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A SERIES DESIQXED TO CONTAIN THE LATEST AND MOST IMPORTANT CRIMINAL CASES DKTERMINEO HI THE FEDERAL AND STATE COURTS IN THE UNITED STATES, AS WELL AS SELECTED CASES, IltPORTANT TO AMERICAN LaWTBRS, FROM THE ENGLISH, IRISH, SCOTCH AND CANADIAN LAW REPORTS, WITH /^ /^ NOTES AND KEFERENCES. Vol. XI. EDITED BY JOHN F. GEETING, liioruRKR ON Criminal Law, Habeas Corpus and E^TRADinoift AT the Cbicaoo-Kbnt Colleob or Law, AND HENRY C. GEETING, Lkoturbr on Homicide and Self-Dbfense, at thb Cbicaoo-Kbnt College of Law. CHICAGO: CALLAGHAN AND COMPANY, 1904. ?i i^- COPTRiaHT, 100^ BY CALLAGHAN AND COMPANY. STATE JOURNAL PRmTraO OOMPANT. FBUrms AND STERBOTnUa^ MADiaON, WU. PUBLISHERS* NOTICE. The publishers* aim in bringing out this volume has been to give the bar of this country as complete a collection of the many cases within the period covered as possible; and as some were peculiarly forceful and applicable to the topics discussed, to reinforce them with appropriate and ample annotations, so that the doctrines involved could be fully and clearly pre- sented for ready consultation. It will be observed that several subjects of growing impor- tance are presented with unusual distinctiveness, notably, Alibi, Argument of Counsel, Confessions, Criminal Com- plaints, Judge and Jury, etc. By a discriminating selection it was possible to attain this purpose of giving an unusual number of cases and of topics within the compass of this volume. In having our design carried out we fortunately secured editors of practical experience as well as of critical knowledge. TABLE OF CASES REPORTED. References are to pages. A. ■■■4. Abbott, People v. (Mich.) 4 Armstrong v. State (Tenn.) ... 1 Atkinson t. State (Neb.) 136 B. Bailey v. State (Neb.) 660 Barfleld v. State (Texas) 384 Bird, People v. (Cal.) 442 Bones v. State (Ala.) 11 Browning v. State (Neb.) 645 Burden v. State (Ala.) 431 C. Cady V. State (Texas) 577 Carbone, People v. (N. Y.) 484 Carr v. State (Ga.) 613 Carter v. Commonwealth (Va.) 303 Carter v. State (Ga.) 125 Chavana v. State (Texas) 153 Cochran v. People (111.) 506 Commonwealth, Carter v. (Va.) 303 Commonwealth, Cooper v. (Ky.) 625 Commonwealth v. Farrell (Pa.) 468 Commonwealth v. Goodwin (Pa.) 271 Commonwealth, Hairston v. (Va.) G57 Commonwealth, Hall v. (Ky.) . . 581 Commonwealth v. Milliken (Mass.) 177 Commonwealth, Pennington v. (Ky.) 482 Commonwealth v. Spicer (Ky.) 250 Commonwealth, Trimble v. (Va.) 320 Commonwealth v. Wilson (Pa.) 261 Cooper V. Commonwealth (Ky.) 625 Corey, People v. (N. Y.) 487 Cosgrove v. Winney (U. S. Sup.) 403 Couch, State v. (S. C.) 346 Crawford v. State (Texas) 432 Crowell, State v. (Mo.) 74 Cruickshank, State v. (Vt.) 385 D. Davis V. State (Neb.) 435 Dean v. State (Fla.) 567 Draughn v. State (Miss.) 192 Dunn V. People (111.) 447 Durnam, State v. (Minn.) 179 E. Eastman, State v. (Kan.) 3S6 Eldrldge v. State (Miss.) 440 Evans v. State (Ga.) 695 Ex parte Clem McCarver (Tex.) 633 Farrell, Commonwealth v. (Pa.) 468 Fielding, People v. (N. Y.) 88 Fitzgerald, People v. (N. Y.) . . . 700 Flanagan v. State (Ga.) . . . 525, 534 Fong Ah Sing, People v. (Cal.) 33 G. Gallaher v. State (Texas) 207 Gee V. State (Ohio) 158 Gifford, State v. (Wash.) 13 Goering, State v. (Iowa) 140 Goodwin, Commonwealth v. (Pa.) 271 VI AMERICAN CRIMINAL REPORTa References are to page*. Green v. State (Pla.) . . . Griffin V. State (Texas). Guin V. State (Texas) . . H. V. Commonwealth Hairston (Va.) Hall V. Commonwealth (Ky.).. Herdman v. State (Neb.) Hlsted, Regina v. (Eng.) Horhouse v. State (Texas) Howard v. State (Ala.) 253 I Moore v. State (Texas) 20 461 ' Morgan, State v. (Wash.) 17 259 Mozeo v. State (Texas) 148 Mylod V, State (R. I.) 238 o. Oerter v. State (Neb.) 19 J. Jackman, State v. (N. H.) Johnson, State t. (Minn.) Johnson, State v. (Wyo.) Johnson, State v. (Ohio) Johnston v. United States (C. C. A.) 657 5S1 298 167 62.1 664 607 422 598 C03 349 K. King, State v. (Iowa) . . Kirby v. United States Sup.) Klectzen, State v. (N. D.). Koerner, State v. (N. D.) . , L. liaplque. People v. (Cal.) . . Llghtfoot, State v. (Iowa) . Llppman v. People (111.) . . . Loveless v. State (Texas) . Lowery v. People (111.) . , . . Luttrell V. State (Texas) . . (U. S. Matthews v. State (Texas) Matthews, State v. (Mo.) McBrlde, People v. (Mich.) McCarver, Ex parte (Texas) , . . McEwen, State v. (Ind.) Mendenhall, People v. (Mich.) . Merritt v. State (Texas) Mllliken, Commonwealth v. (Mass.) 295 330 324 570 389 588 356 679 169 22C 619 681 391 633 642 163 518 177 P. Pennington v. Commonwealth (Ky.) 482 People V. Abbott (Mich.) 4 People V. Bird (Cal.) 442 People V. Carbone (N. Y.) 484 People, Cochran v. (111.) 50(J People V. Corey (N. Y.) 487 People, Dunn v. (111.) 447 People V. Fielding (N. Y.) 88 People V. Fitzgerald (N. Y.) 700 People V. Fong Ah Sing (Cal.) . . 33 People V. Lapique (Cal.) 389 People, Llppman v. (111.) 356 People, Lowery V. (111.) 169 People V. McBrlde (Mich.) 391 People V. Mendenhall (Mich.) . . 