uiiled, and then saturated with o I -^^P/^-^J^^^^^^^^^^ to kill or ease, it is reasonable to suppose ^'^'*' ^*/^f^'''J^;^V,„eh violence would have render her helpless had been -f .«.«"«;; ^^^^^^^^ ^ conclusive that no such : -refwrf::;-^^^^^^^^^^ - -- -^^ -« - 1 Hammel ». Slate, 14 Tex. (Api>.) 326. IIHO (Ul.MKH AOAINST TIIK I'KUfSONH OF INDIVIDUALS. hunie.l iiiiil i)artlcularly t'xuuiliifd by iiii cxpiTl for thf imrposo ..f (llscoverlng Imllt'llUoll.S vt vlolflK.'l'. On tlie ollKT hand, It appoars from tlio cvUleucc of u pl\y«lolan who tcstl- fled in thu caHu, that there are various diseases, and Home of which are not In- IriMiiu'nt, that produce death or nnconscloiiNni'sn sudch'niy, w.lliont any prfinoidtion. Among these he mentions heatstroke, catalepsy, eplle|i8y, heml- ple;;ia, aM|)hyxla, anenrLsm of the liearl or brain. Woulil It not he as reasonable to sii|>pose that tiie deceased was suddenly stricken down by some one of these diseases, and fell upon the lire, as to coneUule from the evldeneo that she was murdered by the defendant or any other person? Would not this supposition, that lier death was thus naturally produced, account for the absence of all ex- ternal evidences of violence Inllicted ui)on her? And is not this theory perfectly consistent with the Innocence of the defendant? Is there anything unreasona- ble In sueh a theory? In connection with this hypothesis. It Is worthy of notice and consideration that, In August previous to the death of deceased in Novem- ber, while she was returning home from church, she suddenly fell In the road, helpless and unconscious, and iu this condition was conveyed to a house near by, wliere she was attended to, and In a little while restored to health. This sudden attack was at the time supposed l)y tiiose who witnessed It to be heat, stroke, the weather at that time being very warm. Might slie not on the occa- Hion of her death have been heatstrickeu? Her deatli occurred near midday, and while slii was apparently engaged in cooking over the Ure, and the physi- cian who tesUlled in the case Informs us that Are, as well as the heat of the sun, may produce heatstroke. Giving to tlie evidence before us lull credit and weight, admitting as true every portion of tlie State's evidence, we think It falls far short of establishing with that degree of certainty which "the law demands that the deceased came to her death by violence Inflicted upon her by another. And It further falls far short of proving t.ia' i' :iach violence was inflicted It was inflicted by the act or agency of the ('efendant. In short, we are of the opinion that the evidence, in- stead of clearly and satisfactorily establishing the corpus dilecti, leaves it in great doubt and uncertainly, and is altogether too uncertain and inconclusive to warrant this conviction.' We think the court erred in refusing to grant the defendant's motion for a ■ew trial, and because of such error the judgment is reversed and the cause re- """' ' Beversed and remanded. § 704. Murdoi In Seoond Degree — Bvldeno* Intuffldent. — In several cases, also in the appelis-tc conrts, the evidence has been reviewed and held in- sufficient to convict of murder in the second degree^* § 705. Murder In Seoond Degree — Evidence Insufllclent. — In Holly v. &Y«te,"TuRLKY, J., delivered the following opinion of the court: "We l.ave been much astonish.^l at the verdict upon which judgment In this case has been given. The prisoner, a youth of some fifteen years of age, has been found guilty of murder In the second degree ; to constitute which crime, malice afore- 1 Lovelady v. State, 13 Tex. (App.) 646; Walker v. State, Id. n09. 2 Turner v. Stnte, 10 Tex. (App ) 433 (1884) ; Trcadwcll v. Slate, 10 Tex. (App.) 560 (1884); Nolen •. State, 14 Tbx. (App.) 474 (1883); Stnte i: PackwooU, 26 Mo. 840 (185S), o 10 Humph. 141 (1849;. MIKDKK IN SICCONl) IMXHtRK INSllTIflENT PUOOF. 1181 ILS. "f discovering 3lan who testl- ilcli are not In- w.lliout any L'lillepsy, liL-ml- iL'iis rciiH()ual)lL- 111! Olio of tllUHl! 1-0 tllilt Hhl' WUB il8 oiippuMltlon, 4L'nce of all ex- ;heory perfectly lug uiirotisoiia- rorthy of notice useil In Novcni- uU In the roiul, to a house ntar health. TliiH 1 It to be heat, not on the occa- il near miilday, , and the physl- heat of the sun, Iniittlng as trae t of establlHhing uceased came to further (alls far Leil by the act or the evidence, In- ecti, leaves it in ind inconclusiTe t's niotiou for a \u(i the cause re> and remanded. int. — In several !wed and held In- It. — In Hollj/ V. ourt: "We have his case has been , has been found ime, malice afore- UO, 14 ToJt. (App.) ckwood, 26 Mo. 840 thouul.t Is a Mcco.sary Ingre.llenl, under clrcumstanros f n,m which, !n our judg nuMU It not onlv .Mn not be lufrr^ed, but which. Indoed. dhv.tlv d spn.vo it. . xNtfUco. It aiM'-ars that the prisoner, w' ' some othrr yonthsof hlsown •••■so, «as playuig nmrUl.s, wh.n the dfceuscd, a full Krawn n.an, Interfere.l lu the game and upon beln« nTUoustratcl with for .h.lng ho, bocauu. t»-rou e.a am commencd lullU'tln-^ personal cl>astlH,Mn..nt upon one of tl.o '"y-* ' '';'™, h,, was In th. a.-., of doing this, the prisoner thr.nv a st.me at dm, ^vl'l^J^^^' '^ hhn on the iu-ad and Inlllct.-l a woun.l of whl.h h. afu-rwards dl... Ihat the prisoner had no i.r.vlous lU-wllI against the decasnl, and that the blow stru-k was not upon premeditation, but the result of sudden excitement prod,..vd oy the uuHconduct of the prisoner himself, can not be questioned; urn the weapon used was not, lu the hands of the person using It, of a dangerous character, and one well caleulate.l to produce the result which followed lis use. The result must have been wholly un.leslgned and accidental ; the san.e boy or any other ml'ht have thrown the .«.ime stone, or one like it, with the design of mnietlug luiurv a thousaiKl times or more, without producing death; and yet, the jury have thought it proper to hold the ^vouth resi)onslt)le as for murder. This can notl)e permitted; for murder has not been commuted either In desiiru or by Implication of law. A boy who, from being provoked wantonly and improperly by a man, becomes excited and throws a st-me ot him, and It accidentally so (ill-, a. in violation of all reasonable calculation of chances to kill han, Is to be held guilty of murder and punished as a mi;rderor. This would be cruelty and uot iustice. It is true that the kind of .nurdcr of which the prisoner has been found guilty is not now punished by death; but that it is not so Is owing to the luterposiilon of a statute, for It Is murder as described at common law, and it is requisite yet that It should have been perpetrated with malice aforethought, either expresse.l or implied. There is no express malice; and it can not be implied from the nature o( the weapons used. The Attorney-Generai argues that a very serious wound was inflicted, one which did produce death, and that It is a (air implication that tlie weapon used was of a character to pro.luce the effect it did. This is Ingenious, but (allaclous; (or the same thing might be argued of any case in which death accidentally ensued from the use of a weapon not calculated to kill. And, moreover, the wound of which the decease J died is shown to have been of such a character as to make it, to say the least of it, problematical whether it was Inflicted l>y the stone thrown by the prisoner. We have no hesitation in saying that the prisoner is not guilty of murder, though the deceased died of the blow struck by him. vvhether he be gul ty of man- slaugl:*er or not is a question depending upon other propositions for Its solu- tlonrand to be submitted to a jury, with all other matters in connection with the transaction, upon - new trial. Judgment reversed and case remanded. Gkkfn J In this case I think tlie throwing the stone by the defendant was clearly unlaw(ul. and, as death ensued, it is a clear case of mauslaughter. McKiNNEY, J. Not being present in court when this case was heard, I decline any expression of opinion upon the point in respect to which my associates disagree. § 705a Evidence Ineufflclent to Convict of Murder In Second I>e»ree.- Nolen V State. -In Nolen v. State,^ the indictment charged the appellant with the murder o( Sandy Winn, on April 6, 1879. The conviction was (or murder 1 U Tex. (App.) 475 (1883). 1182 CRIME8 AUAIN8T THK PERSONS OF INDIVIDUALS. Of the second decree, and the punishment awarded was a term of twelve years "^tn^iT^^'i^^ nrst witness introduced by the State. He testifjcd, ,„ «ub" n^ 1 a ou the mornin, of April 7, 187'.), he was informed of the d.seov- e^v o ra^es of a " drag " in his nei,hl3orhood. in Medina County. He we,. to tl"o p ace indicated, ami found an abandoned camp, which Imd been occupied ly a pa tv o men with a wa.on. Investigation disclosed a poo o^ ^lood near where tie wagon had stood. It had been covered with dirt, eviUo^ly w. h 7iew of hiding it. A " dn.u^ " of some heavy body or ol>3ect led off from th. bloXo'ri- witness and his companions followed this drag a a ..ance o ZtZ. hundred yards up a rocky, brushy hill, and found the dead bo y o^ man lying face downwards with the feet up and the head down the hill. Pa Znat «; .lisclosed that the head from a.c ears forward had »^-n ^^^^ '-^^'^ ^ bovfromsome heavy instrument. All appearances indicated that the body had been dragged to the spot feet foremost. The clothi^^had been toi-n by the brush ad drf^n up on the body. The '♦ drag" led bad from where the body Som to where the wa.on stood. It was evident that it had been dragged Ttwo orle^. o£ which one was shod all lound. From the body the wUnoss an. hH p trty ollowed the tracks over the brow of the hill an.l around its base back l" direction of the camp. The trail of the wagon and of a number of horses h.d off in a southeasterly direction. Tne trail of the wagon indicated Jh V the h nd wheel on one side did not follow directly in the track of the front Iheel a t lis peculiarity was sufllelently marked to enable any one to follow The t'lU readily The places where both the camp and the body were found ire Jn Medina County, no.r the Uvalde County line, about two and a half mdes Houtheast of the residence o? Sam Johnson. Henry Shane, the next witness for the State, corroborated th. testimony of White as to the appearance of the camp and body, and testified in addition that ^company with Sergeant Car. .hers of the Sta , force, he followed the trail of thewa'on and horses from the camp where the blood was discovered in a southeasterly direction to the house of Jeff Jonnson, where the wagon had evidently stopped. Thence he followed the trail to a point near the residence of Capuiin Toms, in Wilson County, where he and Caruthers found the wagon and a bunch of horses in the possession of one Ed Swift. The Worses and wagon were the property of the defendant, or were claimed to be. T'^«"'^« ^h" witness and Caruthers went to the residence of John Camp, on the San Antonio Uiver.near Floresville, where they found the defendant on the gallery. He had si.pt tliere all night, and was pulling on his boots when witness aucl Caru- thers arrested him. This was between daylight and sunrise. -From here which was some ninety miles distant, the witness and Caruthers took the defendant to the camp where the blood was found. The defendant, who was under arrest, manifested great emotion when the camp was reached, the tears running down his cheeks The wagon was a home-made vehicle. One wheel did not track accurately, and the trail was easily followed. Witness saw this wagon a few days before the killing. It was then at the defendant's camp. The defendant, deceased and Ed. Swift were then with it. , , , « ,„„, , 070 Sam Johnson testified, for the State, that in the early part of the year 1879 the defendant passed ids house with a herd of horses and cattle, going north- west and the witness believed that the deceased was with him at that time. About April 1. thereafter, the defendant In company with the deceased and Ed. Swift, returned to the witness' ncighburhood with a wagon and twelve or A^i LLS. jf twelve years He testified, In of the (Uscov- mty. Ho went I been ov;cupie(i I of blood near dently with tin- id off from tlic ig a luM-ancc of dead body of a n the hill. Ex- cn cruslied by a I that the body been torn by tlie wliere the body id been dragged lody the witness around its base, I of a number of wagon indicated racli of the front .ny one to follow body were found and a half miles th- testimony of in addition that, lowed the trail of discovered in a e the wagon had lear the residence found tlie wagon The horses and ) be. Thence the 1 the San Antonio the gallery. He yituess aucl Caru- •From here, which )ok the defendant w.as under arrest, jars running down leel did not tracli this wagon a few . The defendant, rt of the year 1879 attle, going north- 1 him at tliat time. 3 deceased and Ed. ?on and twelve ov MUItniiU IN fiECONl) DKUREE INSUFI'ICIENT I'KOOF. llf>3 thirteen head of liorses and mules, camping in tiie neigliborhood for a weelc or two during whicli time the defendant went to Nueces caQon, in Uvalde county. Before going to tlie canon, the defendant came to the witness and requested the loan of sixty or seventy dollars which he said he owed the deceased and was anxious to pay, as the deceased, who wanted to go to Fort Claric, was annoyiug him about it. He proposed to transfer horses to the witness to raise the mom^y. Witness liad never heard the defendant speali unkindly of the deceased. The defendant came to the witness' house on the morning of April 7, 1870, with Ed Swift, who was driving his wag(m, and aslced witness to guide hira to the road leadinx to Jeff. Johnson's neigliborhood. The witness sent Danzer, a man in'hls employ, to guide defendant and Swift as requested, and to drive up a yoke oxen on his return. The deceased was not then with the defendant. Witness rode off after giving Danzer directions, and seeing him saddle his horse to go with defendant and Swift. TlUs witness corroborated Shane and White as to the flnding of the body and c.unp and the appearance of each. The body of the deceased was found about three miles southeast of the residence of the witness, in the direction of Jeff. Johnson's on the evening after the defendant passed the witness' house going eastward. On cross-examination, the witness stated that Danzer returned home late in the evening, .stating that he had been hunting oxen. This man Danzer had been working for the witness about a month, and, the witness tliought, was unac- cuainted with the defendant. Their actions did not imlicate an acquaintance. In a day or two after the discovery of the body, Danzer, without giving notice, quit the employment of the witness and left the country, riding a gray pony which he owned, since which time he has never been seen or heard of. Danzer owned a rifle, but no pistol. The witness had often seen the deceased about the neighborhood. He Invariably carried a pistol, and generally rode h small blue mare. Dauzer was a loose character, and was liable to quit working for a man at any time. ., ., Jcfl Johnson testified, for the State, that he lived about twenty miles south- east of Sam. Johnson, on the road leading from Sam. Johnson's to Camp's place, near Floresville, in Wilson County. About the time of the murder of the de- ceased in April, 1870, two men, with a wagon and a herd of twelve or thirteen horscs'and mules, camned near the house of the witness. They came late In the cvenin" and left next morning about sunrise. Two days later, Henry Shane came by the witness' house In pursuit of a party with a wagon and bunch of horses and mules. The witness did not know the campers. Geor-e Stokelev, for the State, testified that he had seen the deceased in the employ of the defendant. On or about the fifth day of April, 1879, the defend- a old a stock of cattle to witness' father, in Nueces canon, Uvalde County, receiving therefor a check for about fifteen hundred dollars, and an order on the witness for a lot of horses and mules, to be delivered to the defendant at John Camp's in Wilson County. Witness went to Camp's to deliver the animals, and was there when the defendant was arrested by Caruthers and Shane. W S Hiler testified, for the State, that he was present when the defendant was brought to the place of the homicide Defendant looked dejected, down- Tarted and sorrowful. He was then ..ed on his horse, and was under arrest. The State rested at this point. „ ^ ^ . , ti, .j„ George Brown, the first witness for the defence, testified that he saw the de- fendant in company with the deceased about April 1. 1879^ They camped, with a wagon and a bunch of horses, for a week or two, near Sam Johnson s. Dur- 1184 CUIMKS AGAINST TUB TEUSOXS Or INUIVIOUALS. ,„, U.S time the delendant maae a tj.p to N--- --- J^^^^rn't present at Sam Johnson's on the ^^ ^^^ to Sam Johnson's and asKed and swift, with the wagon horscB and J»^ •^^-"^ ^,^^^„„ ,,,,,,,a Danzer to for a guide to the road '«-»^»«^ ^/'''"j/^^S !^^^^^^^^^ at that time stated that the guide the defendant as ''-l'''^^^^^ . ^^',\ i^.l^re, and that he, the defendant, fleceased was at the camp, and had lost 1 8 m ^ ^^^^^^^ ^^^ ^j^^,„ had promised to return and -f ;/^;^;^", ^^^^ nan.er hadturne.l the horses starting on acow hunt. As ^'^J'^'J' J^^^;*^ ^^^ ,,,, ,„ the point of starting In a out of the lot, and the wagon, dr ven by *>''"' ,,,^ck towards the old camp. Southeasterly direction. J'^;;^^tml'rst?aU a -nd, and always went armed r rr^or ^^C: rhXwrfound. «ms o, no ..d were fouod ^^rh:rt Kichter -Uhed, for the defence «^^^^^^^^^^^^ thirty miles from Sam Johnson's and -- ^^ J"*^^" ^^ ,„„,, ,„d told witness about April 10, 1879, Danzer came to w tn^s^ 1 ^^^^ ^ ^^^^^ ^^^^^ ,^,, that his horse had given out, ''"^ ^^^J^wo distant, and was shown a small ness went with D mxer to a 1-f 'y^^^'-j^^^'^^ ,i,i„ed, stating that he got her bine roan mare, shod all *'«""^; ."^^j^^*; °"^ witness traded with Danzer, from his partner, Bill "';" *f J^^f' uan.er also offered to sell a pistol to giving him a fresh horse for h« m-^'^^^^^'^j^ ^ ^.^uerly direction, towards rntrSt,rranr:Corty."wr^ had never seen or heard of lum --.„„.berofcltlzensof^.^C.un.-^^ man- ^ ^ ,, „„, of «hane on being recalled, which testimony The opinion states ^^^ ^^^^^^^^^^^ Z opinion. Th. motion for new raised the question principally dlscusseu in w SlalsedV questions treated in the op ^^^^^^ ,„ WiLLSON, J. Defendant ^I'P^*^^^, ™/i,^^i„„ been set aside upon appeals 2. We find m the record ^'^^^o"'"'"'^ ^^^ after the State and de- bered that on the trial of ^^-/''^^^^.'.y'ttZ.'lng arguments for both State fendant had closed their -'^/"f '/g^^Ve .h^^^^^^ attorney, asked and defendant had been ^'''''''^'l^:Zlto prove the acts of defendant leave to recall the ^^ °*=^« "^ '/^.^^^^^ ,o which pro- „hen broughtbackto thespot ^'^""^^^^^^^^^^^ ^^y^ objection being overruled 1 8TCX. (App.) 685: 9Tex. (App.) 419. ^^m 5 witness wai ;he defendant Ill's and asked ted Daiizer to tated that the the dele\.dant, ;ness wa3 then •aeil the horaes )f starting iu a ) tlio oidcanip. tys went armed ud were found twenty-five or Danzer. On or nd told witness se trade. Wit- 9 shown a small ; that he got her led with Danzer, SL'll a pistol to ection, towards or heard ol him jlie defendant for roved his reputa- kceable and quiet , which testimony « motion for new of murder in the .side upon appeals lew questions nec- 1 application for a tendant alleged he idence to have been does not appear at d, to the defendant s: «'Be It rcmem- r the State and de- lents for both State Lrlct attorney, asked he acts of defendant litted; to which pro- ;tion being overruled the district attorney MUHDEU IN SKCOXl) DKOHKK — INSUFFICIKNT I'UOOl" 118.3 what was said to defendant after he was brou^'iit back to said ppot where tlic murder was eoinmitted. Witness replied that he asUcd the defendant what hud been done with llu- body, to which tlie defondaut replied by poinlins to tli'; hi i where the dead body of deceased had been previously found. Defendant was under arrest at tiie time, and had been for two or three days previously. Said defeiHlantand Swift had been handcuffed together, and part of tlie time tied Willi a rope. Witness had talked with defendant aboiitthc murder of deceasid. and defendant was informed of wliat he was under arrest for. Defendant was not cautioned tliat hii admissions might be used against him. To all of wini h proceedings, and to the testimony of said recalled witness, defendant, by coun- sel, excepted," etc. It was within tlic discretion of the court to admit further testimony neces- sary to a due administration of justice, at any time before the argument of the cause was concluded, and the exercise of such discretion will not be revised by tins court unless it plainly appears to have been abused. • But the question remains, was this evidence admissible at any time? It Is very clear that under the circumstances, if the defendant had confessed his gidlt, such confession would not have been admissil)le against him. It was so determined by this court on a former former appeal of this case.^ But does tlie rule which excludes confessions which are not brought wltliiu the excep- tions of the statute,'' also apply to and exclude the acts of the defendant done under the same circumstances? This Is the question directly presented by the defendant's bill of exceptions, and is one upon which we find some conflict ol opinion. It was the opinion of the learned judge who tried this case, that, while the statements or confessions of defendant made while under arrest were not admissible against him, yet the acts performed by him were admissible; and, holding tlds view, he allowed the prosecution to Introduce the evidence ob- jectedto by defendant, and set forth in the bill ol exceptions wo have quoted. This opinion of the learned judge was no doubt based upon the opinion of this court In lihodes v. State,* where it is said: "A distinction has always been made between acts performed and confessions made by a defendant while under arrest. The former are admitted, whil-t the latter arc not, unless coming srictly within the letter of the statute." In tlds Rhoden'' Case, the defendant was charged with the theft of money and was under arrest, and, while under arrest, she was taken to the house where the stolen money was supposed to be concealed, and there she pulled up a plank in the floor ol tlic lionse and looked uuder the floor as 11 she was looking for the money, but produced nothing. These acts of the defendant were proved by the State over the objections of defendant, and this court held that such evidence was admissil)ie. In support of the doctrine ainmunced in that case the court, in its opinion, cites EUzaUeth v. Statc,^ Walker v. State^ and Preston v. ,S«a«e. ' and the first named case i.s especially referred to as a case Ip point. That case, Elizabeth v. State, was a trial for murder of a child. While the. 1 Code Cr. Pr., art. 661 ; Kemp v. State, 38 Tex. HO; Bittick v. State, 40 Tex. 117; (ioins V. Stale, 41 Tex. 334; Moore v. State, 7 Tex. (App.) 14 ; Ucwilt v. State, 10 Tex. (\pp.) 601; Cookr. Slatc.llTex. (App.) 19; (ieorgo V. State, Id. Kt ; Itostwlck v. State, hi. 120; Grosso v. State, /rf. 364; Donahoe i>. State, 18 Tex. (App.) 297. 3 Defences. 76 2 Nolen V. State, 8 Tex. (App.) 585. » Code Cr. Pr., art. 750. Ml Tex. (App.) 563. ' 27 Tex. 329. •7 Tex. (App.) 446. ' 8 Tex. (App.) 80. . *nAINST THE PEKSONS OF INDIVIDUALS. 1186 CRIMES AGAINST int. A ti.at sho could show the dead body of the child, which at that t'"»' ;■ ' .„^„ ^ „„ie of water, saying that up a ravine which was close hy, and ^^^^^^'t^^^ „„„, „f tue child. It was ^"ehiid was in ti-e. a.ul V.o.ga o h.^^^^^ held, over the ol.jections of ^^edcfu a" , .^^.^.^ectness of that rul.u«. \^ ^ :„ove stated facts. We ''-;« -'''^.^^ ° „t of the exceptions of tl- statute think such testi.no«y was ^^'-''^^^^ ^Xf^^.daut's acts, that the dead body of r ;;:;iXhu"n;:^ " ^- u was .on t^s .0.. ..t the .«. preme Court held it to be '^'l'^'^^^'"''';. „„„i,„„i consideration of the Elizaheih^^ %pon a careful exanunation jd «.o >g^^^^^^^^^^ ,„. oourt Case we are of the opinion that it eth'K on of thU i-ourt, istlnction in the Icfcndant, led to /,se, the acts per- e stolen money. )ii of this opinion we thinlt, essen- it. Wiiile under [ upon the ehariie sed by tlie magis' s applied to tiu-se Eound at the place at deteudaut upon appeal, this court opinion in State v. determined, and a vidence is to elicit le eitner under the ping punishment if urience shows that not be relied on as :vidence of the sort I the resemblance of the iuiy, and fit for admissibility of the lat no hopes or fears s, while confessions le'influenced by such e broad aoctrine laid e never to be treated dence, tout that such exclude confessions, tiolds the doctrine of well as words," » and ,, sec. 683. MURDER IN SECOND DEGREE — INSUFFICIENT PROOF. 1187 even silence under certain circumstances is taken as a confession.^ Suppose a prisoner chained with murder is u.^lied the (,uestion, "Are you guilty of nuir- der?" and instead of saying " I am," he maizes an atllrn.alive movumeni of us head Would this movement of the head be a.lmissible evidence, while his confession by words would be inadmissible? Suppose he were told, "\..u ,„urdei-ed the deceasc.l; you crushed in his head with an axe; you dragged him into yon.ler tlilcket and left him, after having robbed him," and in response t this charge, the prisoner had not uttered a word, but had nodded his head in assent to the truth of the same; will it be contended that the act of nodding his head because it is an act and not a statement or declaration, is competent evl- dence a-ainst him when if he ha.l confessed the charge l)y wor.ls, such confosion would have bien excluded? We are unable to perceive the reason of tlie rule whicli admits the acts while it excludes the words. Acts, it is said, speak louder tlian words, and thus being generally true, they should be regarded as confessions, as much .so as words, and the law does so regard them. Acts are but a kind of lamiuage, expressing the emotions and thoughts of the person perforiniuij them, more forcibly and convincing sometimes than words, but still like words, only a mudium through which tlie Inward feelings, thoughts or in- tents of the person are outwardly indicated. In the case before us, the prisoner pointed in the direction of where the Ijody of the deceased had been found, when asked what they had done with de- ceased Instead of ibis response to the question, suppose he had said: " We left the dead body of deceased on yonder hillside." Would this answer have been "■' >sible? We think not umler the long line of decisions in this State. How, then, can it be said tl.at his gi-stnre is competent evidence? Upon wliat principle is this ili.stinction founded? Can a confession be indirectly admi8sil)le which would not be directly so? Would not such a construction of tlie law de- feat its purposes? Would it not probably lead to great evils? Under such a rule, extorted confessions of guilt, made by nods, winks, gestures, and otlier acts would be frequently paraded in cases to siu.ply the absence of siilllcient evidence to establish tiie guilt ..f the accused. Such evidence would be easily attainable in most cases, purt would be as unreliable and objectionable in every respect as confession by words. As said by Roscoe and Greenleaf : " The ii'-lu" ence which miglit produce a groundless confession might also produce ground- less conduct " i In this case, for illustration, the same influences which might have prompted the defendant to confess by words that he had committed the murder might also have prompted him to point In the direction of where the dead body of the murdered man had been found. Both the above quoted stand- ard authors lay down the rule that the acts of the prisoner are in such cafos placed upon the same plaue with his words, and where the one Is inadmissible, •so also is the other. - . , ^ , . „„„ We are of the opinion that the rule announced In the Rhodes Case Is in con- flict with the authorities and with the reasons which support the law governing tiie admissibility of confessions, and we must therefore overrule that case upon this subject. j„«„„^ 3 Another serious question here presents Itself. It appears that the defend- ant pointed In the direction of wliere tlie body of the deceased had been found. It was not In consequence of anything said or done by the defendant that the 1 RoBO. Cr. Ev., sec. 51; 1 Qreonl. sec. 232. Er., U88 CR.MKS AOAIMT THE rE,««N» Or ,ND,V,m.*L8. discovered. A confession Is '^'»'"^*"''%;''"" „ fo„„d t.. be tiu.', which con- stat...,nents of facts o. ''.'.^'-^-trilro^ Secreted o. stolen pvope-.y. duceloeslahlWh ^^' f^'^Y"":^^^, oa.^.^ >vas con.mlUe.U Does th>s or insirnmentwllh wh>ch ^'^ ^^^ prior to an.l ImU-pendent of tl.. con- mean facts or clrcnmstances ^vh'*-" l^^'^'^nnea to snch fact, or circnn.stances rr -l^::^:::- - r ^;^:l o^ho .for.naaon a«oraed .. t.. co. ^C:sr- - «nd the a;^- -i::^ -rsrs the rule in the ^-^-^}--''^^'^:^^, or the Instrnment of the crl.ne, obtained from the prisoner, the P'^P^J^jy '^^^^^ [^^, ^^^^r material fact Is d.s- or the bloody clothes of the person '""^ * ;;;\';^^ ,,,, „,ade conformably to covered, it is competent to show tha such ^'l^,^,^, states the rnle in sub- the information plven hy f « P";"";!^^ , » ^vithou^h a confession obtained stantlally the same words.' Mr. Koscoe ^ ;„„eived, yet, If in consequence of that by means of Promises or threats can not be ece^^^^^^^ ^^^^ ^^^^^^^^ ,^^„ „,,, confession certain facts '^^ff'^l^'f^^^l^^^^^^ Mr. Bishop announces the known, evidence of those facts may ^^ re«^^v ^^^,, ^y threats or same doctrine.^ ^':7'^'^'-*°" 1^; yt^f^tded by extraneous facts which promises are not evidence, yet if ^^^f J*^^^ ^.^^ ^e thus developed, and show that they are true any such ^^^^^^'^ ^,,^, ,,, ^.tendant ^as sus- which go to prove the ''f '^*^"! ;^^ " itr^vhere the party thus confessing pected, will be received as *« """"Vope'ty Is or where he states where the points out or tells where the ^^^^ J" P/^^t"'; ^^ P'"-'« "^^ '"''''■ lieceased was buried, -^ ^'^^^^l^^^^ZTtL prisoner thus Improperly drawn of this state have ""'form^^^J" %^'^Z found no case In which a contrary mentary authors we have cited. Wc ha ^^^^ ^^^^^_ .. confessions doctrine has been addopted. ^''^^''^'-'^l^^ Earning, may be used to the ex- „adc under arrest, -;f-;7'"';2f ^^ts Ind IcumJ^^^^^^ found to be true, tentthatthepartymadesatemen of fa and ^^^ ^^ ,,,y ,„rnlsh informa- and no further. B'^>'""f,''V „ ^f's'ir would not be admissible." In Davis v. r;^r lo^r we r:;r.Srm° tl. te. boo. . fu.. and plamiy ap. x^d ttt setued, -. - - -rti^i^trr-i ances which arc already '^-J^^^/j.t'gTolnnect the defendant with the to any information -"^^'/fj;," against the defendant, if made wlule ts:::^::::^:^^^^--^ -- --- ^^^ "^""" " " statute. ^ ., „„„„„^ t„ the evidence of defendant's act in 1 Code Cr.Pr., art. 750. t 1 UrecnK. Ev. sec. 231. ( 1 Phil. Ev. S54. * Rose. Cr. Ev. 60. t I Bish. Cr. Pr., sec. 1242. • Whart. Cr. Ev., boo. 678. T 10 Tex. (App.) ««• • 8 Tex. (App.) BIO. " '- LS. homicide was icn ho makes ic, which con- olun piopuity, \.i Does this lit of tl.vJ cuii- circiunstiuices led by tliu cou- reeuleaf states the informallou lit of the crime, arial fact Is dis- coiiformably to ;he rule in siib- fessiouol)t:>iued sequence of tliat isoner arc made p announces the ule by threats or eous facts which developed, and [cndaut was sus- tbus confessing states where the proves the case. mpropcrly drawn js ineffectual, no ions of the courts stated by the ele- which a contrary Id: " Confessions be used to the ex- i found to be true, y furnish iuforma- ble." In Davis v. illy and plainly ap- ; tacts or circum- Bnt does not lead defendant with the lant. If made while it exception in the ! defendant's act in lad been previously so. 1242. eo. 678. PROVOCATION — IIKAT OK PASSION. 1189 foun.l.we arc of the oi>liiioii that It was not competent evidence, becuuse it was a confession l.v act of a knowleds;e of facts, which knowledu'c tcmled to con- nect defendant with the murder, and was made while he was under arrest with- out his bein- tlrst caullomd that it might be used against him, u.ul without being accompanied by a statement of any fact or circumstance found to be true which conduced to establish his guilt. While the learned judge who tried the ca-^e was fullv auMiorized by the opinion of this court in the Jlliodes Ca^e In admitting this evidence, we must now hold this court was mistaken in the rule laid down in that case, and that the admission of the testimony was error, for which the judgment must be reversed. 4 But, even if this evidence hae defendant's guilt are cogent, and render it quit pro., d)le that ho participated in the murder, they do not impress us with that force and conclusiveness which should pro- duce upon the mind a moral certainty of his guilt, to the exclusion of every other reasonable hypothesis. These same chcumstances point to the. man Dan/er even more directly and more strongly as the murderer, than they do to this defendant. But It is not necessary or perhaps altogether proper that we should discuss the evidence. Upon another trial of the case, the prosecution may be able to adduce testimony more satisfactory, aud amply sufllcient to sup- port a conviction. , , , , , j Beeausi- the court erred in admitting the evidence complained of In defend- ant's l)ill of exception hereinbefore quoted, the judgment is reversed and the cause remaiuled. Jievcrsed and remanded. § 70(i. Intent to Kill Essential In Manslaughter. - Aud to constitute manslaughter an intent to kill is essential.' ^707 Provocation Reduces Crlmo to Manslaughter. — A voluntary homicide Is not murder if It consists of a blow or as-ault made after an act committed by the deceased which the law deems ade.u.ate to excite sudden and angry passion in the slayer. It is then only manslaughter.' Provocation by blows and words may reduce a killing to manslaughter.a § 7ns. Provocation -Heat ol Passion. -If passion has not had time to cool after a provocation, it is manslaughter.* In Stale v Morris;- a person who was violently beaten and abused made his escape, ran to his house eighty yards off, got a knlf.,-, ran back, and upon meet- ing the deceased stabbed him. This was held not murder, but only man- slaughter, lu charging the jury, the court, said: «Tl.e great distinction betweeu murder and manslaughter is this: manslaughter is committed under the operation of furious anger, that suspen.ls for a tltne the proper exercise of reason and reflection, and which hath been stirred up by some great provocation, for there are some provocations that are not Indulged with an allowance of exciting the passions to such excess, and thus a distinction is formed between I People r. Freol. 4:? Cal. 4W (1S74). 2Com. V. Webster, n Ciisli. 2'Xi ;.Vi Am. Dec. 711 (1850) ; 11. f. Kirkluim, 8 C. & I'. 115 (1837). » 11. V. Slierwooil, 1 C. & K. S'lC (1844). U. t'. Lynch. 5 C. & P. 325 (1834) ; Mc- Cann v. Peoi>le, fi I'ark. G29; State v. Moore, 0'.» X. C. 2«7 (1873) ; U. S. V. Rice, 1 Uughos, 600 (1875). 6 1 llayw. 429; 1 Am. Doc. 5ftl (1816). o w,*iK«T Tin: VKKSONS or INOIVIinTALS. 1100 CKIMKS AdAlNSr H"' « '•"■ .1 Tf It I... liv words or ijesHiri-s only, It will thc,llffer..nt.U.gn.esof rrovocallo,. '^^^ ^^.^^y ,..,, ^nt If it .... aprovo- not 1.0 sudlcient to ...Itinatc hon.lcule "^;' " ^ ;"-.,i,„; ,, ,,y ,p,„l„;: in his c,Uion l.y son,e .rcat in.li.nlty offer., t' ^lu -u ,y I In ^,^,^,..',,,, ,, „.,, fac or tiu, like, ..r l.y «;'">''« ""\';:,\f":;.tir,ussi<.nH raise.l to su.l. a reas.,nably be presumed the bl..o.l is ' ^ J ; " \,, j ,,,„,„nin^; powers, the Ue.rce as t.. suspend the proj-er ^^Z^:^,^ ^^^ ^^^ - ^^^^^^^"' ^^^''^ cxere.s.- of ju.l^nunt an.l ^'^'^'^'l^'^Z^ But alll.o..u'h a su.lici..,.t prov.,cati..n ext..nuatc the ..ffeusc Into ".ans au,;hlc B t all ^^^^^^^.^^^ ^^^^ „e given, and the passl-.ns p-eat y ^-;^>» ' \' > '^ J^/'^. ,,kc.l killeth the t,.;^.assi.>ns to subsi.le and -•j^;- ( ^ '^ , Uineflo-tof unuovernahle other, the law will deem ,t nu.nle, , '^'^^^^'J^-^ ' ^ .,„,i,,u, .,! revenfje passi..n. an.l fron, the frail.y of """- ,^' ^ '"^'X ' ,, „!n,..ient tin.e for this after reason had assun.e.l its proper ^^ '"-J^^: J ,,,,,,,i„ed. It hath been pnrpose.hath never, as I '^"'•;;;; \ ,nU ^e t s.ems to .lepend greatly adju.lge.l that an h..ur is more than ^ul U In t mc i ^^^^^^^^ ^^ uplmthe uatun.of the '----^;':"' '^"\' "^^t tin c .lu nt.UcM,e, they shoul.l ,„ the case bef..re t''-" ^'"■y;'';:^:;^^ /I' ly . v..ke,l befo^ If other- nnd the pris..ner guilty, though he 1 . d l^^^" ^ . '^"^'^ ^j ...anslanght.r o.dy. wise, they should nn.l him n.3t f">'^y "J, ""'' ;;.,;^ J,, .„.