163 People V. Roberts (Cal.) 31 People V. Scott (Cal.) 690 People V. Sheldon (N. Y.) 545 People y. Smith (Cal.) 108 People, Steward v. (III.) 563 People V. Tupper (Cal.) 713 Peoplev. Weir (Cal.) 407 Perry v. Reese (Ga.) 637 Peyton v. State (Neb.) 47 Pickett V. State (Texas) 106 Prude, State v. (Miss.) 466 Q. Quintinl, State v. (Miss.) 380 B. Reed v. State (Miss.) 651 Reese, Perry v. (Ga.) 637 Reese, Taylor v. (Ga.) 637 Regina v. Hlsted (Eng.) 167 Regina V.Rose (Eng.) 275 TABLE OF CASES REPORTED. Vll References are to pages. Rentck, State v. (Oreg.) 409 Reynolds v. State (Neb.) 159 RlggB, State V. (Minn.) 198 Roberts, People v. (Cal.) 31 Roberts v. Territory (Okl.) .... 193 Rollins, State v. (La.) 667 Rose, Regina v. (Eng.) 276 s. Saffold V. State (Miss.) 234 Schultz V. Territory (Ariz.) .... 44 Scott, People v. (Cal.) 690 Sheldon, People v. (N. Y.) 545 Shoemaker v. Territory (Okl.) 36 Slavens, State v. (Ohio) 15S Smith. People v. (Cal.) 108 Smith V. State (Neb.) 145 Smith V. State (Ga.) 474 Smith V. State (Miss.) 67S Snover, State v. (N. J.) 655 Spencer v. State (Ga.) 674 Spicer V. Commonwealth (Ky.) 250 State, Armstrong v. (Tenn.) ... 1 State. Atkinson v. (Neb.) 13C State, Bailey v. (Neb.) 660 State, Barfleld v. (Texas) 384 State, Bones v. (Ala.) 11 State, Browning v. (Neb.) 645 State, Burden v. (Ala.) 431 State, Cady v. (Texas) 577 State, Carr v. (Ga.) 613 State, Carter v. (Ga.) 125 State, Chavana v. (Texas) .... 153 State V. Couch (S. C.) 346 State, Crawford v. (Texas) ... 432 State V, Crowell (Mo.) 74 State V. Crulckshank (Vt.) .... 385 State, Davis v. (Neb.) 435 State, Dean v. (Fla.) 567 State, Draughn v. (Miss.) 192 State V. Durnam (Minn.) 179 State V. Eastman (Kan.) 386 State, Eldridge v. (Miss.) 440 State, Evans v. (Ga.) 695 State, Flanagan v. (Ga.)...525, 534 State, Gallaher v. (Texas) 207 State, Gee v. (Ohio) 158 State v. Gifford (Wash.) 13 State V. Ooerlng (Iowa) 140 State, Griffln v. (Wash.) 401 State, Green v. (Fla.) 253 State, Gain v, (Texas) 259 State, Herdman V. (Neb.) 298 State, Horhouse v. (Texas) ... 623 State, Howard v. (Ala.) 664 State V. Jackman (N. H.) 607 State V. Johnson (Minn.) 422 State V. Johnson ( Wyo.) 598 State V. Johnson (Ohio) 603 State V. King (Iowa) 295 State V. Klectzen (N. D.) 324 State V. Koerner (N. D.) 570 State V. Lightfoot (Iowa) 588 State, Loveless v. (Texas) .... 679 State, Luttrell v. (Texas) 226 Statf^' v. McEwen (Ind.) 642 State, Matthews V. (Texas) .... 619 State V. Matthews (Mo.) 681 State, Merritt v. (Texas) 518 State, Moore v. (Texas) 20 State v. Morgan (Wash.) 17 State, Mozee v. (Texas) 148 State V. Mylod (R. I.) 238 State, Oerter v. (Neb.) 19 State, Peyton v. (Neb.) 47 State, Pickett v. (Texas) 106 State V. Prude (Miss.) 466 State V. Quintinl (Miss.) 380 State V. Reed (Miss.) 651 State V. Renick (Oreg.) 409 State, Reynolds v. (Neb.) 159 State v.Rlggs (Minn.) 198 State V. Rollins (La.) 667 State, Saffoi;. v. (Miss.) 234 State V. Slavens (Ohio) 158 State. Smith V. (Neb.) 145 State, Smith v. (Ga.) 474 State, Smith v. (Miss.) 678 State V. Snover (N. J.) 655 State, Spencer v. (Ga.) 674 State, Sullivan v. (Ark.) 280 State, Taylor v. (Ga.) 3 State V. Taylor (Mo.) 51 State, Thompson v. (Ala.) 206 State, Thrope v. (Texas) 417 State V. Trauger (Iowa) 102 Vlll AMERICAN CRIMINAL REPORTa ReffrencM ore to page*. State, Vandever v. (Del.) 355 State V. Watson (R. I.) 24 State V. Whldbee (N. C.) 416 State V. Whltmore (Mo.) 130 State, Womble v. (Texas) 438 State, Wood v, (Texas) 2.3 Steward v. People (111.) 663 Sullivan V. State (Ark.) 280 T. Taylor v. Reese (Ga.) 637 Taylor V. State (Ga.) 3 Taylor, State v. (Mo.) 51 Territory, Roberts v. (Okl.) ... 193 Territory, Schultz V. (Ariz.) .. 44 Territory, Shoemaker v. (Okl.) 36 Thompson v. State (Ala.) 206 Thorpe v. State (Texas) 417 Trauger, State v. (Iowa) 102 Trimble v. Commonwealth (Va.) 320 Tupper V. People (Cal.) 713 u. United States, Johnston v. (C. C. A.) 349 United States, KIrby v. (U. 8. Sup.) 330 V. Vandever v. State (Del.) , 365 W. Watson, State v. (R. I.) 24 Weir, People v. (Cal.) 407 Whldbee, State v. (N. C.) 416 Whltmore, State v. (Mo.) 130 Wilson, Commonwealth v. (Pa.) 261 Wlnney, Cosgrove v. (U. S. Sup.) 403 Womble v. State (Texas) 438 Wood V. State (Texas) 23 Note.— The following cases appear in full in the notes: Commonwealth Woodson (Ky.) 144 Moore v. People (111.) 156 Regina v. Gavin (Eng.) 168 Smith V. Commonwealth (Ky.) 232 Schustek Case au.) 272 State V. Murray (Iowa) 275 Statev.Fl8ke(R.I.) 276 Rex V.Jones (Eng.) 278 Rex V. Upchurch (Eng.) 279 Brown v. People (111.) 289 Shepherd v. State (Wis.) 290 Wright V. Court (Eng.) 294 People V. Kindelbergher (Cal.) 561 Thorley's Case (Eng.) 651 TABLE OF CASES CITED. Referuuuef are to paRen. A. . 24 . 407 . 416 . 130 ) 261 I. . 403 . 438 . 23 Aljams V. Foshee, 66 Am. Dec. 91 467 Abram v. State, 36 Tex. Cr. R. 4fi 152 Ackerman v. City of Lima. 8 Ohio S. & C. P. Dec. 430 379 Ackerson v. People, 124 III. 363 85 Adams v. Adams. 51 N. H. 388. . 27 Adams v. State, 42 Ind. 373 63 Alabaster v. Hamer, 70 Law Rep. 375 700 Albin V. State, 63 Ind. 598 76 AlRer V. Thompson, 1 Allen. 