„ was a.'ltated by Also, although the >^'^y^l'^^;^^^Z^SZ^Z^:tt had a sunieient tin.e resentment and anger In the highest dc_r.x ana ,^rstobe possessed ,or cooling before ^;;:^::^:Xr:^;^ ^i:!;::^^^ gives the morUl of deliborati..n and relUtction, wncu or j . j ^.^ to tluhl. and the blow, it will be munler. As ^'^'^^^^^Z^"'^^:, ,Uey woul.l render one observes t.. the other emus r>t^^a^ ; ^^^^ ^^^^, ^^^^^,,^^ him less expert with ^''« '^'^f ^'' " ' ,' /_,.,,,.^rk he made shows deliberation Uills the other, It is -^-^^^^'^^l^^^^J^ the law allows the offen>c andrellection. ^'«'- '^'^^'^y'' '^^ '^ '^° ,;;rtU slaver has not the free and :;:-;=r^rS.r f=i:^^^^ theory Of resentment m.t sary to be now taken n"'"^" «•,;;!; ^^''^'^rt It Is n.ost proper to state only framed by the evi.lence now be ore hcjurt ^^^^^^^ ,„,„ ^ suffl- sach parts of the law <=«"7'-'''"^; J^ °'^^ ^;;';iew of the distinction between dent compass, may serve to «''^''^''' ^^'j-f/J, '^ The next thing to be n,„rder and manslaughter as far as -J^ -^ Jhl ^^^^^^^^^ ^^ the rules just done, is to apply such parts o ''« ^J'^^^^J^ J^ j^ jj„„is going Into Ramsay's laid down. The first thing that P'*^!^"*^,; ''^' *\^^^^ from the whole of the house. He does not appear to have b 1 aved ^ -V ^^-r. ^^ ^^^^ evidence it does not appear ^^^ ^^''i" ^'"^['^^ "'^..f , .f They hallooed for retired before Daves and "-^^-J^^^^ ^nT^a 'aves charged Nowis him and Young in the street, ^^f "^ ^'^^-^^^^^^^^'it „^„i„ ^nd again, till called when met. with a .leslgn '-^;^^^^';^'-^^^^, Daves trlpp.d up hU a damned liar, when he retorted *> " j'*;, ^^^f^^^he had risen, and upon heels, kicked at him on the ground, struck ™ ^ J"^ ^J''^^^,^,, repeated his Norrls intimating an /"tent.on tcj^res^rt J,o the ^-^ ^ J ^^^^^_. ^ ^^^^^^^ ^^^^ bU.ws three or four times. ^^^J^^^^^^, ,,,^, ,,, p...sions of man in this a great provocation. ^^ ouui s c ^^^^^ ^^^^^^^ ^^^^^ IIUSHAM) AND WIIK— VAKENT AND flllLU. 1191 AI.R. iiros only, It will If it 1)0 !i provo- ,y splttlii;:iuliis licr ciise it niuy ralsod to such a \n\i powers, tlic isiitlk-lfiitoncto •lent provocation nil! intervene for ivokcd killeUi tlie t of uuiiovernable n<-iple of revenjje ;ient lime for this B<1. It hiith been to (Upend greatly ury to deeide. If ivene, tliey shouhl I before; If other- lanslaughter only. I was a^'ltated by id a sullleient time arstobe possessed e gives the mortal oe to fight, and the they would render t and fight, and he shows deliberation ■ allows the offen>e s not the free and • of resentment not daughter, not neces- any such ease as Is proper to state only ressed Into a sufll- distlnctlon between le next thing to be rial to the rules just going Into Ramsay's "om the whole of the II to quarrel; he had They hallooed for aves charged Nou'is, land again, till called Daves tripped up his J had risen, and upon redress, repeated his e question arises, was he pisslons of man in rrls liad killed Daves r. Norris returned in three or four minutes, and gave the fatal stab. If he came up, and no dng mo Pisse.1 before the stab, as the witnesses, Campbell an.l Dudley, say there did n. t, then it Is for the jury to consi.ler whether the three or four minute lUrvemng between the blows near Mrs. lUn.say's and the stab opp He T lompsonN, was su.Ileient tin.e for the passions to cool. If it was. t e killing was murder. If it was not, the case falls under the san,e cousl.lcrat.on a llu- fatal stroke had been given when Daves llrst struck h.m. If the ju ) believe what was sworn by Mrs. Thou,pson, and which the other witnesses do o mention, that Daves, when he a.lvanced towards Norris after his return "truck him two or three blows before the stab, they have a right to consider vhether that was not a fr..sh provocation, su.Ileient to extenuate the hom.clde nto n.anslaughter. If. however, the jury believe there was not 'Y!''" thue for the passions to subside, and that the blows mentioned by Mrs. Thon,pso„ did not pass, yet the elrcun,stances related by two -tnesses of Norris' having twice denle.l his having a we.-oon or clul) as It ten.ls to evince deliberation an.l reflection, must be taken into their consideration; and, if they lielicve from tlie circumstance tliat he at that time had a reflecting capacity, and meant to conceal the weapon from Daves In order to draw hi.n on, that he might kill him, then he Is guilty of mur.ler. It is proi.er, however, to observe tlmt such a conclusion is in some sort negatived by Mrs. Thompsm,, who declares Norris told him to stand off, or the worst would be his. The jury will now take the law, the facts and the circumstances of the ease and by a careful comparison of the one with the other, they will draw a conclusion and say whether the prisoner is guilty of mur.ler or manslaughter. I trust I have stated the law correctly." c 70., Provocation-HusbandandWlfe.-The killing of an adulterer m the act by the husband Is considered In the law as done under legal provoca- tlon.' §710 Provocation - Parent and Child. - If a father sec a person In the act of committing an unnatural offense with his sou and Instantly kill him he Is uuilty only of n.anslaughter. In R. v. Fuiher.^ the father, learning of such a case, went in search of him, and killed hlra. Pauk, J., in charging the jury said- "There Is no doubt upon the evidence that the deceased came bv his death in the manner stated in the indictment. There would be exceedingly wli.l work taking place in the world if every man were to be allowe.1 to judge in his own case. The law of England has lal.l it down posltlvelv and clearly, that every killing of another is itself mur.ler, unless the party kiillng can show by evl.lence that it is a less offense; or unless circum- stances arise in the case which will either reduce the killing to manslaughter or reduce It to no crime at all. There must be an instant provocation to justl y a verdict of manslaughter. The case put by the counsel for the prosecution Is well known The case put in our law books Is applicable to a case of a.lultery, and I believe such a case vs the present In Its circumstances never occurred before ' When a man finds another in the act of adultery with his wife, and kills him m the first transport of passion, he Is only guilty of manslaughter and that in the lowest degree; for the provocation Is grievous, such as the law 1 Price V. State, 18 Tex. (App.) 474 (188.5) ; Slater. Harmon, 78 N.C.518; and Bee noto in 51 Ain. Kcp. at p. 328. 2 8 CAP. 183 (1837J. 111>2 .,^ »/iii\ST THR VKUSONS OV INDIVIDUALS. 1.. 111.. l\rst tninsportof pafslo"' " roasona....V .-..nclu.l.H can n-.t >- .'.n';; , , , , ,,,, „,,MUM,t InmcU-l ,hc .u- this nmu lu.l K-.. the tluu« "M- P • ^ " , „,,, „,..., willUn th. ;„1. in tlut C..IH., -.it leust 1 H > ' ' r ,,,„„., ,„^,, tin..- to .'ool, H «ll Th.. co«ns..l for the l-ri^ onor aM , ^^J ,.,,„„„ „,rsons. tluit .t iHn.jt L n.ur.l.r. »ut 1 suy , In the hea . > V ^^^ • ^^ ,^^^^, ^,„.. ,, ,.„„ „r no ts exactly a quost^on or V-' ' ' ; j"j ...^ ,„,y ,in.l the Wn.th «t time which rather a qnestiou of law. HH t, l J ' • J , whal a state shonUUvt Cs .«■ -"I— ^'- ■ '""'^ '""\ ;i , K- lone to hlH chil.l. nhonhl be „ in if t man on hearu.« tlmt s H ;;',„' ."^.e fron^nura.r to n.inslan.im-r. W^^^ tu.r . 1^ ""t ^•"""«" ^" '■^■''"'^'' ^ , r, to r-.lne.- this oflen... .von to man. tack on the .le. ea^e.l"' P. .v. .l..'u..'^ th.. prisoner, alon, - ' . '"^.f, ^ \ ..,.„ a pistol at hhn Tm ler of Tinn.thy Shea, on W^'I't^-"""'^ -'..', „, ,.ii.,n the . rl^.n.-r, wUh Th evhUnco w.-nt to hIu.w that on - " ^^ ;. ^^ ,., , f,.llc, an.l after visit- U , -e of his eo,npani..ns. -'»'-' ^.^'^ ';,.,, ar.l Street, ne.t .lo..r ,o the ;,lve or six .lrinkin« h.u.ses ''"t'-'-^'<>;" ^ ' ' , ,„o .lo..r of the bas.Muent :^ ;... of the .l.-ease.l ana '-;- ^^ rhons.. an.. In which the .le- occnpixl l.y the decease.l's -^^^^^ U there en,:..e.l sinuin^ an. c.. c..ase.l.twoof his '>'•"'""'•'*•'"';;'"',, or one of the Inmatos ca ne ont a, rt ron.iu«. AH Anstm was P--'^ ^ ";, , ^^^ ,,,,..„ l.c r.-f use.l to d... Af -er re- r ir The ao.>r was then ^';--" ^ .;: J^.:; U J other .lefendant o,,,.'or t.) .irlnk, but rtfuscl. One ..i > „„.,„„„,,,a i., fasten the door N:btt, followed him into the '--'-f ' '^^ , j,,!sbitt .led fr..m the room o u A row th..n be^an. in t e co.se o -h ^^^^^^ ^^ ^^^^^^^^^ ^^ rri;;rr:;:;-r;:b.r^^ s not ascertained. sou>e one ^i;;^'^^^^,, the deceased, who was thou " a 1 rark.C'. C. IStd'M.-' ^^ PROVOCATION rr.OIM.E V. AVSTIN. 11S)3 passion.' n ntUcU-il the In- i-i-ii williln tlu' ..( the juilfSi'H. ti> Moh It- will IS, Unit it iHlltlt )C(>')1 or not, Is , oi tlmi- whifli stiitf slii>iil«l wc chUil, HlK.uld be nco on the of- m from oilitr!*. re Willi ine, ilmt iisliiii'-'litiT. W*' iiM- (Vfii lo mail. ,tfoH* tleri'llclloii It, from till! pris- ittoilUated AM at- »ro vocation. — in 4 lii(lU;ti'r to the ,r ol the liasi'iutnt i\ In which tlie ile- eil slnuiiif? «i""' *='^' lati's ca lie otit aid iHl to ilo. Afier re- ,1 (Irauijeil Into the repeateiUy uri^eil to he other iKfeiiilant, l„ fasten the il«>or lUil f loin the room, itcher at Austin, anil T. Austin retreated siruck a 1) ow with a L. 1)U)W with the chair iilfroniasi.'i-barrelcd ceased, who w;»s then which Austin had re- s he fell and expired : whether hefore or after It was from a lamp s standing l>y the bar, us previous goo-l clmrac- 154 (1847.) could easily extln«ulsli It with a breath. After the .l,lu« ti> ■' « ^^^^^ treated towards the p,.llee station house, distant about one. hund el feet f o ... he scene of the ufTray. Cn the way wlileh he had parsed, a pisto w s f ir- wanls found. A..stin repaired directly to the statio.i house, where he >xa i- l.vthc cMptait. of the police, who, „bservln« him to be ve,-y '>"';" >."^^^J^ him to be take.. ea.-e of a..d a physlela.i to be se..t for. «)u exa.nin ..« him, it ' " found that he had received a very severe wound on ,he forehead wi 1. so..,e sharp ins.rume.i., which had cut th.-ou«l. the rim of h.s hat, a..d ^vhb I h. u e- „.,., hi.n, ,t hole was cut ihrou'.;!. o.ie chock, as If a stab from a., oyster knife : rii.us bruises on ids head and body, showln, that he had received a leas „., i.iows. lie was too ill from these wou.ids to be .v.noved fnnn the sla Ion .o se for several days, and several weeks elapsed before •- arose from h.s bed. There was ...u.h contradictory evidence In the case. The father of the He- ceased swore positively to his having seen the prisoner tiring the pistol f.om the I ewalk, , f.er the aff.-ay was over, while the wi...esses tes.ltled tl,at he wa a^ilulltual drunkard, that he had gone to bed very dru.ik that .vf ternoon, a. id wl asleep in another room whe.i the affray began, and was just rising f.o,.. 1.18 ' all Hon expired. It was also proved that the family o tl.e She.is was vcM-v debased, the daughter being a stru.npet, the mother sharing with her the ;ges\^; he prostltutlo.., the deceased had been a convict In the State prison 11 d 1 Orother. one of the witnesses, was then in con.lnen.ent o.. ';'"" |^^-J ^"ealliig, and that the house they kept had freque.itly attracted the notice of the nolice for its riotous and disorderly character. . , ., , .,.. F .WAU..S J , in charging the jury said that the llrst question for the... to .le- teri e as, w'hether t'he'prlsoner had tired the pistol. This was swo... to no t vely by two wlt..e8ses: Shea, the father, and Clara King a girl of the owi \Vl o was passing at the moment. The testi...«..y of the father was not o '.^ d upon. Ifl^ character, his iutoxicatio.., his ntro.ig feelings tind the al eh o is wLlch had been proved against him, fo.-bid the idea <.f g ving much Ir 1 U. 1.... The testi.no..y of the girl, however, had not been "'l-vehed. b h^ii been corrobo.-ated by several independent circun.sta.iees «"'- --^ a, dpartleula.lv by the facts that all the wit..esses unite in say l.ig, he fl tig w f m the v-e.-y spot, where all agree that the prisoner was at the tln.e ; that le pis ,1 when found was bloody, and that he alone of all the party was bleed- g that he had an Inducement to do It, whether from motives of revenge or In s tf:defence , that the direction of both shots was from where A ... V. was, back npon those who had beat him; that the pistol was found at a spot wh. ■ he had wp s.d, that he who llred the pistol wore a white hat, and that the pr.s. o.ie.- alone had such a hat that evening. From these considerations, the jury m t leterinine whether it was not the prisoner who tired the pistol, and in deer, lining It. thoy must bear in mind that the evidence tolsatlsfy them must exd.i e to a moral certainty, every hypothesis but that of guilt, that the con- •iction^f guilt must flow naturally from the facts proved, and no by a forced or nha-d construction, and be consistent with all the facts, for if any one is u terly ..co..sistent with that conclusion it can not follow; and that in case oi do«bt!it is safest to aciiuit. for the protection of l.inocenee has an equal claim upon the administration of justice with the punishment of guilt If upon thU question the conclusion of the ju.-y should be adverse to the prls- oner he next nqulry would be Into the nature and quality of the act wh ch Zuld be thus estabflshed against him, and whether the homicide was 3 ustlfl- able or excusable, or was murder or manslaughter. 11!I4 ClUMKH AOAINST TIIK I'KUSONS OF INDIVIDIALM. Tl..- hcmUl.lo would lu. .justlfliiMlc under our law, only In cane It was com- n.ltt,-,l l.v th.< i..l».<.ufr ^vh.n tluTe wa« n'aHonul.lr (jn.un.ls to ai.iMvli..n.l a ,k.sl„M. to do l.nn >oM.,. «rcMt iwrson.l injury, un.l tlicro wuh Imn.lnent dunK.r o HUfl. d.'HltJn l).ln« a(c<..npllshi(l. Hut o( this tlio jury w.ro to l.o judjiiH, not thr prisoner, and It was (or thru, to sav fron. all tho circun.stanc.s provod |„.for»! tin .n. wl.etlur tlwrc was a rcasonaldo Kn.und for such up,,roh.Mislon und wlu-lhL.r Mi.r.r was, at tlio moment llie faial shot was llred, In.mineut dun.'.r that sunn- irreat persc.ual Injury w..uld IniNe been done to the prisoner. This would .leiMU.l mainly upon tho (ads when an.l from what position he nWlol was llredV If llre.l after the prisoner ha.l .seai-eil from the party lu the lu.use and after he hud reache.l the sl.lewalk, It n.ay have llowed from a Bplrit of reven;;e (or the Injuries under which ho was smartiuK. Bnt If he tired before he had extricated himself from the party, who had thus forclldv drawn hhn Into the l.uil.lln«, and had the^ displayed t..wards him such „„institla'-le vlolen.v, he mi;:ht at the moment have very reasonably apprc- hende.1 (urther personal injury and mi'.'ht be justillablo In usiug the means at hand to protect himself from it. , u, u There was, however, anoilur view ..f the case In which the prisoner might be iuslltled even If he ha.l llred the pistol after he ha.l left the pave.nent. One of the witnesses ha.l testille.l that the i.rls..ner ha.l been followed fr.nn the base- ment bv one .,( the party Insl.le, ami ha.l been struck with a chain while as- cendin-V the steps on his retreat. If this were s... then the apprehension o personal it.jury woul.l nut cease with the prisoner's leaving the basement, and the' hnmlnent danger in which he ha.l been place.l might have continued up to the moment of tlrini,' the pistol', and thus he bo justllled in flrln;,' it. If the inry were not satlstle.l thatjt was justifiable, they were next to Inquire whether It svas excusable. It is so under our law when commltte.l by accident or misf ..rtuue, lu the h at ..f a passion upon a sudden and suttlcient provocation or upon a su.l.len -ombat without any dan-erous weapon being used. The nattreof the weap..n use.l, and the man.>er in which it was used, mus be mainlv Instruu.ental In .ktermlnh.g this question. Thus If. in the heat o Dassl.'.n, upon sulllcient provocation or upon a sud.len combat, a man had used his walkin- stick, or a butelior it. his stall had used his knife that lay near h.m, era c.K.per use.l the a.l/e with widch he was then at work, and '"^d gl^^n a blow which was fatal, but without any intention to take life, the homicide might he excnHal)le. But that could hardly bo where tho weapon use.l was of a dan- gerous character, eousiructed solely for the purpose of taking life, and which coul.l scarcely be llre.l off without hazarding it. If In the melee the pmoner h.. 1 use.l tlu/pistol as he might any other hard substance found at the Instant iu Vs ,.oclet, bv striking a blow with It calculated rather to wound than to W'd but had killed, it might be attributed to acclden.; or misfortune. But .hat could not with propriety be predicated of the act of intentionally firing the pistol, an.l unless such firing was justifiable. It was either murder or man- ^' Whether the act was murder or manslaughter under our statute, depended entirely upon tho existence of an intention to kill either some particular person, or generally some one of a nuubor of persons, against whom In a mass the fata act is perpetrated by one then enga-ie.l In c .mmitting a felcn.y. Except in that one case, no homicido is m.-.rder without an intention to kill, ami with su'h an intention, everv homicide, with the sindo exception already mentioned, unless It be just flable, is murder, whether the intentionis formed m the instant or has Arfi PUOVOCATION — PKOn.K V. Al'STIN. lli)5 U.S. IMC It was com- Lo iipi'i"'!"''"' 'I Incut (lanntr of \n; jiulHiH, not ■*tiiiic>'.s (irovi'tl I u|)|ir«'hcMisl«)n, llnd, liiimliu'Ut ,o tliu prisoner, hat p(i;4itlon the tliu party lii the liil from a spirit y, who had tliiis iwanis hlin Hiich awoiiahly appro- ug th<.) means at rlsom-r might be kremoiit. One of I from the base- . I'tiain while as- apprtlieuslou of le basement, and continued up to •e next to Inquire Itted by accident lent provocation »ulng used. The vs used, must be [, In the heat of ;, a miiu had used hat lay near him, and had given a tie homicide might ised was of a dan- ng life, and which nelee the prisoner and at the Instant wound than to misfortune. But itlonally firing the murder or man- statute, depended 1 particular person, In a mass the fatal ly. Except in that , anil with su'li an mentioned, unless a the Instant or has long been entertained. Such Intention may be inferre.l from the act 1. . f. for it may be one which of Itself plainly Indicates a heart regarcless .. so, ty an.l fLuy bent..n mischief, and never are to be presumed to Intend tl.. » . n al and Inevitable consc.uences of the acts which they will fnlly perforn. bU un- less th..ro be sneh an Intention, the act can not be more than .uan^'.ug Uer It would readllv be perceived that tliis view of the statute had entirely miikt- s Zl many of the r'ules of the law of hon.lcl.le as It exN*.-! in H"^"- • ;;"^ which had been .p.otcd on this occasion, and an.ong them the whole d.e Ino of l.-Pl.ed malice and the power of recent provocation to reduce the act from murder to manslaughter. nr.,„a The Kngllsh law provl.led very sll-ht punishment for manshiughter, sometimts as low as the tine of a shilling, and never beyond a year's imprisonment o remove from the operation of so Inadeqnute a penalty acts of peculiar bar bar tj such as tiiat of a sclioolumster who whipped a scholar until It die.l, an.l that ol the nmster chimney sweeper whoso boy stuck fast In tho chimney and was killed l.v the violent manner in which he was pulled from the place, the Kngllsh courts adopted the principle of l.nplyh.g malice, when there was In fact no pre- meditated design to take life. On the other hand, lest such a principle should "xtend too far. they adopted another principle which gave .o recent Pr-ocath^^ and tho fact that the passions had not time to cool, the power of modltjing the acts from murder to manslaughter. Ill this had been done away by our statute. If the homicide had been per- petrated without an Intention to kill, it would be ma.islaughter and •">'""'•«' except .n the single cas. of Its perpetration by one engagod In ^<'>"""""S ^ felonv But If perpetrated with an Intention to kill, no nuitter how recent the provocation or how high the passions, it was murder. An act of l'"'"'^'' J;^!-^' ' petrated with a premeditated design to effect death, though In the very highest night of passion, and springing from even an existing provoca Ion, can hul no ret in" pLe In m.r statute except under the detlnitlon of murder or justinaWe homh-hle, and the Intention to kill being established, there Is no degree or de- scription of manslaughter In this statute which can embrace It. That this is the Intention of the statute Is manifest not only from a careful perusal of all Its enactments relative to homicide, but also from the recommen- Ta onl of the revisers. They pi.posed that murder should '-'"f^^-,f;;;;f^^^ when perpetrated from a premeditated design to do some g'-^'^',*'"^"^ 'f '.y' Ilthourh without a design to effect death, thus recognizing and adopting he principle of l.nplled malice and defending It on the ground tjat t e m.^actlon would be such as would ordinarily lead to the result of taking "^e^ Bu* the legislature refused to adopt the suggestion, and enacted a «f ''«" 7^>'^"'j" ^'^^^ rangunge of the revisers, was '< founded on the great principle that to constitute Ser there should be an express design to take life, or such circumstances as to Induce a very strong presumption of such a design." ThiTview of the law illl commend Itself to our favorable regard not merely because it confines the crime of murder within its l^g'^'^*^/"""^'';/'; Pre- meditated design to take life, but U effectually destroys the doctrine of allow- wudden provocation and heat of passion to mitigate the offense, a doctrine most dangerous in its operation, because it tolerates the practice « -rry-^ Tm and takes from the sudden use of them the consequences that oU!,ht S to follow. No man can, under our laws, go habitually armed and in an iff ay use these arms with an Intent to kill, without Incurrln.. the hazard of a cScUon lor murder, and no violence ol provocation, no height of passion, can 1196 CRIMES AOATNST THE PERSONS OP INDIVIDUALS. mlti-ate or extenuate the oifense. U ^vill bo murder if there Is an intention to S u. ess self-defence demands the sacrillce. The practice out of which this caiC/sprung is too pernicious to be tolerated. No life >vo,.ld have been tak.n tleperfonwho ired the pistol, ^vhoever he mi«ht have been, had no lone into the affray .vith so deadly a weapon. The same remark is app hcable fo he ast case tried in this court, and the sooner this law l'-^"-^;^^" ^-^^^J and understood, and rigidly enforced, the better; for far better the and though ; r ckei n"^^^^^^^^^^^ the unseen majesty of the l.w affords its sure pro- ctlontoalLand^in the atmosphere of its supremacy pervades every tene- me t, howev r humble, than that where gold may be gathered at every footstep but where every man is armed to the death against his fellow ; where every breath 's dra^ramid the rattling of ,rmor. and every pulsation beats with the appre- heu'^ion of instant conflict. -j .. , .u» -c^- 1# Tl.e inquiry, therefore, would be, was there a design to effect death For if there Vr^ hosvever recent in birth, the offense was mur.ler; but >f time was an [ntrntim. to wound only-a design to do some great bodily harm and not to kill, it was manslaughter and no more. 8 -12 -Adeqviate cause." -Under the Texas statute ' any condition or circumstance which is capable of creating sudden passion such as anger, rage, sudden resentment or terror, rendering the mind u,capable of coo leflec- tton whether accomplished by bodily pain or not, is •< adequate cause." The te'of lilting language towards a female relative need not be in her presence to constitute •• adequate cause " within the statute.^ 8 713 " Adequate Cause " - Causes not Mentioned In Statute. - In Gnffee V Stated it was hold that to excite the sudden passion wh.cli mitigates culpable horn c de from murder to manslaugl.ter, there may be other "adequate cause Sic those instanced in the Texas Penal Code. If in one's presence h.s bttr be killed, this may constitute -^h adequate cause pn,vide they ^ not iolntly engaged in some unlawful act. The court saul: It is true our stat- Zl nfnishrng illustrations of causes deemed adequate in law to produce sud- den passion sulflcient to reduce a homicide to this grade (n.anslaughter) fails to , smbe that the slaving of one's brother in his immediate presence ,s an ! d nu'trcau^e. But it i>as long since been determined that the statuto.-y illus ;; In are not restrictive and exclusive, but are merely Inserted as mstances l':;x mplesby which tl>ose charged with the administration of tl.e laws nmy be ™ned. Certainly, to one at all familiar with the promptings of the hu- n,an le^ "t and the n.ot ves by which men are governed in their resentments and X onsi cannot be a maUer e f. serious question that the death of a brother bftl viol nee ^ immediate presence of one, .s better calcu- Ited to produce, in a person of ordinary temper, a greater .legree of anger rage or rr.entment. than any ol the causes particularly designated in the stat- utf 'and lit such an occurrence is amply sufflcient to render the m nd inca- pable cool reflection. Down deep in the human heart there is an abaUng love ?or our kith and kin. which intensilles as we approach a common parentage. A b?o iT'Jv n^^^^^^^ magnitledand his faults overlooked, and upon summons we t^vtohis relief without pausing to contemplate the consequences to our Te IvS, or taking much time to consider whether, in the particular instance, he 1 Williams V. State. 15 Tex. (App.) 8M (1I1S4). 2 HaJson r. State, 6 Tex. (Ap|).> S85 (197"). 3 8 Tex. (Apii.) 1ST asSO). ^^m 3. PROVOCATION " ADKQUATE CAUSE. Ill intention to if which tills Id liave been )oen, had not is appliciilile s Avell V ,iown i laud thoug,h 1 its sure pro- .'8 every teue- lery footstep, I! every l)reath ith tlie appre- leath? For if t if there was ,rm and not to ' any condition iuch aH anger, of cool reflec- cause."! The n her presence te. — In Onffee igates culpable iquiite causes " s presence his •ided tliey were s true our stat- to produce sud- islaughler) fails > presence is an ! statutoi-y illus led as instances .f tlie laws may tings of tlie hu- resentnieuts and ;ath of a broi her is belter calcu- legreo of anger, iiated iu the stat- r tlie nilud inca- s an abiding love :)n parentage. A d upon summons icquences to our nilar instance, he ©X. (Ap|).)885(197"). .880). is In the right or the wrong. It suffices usually for us to know that he is in danger and needs our assistance, and we blindly follow that Impulse born iu us, and which impels us to rush to the rescue and save us from harm, and leaves us to contemplate our actions after the danger has passed and reason has re- giiined its sway. This Infirmity (or virtue) in human nature can not be ignored i.i the practical administration of justice, and Is well established In the law aa pertaining to the relations even of master and servant, not to menlion the other more Important civil relations.* Of course the principle can not be taken into consideration, and can have no effect, when a brother, or parent, or master, etc., rushes to the aid of another engaged in the perpetration of an unlawful act, and knowingly joins in the execution of the original unlawful purpose; for then he becaines a principal in law, and shares the culpability of the entire trans- action from its inception to Its determination. A master, maliciously intending to kill another, takes his servants with him, and engages his adver.'«aiy on meet- ing him. His servants, seeing their master engaged, ru-^^h to the rescue and kill his antagonist. At common law this may be murder in the master, but only manslaughter in the servants.* The same principle applies to various other re- lations. Including sometimes strangers; ^ but in law hot blood is more natur- ally expected in a case of interference by a near relation or friend than In others more distantly removed.* If, therefore, the defendant in this case, not intend- ing to unite with his brother in making an unlawful attack upon the deceased, and not knowing the unlawful purpose of his brother, but awaiting an antici- pated necessity for his interference in order to protect his brother from serious bodily harm or death, threw up his gun and flred simultaneously with the dis- charge of the pistol by deceased at his brother, or, seeing the intention of the deceased to fire upon his brother, and endeavoring to anticipate him, but fail- ing, the deceased being too quick for hlra and discharging his pistol first, the defendant is not guilty of any higher grade of felonious homicide than man- Blaughtep, notwithstanding the defendant's brother may have brought on the conflict with malicious intent. Or if the defendant, with no purpose of Injuring the deceased, but desiring and attempting to stop the progress of the difflculty between his brother and the deceased, and with no purpose or Intention to aid bis brother in an unlawful and violent attack upon the deceased, saw his brother shot down in his presence, and in a fit of sudden passion, engendered by this adequate cause, he voluntari'y slew the deceased upon the Instant, then he is guilty of manslaughter and he should not be punished for any higher offense." § 714. ReBlBtiner Arrest — Provocation. — And thus the provocation of being illegally arrested is a suflicieut legal provocation to reduce the killing from murder to manslaughter.* §715. incltlnertoOommlt Suicide. —Inciting another to commit sui- cide is not an offense at common law.' § 71G. Sparrlntr Match — Death Restdtingr from, not Manslaugrhter. — In R. V. Young,^ John Young, Williain Shaw, Daniel Morris, Edward Donnelly, ' Hor. A Thomp. on Selt-Def. 750, and authorities cited. Defences to Crime, Vol. I, of tliis series. a 1 Hawk. P. 0., ch. 31, see. 66. 3 /(/., sec. 819. 4 /(i.,8eo. ue. » Com. V. Carey, 12 Cash. 246 (1853) ; V. 8. V. Bloe, 1 Hughes, SCO (1875) ; RatTerty v. People, 69 IU. 111. See ante. Defenses to Crime, Vol. I. of tills series. • K. ». Leddin(?ton,9C. AP. 79 (1839). ' 10 Cox, 371 (1666). L . »nvTN-;T THE PEUSONS OF ISDlVIDUALS. 1198 CHIMES AGAINST 1 H^ • r" '-:^:::\^^^~^ him to ,o ^vith him to the P""^;" ,^ .'^^/^^^^^^ upstairs into a room ^vhcre look after him. When they «'™^;'^;;,;; ,^„e. lu the room there in a ang. sparring often takes pUvce. /^a^^ ^^ ^^^^ ,„, ,oom and the other by ropes, one side of which is formed by «"« « ^^^ ^ ^.i,^ Donnelly acted as his sec Evans took Wilmot into the rln«, and together ^v. ^^^^ ^^^^^^ ^^^, ^^^^^ ond. Yonng ^vaB Wllnot's opponent, and hU.Bec^ ^,^^y Flynn and Good were also ^j);-"^ J^^'^^'^ s^-^'^ "' '''""''' ''T'^' were naked to the wa.st. They ^^^^^ J''"^ " j^^ i^.-es for upwards of an hour. S: dressed him and sent him off to tj- hosp't^l ^ ^^^^^^ ^^^. Kvans further said that what -^^ ^^^^^^l ^J [fiends; that he was a ducted; that aU the part.es ^^ ^^^JJ^'J^^ J^^ with his pupHs- He teacher of sparring '"/"'^'^"' ''"^^J^^^'^X but never a death. If a man's nose had known acchlents happen "^^^-rTw 1 make it bleed, but It requires a very gets knocked with the gl«^««' ^^^yj;!",; either witness both men were Lrd pair to give a black eye. A^*=°'^""f^f„J"J,\„^ came up to the last getting rather tired , that after having a S'*;^ ^^J^^^'^ ,4. They were then ?o«nd .< ail in a stumble together ''a°d had a hug i„g ^^^^^ ^^^^^^ ^^ ^^^^^^ too exhausted to ^J^f^^-^^T.Jrdteased slipped away, or was thrown -rtr:rr:-5^i^ ture of an artery on the brain "'^"f ^ "^ ^ „ ^ answer to questions might have been caused either ^^^ .^^°J "^,„" J .^t sparring with gloves In from the court, this witness expresse^ his o^^^^^^^ ,^ ,„„,„ • the manner described by the other witnesses jn^ ^^^^^ ^^ ^ ^^^^ life; but that death would not »>«/ "^^^^^^Z" i^. \ nian might die from -^r^^j^crsTof^a.^ zn::::^:^^^^^^^^^^ --- --^^ -^^'-^ ^°""" "Ca«cl. for the prosecution, referred to Be^ina v. Har.raW -here the point had been decided tb« other way. ^^^^ ^ ^m whether the wit- BRAMWEI.L, B., said thatlt had certal"^^^^^^^^^ ground, that In so doing, nesses mightnot have objected '<^ ^^^^'^^"^'^'1 the presenthe thought It they might criminate themselves, but in such a c«8« w could not be carried to that extent. 1 6 C. * ?• W* LAWFUL SPORT — RAlLKOAl) I'ASSENGER. 1199 feloniously I, who asked market, and room where ere is a lUig, ler by ropcB. .(I fvS Ills SIC- ris ami Daw. cs on. They ids, sparring, Is of an hour. Young, on his « center of the nd gave in for ag, fairly con- that lie was a is pupils. He I a man's nose requires a very both men were e up to the last rhey were then Tying to throw , or was thrown Cross Hospital, lion from a rup- right ear, which rer to questions ig with gloves in erous to human rould be a very n might die from of a glove. The jIow, but that the J they then would lere was no case b an unlawful con- d require corrob- ;ra»e,* whore the i whether the wit- >d, that In so doing, esenthethongbtlt M. Williams tlien further submitted tliat there was no evidence to support a charge of manslaughter against any of the prisoners, as the death happened in the exercise of a mere lawful sport, citing East's Pleas of tiie Crown: ' " If death ensue from such sports as are Innocent and allowal)lc, the case will fall within the rule of excusable homicide; l)iit if the sport be unlawful in itself, or productive of danger, riot, or disorder from the occasion, so as to endanger tiie peace, and death ensue, the party killing is guilty of nmniluughter. Manly sports and exercises wliich tend to give strength, activity, and skill in the use of arms, and are entered into merely as private recreations among friends, are not unlawful; and, therefore, persons playing by consent at cnilgels, or foils, or wrestling, are excnsable if death ensue. For though doubtless it can not be said tliat such exercises are altogether free from danger, yet they are very rarely attended with fatal consequences, and each party has friendly warning to bo on his guard. And if ttie possibility of danger were the criterion by which the lawfulness of sports and recreations was to be decided, many exercises must be proscribed which are In common use, and were never lieretofore deemed un- lawful." Poland,in reply, referred to section 42 of the same chapter, where it is said: "The latitude given to manly exercises of tlie nature ai)ove described, when conducted merely as diversions among friends, must not be extended to legal- ize prize lighting, public boxing matches, and the like, which are exhibited for the sake of lucre, and are calculated to draw togetlier a numl)er of idle, disor- derly people, for in such cases the intention of the parties is not innocent in itself, each being careless of what iiurt may be given, provided the promised reward or applause be obtained. And again, such meetings have a strong ten- dency in their nature to a breach of the peace." Bramwell, B., aald the difficulty was to see what was unlawful in this mat- ter. It took place in a private room; there was no breach of tlie peace. No doubt, if death ensued from a fight, independently of its taking place for money, It would be manslaughter, because a fight was a dangerous thing and likely to kill; but the medical witness here stated that this sparring with the gloves was not dangerous, and not a thing likely to kill. After consulting Bylks, J., Bramwbll, B., said that he retained the opinion he had previously expressed. It had, however, occurred to him that supposing there was no danger in tlie original encounter, tlie men fought on until they were in such a state of exhaustion that It was probable they would fall and fall dangerously, and If death ensued from that. It might amount to manslaughter, and\o proposed, therefore, so to leave the case to the jury and reserve the point If necessary. Kutyuilty. § 717. Railroad— Klllln* of Passentrar — Dsoeasad Must be a "Passen- ger" at the time. — Under the Massachusetts statute of 1874,2 the deceased must be a "passenger." Thus an Indictment will not lie for killing one who at the time has ceased to be a passenger, as by leaving the train when in motion.^ 1 ch. v.,p. il. * ch. 372, sec. 163. s Com. V. Bjston & Maine R. Co.. ISB Mmi. SOO (1880). AB " ■^ INDEX. ABDUCTION. See, also, Seduction. Abduction for the purpose of sexual intercourse is not abduction for tlie " purpose of prostitution." State v. Stoijell, p. 723. Tlie defendant, by false representations, persuaded a girl to go with him to a neighboring town, where he took )ier to a hotel and made her partly drunk, when he had intercourse with her several days. Held, that he was not guilty of abducting her "for the purpose of prostitution'* within the statute, p. T2Z. Prostitution means common, indiscriminate, Illicit intercourse, and not illicit intercourse with one man only. Therefore under a statute against abduction for the purpo. «' ADEQUATE CAUSE." Construed, p. U9C. «• ADULT." Construed, p. 877. AiVlBASSADOR. See Law OF Nations. ^"Cnot t.e subject o. .rcen. at co^^on law. pp. .5. .0, 67. Nor are they " chattels " within statute p. 454. ^ ^^^^^^ Kabhits were netted and ^yJ^lC^l:^ the'rahblts' were caught. :rr^^=3epo.h.