453 118 Allbrltton v. State, 10 So. Rep. 426 83 Allyn V. State, 21 Neb. 593 646 Andreas v. Ketcham, 77 111. 377 457 Andrews v. People, 75 111. 605. . 357 Aneals v. People. 134 111. 401, . . 85 Arnold v. Cora.. 80 Ky. 300 313 Armstrong v. Vandevanter, 21 Wash. 682 249, 379 Appleby v. State, 63 N. J. 526. . 518 Ashley v. Peters, 25 Wis. 621 . . 379 Atchison V. Bartholow, 18 Kan. 104 358 Aylesworth v. People, 65 111, 301 649 Ayres v. State, 21 Tex. App. 399 54 B. Bagnlly v. Morning Journal Ass'n. 38 App. Div. (N, Y.) 522 92 Baker v. Com., 20 Ky. Law Rep. 1778 484 Baker v. People. 105 111. 452 510 Baker v. State, 24 Vroom. 45. . . 656 Baker v. State, 17 Fla. 406 569 Baldwin v. State, 126 Ind. 24. . . 313 Bank v. .Tones, 1 Swan, 391 2 Bank v. Nelson. 1 Gratt. 110 700 Bank of Pittsburg v. Murphy, 18 N. Y. Supp. 575 380 b 46 6.54 .226 Ba ilvs V. Loachemls, 8 N. Y. Supp. 520 359 Barbee v. State, 23 Tex. Cr. App. 199 231 Barber v. State. 39 Ohio St. 660 606 Barker v. Stuf^, 54 Neb. 63 645 Barnes v. State, 36 Tex. 356 290 Barney V. Dudley, 19 Pac. Rep. 550 Barney v. Oyster Bay & Hunt- ington Steamboat Co., 67 N. Y. 31 Barth v. State, 39 Tex. Cr. R. 38 Bartholomew v. People, 104 111. 601 73, 203 Bartley v. State, 53 Neb. 310. . . 398 Barton v. People, 35 111. App. 573 423 Batchelder v. Moore, 42 Cal. 412 318 Batsch V. State, 43 Neb. 501. . . 156 Baysinger v. State. 77 Ala. 63. . 440 Beard v. United States, 158 U. S. 550 688 Beaty v. State, 82 Ind. 232 391 Beck V. State, 51 Neb. 106 51 Beck V. State, 20 Ohio St. 228. . 185 Beer Co. v. Massachusetts, 97 U. S. 25 611 Bell V. State, 1 Swan, 42 375 Bell V. State, 103 Ga. 12 3 Bennett v. State, 17 S. W. Rep. (Tex.) 545 Berghoff v. State, 25 Neb. 213. . 436 Berry v. People. 1 N. Y. Cr. R. 43 Bessette v. State, 101 Ind. 85. . Bibber v. Simpson. 59 Me. 181 . . Biggs, Ex parte. 64 N. C. 202. . . BIgham v. State, 59 Miss. 529. . Binns v. State. 46 Ind. 311 Bird V. State, 27 Tex. App. 636 Biscoe V. State, 67 Md. 6 287 Black V. Trower, 79 Va. 127 322 Blackwell v. State, 51 S. W. Rep. 919 428 Blackwell v. State. 67 Ga. 76. . . 698 Blum V. State, 20 Tex. Crlm. App. 578 419 70 556 93 246 318 382 63 23 AMERICAN CRIMINAL REPORTS. i References are to pages. 1 i i' n BIythe v. Thompl Ciif-b. 582 .. . 1?4 V. Wilson, 186 Pa. St. 1. . . . 469 V.Wood, 11 Gray, 85 189 Conn V. ~'atf . 11 T^x. Apn. 400 52 Converse v. Wood, 5 Abb. Pr. 84 318 Coolev v. State, 46 Neb. 603 301. 318 Corley v. State, 50 Arlc. 305... 282 Coulter V State. 75 Miss. 356. . 382 Counselman v. Hitchcock, 142 U. S. 547 700 County of Cook v. Gilbert, 140 111. 268 359 I Cowles V. Harding, 79 N. C. 577 380 Coylee v. Com.. 100 Pa. St. 573 5 !2 ; Grain v. United States, 162 U. S. 625 C16 i Cranor v. State. 39 Ind. 64 37G Cravens et al. v. Rodgers. 101 I Mo. 247 034 , Creed v. People, 81 111. 565 17G , Crenshaw, Ex parte, 80 Mo. 447 313 I Crlbben v. Schillenger, 30 Hun, 248 380 I Crosby v. People, 137 111. 325. . 203 1 Crow V. State, 33 Tex. Cr. Rep. i 264 lis I Crowns v. Vail, 51 Hun, 204 .. . 3.S0 I Cnise's Case, 8 Car. & P. 541 1 56 I Cullen v. Com., 24 Gratt. 624. . . 700 I Curry v. Spencer, 61 N. H. 624 Oil Czack, Ex parte, Chi. Law Bui., Apr. 11, 1896 37G D. "5aily v. State, 24 L. R. A. 724 601 Dale V. State, 88 Ga. 552 ... 173, 618 Dally V. Overseers of Wood- bridge, 1 Zab. 491 656 Dandridge's Case, 2 Va. Cas. 408 315 Danforth v. State, 75 Ga. 614.. 531 Davidson v. Bohlman, 37 Mo. App. 576 248 Davis V. State, 54 Neb. 177 436 Davis V. State, 36 Wis. 487 649 Davis V. United States, 160 U. S. 469 45 Dawson v. State, 16 Ind. 429. . . 575 Day v. State, 63 Ga. 667 695 Dayharsh v. Railroad, 103 Mo. 570 58 Deery v. Cray, 5 WalL 807 58 Dimmig, Ex parte, 74 Cal. 164 249, 358, 367. 371 Disney v. Com., 5 S. W. Rep. 360 649 Ditto V. State, 30 Miss. 128. .. . 679 Dixon V. State. 46 Neb. 298 20 Donn v. State. 26 Ind. 495 81 Dobb's Case. 2 East P. C. 513 . . 202 Doss' Case, 1 Gratt. 559 561 Dotterer v. Harden. 88 Ga. 145 638 Douglass V. State. 3 Wis. 820 . . 646 Doyle's Case. 77 Ga. 513 677 Drach v. Camberg. 187 111. 385 302 Drake V. State. 75 Ga. 413 697 Drake v. State, 68 Ala. 510 633 f i xu AMERICAN CRIMINAL REPORTa References are to pages. Drumm v. Cessnun, 49 Pac. Rep. (Kan. Sup.) 78 Duncan v. State, 49 Miss. 331.. Dunn V. People. 109 111.635...- Dyal V. State, 97 Ga. 428 E. 135 GOO 5;J2 477 Early v. State, 1 Tex. App. 248 646 Earp V. State, 1 Am. Crlm. Rep. Eden v. People,' liu Ili. 296 ... . 363 Edmondson v. State, 41 Tex. 496 381 Edson V. Edson, 108 Mass. 590. . 28 Edwards v. State, 80 Ga. 127 .. . 22 Eggart V. State, 40 Fla. 527 ... 569 Ehlert v. State. 93 Ind. 76 644 Ellck V. Washington Ty., 1 Wash. Ty. 136 646 Ellis V. State, 65 Miss. 47 193 Ellsworth V. Potter, 90 111. 384 297 Ewing V. State, 1 Tex. Crim. App. 362 384 Express Co. v. Hutchins, 58 111. 44 46 F. Tanning's Case, 66 Ga. 167 676 Parmer v. State, 35 Tex. Cr. Rep. 270 231 Farrell v. People, 133 111. 244. . . 123 Favors v. State, 20 Tex. Cr. App. 156 231 Ferguson v. State, 49 Ind. 33. . 124 Pink V. Milwaukee. 