^^^ amount to larceny. B. v. ^»'""'^;' P' ^^ ;^ ^^^ ^^ was his duty to take The prisoner was employed to trap wudra^^^^^^^^^ ^^ ^^^ ^^^^ ,^ them, when trapped, to t^^^J^^/jfti'^ them to another part of the trapped from time to «me -f^^^J.Vi^t'ntionof appropriating them land, and placed them in a oa» wiin j ^^^t and took some to his own use, which ^*"f "^ . ^, ^^^^e pdsler^s absence and nicked of the rabbits out of '"'^^^^l^f^f'JZ for nicking them was that them and put them into the »>»g- "'^^'/^^^^^^^^^ took away the he might know them again. J^^ P^'* „j ^^^ deeper in nicking the bag and the rabbits: Held, JJat *heja ^^^^^^^^ ^^ ^^^ ^_^^^^^^ ^^ rabbits was no '«f «'="°° ° *^^™,\lung them. B. v. PeUh, p. 463. as to make the prisoner guilty of stealing Animal not subjects of larceny, p. 671. As doves, p. 671. Or oysters, p. 672. Or other fish, p. 672. ^""Csely putting artist's name on picture not perjury, p. 12. ASSAULT AND BATTERY. maK8I^x;ghteb; Law of Na- Rape. INDEX. 1203 loG, 672. oslt, viz., a ditch, iblts were caught, > take them awa}-, I previously found , that this did not as his duty to take try to his duty he another part of the appropriating them rent and took some absence and nicked :klng them was that ards took away the eper in nicking the )n of the master, so {. V. Fetch, p. 463. .12. jhteb; Law of Na- rdek; Spring Guns; ASSAULT AND BATTERY — Continued. An assault is an Inchoate violence to the person of another, with the pres- ent means of carrying the intent Into effect. Threats are not sufficient ; there must be proof of violence actually offered, and this within such a distance as that harm might ensue if the party was not prevented. People V. Lilley, p. 783. An assault is an offer or an attempt to do a corporal injury to another, as by striking him with the hand or with a stick, or shaking the list at him or presenting a weapon within such distance as that a hit might be given or brandishing it in a menacing manner, with Intent to do some corporal hurt to another. U. S. v. Hand, p. 788. Firing a pistol at a person's window not an assault on him, p. 789. In a prosecution for assault and battery, the court Instructed the jury that if under circumstances mentioned in the charge, " the defendant struck or beat the prosecuting witness while he was gathering corn In the field; or, while he was driving his team In the field, in the act of gath- ering com, the defendant struck and beat the horses of the prosecuting witness In a rude and angry manner with a stick, the defendant Is guilty of an assault and battery." Held, that as there was evidence tending to prove that the defendant did strike the horses when being driven, the Instruction was calculated to mislead the jury to the conviction t'lat such striking the horses was an assault and battery upon the driver, which It was not In any legal or logical sense, the driver himself not hav- ing been touched directly or indirectly, and hence such instruction was. erroneous. Kirland v. State, p. 792. If a man raise his hand against another, within striking distance, and at th& same time say, «« If it were not for your gray hairs," etc., it is no assault; because the words explain the action, and take away the idea of an intention to strike. Com. v. Eyre, p. 800. The taking hold of a person's arm in the confidence of existing friendship, trusting to a license acquired by a supposed mutual kind feeling, doing no injury, and with no wrongful intent is not a criminal act. People V. Hale, p. 804. One who negligently drives over another is not guilty of a criminal assault and battery, although he does it while violating a city ordinance against fast driving. Com, v. Adams, p. 808. A conductor on a railroad is justified in ejecting a passenger from a car who uses grossly profane and indecent language on the car. People v. Caryl, p. 813. So also the refusal of the passenger to obey the reasonable regulations of the company. Id. The superintendent of a County Poor-House has a right to use gentle and moderate physical coercion towards the Inmates so far as may be neces- sary for the purpose of preserving quiet and subordination among the Inmates, and is not guilty of assault and battery in so doing. State v. Neff, p. 816. The court charged the jury as follows: 1. When an injury is caused by vio- lence to the person, the intent to Injure is presumed, and it rests upon the person inflicting the injury to show accident or innocent indention. 1204 INDEX. ASSAULT AND BATTERY - C » '»-'^- ^„„,,,,j„,. , se„«e of «hame The injury Intended be «'"'«' ^'^ffjS.d. 2. When violence is per- or other disagreeable emotion ol the ml.m. ^^ ^^^^^^ ^^^^ j,, „,Uedtoeflecta lawful P^'P^^^'^^^'h 'purpose. Held, erroneous used which is necessary to ««-; ^JJ,^ ;. ^..o. applied to the present case ^»" «" ^^ ^^^l^^ ,,,„,y»,, correctly a teacher for chastising his P»P»- J^; ^^ ^,„ ^^^ be held guilty in any unlawful act he might d°. P J ^ .. ^^^^j^ „ ,„ aggravated -Tss^trworiThii?^^^^^^^^^^ .. r^aC^arged an adult with ..-- ^Z:^:^ alleged no other ^^^'^-^^^^'^X'^^Ttl^^ assault was made under the jury to convict In ^^^^^^l^^Zn the one alleged. W- other circumstances of -^f '^'^^''"2;^^^^ ^„^^^,„ i« disabled. Incapable Adecreplt person within theTexasBt^^^^^^^^ ^ ^ r iriseTirn^rls^-^^^ helplessagamstone of ordinary health. Ball v. State, p. 8 6. ^^^ ^^^^ ^^j. H was indicted for an assault ""J^ »";»^\\7jrtl « house of the defend- ''• dence disclosed that the -^^^J^^t was a member, and of which ant's father, of whose faml y "^j^^'^^JJ ,^, ^^idence was Insufficient, house he was an occupant. HeW, thai ■'<*• ,- .nf«nt to miure coupled with an act which in every assault there must be an l°*«°' *° \°1^'' ,„ i^„re at once, and not '"Tu'st at least be the ^^^^:^:^J^:ZZ^^^'^i-ry that may after- a mere act of preparation tor «o™e *:° i^^ufflclentln this case to support .vardsbelnfllcted. Evidence MdU,b^ insufficient to prove an a conviction for agg^^^'^*^'* *! J""' assault. Fondren v. State, p. »o • „ ^^h mjury danger- A ^oman was indicted under VTunll" T^PP^a^ed she had abandoned ^''ous to lite" >vlth intent to "J'^;'^ JJ ^^estion of the lungs had ^^' S;rr wlTt wUm the statute. . v. Oray, present llntlon to strike necess.uy. p. 866. Intent to injure essential, p. 86G. Threatening gesture not, p. 86C. Words not an assault, p. 867. Words explaining hostile action, p. 867. Assault must be on person, p. 868. Beating horse, p. 868. INDEX. 1205 ense of sbame ioleuce l8 per- [orce must be bW, erroneous lylii? correctly m the trial ol t be held guilty nee tending to ,hatact, orsome to aid and assist " an aggravated )r. McGregor \. ; on a child, and error to Instruct was made under ed. Id. sabled, Incapable ■oduced by age or iss against one of i house. The evl- use of the defend- mber, and ol which •e was Insufficient. 1 with an act which re at once, and not ury that may aftcr- thls case to support fflclent to prove an odlly injury danger- she had abandoned )n of the lungs had statute, r.. V. Gray, ASS.\ULT AND BATTEKY — Con«»»«e(l. Opi-ulng rallroiul switch, p. 808. Stopping carriage, j). 868. Shooting at house window, p. 870. Force must be external, p. 809. And must do Injury, p. 869. Accident or play, p. 869. Use of lawful force, p. 869. Neplng Wm ^^^^^^^^^^^^^ ^,^^,,^ ,,, murder in the first degree " JJ^ JJ^ and not to those acts of rri^^ir^trthXe^^^^^^^^^ Tts of the homicide itself. ^'«'-;, ^^ ' J that a rnother and her on a trial for murder t^^-^^^l;^^^^^^^^^ by three children were ''">f ^ ,^ "'f ^';;7'blunt weapon, and that their having their skulls crushed -"'^ ^^^^^^Jrcumstantial. The verdict house was then burnt. T"« ^j'J^d de'-ree, on the theory that the ^a, guilty ol -"',^:V",n enJelvortufto commit rape upon, or crime was co'""""*^'?^^" TSfwsconsln statute makes '' the killing adultery -'t^^' *»»« "^^ J^o^t Idelgn to effect death, by a person en- ol a human ^^""S' '^^^^^'"''^^ ^^^'fl^y ^^ murder in the third degree, gaged in the commission ol ^"y *; ""^ ^^^^ ,,pe or adultery and V. state, p. 1037. ^m^M INDbX. l->09 to couatltute urily muriler life cuumcr- Brpetrated by mil o( willful, inilttt«l ill till' iH.ry.orburj;- othcr kinds " the jury, In n IniUetinent of his nmllce ml held hor in In manner and t was not con- ,ho second de- known to have with shoclilng irth ; held, that • i fiuilty ; that It uUty of murder » * ♦ which » perpetrate any deemed murder le jury believes, defendant to kill itend to do him d, he Is guilty of ony' used in the to those acts of r and constituent a mother and her separate beds, by n, and that their tial. The verdict theory that the rape upon, or lakes " the killing , by a person en- i the third degree, e or adultery and e of either of the w that the killing wrong. Pliemling PECiRKKS OV MUKDKU— < oHfi/iH.J. Ill order to conntituto murder In the llrst decree there must be «om«tlmig more thun malicious or Intentional killing. There miiMtbo Killing by means of polsoa, lying In wait, or torture, or some other kind of liili- lu!t different from that of poison, lying In wiiU, or torture, which is willful, deliberate, or premeditated, or a killing which is committed in the perpetration or the attempt to perpetrate any arson, rape, robbery, or burglary. F.very otiier kind of n\urder, which Is murder at common law. Is murder in the second degree. People v. Sanchet, p. 1043. Murder In the first degree, unless committed In perpetrating or attempting to perpetrate arson, rape, robln-ry or l)urj{lary, is tlie unlawful killing, with malice, and with a deliberate, premeditated, preconceived design to take life, though such design may have been forme"'"'r\'rr.t bLTd •• J- ^':ed.«.ion." "»r.ro°r?>:d:~'rr\:tL''i::.dj:e. coustitutes manslaughter. W. ^ ^ „ rourt A'{a«e v. (Sftarp, p. 1077. the secoad degree, /d. iir::.!':;:.^- ro^SA-rUu o, .«.de, . ... »».d degree. i>a?y v. Peopie, p. 1038. To murder In first degree, Intent to take Ufe essential, p. 1165. And deliberation and premeditation, p. 1156. Murder In first degree not presumed from act of killing, U5G, Implied malice, erroneous charges, pp. 1156-llGC. Evidence Insufficient to convict of murder In the first degree, pp. HGG- Evidence Insufllclent to convict of murder m second degree, pp. 1180-1189. INDEX. 1211 3W8 with his . Held, not emedltatlon. at ;iii killing nurder in the je, it 1=1 error structlons on of the blood, ee is a willful iout dellbera- 6 " and •' pre- blood;" pi fi- le first degree, aforethought, lave been done aforett ' "i ■uctions ot thii tt intentionally, '»» meaus In a Bg is murder in 11 more or less rew him down, Daly had been was not shown, led to kill him. by the physician le died the next 1 death resulted een produced by fall. Held, that ler in the second .165. 166. iegree, pp. 1166- ee, pp. 1180-1189. DEMURRER. A demurrer to an indictment may be withdrawn by the defendant, by per- mission of the court, after the court has Intimated an opinion that it ought to be overruled, but before judgment, p. 169. DIPLOMA. College diploma not a " document " and not subject of forgery, p. 7. «« DIRECTIONS IN WRITING." Construed, p. 5G8. DIVORCE. Making fictitious decree of divorce not forgery, p. 31. «' DOCUMENT." Construed, p. 17. DOGS. See. Animals. DOVES. See Animals. DWELLING HOUSE. Construed, p. 680. ERROR AND APPEAL. For errors on mere questions of fact, the remedy of the Injured party is by a motion for a new trial. No writ of error lies to an Inferior court to review its decision upon matters of fact, p. 258. «« FALSE." Construed, p. 52. FALSE IMPRISONMENT. False Imprisonment is the illegal restraint of one person against his will. State V. Lunsford, p. 861, 879. When on trial of an indictment for such an offense It appeared that the defendants went to the prosecutor's house at night, called him up out of bed, represented to him in changed voices that they were in search of a stolen horse, and offered to pay him to accompany them; and thereupon he mounted behind one of Ihe defendants on his horse, and went voluntarily, without threat or violence from defendants, and after riding a quarter of a mile in a gallop he complained of the uncomfort- able mode of transportation, dismounted and discovered he was the victim of a aoax and was left in the road by defendants : Held,.th&\. the fraud practiced did not impress the transaction with the character of a criminal act. Id. The ordinance of a city authorized the arrest by an officer of a drunken man without warrant. A. being arrested by B, for drunkenness immedi- ately offered to give bond, which B. refused and he was confined in the 1212 INDEX. FALSE ,MPSIB0i™iOT-C0«««..«i. ^__^|^^__ authority. Held, enor. Id. ..FALSE OR BOGUS CHECKS." Construed, p. 318. FALSE PRETENSES. , located," are 18 insufficient. The Indictment should show that tj P t" J ^^ ^„ of sufficient value amply to ^^'^^/f^.^lV^^^JfTrnortgaRe. If the real a pro. .uMoa for false P-^-;^;;;^:!;^;'^^^^^^ to secure rrro^th^Zr^^s^^^^^^^^^ ^^^^ "^ '^^^^^"" '^^ INDEX. 1213 ;o conviction ■rest a party charged that, B «• express" located," are tiin the statute ely puffing and rere of the very and the pawn- Held, that B. t of the person ind parts with te. Be Snyder, last event or to happen In the pretenses where s genuine a note ,at the defendant jonsent is admls- State \. Lurch, rhich alleges that 1 real estate cov- situated in I., hut irlbe the property unknown, Is bad jflnlte. Keller v. mortgage, where he mortgage was not worth *3,500, e property was not It seems that. In jrtgage, If the real )le amply to secure he respondent rep- FALSE' PRETENSES — Continued. resented the real estate to be very much more valuable than it actually was. Id. In an indictment for false pretenses In the sale of a mortgage, where the pretnnse is that the property covered by the mortgage is not subject to any prior Hens, an allegation that the property was subject to prior liens, but which does not set them out or describe them, is Insufficient. Id. Representations of future events are not false pretenses, which must be as to existing facts. Id. An indictment for obtaining money by false pretenses must show what the pretense was, that It was false, and In what particular It was false. United States v. Watkina, p. 168. An indictment for obtaining the signature of a purchaser to promissory note given for the purchase price of property sold to him by the false pre- tenses and representations as to the price asked for the property by a third person, who was the owner, cannot be sustained, where the proof shows that no representations were made by the defendant in regard to the price, except that he told the purchaser. In the course of the nego- tiations, that he did not think that the seller would take less than a sum named; and that the only representation as to price, at the time of the sale and purchase, were made by the seller. Scott v. People, p. 241. Although the price asked, and finally agreed to be paid by the purchaser, be fixed by collusion between the owner of the property and the defendant, for the purpose of defrauding the purchaser, such collusion, though it may be an IndicUble offense, Is not the offense charged. Id. If, In fact, the price agreed to be paid by the purchaser was the price de- manded by the seller, at the time of the sale, the motive in asking that price Is of no consequence, so far as the offense charged Is concerned. Id. On an indictment for fraudulently obtaining goods In a market by falsely pretending that a room had been taken at which to pay the market peo- ple for their goods, the jury found that the well-known practice was for buyers to engage a room at a public-house, and that the prisoner pretending to be a buyer, conveyed to the minds of the market people that she had engaged such aroom, and that they parted with their goods on such belief. Beld, there being no evidence that the prisoner knew of such a practice, and the case being consistent with a promise only on her part to engage such a room and pay for the goods there, a cc -i- vlctlon could not be sustained. B. v, Burroxcs, p. 245. F expecting to buy a certain lot, sold It to R. telling him that he ownet -, and received the money for It. After selling to R., F. made a written contract for the lot and paid a portion of the price, but he never paid the full price for the lot nor ever acquired title to it. F. was prose- cuted for obtaining R.'s money by false pretenses, the false pretense being the statement that he owned the lot. Held, that If F. at the time he made the sale to R. and obtained his money, honestly Intended and expected to make title to the lot to R. he did not have the intent to 1214 INDEX. Fay V- FALSE PRETENSES— CoJUJnued. defraud required by the statute and should not be convicted. Cow., p. 248. The party alleged to have been defrauded must be Induced to part with his money by means of the false pretense i.e., he would not have parted with It If the pretense had not been made. Held, that the evidence In this case does not establish this fact. Id. Where by the agreement between the prosecutor and the defendant, the defendant gets no title to the property which is delivered to him on the faith of the alleged false pretenses, the crime of obtaining property by false pretenses Is not committed. SUxte v. Anderson, p. 264. An indictment under a statute which provides that " whoever designedly, by a false pretense, or by a privy or false token, and with intent to de- fraud, obtains from another person any property • • • shall be punished," etc., will not lie against one who by false pretenses obtains the consent of a city to the entry of judgment against It In an action then pending in his favor, and receives a sum of money In satisfaction of such judgment. Com. v. Harkins, p. 267. H bought certain merchandise of A. which was put In a box marked with ' H '8 name and address, and delivered on board a boat named by him to oe carried to his home. After this, but before A. who had received the ship- per's receipt and invoice had given them to H., A. hearing that H. was In embarrassed circumstances Inquired of him. Id answer thereto, H. inade false representations as to his solvency. Held, that the goods having been obtained by H. and In his possession before these repre- sentations were made he was not guilty of false pretenses. People v. Haynea, p. 258. Whether on an indictment for obtaining goods by false pretenses, an indict- ment setting forth several pretenses Inducing the sale of the goods will be sustained by proof of some of the false pretenses, qiKzre. Id. An untrue answer to an inquiry as to one's financial ability is not a false pretense. Id. Obtaining a charitable donation by false representations is not Indictable as a false pretense; e.g., one who falsely represents himself to be deaf and dumb and obtains money thereby. People v. Clough, p. 276. In an indictment for false pretenses it must clearly appear that there was a false pretense of an existing fact. B. v Hemhaw, p. 279. An indictment alleged that C. pretended to A 's agent that she (A.'s agent) was to give him 20s for B. and that A. was going to allow him lOs a week. Held, that it did not sufficiently appear that there was any false pretense of an existing fact. Id. A procured B. to Indorse his note under the pretense that he woald use tne ' note to take up another on which B. was Indorser; instead of which A. had it discounted and used the proceeds. Held, that A. was not guilty of false pretenses. Com. v. Moore, p. 283. A false pretense must be the assertion of an existing fact, not a promise to perform in future. Id. ^^m INDEX. 1215 ted. Fav V }art with bis have parted i evidence in efendant, the to him on the I property by 54. ir designedly, intent to de- • shall be enses ol)tains it in an action 1 satisfaction : marked ^ith id by him to oe eived the ship- ig that H. was er thereto, H. that the goods re these repre- ses. People v. ises, an indict- the goods will ere. Id. y is not a false at indictable as jelf to be deaf , p. 276. bat there was a 9. ibe (A.'s agent) allow him 10s a re was any false e woald use tne istead of which that A. was not lot a promise to FALSE PRETENSES— CoMtidUfd. , ^,„»„„nt for A conviction for constructive larceny can not be had on an indictment lor false pretenses. Jd. To constitute the offense of swindling some false ropre8entatu,n a^ to exist- mg facta or pa.t events muHt be made by the accused. Mere false promUe'. or false professions of intention, though acted upon, are no Slrnt! The inJormation in this case c«»»7«^^^ «"\»^^^^^^^^^^^^^ defendant promised to pay one B. fifty cents for four certain flsh. If said B would deliver the same at his, defendant's, house ; that B. did so deliver he fish, and that the said representations of the Oe^endant were ?h n and there'false, etc. Held, that the information was insufflclent to charge swindling or any other offense. Allen v. State, p. 286. The orisoner by falsely pretending that he was a naval offl«"- '"^'"^^f *^" pr^secuIrU to enter into a contract with him to lodge and board blm at rr«lnel 1 weel.. and under this contract he was lodged and suppl ed tvS various articles of food. ^^^Id, it.t . oony^cto.iov o^i.M^^^ . articles of food by false pretenses could not be sustained, as the obtain- ing the iood was too remotely the result of the false pretense. B. v. Gardner, p. 287. Theoblect of a felonious false pretense must be to obtain property, and the priperty must be given in consequence of the false pretense. Morgan v. State, p. 291. The prosecutor went to Hot Springs, Ark., for the purpose of boarding at the same house with Dr. W., an acquaintonce of his who was visiting tSer He went to defendant's hotel and defendant told W- ^e ''"«; D W., ancl that he had been boarding at bis hotel for some tim but had left town, all of which was willfully false. By means of sa d rep- Jesentationrthe prosecutor was Induced to take board with the clefend- ant Jor a month and pay him in advance. Held, not a case of false » !!!n whi bv false and fraudulent representations obtains from another Tsum of monrwhich is no more than Is rightfully due him from the la teTcan no be'eonvlcted of obtaining n.oney by false pretenses, m ier th^ General Statutes, and, at the tria] of an Indictment against M^on l^^at stlt , evldenc; of the amount of the debt to him Ls admis- slble. Com. v. JfcDu/i/, p. 296. A false statement that a house and lot whre unincumbered, when, In fact ^ they we^^^^^^^ to a recorded mortgage, is not a false Pretense wUbln !k JItnto because the party defrauded had the means of detecting It irblntlnd'^^rh- protected himself by the exercise of common prudence. Com. v. Grady, p. 300. , , , . . „„,tv TO constitute a crime of false pretenses the money of the injured party must be parted with. B. v. Watson, p. 802. ,, , , „ W bv false and fraudulent representations made to B. as to his business, ^- cu Imers and profits induced B. to enter into a P^tnership with bto and ^advance JsOO as part of the capital of the concern -d b. af^ wards recognized and acted upon such partnership. -^^^^J t^^* ";;^ Tas not obtaining money by false pretenses, as the money was stiU under the control of B. Id. 1216 INDEX. FALSE PRETENSES - Continued. ^^^^ ^^ A chctor fraud tobe '^^^^;;^^::fZlt:7r:.^:^o. prudence can would affect the P"'f J/"\^;" tue w^^gl^^^ '^^'^ "'^'^^"''•"^ °' ""''" Z^ Sri?!: : tnCacy to cleat. Peo.. v. Ba.coC. p. Ko ^dict^ent wiU Ue ..ere one o.t-ed a release of a ,«dg.en. falsely pretending Ue had a^HUy to dischar e U. ,. ^^^^ ^^^^ ^^ ^^^ -'tr r arcis^rr :^^^^^^^^^^^^^^ - -- — ^- lianney v. Teop/^, 306 ,^_,,„tatlon. essentially promissory in .srumner, p. 309. ^.^nature to an obligation by false pre- B. and C. for carrying out and 7°, '°?^ 'e„ he was to travel By a subsequent verbal agreement with his ^"P^^^^^^^^^^ ^^ „,ders Ibout to obtain orders for the lamP^^^";^ 'STa^llng and personal received by him such commission (beMdes ^ « tra ^J^^^^ J^^^^ ^,^ expenses) was to be paid to him as soon a, he re.e ve ^ to be payableoutof the ^aplUl unds o, the^artn^^^^^^^^^^ ^^^^^ ^^ ^^^ any profits. By ^^^^-^^ ^^ f cll^^ be £12 10s. he obtained orders upon which bis ^^^ ^^^g subject-matter of obtained from the™ that J^^^^^^^^^ ^^ Consideration In the partner- l„• "' *'^™ o in London, in lavor of for £210, with authority to draw on L- & Co^^n l^ , ^^ ^^^ any of the lists of correspondents «« f^^*"^;" J^^ ^210. The clrcu- world, for all or such sums as he m^h r^^^^^^^^f^ ^,,, ,,,«„ctive lar letters of credit of D. S. & Co^ ^J^ corespondent on whom the numbers, and it was the Practlc; of ^^^^^^^^ j„^„„, ^he amount rtrrrir:rw\:nrwltes.mwasadvanced. the last i^i^ INDEX. 1219 lie prisoner, 10 amount of irocluced and y hlmsflf as he prisoner's inert It to the nd approprl- lon could not secutor, was prisoner; and ,y, or even In leans of false , shouM prove People V. Blan- )ved, the sense nd was under- an assertion of there must be tie by false pre- the prisoner at use price, upon le cattle for G., \ remit the price the habit of pur- ling them to him e were low, two )ner, stating that , to send on a car the cattle to G. 5 and did not pay fhlle there might I the vendor was lart of the vendee, iflUed, and a false ,r in attempting to le defendant had a Co., of New York, ondon, In favor of Serent parts of the B £210. The clrcu- •ed with distinctive dent on whom the Indorse the amount advanced, the last FALSE PUETENSKS- Co«(«n«enti«i(ed. and took possession of It with Intent to steal It; for If hU original pos- session of It was an Innoc.-nt one, no 8ul>8equent change of his mind, or resolution to approprlite It to his own use, would amount to lar. ceuy. iJ. T. Pr«»ton, p. 486. Prisoner recelvel from his wife a £10 Bank of England note, which she had found, and passed It away. The note was Indorsed " K. May only, nnd the prisoner, when asked to put his name an.l address on It, <> the person to whom ho passed It, wrote on It a false name and address. When charged at the police station, the prisoner said he knew nothing about the note. The jury were directed that, If they were satisfied that the prisoner could, within a reasonable time, have found the owner, and If. instead of waiting, the prisoner immediately converted the note to his own use, Intending to deprive the owner of It, It would be Jar- cenv The prisoner was convicted. Held, that the Jury ought to have been asked whether the prisoner, at the time he received the note, believed the owner could be found; and that the conviction was wrong. R. V. Knight, p. 441. The bona fide finder of a lost article, as a trunk lost from a stage coach and found on the highway. Is not guilty of tarceny by any ^"''^•q"^"; "«^ '^ secreting or appropriating to his own use the article found. People v. Anderson, p. 446. . u. One who finds lost goods which have no marks or Indications «« o^^'hlp, and who does not know the owner, is not bound to exercise diligence to ascertain the owner and is not guilty of larceny In retaining the goods. State V. Dean, p. 448. Flndvr of lost goods not guilty of larceny, pp. 569, 6C6. FISH. See Animals. •' FORGED." Construed, p. 82. FORGERY H foriied his father's Indorsement to a promissory note and negotiated ItloR Before the note came due the father learned of the forgery. R when the note came due, knowing of the forgery, and knowing that h' slather knew of the forgery, left the note at the bank where t was payab" with instructions to make demand and protest It if no paid S thai R. was not guilty of uttering forged paper with intent to defraud. Statev. Bedatrake, V'^- An intent to defraud some oerson Is essential to the crime of forgery. B. v. Hodgson, p. 7. ,.,.**„ A forged a diploma of the College of Surgeons with the general Intent to S the public believe that he was a member of the college, and he Showed It to a number of persons to Induce such belief, but he had no LS to defraud any particular Individual. Held, that A. was not guilty of forgery. Id. A diploma I s not a public document, semble . Id. 1222 rOUGKUY - Continned. ^^ j^. and see A forgerv mu.t be of «omo document or writing. «• ..;:Un«.nart...na™e.nt.ec^oU^^^^ to .. . V. Smith, p. 17. ^ o, celebrity for the Therefore to '-"f ;^°;;:'';ri; L ar U^^^^^^^ '-8-^ ^''■ purpose of palming ofl a spurious a ^^^^^ ^^ The prisoner .a. Indicted ;iJ^^:^\:^:^:::J:tZ on a paper writ- indorsement on a bill of ^^ha^SJ. 1«^ » exchange, and In the i„« ,n the form ol ^fj^^ZZl^^^^c facts were these: The third count on a ««^t^»"Pj,;7bm of exchange, but without signing prosecutor wrote the body « 'J« »"' "^ ;,, ^^o was to accept It the drawer's name, and ««"»;'/;^ ^J^^^^" ',,«„ and return It to the and procure an Indorsement "Y ^ ««»^J"^ P^' '^^ ,i,e Indorsement of property." vl/-. : an «f ''tj^^f ^ /^^ ^^^ counterfeit a certain false ant ..did falsely make. ^^S;' ^*""';^*;„„table receipt for personal forged, altered, and -°"" «J^^^^^^^^^^^ property, viz. -. "^rnTnt^wriecelpt for personal property, vU.: an and counterfeited accountable '^^^'P;;°„iJ„^i„g, that Is to say: ' St. elevator ticket for wheat, is of the tenor f 01 ow^g. ^ j^^,^^!,,^ of J. Paul and Sioux City f'^^'l'f^^nTotV^. B. N. or bearer. No. I 8., load No. 20, tlcke No- 2*02. account ^^^^^^ ^^^^^^^ ^^^^ Wheat. 84 5-r.O bushels M. Goo«l. °^^^^^^^^^^ ^^^^ ^^ ^^^^ ^^^^^,,,„ and there to Injure ''"^ defraud contrary ^^^^^ ^^^^ ^^^^^^^^ etc.. etc. Held,^l^f^t^n^muc^^^2Tcom^^r.y appaared on the face of the instrument ^^'^'^^jXtZZZort otL Indictment, that thereof, as it c<^«"°\,^:if;„':trt «" the company, the Indictment .. M. Good Inspector," was «;° a„ent « ^^Ing to be signed presents the caseol '^-'^'^'^^'^'^J^^^T^anA not on its face of any by any authorized agent of th. ^ _,,ern»ent In the Indictment apparent legal effect, a. ,„bscrib.-r and said company, which ol uny connection b. mdlctment w ^ insufficient. Id. would give It such e .uvery of goods, made by An alteration of the dat an order ^^ ^^^^^ ^^^ ^^^ ^^^^^^^^ the drawer with r'uuuu ut Int. ^^^^ ^ ^^^^^^ p. 39. INDEX. 1223 12, and see to pass It 10 one. B. rity for the i. uttering an , papur wrlt- B, and in tlie these: The tiout signing J to accept It irn It to the dorsement of rlsoner could was only an d the instru- nstrument on , for personal It the defend- t certain false, t for personal [orged, iUtered, iperty, vU. : an is to say: 'St. Received of J r bearer, No. I :nt thereby then ){ the statute," Q the subscriber ed on the face Indictment, that , the Indictment ting to be signed its face of any 11 the Indictment company, which ent. Id. goods, made by ad been satisfied , p. 29. vlth the intent to ole, n. 31. n its face, would FOUOERY- Continued. have been void, if genuine, Is not an Indictable ofleuse. Fadner v, People, p. 34. ,, , The ..lalntlff In error on a trial for bigamy, put In evidence an alleged copy if a lua^^^^^^ granting him a divorce from hi. first wife, uml he was ire w acouLd. On the back of the paper was an Impression pur. lortl Sto be the s.al of New York County, a.,d also the ollowlu« writ « ''rilcl August 14, 1879. A Copy. Hubert O. Thompson Irk"" He Is indicted for forgery In having ""er.d a false and trged impression of the seal of the Supreme Court with Intent to defnvud and It appeared on the trial that no such judgment had eve Seen grafted, and that the alleged copy was a forgery, //del. that aZnlng the act of the prisoner in uttering the false Impression of t lo SJaSs within the condemnation of 2 Revised Statutes, and const!- t^rgrrv f the same is published in connection with, and as any nart of a certificate which the county clerk, as keeper of the seal. Is authorized to make, in hi. ofllclal capacity, yet. as the pretended cer. McTL not l« the form prescribed by the Code of Civil Procedure, was void on Us face, and the alleged d.cree was Inadmlss ble in evi- deJce, ^ul the acts specified did not furnish the basis for an indictment for forgery. Id. Signing a promissory note in the name of a fictitious firm, with Intent to ''' ,e?rauTand fal'sely representing that the «-» con.,.ts o the writer and another person, is not forgery. Com. v. Baldwin, p. 40. It Is not forgery at common law or under the New Hampshire statute for one to make a false charge in his own book accounts. Ordinarily the writing or instrument which may be the subject of forgery, must be, or pu port to be, the act of another, or It must be at the time the property of anothe,,o; it must be some writing or Instrument under which others have acquired some rights, or have In some way become liable, aid where tUe rights or liabilities are sought to be affected are cilanged by the alteration without their consent. State v. loung, p. 43. A for-ed writing or Instrument must. In itself, be *''l-. ^h^* '« '^f 'f"";; A ^""^'^Y; f counterfeit, and not the true instrument which It pur- ^inftot: wlthTt reUd to the truth or falsehood of the statement which the writing contains. Id. porting to be the act of another," within the statute. People v. Mann, The Lms" false "and "forged" and«aitered" as used in General Stat- i 1878, are used in the same sense in which these terms are used in sec ion 1 of that chapter, and refer to the same kind, or classes, of in- s riments Therefore, the instrument, the uttering and publishing o whkTwouldbe an offense under section 2, must be one, the making of whlcSwouldbean offense under section 1. The statute enumerate The insTruments which may be the subjects of forgery, but does not 1224 I^DEX. false or forged instrument. State v. Willson, p. 62. forgery, the Instrun^ent ^^^'I'^l^'^^^Zl of the instrument, but a of the statute. Id. ^^^^ ^^^^ ,.„, ,,^, Writing a note for a person, and l°«f™ a ' - j^j^ ^, ^^^ no presumption of law that he committed the lorgery arc circumstances to be weignea uy uuo evidence iu the '•ase. Id. Intent to defraud essential in forgery, p. 04. Forgery of incomplete instrument nota crime, p. 67. As bank-note without name of cashier, p. 67. Or a paper without signature, p. 08. Or a check payable to order of , p. 68. Instrument must be valid on its face. p. 68. Defective certificate, p. 68. Bond given by husband to wife, p 68. Void bill of exchange, p . 08 . Guarantee not binding, p. 08. Satisfied order of delivery, p. 08. Public warrants without seals, p. 68. Deed of married woman without acknowledgment, p. 09. Proraise to pay but no consideration, p . 71 . wiffhtsof some one must be injured, p. 75. ' lltering deedto make it express intention of parties not forgery, p. 75. Alteration not affecting legal obligation, p. 75. Adding witness' name when witness not required, p. 75. Oth> r cases, p. 75. INDEX. 1225 institutes a executed by IS in fact no lOt guilty of in che mean- ment, but a 1 Instrument sumption of the meaning han the real to him as for 8 not forgery. ; to authentic ot an offense risoner raises miler V. (State, ;ed Instrument Ion with other 59. VOB.GE'RY— Continued. Letter of introduction, p. 78. False certificate of character, p. 78. False "raalcing" necessary, p. 80. False assumption of authority not forgery, p. 81. "Uttering "necessary, p. 85. Fictitious name, p. 85. Inducing one to sign note for larger sum, p. 90, Inducing signer to assent to alteration, p. 91. Drawing check in one's own name, p. 92. Passing counterfeit money, p. 92. Fjlsely attesting voting papers, p. 92. Cutting pieces out of bank-note, p. 93. What not forgery, other illustrations, p. 93. Partners not indictable for attempt to defraud firm, p. 96. Injury must not be too remote, 95. "Accountable receipt," p. 95. "Acquittance,"?. 96. " Bank-bill," p. 96. "Bill of exchange," p. 96. "Deei," p. 96. "Order for the delivery of goods," p. 96. " Order for the payment of money," p. 96. The order must appear to be valid, p. 96. " Promissory note," p. 98. " Receipt for money," p. 98. "Receipt," p. 98. "Record," p. 98. " Shares," p. 98. "Undertaking," p. 99. "Warrant," p. 99. Evidence held insufficient to convict of forgery, p. 99. An indictment charged that the defendant ostensibly for the public service, but 'alsely and without authority caused and procured to be issued froff the navy-yard of the United States, a certain requistion. Held, that this did not sustain a charge of forgery. U. S. v. Watkina, p. 168. An indictment which charges the obtaining money by false pretenses by erasure of certain public securities does not support a charge of for- gery. Id. An Indictment for forgery is not good at common law, unless it use the terms " forge or counterfeit." Id. FRAUD ^UD. An offense to be indictable, must be one that tends to injure the public. Defrauding one person only, without the use of false weights, measures. 1226 INDEX. t;ffense. B. v. consisted and by what meatis it was e&ccted. U.8.^. i^oggi , p .8ul»e »■''»- » ,..„„ rrhi4 rule however, does not false tokens or for-ery or conspiracy. Thi* luie, uowev , apply to direct frauds upou the public. H. An iudictment must be certain to a certain intent in general, p. 1C8. InlitL Charging fraud must aver the means by which the fraud wa- An i:d:re;!