17 Wis. 26 379 Finlay et al. v. De Castroverde, 22 N. Y. S. 716 302 Flack V. Ackney, Breese, 144; B. B. 187 370 Flack V. Harrington, Breese, 165; B. B. 213 370 Flagg V. People, 3 Am. Crim. Rep. 70 289 Fleming v. State. 136 Ind. 149 81 Florien v. State, 8 Ohio Cir. Dec. 171 11 Flucker v. Georgia Railroad & Banking Co., 81 Ga. 461 654 Follett V. Territory, 33 Pac. Rep. 869 46 Ford V. State, 73 Miss. 734 .... 542 Francis v. Green, 64 Ark, 523. . 544 Franklin v. Adams, 101 Ga. 126 639 . Franklin v. State, 69 Ga. 523 . . 697 Franklin F. Ins. Co. v. Graver, 100 Pa. St. 266 474 Frear v. Drinker. 8 Pa. St. 521 302 Freeman v. City of Huron, 66 N. W. Rep. 928 301 French v. State. 12 Ind. 670 39, 63. 81 Frienberg v. People, 174 111. 617 505 Fulcher v. State, 28 Tex. Crim. App. 465 464 Gaines v. State, 38 Tex. Crim. Rep. 202 524 Galbreath v. Eichelberger, 3 Yeates, 515 700 Galveston v. Looney, 54 Tex. 523 634 Gandy v. State, 13 Neb. 445. .. . 301 Garrity v. People, 10 111. 162. . . 84 Garza, Ex parte, 28 Tex. Crim. App. 381 634 Gelston v. Hoyt, 3 Wheat. 246. . 628 George v. State, 39 Miss. 570. . . 185 Gillespie v. State, 8 Yerg. 507. . 185 Gilmer v. Higley, 110 TT. S. 47 58 Gindrat v. People, 138 111. 103. . 359 Glenn & Torrey v. People, 17 III. 105 249 Glennon v. Britton, 155 111. 232 359, 368 Goddard, Petitioner, 16 Pick. 304 Goersen v. Com., 99 Pa. St. 388 Golden v. State, 25 Ga. 532 476, Gordon v. Frizzell, 20 111. 291 . . Gossett V. State, 65 Ark. 389 . . Gould v.. People, 89 111. 216 Crould. Ex parte, 21 L. R. A. 751 Graham v. Com., 16 B. Mon. (Ky.) 591 Gramon v. Ramnnd, 1 Conn. 40 Grant v. People, 4 i arker's Crim. Rep. 527 Grant v. State. 97 Ga. 789 Gravely v. State 38 Neb. 871.. Graves v. Colwell, 90 111. 612. . . Green v. Telfair, 11 How. Pr. 260 Gregory v. Baugh, 2 Leigh. 655 Gridley v. Bloomlngton. 88 111. 554 Grlel V. Backius. 114 Pa. St. 187 Grigg V. People. 31 Mich, 471. . Griggs V. State, 59 Ga. 738 Grubbs v. Blum, 62 Tex. 4?>6. . . Guinn V. State, 39 Tex. Crim. Rep. 257 Gulliher v. People, 82 111. 146. . . 609 266 693 379 123 646 700 532 379 5.53 540 50 162 553 561 609 380 649 538 622 260 47 TABLE OF CASES CITED. xm References are to pages. 11. Hackett v. People, 54 Barb. 370 36 Halbrook v. State, 34 Ark. 511 173 Hale V. State, 45 N. E. Rep. 199 313 Hall V. Manchester, 40 N. H. 410 G08 Hall V. State, 3 Cold. 125 516 Hall V. United States, 150 U. S. 76 120 Hall V. Wolff, 61 Iowa, 559 95 Halpern v. Nassau Elec. R. R. Co., 16 App. Div. 90 92 Hamilton v. Steamboat Tronton, 19 Mo. 523 380 Hancock v. Elam. 3 Baxt. (Tenn.) 33 556 Hardy v. State, 7 Mo. 608 65 Harman v. Harman. 16 111. 85.. 166 Harris, In re, 32 Fed. Rep. 583 370 Harrison v. State, 85 Ga. 131.. 156 Hart V. Grant, 8 S. D. 248 302, 379 Hart V. Grant, 66 N. W. Rep. 322 358 Hart V. State, 14 Neb. 572 544 Haskins v. Bank of State of Ga., 100 Ga. 216 639 Haslip V. State, 10 Neb. 591... 438 Hatch V. State, 8 Tex. Crim. App. 416 107, 123 Hawe V. State, 11 Neb. 537 .... 544 Hawes v. State, 46 Neb. 149. . . 301 i Havves v. Stock Yards Co., 103 Mo. 60 58 I Hawkins v. State, 1 Zab. 630. . . 656 Ha /thorn v. People, 109 111. j 302 359, 362 \ Hawthorne v. State, 45 Neb. j 871 301 I Hawthorne v. State, 6 Tex. | App. 562 379 Hayes v. People, 25 N. Y. 390 IG."^ 166 Haynes v. Trenton, 108 Mo. 133 52 Heald v. Thing, 45 Me .!92.... 536 Hebblethwaite v. Hopworth, 98 111. 126 165 Heller v. State, 23 Ohio St. 582 606 Hendricks v. State, 26 Tex. Cr. App. 176 434, 439 Henry V. State, 51 Neb. 149 ... 50 Henry v. State, 1 13 Ind. 304 6 ' t Henry v. State. 35 Ohio St. 128 440 Herndon v. Com., 48 S. W. Rep. 989 587 Herrick v. Gary, 83 111. 89 85 Hester v. Com., 16 Ky. Law Rep. 783 583 Hickory v. United States, 160 IT. S. 408 478 Hiler V. People, 156 111. 511 165, 173 Hill V. State, 42 Neb. 503 20 Hillman v. Schwenk, 68 Mich. 293 46 Hix V. 1 eople, 157 111. 382 644 Hoag V. People, 117 111. 35 84 Hoback's Case, 28 Gratt. 922.. 658 Hoge V. People, 117 111. 35 46 Holloway's Case, 5 C. & P. 524 202 Holman v. State, 105 Ind. 513.. 313 Holmes v. Com., 1 Casey, 222. . 22 Holsey v. Porter, 105 Ga. 837. . C40 Homestead Cases, 22 Gratt. 266 322 Hoolier v. Williamson, 22 Tex. 524 C22 Hopps V. People, 31 111. 385 64, 83, Horstman v. Kaufman, 97 Pa. St. 147 700 Hoskins v. People, 84 111. 87... 649 Hourigan v. Com., 94 Ky. 520.. 234 House V. State, 9 Tex. App. 567 108 Housh V. People, 75 111. 487 249, 377 Houston V. State, 4 G. Greene, 437 595 Howard v. State. 50 Ind. 190 63, 81 Howland v. School Dist., 15 R. I. 184 31 Hudgins v. State, 2 Ga. 173. .. . 480' Hughes V. People, 5 C...... 445. . 313 Humes v. Tabor, 1 R. I. 464 379 Hunt V. State, 9 Tex. Cr. App. 166 536 Hunter v. People, 50 111. App. 367 575 Huntsman v. State, 12 Tex. Cr. App. 619 633 Hurst V. Railroad Co., 49 Iowa, 76 536 Hutchins v. Kimmell, 3 Mich. 126 165 Hutto V. State, 7 Tex. App. 44. . 23, 85 Ir person v. Town of Lansing, 51 Hun, 103 554 Jackson V. People, 2 Scam. 231 172 .Tackson v. Smith, 5 Johns. 115 318 .Tamison v. People, 145 111. 357 236 .lansen v. State, 60 Wis. 577,. 3,79 Jefferson v. State, 24 Tex. App. 535 646 Jenkins v. State, 53 Ga. 33 603 .Tesse v. State, 20 Ga. 50 478 Jester v. State, 26 Tex. Cr. App. 369 384 Jewell V. Territory, 4 Okl. 53.. 518 ZIV AMERICAN CRIMINAL REPORia References are to page* U i! Johnson v. Bouton, 35 Neb. 903 301 Johnson v. Com., 82 Ky. 116 2;!6 Johnhon v. Johnson, 114 111. 611 162 Johnson V. People. 113 111. 99.. 511, 566 I. Lambert v. People, 6 Abb. N. C. 181 394 Lambeth v. State, 23 Miss. 322 500 Johnson V. People, 22 111. 318... 649 I Lamson v. Royden, 160 111. 613 C9'J Johnson v. State. 21 Tex. App. 3G8 64, 70, 79 Johnson v. State, 3 Am. Crlm. Rep. 256 285 Johnson v. State, 40 Tex. Cr. App. 605 445 Johnson v. United States. 87 red. Rep. 187 366 Jonasen v. Kennedy, 39 Neb. 33 147 Jones V. Pitts, 98 Ga. 521 640 Jones V. State, 120 Ala. 383.... 693 Jones V. State, 38 Tex. Cr. Rep. 87 524 K. ii i< Kalamazoo Hack Co. v. Sootsma, 84 Mich. 194 654 Keable v. Payne, 8 Ad. & Ell. 555 339 Keel & Roberts v. Hubert, 1 Wash. 203 561 Keeton v. Com., 92 Ky. 522 202 Kelly V. State, 33 Tex. Cr. Rep. 31 561 Kendrick v. Com., 78 Va. 493.. 700 Kendrick v. State, 100 Ga. 300 24 Kennedy v. People, 17 111. 158. . 514 Kessey v. State, 3 S. & M. 518. . 203 Kibs V. People, 81 111. 599 396, 511 Killian v. Augusta & K. R. Co., 78 Ga. 749 538 Kinar v. Pierce. 1 Leach, 527. . . fi03 King V. Shepard, 1 Leach, 529. . 603 King V. State, 27 Tex. Cr. App. 567 439 Kingsbury v. State, 39 S W. Rep. 365 22 Kitson V. Mayor, etc., 26 Mich. or r • >-5 327 Klien v. People, 113 III. 596.".'.*." 40 Knnpp's Case, 10 Pick. 489 282 Knight & Roffey's Case, 2 East, P. C. 510 201 Knights V. State, 56 Neb" 225*" 437 Knights V. State, 58 Neb. 225 135. V ^ ^ 542 Koelges v. Guardian Life Ins Co., 57 N. Y. 6r,;i ' 93 Kohl V. Lehlback. 160 U. S 293 185 Kohlheimer v. State, 39 Miss 548 3Q Kramer v. Com., 87 Pa. St. 299 266 Krchnavy v, State, 43 Neb 337 14s Kruger v. state, 135 Ind.' 573 644 Landis v. State, 70 Ga. 652 64 Landringham v. State, 49 Ind. 186 347 Lane, Ex parte, 6 Fed. Rep. 34 249, 358,371 Langdon v. People, 133 III. 382 35S> Langdon v. Wayne, 76 Mich. 367 313 Lara's Case, 2 Leach, 647 410 Lauback v. State, 12 Tex. Cr. App. 583 93 Led better v. State, 21 Tex. App. 344 23 Lefever v. State, 59 Ohio St. 384 286 Leiber v. Com., 9 Bush, 11 36 Leslie v. Com., 19 Ky. Law Rep. 102 484 Leslie v. State, 47 S. W. Rep. (Tex.) 367 446 Lindsay v. Commissioners, 2 Bay, 38, 61 316 Lipschitz V. People, 53 Pac. Rep. 1111 135 Little V. State, 90 Ind. 338 313 Livingston v. Lucas. 6 Ala. 147 31 <) Loehr v. Peo;,le. 132 111. 504... 511 Long's Case, 12 Ga. 294 677 Long's Case, 32 Chi. Legal News, 58 377 Lookabau.gh v. Cooper, 48 Pac. Rep. 99 C22 Ix)ssen V. State, 62 Ind. 449 . ." .' 602 Louisville, etc. R. Co. v Folvey 104 Ind. 409 .' 535 Louisville, etc. Rv. Co. v Shires, 108 111. 617 .r,3n Lndden v. State, 31 Nob. 437.. 301 Lyle V. State, 31 Tex. Cr. Rep. 103 204 Lyon V. Evans, 1 Ark. 349 640 Lytle V. State, 31 Ohio St. 196. . 57,-, Lytle V. State, 34 Ohio St. 196 20^ u. Macfarland's Trial. 8 Abb Pr. Rep. (N. S.) 59 532 Maher v. People, 10 Mich. 212. . 1F;6 Martin v. Com., 93 Ky. 1 93 . . . . 48 f Martin V. State, 63 Miss. 505. ... 121 Martin v. State, 25 Ga. 494 510 Marzen v. People. 173 III. 56. . . 503 Mason v. State, 32 Ark. 23S . 574 Massengill v. First Nat. Bank 76 Ga. 341 ' q^,j 'i TABLE OF CASES CITED. XV References are to pages. Mathena v. State, 15 Tex. Or. App. 473 410 Mathews, Ex parte, 49 S. W. Rep. 623 620 Matter of Spooner, 5 Rogers City Hall Recorder, 109 319 Matter of Strong, 5 Rogers City Hall Recorder, 8 319 Mattox V. United States, 156 U. S. 2.37 490 Maxwell v. People, 158 111. 248 571 May, In re, 1 Fed. Rep. 737 ... . 318 May, In re, 1 N. W. Rep. 1021 ... 377 Maynard v. People, 135 111. 416 378 Mayor v. Mayberry, 6 Humph. 368 612 Mays V. City of Cincinnati, 1 Ohio St. 208 327 McAfee v. State, 17 Tex. App. 131 54 McClanahan v. West, 100 Mo. 309 134 McClure v. Williams. 65 111. 392 46 McConnell v. Pedigo, 92 Ky. 405 654 McCrory v. State, 25 So. Rep. 671 693 McDonald v. People, 126 111. 150 110 McDonald v. State, 46 Ind. 298 318 McDowell V. Crawford, 11 Grat. 405 504 McDowell's Ex'rs v. Crawford, 11 Gratt. 405 561 McFarland v. State, 18 Tex. App. 313 646 McGowan v. St. Louis Steel Co., 109 Mo. 518 58 MtJunkins v. State, 10 Ind. 140 375. 646 MoTntosh V. State, 117 Ala. 128 42S McKane Case, 143 N. Y. 455... 705 McKeever v. Weyer, 11 Weekly Digest, 258 92 M^T.ain v. State, 18 Neb. 154 51, 52 M-T.ane v. State. 4 Ga. 335 ... . 133 Mcl.ood V. Railway Co., 71 Iowa, 138 118 McLaughlin v. State, 45 Tnd. 338 348 McMullen v. State, 53 Ala. 531 569 McNair v. People, 89 111. 441 . , 514 McNnnghton's Case, 10 CI. & Fin. 200 543 Mook V. State, 117 Ala, 116 429 Morodlth v. People. 84 111. 479 715 Merrill v. Sherburne, 1 N. H. 109 611 Mc^t. R. Co. V. .Johnson, 90 Ga. 500 3 Mevers v. State, 39 Tex. Cr. R. F,00 215 Miles V. State, 58 Ala. 390 297 Miles V. United States, 103 U. S. 304 173 Miller v. Birch, 32 Tex. 210 634 Miller V. Munson, 34 Wis. 579 358, 371 Miller V. People, 39 111. 457 62, 64, 84, 85 Miller V. People, 47 111. App. 472 646 Miller v. State, 2 Scam. 233 514 Minces v. Shoenig, 75 N. W. Rep. 711 325 Miner v. People, 58 111. 