*rrging fraud must aver the facts that constitute th. fraud, BeceU iTan essential elementof fraud; and the deceitful practices charged must man indictment for fraud be set out, p. 1G8. Fraud to be indictable at common law must injure public, p. 3oo Sli to .urrender goods not a "removal" with intent to d.fraud, p. 358. Intent must be fraudulent, p. 368. Persons with debts not due not » creditors," p. 358^ Removing property with intent to defeat levy, p. 358. Removing nuisance, p. 359. (btalning goods 1 the bankrupt Ity as to show de upon a case ). 118. 16 petition, the lebt, the alleged t court. Id. ity of boots and auld be required Nuggt-s of, not subject of larceny, p. 6K>. « GOODS AND CHATTELS." Construed, pp. 608, 677. «« GRANARY." Construed, p. 580. " GRIEVOUS BODILY HARM" Construed, p. 877. 1228 INDEX. ..GROUND ADJOINING A DWELLING-HOUSE." Construed, p. 5W. ••GUAUDIAN." Construed, p. 780. HIRER. Sec Larceny. ground". Bice v. Com., p. 769. INTENT. See Labckny. oner to appropriate the property to his own use. u. v. r-oo , h were not guilty of the larceny of the gloves. W. fclo..lo«. inunt to co-vert «.«m to "' »"» ""' J'T^^^^^^ ,„ ,b« .ct of the oroperty. B. v. Halloway, p. 396. B. to C. the foreman of B. .it *"™ P"; ^ "^^^ ^^ be paid. A. h°rpit.». 644. Purchasing property from tliief with notice not larceny, p. 54'). Property must be converted by prisoner, p. 645. Must be taken against owner's will, pp. 645, 547. Property parted with through fraud, p. 64:. Intent to steal essential, p. 548. Goods must be taken with fraudulent Intent, p. 649. Opentaklng, p. 650. Intent to use and return property, p. 650. Other motives, p. 553. Aiding to escape, p. 553. Taking In joke, p. 553. Intent to Induce criminal connection, p. 654. Taking part of seized goods, p. 554. Servant giving away goods In charity, p. 554. Intent must be to deprive owner of property permanently, p. 555. Intent must exist at time of taking, p. 556. Choses In action not subjects of larceny, p. 565. Nor bank-notes, p. 665. Nor railroad tickets, p. 665. Nor bills of exchange, p. 665. Things attached to realty not subject of larceny, p 669. As nuggets of gold, p. 669. Or sea weed, p. 570. Severance and asportation must oe different acts, p. 670. Animals not subjects of larceny, p. 671. " As doves, p. 671. Or dogs, p. 672. Or oysters, p. 672. Or other flsh, p. 572. Prosecutor must have property In things stolen, p. 672. Lucri causa essential, p. 674. 8 Defences 78 .«! 1234 '"^^^' LAKCENY— Continttetl. No larceny ol one's own property, p. 674. Tenant m common or joint owner, p. 674. Person having lawful posseBslon ol property, p. 576. Larceny by bailee, pp. 675-678. By common carrier, p. 678. By servant, p. 578. ateallns "In abulldlng,"p. 579. rice beld msnfflclent -/onvlct oMarceny In^^^^^^^^^^^^ Cook V. State, p. 686; Crockett v. '®'«'!' P' f .^7t^^„„,;„e» v. State, 590-, BrescK v. State, p 694, Gr^ ^^^^^^^^^.^at^^ e04; Jo.««o« p. GOO; Bariemanv State v.^^^ fmsKautsonl State, p. 612; V. State, p. 606; Johnson y. f «'«'/• '"" ^ai ; Petrtj/rew v. State, Maaison v. ««te, p. 616; f- -y^„f f ;P-;/„ , p. 6^7; ^/.e«o« v. p. 626; Saltilloy. State, p. 625 f^^^'^^' ^^J ^32, TKomacfc State, p. 628; Taj/Ior v. StaU, p. Od-, woy v. State, p. 638. LARCENY FROM HOUSE. j^,^^, Steallns property hanging at and outside ol a st"'*/'*'^' '! J* 11 J^^t larcenv Iroin a house. Martinez v. State, p. 67 , . nifi larcenv. JlfddJeton v. State, p. 679. warehouse;" fteW, error. W. Stealing " in a building," p. 679. <« From ft dwelling-house," p. 58ft <• In a dwelling-house," p. 580. from the person. King v 6'tote, p. 620. Stealing Irom the person, p. 580 " Privately Irom the person," p. 681. .. LAWFUL MONEY OF THE UNITED STATES." Construed, p. 568. LAW OF NATIONS. „r„nertv ol a foreign minister By .be U, o. «.i«us .. '^'j^j'' J ^^J'^^'jl «.e pS»«y " b. is an assault on him. But ine iioiw his. U. S. v. Hand, p. 789. LETTER OF INTRODUCTION. Not subject ol lorgery, p. 78. IXDKX. 1235 LIMITATIONS. The defendant has the right upon iJeniurrer to avail himself of the statute of limitations, p. 108. hate, p. 683; V. State, p. lell V. State, 04; Johnson tate, p. 612; 'ew V. State, I; Shelton v. ;32i Womack mple larceny, arehouse and ' only of sim- t of the ware. t is the same e walls of the Usbesa larceny )relgn minister 3 property to be MANSLAUGHTER. In case of mntnal combat where a homicide Is conimlttcd. In order to reduce the offense from murder to mansl.iughter. It must appear thut the con- test was waged on equal terms, and no undue advantage was mwnht or taken by the defendant, for if such was the case, malice may be inferred, and the killing amount to murder. People v. Sanchez, p. 1042. When two persons have a sudden quarrel, and after a sufficient time has elapsed for the blood to cool and passion to subside, go out to fl>;hi, and one of them kills the other, the killing will be murder and not manslaughter. Id. Whether a homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. People V. Freel, p. 1082. In either murder or manslaughter, there may bo a present intention to kill at the moment of the commission of the act. Id. An instruction that if one slay another In the heat of passion and without malice, the crime can not be manslaughter. If a dangerous weapon Is used, is error. People v. Urowey, p. 1110. An indictment for manslaughter In the first degree, brought under the Revised Statutes of Missouri, which does not charge that the killing was done without a design to effect death, nor while the doer of the act was engaged in the perpetration or attempt to perpetrate any crime or misdemeanor not amounting to a felony, Is insufficient. State v. Emmerich, p. 1113. An indictment brought under section 1241, for the crime of manslaughter In the first degree, perpetrated in the attempt to commit an abortion, is bad, where the descriptive words " pregnant with a quick child " are not employed; nor is it good under section 1208, which defines the crime of abortion; since that section, at the time of the criminal act, did not apply to a case where death ensued in consequence of a criminal act. Id. The degree of negligence on the part of the servants of a railroad corpo- ration required to be proved on an indictment under the General Statutes, is not changed by the statute of 1871, and, on an Indictment under the latter statute, 11 negligence of the servants of the corporation is relied on, gross negligence must be averred and proved. Com. v. Fitch- berg, etc., B. Co., p. 1117. If an indictment against a railroad corporation under the General Statutes, and the statute of 1871 , does not allege that the neglect on the part of the corporation to give the signals required by law contributed to the death of the person kiUed, evidence of such neglect is inadmissible. Id. Under an indictment against a railroad corporation under the Massachusetts statutes which aUeges as the only act of negligence that the servants of the corporation ran a locomotive engine "rashly and without watch, I WM\ INDEX. MANSLAUGIITKU— C()»i«««ea. care or foreslBlit, ami with great, unusual, unreasonable and Improper Bpeed, cvlt1cn<:e is Inadmissible to show tl.at the servants ni-gloctcd to ring the bell on tlio engine or to sound the whistle. Com. y.FUchburg, elc.,Jt. Co., p. lli!ti. An Indictment against a railroad corporation, on the General Slatutei, charging the killing of a person by reason of the gro^s negllRfUco and carelessness of its servants while engaged in its business, by runulii« a locomotive engine with great, unusual, unreasonable and Improper 8pced, Is not sustained by proof, that at the time of the killing, the engine wan run at a high rale of speed, in the absence of evidence that the servants In so doing were acting in vlolaM jn of their duty. Id. An Indictment against a railroad corporation under the Massachusetts stat- ute of 1874, for killing a passenger which alleges that the death was caused by the failure of the corporation to reduce the rote of speed of one of Its engines and to give certain signals. Is not supported by proof that the servants of the corporation neglected to do so. Com. v. Bon- ton, etc., B. Co., p. 1129. The prisoner, a conductor of a freight train, was Indicted for manslaughter. The indictment charged that the prisoner negligently omitted while crossing with his train from the outward track of the road across the inward track to a side track, and again across the Inward to the out- ward track, to send forward any signal to warn the driver of a passen- ger train which the prisoner well knew was due and about to arrive at that part of aald railroad, whereby said passenger train collided with the prisoner's train, causing the death of a passenger. There was uo proof given on the trial that the prisoner knew of the approach of the passenger train. Held, that the conviction could not be sustained. Com. v. Hartmll, p. 1133. Provocation reduces crime to manslaughter, pp. 1189, 1192. Heat of passion, p. 1189. Husband and wife, p. 1191. Parent and child, p. 1191. «' Adequate cause," p. 1196. Resisting arrest, p. 11' Death resulting from sparring match, not, p. 1197. MAYHEM. Where defendant had destroyed the eye of a person by throwing a stone at him, the Information for mayhem charged the malicious intent In the words of the statute. Verdict that defendant was " guilty as charged in the information, with the malicious Intent as applied by law." Held, that this does not find the malicious Intent as a fact with sufficient cer- tainty to sustain a judgment for mayhem. State v. Bloeduui, p. 827. A oremedltated design to do the act Is essential to mayhem, and therefore where the act is done in the heatof a sudden affray, without any evidence of premeditation, the crime Is not committed. Go^rey v . People, p. 856. Essentials of the crime, p. 871. IXUKX. 1237 «< MENACES." Coustrut'il, p. 703. "MONEY." Coustnieil, pp. 888, 508. "MONEY, GOODS, OK OTIIEll PUOPERTY. ' Construfil, p. 388. "MONEY, GOODS, WARES Oli MEUCllAXDISE " Coimtrwt'il, p. 508 "MONEY OK PKOPERTY." Cousirued, p. 373. "MOVABLE PKOPEKTY." Coustrucil, p. 105. MURDEK. Aulufant, though fully delivered, can not be considered In law a human being and the subject of homicide until life. Independent of the mother, exists; and the life of the Infant la not Independent, In the eye of the law, until an independent circulation has become established. State v. Winthrop, Oil. If a woman with a sedate and deliberate mind, before or after the birth of her child, formed the design to take Its life, and after the parturition was complete and the child born alive and in existence, she executed her design and took Its life, it was murder with express malice and In the first degree. But if the deslijn to take the life of her child was formed and executed when her mind, by physical or mental nuiiulsh, was Incapable of cool reflection, and when she had not the ability to consider and contemplate the consequences of the fatal deed, and she conceived and perpetrated it under a sudden, rash Impulse after the child had been wholly produced fro.u her body and while It had exist- ence, the crime was murder in the second degree. Wallace v. State, 914. H in a case of this character the jury might have concluded from the evi- dence that the defendant took h.-r infant's life before Its birth was complete, or that she caused It^ death by means which she used merely to assist her delivery, it was incumbent on the court to Instruct for acquittal in the event the jury should so find. Id. To constitute murder, the death must be the result of the prisoner's act, and must take place within the time provided by law. Peoplev. Aro, 917, 1139. An indictment for murder, charging that the accused, on or about a certain day did willfully, feloniously and with malice aforethought, kill, mur- der and put to death a certain person, with a pistol and knife, without specifying further the facts and the manner Is bad. Jd. The crime of murder is committed not on the day when the victim dle.^ but on the day on which Ms injury was received. People v. Gill, p. 920. Where an act is pas«ed between the time of the commission of the act and the death of the victim, defining the oftense, and providing for Us 1238 ^^^^^^• MURDER- Continued. ,^^.g committed punishment, and P'"^^^'"^*^"'^,^"^';! tried by the law8 in force previous to its enactment, he P^'^f/^ ^^^"^^^^^^^^ must be tried rnrrJU^^rr^rrrrr-rarn'o. th^.. was commuted. « alnd . ln.cted no. ^^^^^^^ ^^^^^^ was evidently occasioned by the grossly ^^^^^ ^^^^ ^^^.^j original ^^^^^^^^'^Tsl^Z^^^^^^^^ ^^^''^^ '^^"^^^^ '^°'" or dangerous, the person wno i ^^2. the plea of erroneous treatment. ^«^;;;';^; J,'^.^^, to his death The evidence was conflicting. - *° " J^^^;*"^^^^^^^^^^ or from the Im- from the effects of a wound l°f»^^^ j^J "^^^^^^^ i„ «e^i„g it up. The proper treatment of It by he ^"^^if^^^^^^^,^^, „ the wound was prisoner's counsel requested ^J^^^,^;"/*^^^^^^^ came to his death not mortal, and It clearly ^PP^^^^Xt from the wound, they must the qualification was erroneous. Id. ^^„„ ,„fl.„t8 ^ mortal wound Where a judge charged the J-^J^-^rhrpe^^^^^^^^ »>y -> ^- rpe= X rrerrgurrmurde^r. It was .. to be error. State V. Seatea, p. 92i. »♦„„„* must produce the death ,,, common law..he neglect oMmpr^^^^^^^^ in orJer to «''°»«'**;,*^'' J'";" Jary that the neglect or Improper Under the statute it Is not "^^f'^^^, ^^ the death, but If there be treatment shall contribute ^jV^J^f/;,;^^^^^^^^^ either in preventing gross neglect or ^^^^^^^/^ ^f.Xury. the delth of the injured per- Morgan v. State, p. 926. „ ^^t only such as pro- .. Gross neglect •^"'^^Jmproper t«^ ^but » ^^^^ ^^ ^^^^^^ ^^g,, ,, duce the destruction of human 1»^. »"* permit the destruction of human life. ^^ . ,, ..j^piied on a trial for murder, the jury were -^-*;^J^^^^^^^^ ,,,ts found by malice is an Inference or ^«"« ,";'°° .° J^^.^^ the unlawful killing of a the jury. Thus the law implied malce from i^ ^ ^^^^ bumin being, unless the c^-^^^J^^f/^^^^^^^ so mitigated, as to .owlant a conviction Of mu^^^^^^^^^^^^^ to account for the ^'-P^^^^^J ^X-u^^.iath the result and The corpus deUcti, In ^'^''^''^^I'l'^l^Zems. It is only where there Is criminal agency of another as the mean INDEX. 1239 jmmltted s In force t be tried immlttecl. ch ensues ot it, the ras mortal self under > his death Dm the Im- t up. The nround was his death they must s quallflca- g up of the ty." Held, irtal wound Im by an in. to be error. ce the death Inal injury, or Improper It if there be a preventing ! injured per- glnal injury. r such as pro- low, suffer or rs: «« Implied lacts found by ul killing of a , that the klU- iltlguted. as to ' 'Held, error. )f either of the , or of criminal :h a manner as People, p. 989- J the result and where there is MURDER— Con «n«efZ. direct proof of one, that the other can be established l)y circumstantial evidence. Id. The rule of Lord Hale forbidding a conviction of murder or manslaughter, unless Che fact proved to be done, or at least the body found dead, commented upon and affirmed. Id. A conviction of murder is not warrant dd when there is no proof of the corpus delicti, but the uncorrohorated extra-judlclai confosslon of the accused. State v. German, p. 964. Ill a prosecution for homicide, where It appears that no weapon was used, but that death resulted from a blow or a kick not likely to cause death the offense is manslaughter and not murder, althongh the assault b^ unlawful and malicious, unless the respondent did the act with intent to cause death or grievous bodily harm, or to perpetrate a felony, or some ac., involving all the wickedness of a felony. Wellar v. People, p. 958. Where an act Is done with Intent to commit a misdemeanor and death ensues it Is not murder. Smith v. State, p. 981. An Indictment alleged that the prisoner caused the death of a pregnant woman by an operation performed by him with Intent to procure a mis- carriage. The prisoner was convicted of murder. Held, error as the intent was not to commit a felony. Id. Where there are sufficient facts Deforc the jury to enable them to infer malice, or the want of It, as a fact, directly from the evidence, recourse should not be had to any legal presumption of malice which may arise in the absence of direct proof, from the fact of homicide. State v. Coleman, p. 987. Where there is full evidence as to the surrounding circumstance", this pre- sumption can not be allowed to deprive the prisoner of the benefit of any reasonable doubt, but the jury should find the malice as an Infer- ence from the lacts, if at all. It was erroneous, therefore, to charge " that allhomlclde is presumed to be malicious, and amounting to murder until the contrary appears from circumstance.* of alleviation, excuse or justification, and that it is incumbent upon the prisoner to make out such circumstanr-es to the satisfaction of the court and jury, unless they arUe out of the evidence produced against him." Id. Under a statute defining thg crime of murder and enacting (among others) that killing should be .surder " when perpetrated by any act immi- nently dangerous to ott rs and evincing a depraved mind, regardless to human life, although without any premeditated design to effect the death of any particular individual," a killing wltliout premeditated design to take life, though perpetrated by such acts as are eminently dangerous to the person killed, ami evince a depraved mind, regardless of the life of the deceased, is not murder. Darry v. People, p. 990. There are many other adequate causes, trhich will reduce a homicide from murder to mawlaughter, besides the four provoking causes enumerated in article 225+, Pasclial's Dige«. Brown v. State, p. 108G. On a trial for latinier, whfw there is e\-i.lence of malpractice on the part of the surge©! who attainted the deceased, the jury should be instructed 1240 INDEX. SIm iromtho »o„nle v. Stokes, p. 962. To iustify a conviction upon circumstantial evidence, not only must the fac 8 proved be consistent with and point .o the defendant's guilt be- yond a reasonable doubt, but they must be inconsistent with his .nno- cence. Id. Wh*.r« a case depends on circumstantial evideuce, which points to a par- ticvUrpeJson astbecrUninal.amotlv^ on the part of that person to commit the c".;e, much fortifies the probabilities created by the other evidence. Id. 1242 INDEX. ensues though against the int.ation of the party, It will ^e murder " the act beione heedlessly and incautiously without such Intent, it will be manslaughter only. Ann v. State, p. S)G8. The adnunistration of laudanum was ^'^^ J "^I ^"a^ts ^^^ excluded from the jury the '^^^f^^'^^'Z S^J^ ortX ^^^ ^heil^ev defendant intended serious rclschief to the infant or noi, a the offense amounted to murder or manslaughter. Id. : ^cteTo" murYrlntheflrst ^'^^^^ ^^^'^^S^^ :::;Ci. vour verdict is guilty of murder, you must state of the first 'legree. J rorgulltyyous'ysoandnomore." Wtobe error. Lane.. Com., p. 1017. POSSESSION OF STOLEN PROPERTY. gellerhiul .loto It. JfeJ/fee v. SIM, p. 403. People, p. 681 ; Slate v. HaJe, p. 631, and see pp. 681, 582. INDEX. 