59 176 Miskimins v. Shaver, 8 Wyo. 392 700 Mitchinson v. Cross, 58 111. 366 175. 176 Mitchum V. State, 11 Ga. 615. . . 115 Moncrief v. State, 59 Ga, 470. . . 541 Montana Union Ry. Co. v. Man- glois, 9 Mont. 419 654 Moore, In re, 63 N. C. 397 318 Moore v. People, 146 111, 600... 156 Moore v. State. 21 Tex. App. 606 95, 108 Moore v. State. 20 Tex. Crlm. App. 233 419 Moore v. State, 26 Tex. App. 332 156 Moore v. State, 7 Tex. Cr. App. 42 384 Moore v. State, 53 Neb. 831 663 Moore v. State, 85 Ind. 90 593 Moore v. Watts, Breese, 18 ; B. B. 42 249, 370 Moriarty v. State, 46 Neb. 652 436 Morgan, Ex parte, 20 Fed. Rep. 298 379 Morgan v. State, 56 Neb, 696.. 436 Morgan v. State, 34 Tex. Cr. App. 44 153 Morgan v. State, 33 Ala. 413. . . 156 Morrison v. State, 44 S. W, Rep, 124 124 Morton v. People, 47 111, 468 340. 511 Moses V, State, 11 Humph, 232 36 Mount V, Com., 2 Duv, 93 583 MuH:ler v. Kansas, 123 U. S. 623 610 Mullens v. People, 110 111. 42,. 84 Muller V. Hospital Ass'n, 73 Mo. 242 58 Munson v. State, 4 G. Greene, 483 598 Munson v. State, 11 S. W. Rep. 114 646 Murphey v. State, 43 Neb. 34, . . 146 TMurray v. State. 25 Fla. 528,.. P.'r, Myers' Case, 07 Ga. 76 608 Myers v. People, 67 111. 503 353. vr-^,. 371 t 1 :: I XVI AMERICAN CRIMINAL REPORia References are to pages. N. Nalley v. State, 28 Tex. Cr. App. 387 2^.1 Neal V. Gordon, 60 Ga. 112 358, o71 Neale v. Cunningham, 1 Cranch, C. C. 7(5 ^^^ Neill V. Produce Co., 38 W. Va. 228 5^* 24G 36 j 205 i 630 289 Nelson v. Harrington. 72 Wis. 591 ••• Nelson v. State, 7 Humph. 542 Nelson v. State, 26 S. W. Rep. 623 • • Newcomb's Ex'r v. Newcomb, 13 Bush, 544 Newman v. State, 1 Am. Crim. Rep. 173 Newton v. State, 3 Tex. App. 245 603 Newton V.' State, 21 Fla. 53. . . . 94 Nickolson V. State, 38 Md. 140 284, 2S7 Noland v. State. 19 Ohio, 131. . 20 Noles V. State, 24 Ala. 672 667 Northcot V. State. 43 Ala. 330.. 603 0. O'Brien v. People, 17 Colo. 561 714 O'Chander v. State, 46 Neb. 10 301 Ogletree v. State, 28 Ala. 693. . 156 O'Herrin v. State, 14 Ind. 420. . 575 O'Neale v. Com., 17 Gratt. 583 173 Old Colony Ry. Co. v. Tripp, 147 Mass. 35 654 Otmer v. People, 76 111. 149. .. . 47 Overton v. State, 43 Tex. 616.. 177 Owen V. State, 78 Ala. 425 285 518 People V. Bennett. 49 N. Y. 137 704 V.Brooks, 131 N.Y. 321.... 93 V Brown, 34 Mich. 339 165 V. Button, 106 Cal. 628 6:>2 V. Cannon, 139 N. Y. 32 359, 368 V. Carbone. 156 N. Y. 413.. 500 V Casey, 65 Cal. 261 594 V. Colin, 149 111. 486 359 V.Cooper, 83 111. 585 302 v.Corbett, 28 Cal. 328 64(i V.Corey, 157 N.Y. 332 96 V. Cotteral, 18 .Tohns. 115.. 6i»3 V. Cramer, 47 N. Y. S. 1039 379 V. Diedrich, 141 111. 665.... 319 v.Dole. 122 Cal. 486 447 v.Dor hy, 156N. Y. 237.... 713 v. EviP s, 72 Mich. 385 3i;9 V. Fe\v, 2 Johns. 290 318 V.Fitzgerald, 20 App. Div. (N. Y.) 139 702 V. Fong Ah Sing. 64 Cal. 253 39. 62 V.Fredericks, 106 Cal. 554 691 V. Garbutt. 17 Mich. 9 595 V. Gates, 15 Wond. 159 133 V. Getchell, 6 Mich. 496 ... . 427 V. Glenn. 10 Cal. 32 499 V. Gonzales, 35 N. Y. 49 98 V.Goodwin. 18 .Johns. 187.. 552 V. Green. 13 Wend. 55 553 V. Groenwall, 115 N. Y. 520 92 V.Harris, 29 Cal. 678. 202, 204 V. Hazelwood. 116 111. 319.. 359 V. Heckor. 109 Cnl. 451 602 V. Heffron, 53 Mich. 527 ?,:>3, Packard's Case. 4 Ores. 189 Palmer v. State, 34 La. Ann. 1061 288 Parker v. State. 136 Ind. 284. . . 81 Parkinson v. Peorle. 135 111, 401 646 Parsons v. State. 81 Ala. 577. .. 532 Partlow's Case. 90 Mo. 608 693 Pate V. State. 10 So. Rep. 665. . 82 Peers v. Carter, 4 Litt. 269 358 Pellum v. State. 89 Ala. 32 S3 People v Ah Sam. 47 Cal. 656. . 441 V.Allen, 5 Denio. 76 516 v. Bavberi. 149 N. Y. 256. . . 502 v. Barrie, 1 Am. Crim. Rep. 178 286 V. Becker, 20 N. Y. 354 358, 371 ■r.27 367, ■1 06 l: u. 1^,61 532 499 V. Hill, 37 Art'. D V. ,Tnnes, 12 Ck\. V. Kindolberser '" •' 367 V. Klien. 1 Edni. :'r/S V. Kroft. 91 Hun. i,4.., V. Kuhler, 93 Mich, 626 3(;9 V. Lattimnre, 86 Cal, 430. . . :'>t V. Leonard, 143 N. Y, 360. . . 50' V. Levine. 85 Cal. 41 54 V. Lillpy. 43 Mich, 54 157 V. Loomis, 106 Mich, 250. . . 165 V. Ma.1ors, 65 Cal, 138 110 V. Mead, 50 Mich, 228 303 V. McCord. 76 Mich. ^OO, . V. McCov. 45 How. Pr. 216. V.Mitchell. 62 Cal. 411 ... V.Moody, 69 Cal. 184 649 V. Murray. 86 Cal, 34 594 V. Novak, 24 N, Y. St. Rep. ?74 V.Nelson. 85 Cal. 421 V. Ol'-ntt, 2 Johns. Cases, 301 106 700 114 379 45 552 TABLE OF CASES CITEU XVll References are to pagea People T. Olmstead, 30 Mich. 431 5 v.Olsen, 6 Utah, 284 692 V. Owen, 148 N. Y. 648 704 V.Parker. 114 Mich. 442... 446 V. Payne, 8 Cal. 341 688 V. Roberts, 19 Mich. 401 .. . 155 V. Ruclter, 5 Colo. 466 316 V. Scott, 6 Mich. 296 5, 166 V. Seaman, 107 Mich. 340 . , 10 V. Seeley, 117 Mich. 263. .. . 399 V. Smalling, 94 Cal. 112.... 266 V. Squires, 99 Cal. 32 183 V. State, 62 Ala. 237 62 V.Stewart, 75 Mich. 21.... 289 V. Stone. 9 Wend. 18 410 V.Thomas, 3 Hill (N. Y.), 169 427 V. Tarm Poi, 24 Pac. Rep. ggg ^g v.Van Santrso'Mo.'bV,'?? 500 V. Walker, 38 Mich. 156 202, 674 V. Ward, 1 Wheeler Cr. Cas. 469 553 V. Webster, 111 Cal. 381 ... 694 V. Westlake, 124 Cal. 452.. 398 V. Whiteman, 114 Cal. 338. . 443 v.Wolcott, 51 Mich. 612... 700 V. Wong Ah Foo, 09 Cal. 182 54 V. Wong Ah Ngow, 54 Cal. 151 478 V. Wright, 70 111. 388 362 People ex rel. O'Niell v. Shields, 30 Chi. Legal News, 340 375 People ex rel. Schusted, 29 Chi. Legal News, 33 372 People ex rel. Smith v. Brown, 16 Chi. Legal News, 392 354 Percival v. State, 45 Neb. 741 . . 30] Perham's Case, 4 Oreg. 188. .. . 518 Peter v. State. 4 Sm. & M. 31 . . 290 Pettibone v. United States, 148 U. S. 197 516 Phoebe v. Jay. 1 111. 207 249 Phoenix Ins. Co. v. Moog, 81 Ala. 335 557 Phillips V. Denver. 19 Colo. 197 608 Physioc V. Rhea. 75 Oa. 466 555 Pierce v. People, 38 Tex. Cr. App. 604 446 Pierce v. Pierce. 38 Mich. 412 . . 554 Pierce V. State. 13 N. H. 536... 610 Pierson v. People. 79 N. Y. 424 437 Pinchard v. State, 13 Tex. App. 478 484 Pigman v. State. 4 Ohio, 555 .. . 203 Pigman v. State. 14 Ohio, 465. . 575 Pittman, In re, 1 Curt. (U. S.) 186 318 Pitts v. Hall, 60 Ga. 389 638 Pitts V. State. 43 Miss. 472 292 Pittsburg, C. & St. L. Ry. Co. v. State, 49 Ohio St. 189 329 Pollard V. State, 53 Miss. 410. . 64 Polk V. State, 36 Ark. 124 536 Pope et al. v. Dodson, 68 111. 360 46, 47 Port V. Port, 70 111. 484 165 Porter v. Low, 16 How. Pr. 549 318 Powell V. State. 101 Ga. 9 479 Powell V. State, 12 Tex. App. 239 23 Powers V. Leach, 26 Vt; 270 53 Prichard v. People, 149 111. 50 614 « Q. Queen v. Hazelton, L. R. 2 Crown Gas. 134 423 Queen v. Thompson, 9 Am. Crim. Rep. 269 277, 289 Railroad Co. v. O'Brien, 119 U. S. 99 58 Railroad Co. v. State, 60 N. H. 87 609 Railway Co. v. Jacksonville, 67 111. 37 358 Ramsey v. State, 36 Tex. Crim. Rep. 392 680 Randle v. State, 34 Tex. Cr. Rep. 43 215 Randle v. State, 12 Tex. App. 250 23 Rank v. People. 80 111. App. 40 515 Rawson v. Curtiss. 19 111. 456. . 451 Ray v. People, 6 Colo. 231 649 Ray v. State, 13 Neb. 55 22 Rea V. Harrington, 58 Vt. 181. . 94 Real v. People, 42 N. Y. 270 56 Reeves, .Jr., v. Herr, 59 111. 79 176 Regina v. Attwood, 5 Cox C. C. 322 257 V. Baldry, 12 Eng. Law & Eq. 590 282 V. Baldry, 19 L. T. Rep. (O. S.) 146 276 V. Baldry, 2 Dennison C. C. 430 2-^Ct V. Boyes. 1 Best & S. 311. . 190 V. Brackenbury, 17 Cox C. C. 628 168 V. Falkner. 3 Cox C. C. 550 603 V. Gavin, 15 Cox C. C. 6.')6. . 168 V.Grantham, 11 Mod. 222.. 414 V. Hassett, 8 Cox C. C. 511 700 V. Jarvis, 17 L. T. Rep. 178 277 XVIU AMERICAN CRIMINAL REPORT& References ore to pages. » I ^; i-^ Regina v. Jennison, 9 Cox C. C. J58 414 V. Jones, 9' Car. & P. 258... 156 V. McCarty, 6 Mod. 301 ... . 411 V. Moore, 16 Jur. 622 283 V Norman, IC. & M. 501.. 390 V. Pemberton, 12 Cox C. C. 607 603 V. Rvan, 2 Mood. & R. 213 150 V. Simmonsto, 1 Car. & Kir. 164 173 V.Thompson, 17 Cox C. C. 641 285 V. Thompson, 69 L. T. Rep. 24 277 V. Warmingham, 2 Den. 447 285 Republic V. Gibbs, 3 Yeates, 429 700 iCex V. Baldwin, 3 Camp. 265. . . 341 V. Bower, 1 Cowp. 323 414 V. Derrlngton, 2 C. & P. 418 274 V. DufBn, Russ. & Ry. 364. . 156 V. Duchess of Kingston, 20 How. St. Tr. 355, 538.. 628 V. Cover, Sayer, 206 411 V. Hanson, Sayer, 229 411 v.Hardwick, Phillips' Evi- dence, 105 279 V. Hodgson, 3 Car. & P. 422 390 V.Holt, 7 Car. & P. 518.... 156 V. Innabitants of Harborne, 2 Adol. &E1. 540 162 v.Jervis, 6 C. & P. 156. .. . 345 V. Jones, Russ. & Ryan, 152 278 V. .Tones, 1 Leach, 147 410 V. Ratcllffe, 1 Lew. C. C. 112 340 V. Row, Russ. & Ryan, 153 279 V.Sims. 12 Mod. 511 318 V. Smith, Leach C. C. 288 ^41 V. Thomas, 1 East P. C. 417 156 V. Turner, 1 Moody's Crown Cases, 347 338 V. Upchurch, 1 Moody C. C. 4Q5 273 V. Williams, 7 C. & P. 354 ." .' 427 Rice v. Rice, 47 N. J. L. 559. . . 700 Richards v. Borowsky, 39 Neb. 774 147 Riker v. Hooper, 35 Vt. 457 159 Rix V. State, 33 Tex. Cr. Rep. 353 260 Robbing v. State, 8 Ohio St. 131 499 Roberts v. Neal, 62 Ga. 163 639 Roberts v. People, 19 Mich. 401 202, 20i Robe:*ts V. State, 3 Ga. 310 524 Robinson, Ex parte, 19 Wall. 505 311 Robinson v. Richardson, 13 Gray, 454 365 Rogers v. State, 33 Ind. 543 575 Roe V. State, 19 Tex. App. 89. . 646 Rollins V. State, 22 Tex. Crim. App. 548 434,439 Roode V. State, 5 Neb. 174 438 Rosen v. United States, 161 U. S. 25, 29 346 Ross v. De Los, 45 111. 447 302 Ross v. Gill and wife, 1 Wash. 88 561 Roush v. State, 34 Neb. 325. .. . 436 Rudolph V. Landwerieu, 92 Ind. 34 96 Rufer V. State, 25 Ohio St. 464 286 s. Samuel v. People. 164 111. 379. . 699 Sarah Way's Case, 41 Mich. 299 249, 377 Sater /. State, 56 Ind. 378 76 SauuGers v. Melhuish, 6 Mod. 73 318 Sawyer v. State, 35 Ind. 86 532 Saylor v. Com., 17 Ky. Law Rep. 103 484 Schenck, Ex parte, 65 N. C. 353 313 School Town v. Shaw, 100 Ind. 268 95 Schustek Case, Chi. Law J., Sept., 1896 372 Schwabacher v. People, 165 111. 618 203 Scott V. People. 141 111. 195 510 Searcy v. State, 28 Tex. App. 513 225 Senior, Ex parte, 32 L, R. A. 123 700 Serpertineo v. State, 1 How. (Miss.) 256 2911 Sewoll V. State. 76 Ga. 836 439 Shannon v. State, 34 Tex. Cr. Rep. 5 220 Shannon v. State, 109 Ind. 407 439 Shaw V. Ashford, 68 N. W. Rep. 281 358, 379 Shaw v. St ite, 34 Tex. Cr. Rep. 435 46G Shortridge, In re, 99 Cal. .^26.. 