1243 of laud- without produce d death, inlawful id death murder ; atent, It le charge sther the whether jr admin- ia such s of the 3 or death 3 must be thing. If egree. H e V. Com., =1 State to m may be And a pur- irosecutlon to a prose- ige that the jnt to sus- s: "If the lie property ol, care and ■ou win find en the ev5- of the prop- I, unless the re anil man- 8tate, pp. r conviction. g V. State, p. ); Oa'oUeh t. PRESUMPTION. See, also, Possession of Stolkn Pkopkrtv. Uttering forged instrument does not raise presumption of forgery, p. G2. "PROMISSORY NOTES." Se-, also, Forgery. Cunstrued, pp. 98, 5C8. PROSTITUTION. Construed, pp. 7?(5, 771, 772. "PUBLIC HIGHWAY." Construed, p. 722. ••PUBLIC SECURITY." Construed, p. 508. PUFFING. See False Pretenses. " PURPORTING TO BE ACT OF ANOTHER." Construed, p. 50. RABBiIS. See Animals. RAILROAD COMPANY. See Manslaughter. RAILROAD TICKETS. Not sabject jf larceny, p. 565. RAPE Force Is an essential Ingredient In the crime of rape, and If a charge that II the defendant Intended " to gratify his passion upon the P^r^o" °« *?^« female, either by force or by surprise, and against her co°««»t. tt';'^ ^' is guilty as charged," is erroneous. McNair v. State, pp. 880, 897. Force is essential to the crime of rape, and acts and devices without vio- lence by which the moral nature of the woman is ^^-^P^^f'/^Jf « can not resist, will not take Its place. People v. Eoyal, pp. 882, 8.)7. In a statute punishing carnal knowledge or ''abuse " la an f ««"?* t;^;*;* carnal knowledge, of a female child under ten years of age, the word "abuse " applies only to Injuries co the genital organs In an unsuccess- ful attempt at rape, and does not Include mere forcible or wrongful ill-usage. Dawkins v. State, p. 885. On the trial of an indictment cliarging the defendant with an assault on his daughter with intent to commit a rape, it appeared that, he uncovered her person as she was lying asleep in bed. and *««»' l^^^^^^^^"*}'^.^;- ties with her person, and after she awoke endeavored to PO"^ad« h«^ to let him have connection with her, and offered her money to induce 1244 INDEX. ?;rhr:«., ...f UH no,. «,>. .h.. .U»e »., .. ev.d»c «. tlieMoiiloilsllltont.lleg«0. C«».. v. M«f"l'. P- «"■ "oln ^vith the Intent of having Improper ---^'-^^^^^'^^j;^^" out the use of force, nor without her consent. Thomas v. State, p. 390 Jthol of vou" The prosecutrix ran. trundling the carriage and commit rape. Stale v. Massey, p. 896. Penetration must be proved, p. 897. And emission, p. 898. Not rape if woman consent, p. 899. ^ Intent must be to succeed at all hazards, p. 899. Convlctlonsreversed for insufficient evidence. People v j^^^!'/ Col . Christian v. Com., p. 900; People v. Hamilton, p. 901, Boxley v. Lom., P- 902. , . „ Assault With intent to commit rape-, intent to rape must be proved, p. 904. Evidence held insufficient, pp. 905-910. Penetration proved, p. 910. Intoxication of prisoner, p. 910. REASONABLE DOUBT, SeeLARCKNY. "RECEIPT." Construed, p. 98. «• RECEIPT FOB MONEY." Construed, p. 98. RECEIVING STOLEN PROPERTY. Before a defendant can be convicted of receiving stolen property, it must satisfac oSy appear beyond a doubt: (1) That the property was acquired by then, and (2) that, knowing It to have been so acquired, he concealed the same. Wilson v State, p. C39. A. and B. tw thieves, were seen to come at midnight out of a ^^--J;^"/; mgto C.'s father, under the following circumstances: A. carried a ,,_^ ..»«»1— INDEX. 1245 iiest, and 1, desUU'd ridence of imit rape, tie apeciflc icllon lor ssaulted a her, with- r. State, p. )eared that ■riage with ed, "Halt, i^ou when I rria^e, and up with an- i intent to zga, p. 899; ley V. Com., ! proved, p. »pei-ty, it must property was 1 so acquired, house belong- : A. carried a T?vmVING STOLEN PROPERTY— Continwed. 11 containing tltc stolen goods, B. accompanied him, C preceded them carriiag! lighted candle. All three go into an adjoining stable berntrlng oC.,and then shut the door. Policemen enter the stable ^^^flJd the sack lyinson the floor tied at the mouth, and the three Lis andtg":un?it"as if they were ^^f^^^^;^::::^ words were heard. Held, by eight udges to four, that on this ev Idence C couu' ^o be convicted of receiving stolen good., Inasmuch a. althi "here was evidence of a crlmlnalintent to receive and of a kuS-e that the goods were stolen, yet the exclusive possession of Hsmi remained i'n the thieves, and therefore C. had no possession, either actual or constructive. R. v. Wiley, p. C13. A n^«seneer's baggage in charge of a railway company was stolen from the ^'raTwirsSu." Afterwards the thieves seat a l-rtlon of it lu^ a wm? and delivered it to the same railway company to be forwaided ^ H .:, to B at Brighton. When It arrived at Brighton, the police Tcrat ache^to thf r "n^^^ company examined the bundle, and Cln.^^ to contain part of the stolen property, directed a porter not Jotrt wltrit until further orders. The thieves were then arrested and on thTlollowlng day the bundle was sent by the railway company to B who havh g received it. was charged with feloniously receiving it. fl^ J that the charge could not be sustained, the property having been fSalned by the owners from whom it had been stolen before the receiv- ina by prisoner. B. v. Schmidt, p. 6o3. T* ♦ i!n toods are restored to the possession of the owner, and he returns Imtotte tLf for the purpose of enabling him to sell them to a tS per o„ heyare no'longer stolen goods, and that third person third person, I J feloniously receiving stolen goods, although he can ;^°' ^''.^"""'^'^^^^^^^^^ to be stolen. Where, therefore, stolen '''tire foind in tL pocket of the thief by the owner, who sent goods were *«"°**JJ J"' ^ ^^^^ ^^^^ ^fter the policeman had taken r l!:TZV^^ert^^^lrio..r^ the prisoner's shop where tfeEfildprevo^^^^^^^^^ stolen goods, that when near that T lh« noUceman gave the goods to the thief who was sent by the shop. *^« P°f '^^;,f ^,ell them, and that the thief accordingly sold r^to Se X rVanrtln rTt^rn^^ theproceeds to the owner. S,!?thlf tie prisoner was not guilty of feloniously receiving stolen Held, that the PJl^°°";;'^ delivered to him under the authority of Durpose. B. v. DoJan. P- GSB. one can not be convicted of receiving stolen P-P^/^/^C P^BOr that he received it from another person. U. S. v. De Ban, p. On an Indictment lor receiving stolen property, when it is shown that the owner or Ws agents, the charge faUs Id. 124fi INDEX. K.CEIVING STOLEN l'««^^«^\- ^^ ;:, ^, eonce.Uecl. was in fact property alleged to have be«n recc^v ,«, knowing them Stolen; secondly, ^^at the accused received t ^B ^^^^^ ,^ ^^^,,„t ,, to have been stolen, guilty ""O^l^^^KO being an ^^ ^^ ^^^^^^ rhecrlme, and lastly, that the accused i^^^^^ o'r aided In ecu- the o^vner from recovering the same, bou , ceaimg the stolen goods, f f^'^J^' f ^Jj ,^^, ,,„ien goods from the Where adefendant. on behalf o the -- J -;^%«; ,,, «,,„er. without thief, for the honest purpose °* f *;°"°- _e^u„iary compensation, and fee or reward, or the ^^^'^'''^^^'^Ze^'X'^Zxon restores all he in fact, immediately after ^^'^f^ltloncert or coun.cmn with receives to the owner, and is not acting ^ ,j„„^ ^e will not the party stealing, to make a profit out oi Bank-notes are not " goods and chattels and t ^^ ^ misdemeanor rrve-ricr :xz^'"' - «- - -• ^"- Goods must be stolen, p. C77. Must be actually In prisoner's possession, p. (.77. Stoppage lntran8«H before receipt, p. 677 Knowledge that goods were stolen essential, p. G77. Stealer not receiver, p. 678. Principal and accessory, p. 678. Receiving property stolen from mail, p. 678. Is not larceny, p. 581. «« RECORD." Construction, 98. RES GESTAE. prisoner C and S. was stabbed at Deceased, whowas in company wih the prisoner C.^^^^^^^^ ^^^ ^^^^ night in the dark and after walking one hundrdy^^^^^^^^^^ ^ ROBBERY. ,,„„^ nr nerson of another Without any The mere snatching a thing ^^^ »*>« ^„*°^ °^ ^^To^e or violence on the struggle or resistance by the owner, or any for ^^^ ^^^^ part of the thief, will not constitute jf^^'^f^^ vlo- ?nstracted the jury that feloniously ^^^^^^^^^ %^Z make out the Lee sufficient to constitute an -«-« ^^^^^^^^^ prisoner having crime of robbery, it was held '^^^^''^^^X^^, was reversed. Mc been convicted under such a charge, the judgmen Closkey V. People, p. 684. ^^ ^^ j^^^^j. INDEX. 1247 I in fact Ing them edleut of prevent )d In ecu- from the •, without itlon, and res all be ;tlon Avlth le will not 1. olen bank- sdemianor 174, 678. iS stabbed at 11, and soon morning. C iciousnesB, S. S. as the man . 1072. sr without any slence on the re the court lerty with vlo- l make out the rlsoner having reversed. Mc- ear of immedl- ike the offense ROBBERY— Continwed. amount to robbery must bo sufficient to force the pernon to part w th his property, not only agaln.t his own will, but in splto of his resist- ance. Id. Robbery U committed by force, larceny by stealth, and where there Is °° violence or circumstance of terror resorted to for the purpose of Indue- lug the owner to part with his property, for the sake of his person, the crime committed Is not robbery, but larceny. State v. John, p. 687. To constitute robbery, the force used must be either before or at the time of the taking, and of such nature as to show that it was intended to overpower the party robbed, or to prevent resistance on his part, and not merely to get possession of the property. Id. Money was snatched from A.'s hand by B. but without violence to his per- son. the only violence used being in preventing its recovery and strug- allng to retain it after it was taken. Held, that such snatching or takin" was not such violence as to constitute robbery, and that subse- quenrvlolencc, or putting In fear, will not make a previous clandestine taking robbery. Shinn v. State, p. 693. An Indictment, which alleges that the defendant assaulted and robbed A., and being armed with a dangerous weapon, did suiile and wound hlra, is not proved, as to the wounding, by evidence that the defendant made a slight scratch on A.'s face, by rupturing the cuticle only, without separating the whole skin; nor as to the striking, by evidence that the defendactput his arms about A.'s neck, and t'.r =w him on the ground, and held him jammed down to the ground. Com. v. Gallagher, p. 696. To constitute the oflnnse made punishable by the Revised Statutes, the articles stolen mu.t be carried away by the robb.r, and must bo the nroperty of the person robbed, or of some third person, and these facts mus: be alleged in an indictment on that section, in the same manner as anindlctment for robbery at common law. Com. v. Clifford, p. 698. Robbery is defined by the penal code, and to constitute the offense the propertv must be taken either by assault, or by violence, and putting In fear of life or bodily injury. If it be by assault, violence and put- ting in fear may be omitted in the indictment, and if by violence and putting m fear, assault may be omitted. Kimble v. State, p. 701 . But where the indictment charges by " assault and putting in fear of bodily injury" though the indictment would be good on the ground of assault(treatlng "putting m fear" as surplusage), still if, as in this case, the ground of assault be abandoned, the conviction can not be sustained on the other ground, because of the omission of the necee- sary descriptive term " violence " in the indictment. Id. Evidence held insufficient to sustain a conviction for robbery by means of an assault. Id. In order to constitute the statutory offenss of demanding P™P«Jy;^«; menaces, the " menaces " must cause such alarm as to unsettle the mind of the person on whom it operates, and take away from his acts that element of free voluntary action which alone constitutes consent. B. V. Walton, 703. / 1248 »'^'^^''- ROBBERY - Continued. _„,,„!,„ „, Huch character, the question Is Intlmidatiou. i<'- „.,.„o Hiatross warrant, wlilch ■lipped his l.»»d Uto the pocket ol • W •°^» ^,„ „„o„eeniedly tue^l., »d .Ue lelt 'I"" ''";'• "•'^"'tfcS" ^hich »«. left with looklug .t the ho««.., •»'',«*"«" "l''Jrtm. 1. .rce»y Irom the per- ^:Lrdi7iw Krsr;.%« — — »» hl9 hand. ranni«ir v. State, p. 709. Force must be used, p. 710. Or putting In fear, p. 710. Force must be used to overcome resistance, p. 710. Fear must be of personal violence, p. 712. Threat to prosecute on false charge, p. 71^ Threat of legal Imprisonment, p. 718 Demand necessary, p. 714. Putting In fear ; bodily injury, p. 714. Intent to steal at time necessary, p. 717. Subsequent use ol violence, p. 717. Taking must be in prosecutor's presence, p. 717. Property must be in possession of party robbed, p. 717. Receiver not guilty of robbery, p. 718. Article must be property of another, p. 718. Lucri causa essential, p. 719. Getting one's own by violence, p. 722. •< Public highway," P- 722. Time of war, p. 722. SEA WEED. Not subject of larceny, p. 569. SEDUCTION. See, also, Abduction. meaning of the two hundred To seduce a female Is not an ^^l^'':'^'ll^"Zohm^\.es it a crime to ^ and sixty-sixth section of tfj^^f^^ connection with any man. ^rart isnrne:hrp:orsrgrat..tionof the passion of Tewdness iu another. People v Boi^gas, p. 729. IXDKX. 1249 tloa Is CbS ol wlilch 11 mat : held, \, there i tbiel caught lernedly eft with the per- tructlug ;wo hundred it a crime to th any man. le passion of °Ua.m, I., tuo n.l8l.borl,ooa U. wbkh .1.. ...» ll.ca i» Bood. «'.." v. mctaste »h.rac.ct ol uniMrttol '«»* f™'™' „„„„„, ,„ „, „rc- .„„«c.W, U ,. not «.0.>,.r, .o P-« «»'^'' ^^^ » ^ h.. bc.» ;x oToter=;;a.::re::f '. »„...«, ... ..... ..»>.. ..previous chastity" In the «**^""7" ^ut "previously chaste Innocence of heart, id. , in no way connected with the action. Id. , ^^^^aee I. oraer to warrant a conviction for seduction -^-^XTsl bXS m accordnnce with the provisions o| t^";^*;'^* ^ o the must be evidence to corroborate the prosecutrix, In regaru promise of marriage. Bice v. Com., p. 759. The at that a defendant charged with seduction is -;-"-;^^^^^^^^^^^ in his own behalf, does not alter the law, in regard to the necessity 3 Defences. . '^^ 1250 \SDE\. HETtVCTlOii— Continued. ' * evidence corroborative of tlmt of the prosecutrix, as to the promise of uiurrlage. I'l. What circumstances do and what do not constitute sufflclont corroborative evidence to warrant a conviction in such case consldurt-a. Id. Wherein Buch case there is some proof that the defendant admitted the promise to marry, It Is not error for the court to refuse to withdraw the question of seduction from the jury. Id. On a trial for seduction under promise of marriafje mere loclal attentions on the part of the defendant to the prosecutrix are not sufficient to cor- roborate her testimony of a promise of marriage. Bice v. Com., p. 7t4. Evidence that the defendant confessed to the seduction and declared an intention to make amends by marrying the prosecutrix does not raise an Inference of a previous promise of marriage; nor does proof that he wished to settle the case by payment of money. Id. Where the woman does not consent to the Intercourse the crime is not se- ductlon. Croghan v. State, pp. 767, 780. The court charged the jury that " if the woman ultimately consented to the illicit intercourse the crime was seduction, though H.e consente.1 partly through fear, and partly because the defendant hurt her. Held, error. Id. «« Previous chaste character," pp. 775, 776. «' Purpose of prostitution," p. 776. Promise of marriage necessary, p. 776. Married man not guilty of, p. 777. Marriage of parties, 780. Seduction of ward by guardian, p. 780. Evidence held insufficient to convict, p. 781 "SHARES." Construed, p. 98. ■ . "SHARP DANGEROUS WEAPON." Construed, p. 878. "SHOP." Construed, p. 580. SPRING GUNS. It is unla^yfulfor the occupant of lauds to sot spring-guus or other mis- chievous weapons on his preml.es and if the same cause ^leath o any trespasser it Is a criminal homicide. But to ''"^^^f 7,*=''»^;f ,°;° °' assault with intent to conimlt a murder, a speciflc '«lo° °»« ^°»«°* must be proved; and so when one plants such weapons with the gen- Trarintent to l^ommit murder. The Intent *- '^'"/''\r n'^l r rsou alone must be shown and can not be implied from the general duct. Simpson v. State, p. 833. v.Wi^'yS.fti^'^"'- r 'if ' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 12.8 mm I.I ■ 2.2 2?I34 ■— llll^H L25 iu 11.6 •y HiotDgraphic Sciences Corporalioii 3>' \ -^^ <^ 23 WIST MAIN STRUT WIUTIR,N.Y. 145M (71*)S7a-4S03 4^ i • «' 1 '/J is \ ),' i \ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historicai IMicroroproductiont / institut Canadian da microraproductions historiquaa "* VVftiM>ifiMKSw.riiiu iiwair> - iiNwiiii*>*iwii m inwwi wm i ii i i' i uiw ii iiw wpipwpw nmmm mmmmr^ INDEX. SWINDLING. See Falsb Pretbnsbs. 1251 / / "UNDERTAKING." OoDStrued, p. 99. "UTTERING." /' Construed, p. 85. " VALUABLE SECURITY." Construed, pp. 328, 888. VALUE. Where the value of the article stolen is material in a prosecution for lar> ceny, its value is to be fixed by its market price, and not by what it is worth to Its owner, or for the particular purpose for which it is used. It is to be regarded as worth just what it would fetch in the open market. State v. Doepke^ p. 474. To be larceny property stolen must have some value, p. 672. Opening letter addressed to another, p. 572. Value of list of subscribers, p. 67S. "VOLUNTARY." Construed, pp. 634, 636. " WAREHOUSE." Construed, p. 680. «« WARRANT." * Construed, p. 99. WORDS AND PHRASES. (5ee the different titles.) "WOUNDING.'? tJonstrned, p. 877. WRAPPERS. Ot baking powders not subject of forgery, p. 17. "WRITING CONTAINING EVIDENCE OF ANY EXISTING DEBT." Construed, p. 57S. "WRTTTEN INSTRUMENT." Construed, p. 388. Ci jt^ : L '■ n imt m mff i M Hwm ii ^ aiw i .nijiiiui ii . Bi i i nju i II i Ji iiiwwpi«WWi»wll|WilWPli>W'lll«'W^^