313 Shriedley v. State, 23 Ohio St. 130 591 Slmesslerv. State, 19 Tex. App. 472 624 Simms v. State, 32 Tex. Crim. App. 277 439 Simon V. State. 5 Pla. 285 256 Simons v. People. 150 111. 66. . . 73 Simpson v. Waldby, 63 Mich. 439 393 Sims V. State, 38 Tex. Cr. Rpp. 637 689 TABLE OF CASES CITED. Six Ite^jrenceB are to pages. Slater v. Mead, 53 How. Pr. 59 554 Slnsser v. State, 71 Ind. 280 376 Smith, Ex parte. 3 McLean, 121 375 Smith, Ex parte, IC 111. 347 379 Smith V. Com., 1 Duv. (Ky.) 224 532 Smith V. Com.. 95 Ky. 322 232 Smith V. Lane, 24 Hun, G32 249 Smith V. Shoemaker, 17 Wall. V,-\0 5S Smith V. State, 63 Ga. 170 478 Smith V. State. 64 Ga. 605 126 Smyth V. Amed, 169 U. S. 466.. 610 Snider v. State, 56 Neb. 309... 543 Somorvllle v. State, 6 Tex. App. 4:!8 23 South Bell Tel. Co. v. Jordan, 87 Ga. 69 538 Sparf et al. v. United States, 156 U. S. 51 595 Sparf V. United States, 10 Am. Crim. Rep. 168 289 Spearman v, Wilson, 44 Ga. 47.3 556 Speiden v. State, 30 Am. Rep. 126 197 Spencer, In re, 4 MacA. 433 318 Spencer v. Kennard, 12 Tex. 180 301 Sperry v. Com., 9 Leigh. 261. .. 646 Sqniro v. State, 46 Ind. 459 173 St. Paul V. Colter. 12 Minn. 41 608 Stafford V. Low, 20 111. 1.')2 379 Starin v. People. 45 N. Y. 333. . 22 State V. Ae;ee, 68 Mo. 264 646 V. Anderson, 47 Iowa. 142 431 V. Appleby. 63 N. J. 526 429 V. n.. Dev. & Bat. 130 603 V. Bair. 92 Iowa, 28 598 V. Balier, 57 Kan. 541 649 V. Baker et al . 23 Oreg. 441 118 V. Banlss. 73 Mo. 502 66 V. Barnes. 59 Mo. 154 646 V. narrow, 31 La. Ann. 691 162 V. Boasloy. 84 Iowa. 83 88 V.Bell. 29 Iowa. 318 .. 203. 575 V. Berlin. 42 Mo. 572 377 V. Beuorman, 53 Pac. Rep. S71 714 V. Blunt. 59 Iowa, 469 54 V. Bracl Is.i 592 53 52 Jackson, 27 Kan. 581 .Jackson, .34 N. C. .329.... Jackron, 99 Mo. 63 .la.rkson, 95 Mo. 653 Jicobs, 5 Jones (50 N. C), 259 699 .laynes, 78 N.C. 504.... 64, 67 JiMinings, 81 Mo. 185 53, 54, 62 .Johnson, 93 Mo. 73 133 Johnson, 40 Conn. 136. . . 532 Johnson, 91 Mo. 448... 53. 54 .Jones, 50 N. H. 369 532 Jones, 13 Iowa, 269 297 Reach, 40 Vt. 113 518 Keele, 105 Mo. 42 53 Kelly, 25 La. Ann. 382 667. 671 Kelly, 73 Mo. 608 r,G Kendall, 73 Iowa. 255... 6.'9 Kilgore. 70 Mo. 558 .... 66 King. 78 Mo. 5.51 .53 King, 64 Mo. 595 119 Kline, 54 Iowa, 183 54, 87 Knight, 3 S. D. 509 313 Leabo, 89 Mo. 258 53 Leaho, 84 Mo. 168 58 Lantz, 23 Kan. 728 118 Lawler. 130 Mo. 366 76 Lewis. 8 Mo. 110 53 Lewis. 69 Mo. 92 62. 67 Linde, 54 Iowa, 139. . 591, 598 Maloney, 12 R. I. 251. 31 State V V, V. V. V. V. V. V. V. V. V. V. V. V, V. V. »» V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Massey, 86 N. C. 658. . . 659 . MathcH. 90 Mo. 571 500 Mathews, 20 Mo. 55 66 McCarthy. 4 R. I. 84 30 McCoy, 111 Mo. 517 53, 54 Mcnaniol, 41 Tex. 229... 22 McGraw. 74 Mo. 573 5.3 McKlnsey, 102 Mo. 630.. 64 McMahon, 55 Atl. Rep. 591 613 Miller, 100 Mo. 606 56 Millmeirer. I02 Iowa, 692 593 .Minis, 26 Minn. 683 182 Mims, 43 La. Ann. 532... 2^0 Miner, l')7 Iowa. 656 56!) Mitchel, 5 Ired. 350 6i>.I .Montgomery. 63 Mo. 296 646 Moore. 101 Mo. 319... 53. .59 Morrill, 16 Ark. 390 310 Moxley, 102 Mo. 374 66. 103 Murray, 41 Iowa, 580 249. 37.-. Newby. 64 N. C. 23 5!i2 Newport, 4 Harr. (Del.) 567 341 Nine. 105 Iowa. 131 428 North, 95 Mo. 616 72 Northrup. 48 Iowa, 583 . . 87 Nowell, .58 N. H. 314 700 Palmer, 88 Mo. .568 66 Parker, 43 N. H. 83 518 Patrick, 107 Mo. 147 66 Pennoyer, 65 N. H. 113.. 610 Phllhrlck, 31 Me. 435 ... 518 Pierce, 7 Ala. 728... 592, 603 Pike, 49 N. H. 441 532 Porter, 74 Iowa, 623 5:i3 Potter. 28 Iowa, 554 297 Quarrel, 2 Ray, 150 185 Railroad Co., 63 Iowa, 508 591 Rapp. 142 Mo. 443.. 685, 693 Raymond, 53 N. J. Law, 268 437 Reed, 62 Iowa. 40 54. 87 Reed. 17 N. W. Rep. 150 40 Red. 53 Iowa, 70 ,'54. 87 Rovells, 31 La. Ann. 387 646 Rhodes, 111 N. C. 647 136 Rider. 95 Mo. 485 53 Roberts, 12 N. C. 259 289 Rockett. 87 Mo. 668 53, 54, 67 Roe. 12 Vt. 93 134 Root. 5 N. n. 487 318 Rugan. 68 Mo. 214 .^3 Sargent, 71 Minn. 28 190 Saunders, 53 Mo. 262 53, •'".1 Schingen, 20 Wis. 79 575 Schuerman, 70 Mo. App. 518 U TABLE OF CASES CITED. XXI Referercoii are to paK<^- . . r>59 . . 500 . . «iG . . no 63, 54 .. 22 . 53 . 64 p. . (513 . r.o 2 5;»3 . 182 . 2>0 . f)(»;i in. 59 . 310 :. \o.rj ' 2»n. 275 . 5!»2 State V. Shepard et al 88 Wis. 185 290 V. Shroyer, 104 Mo. 4 18.. 53, 54 V.Sidney, 74 Mo. 39.... C6, 72 V. Simmons Harriware Co., 15 L. R. A. 676 700 V. Skelton, 2 Jones (N. C), 360 C4G V.Sloan, 22 Mont. 293 694 ▼.Sloan, 47 Mo. 612 686 V. Smith, 108 Iowa, 440 24 V. Smith, 75 N. C. 306 94 V, Smith, 21 Neb. 552 379 V. S.nith, 21 Tex. Cr. App. 277 464 V. Snow, 3 R. I. 64 .242 V. Soragan, 40 Vt. 450 386 V. Spencer, 38 Me. 30 379 V. Staley, 45 W. Va. 792 .. . 502 V. Staple, 37 Me. 228 379 V. Stevens, 30 Iowa, 391 ... 297 V. Stewart, 52 Iowa, 284 54 V. Stinaon, 124 Mo. 447 76 V. Stonum, 62 Mo. 597 66 V. Stowell, 60 Iowa, 535 596 V. Sutcllffe, 4 Strobh. Law, 372 133 V. Sutton. 70 Iowa, 268 54 V. Sweetland. 3 S. D. 503. . . 318 V, Swepson, 79 N. C. 632. . . 631 V. Tatro, 3 Am. Crlm. Rep. 165 289 V. Taylor, 28 Mo. 240 53 V. Tucker, 96 Iowa, 276 593 V. rilrlch. 110 Mo. 350 124 V. I'nderwood. 75 Mo. 230. . 58 V. Vanhook, 88 Mo. 105 646 V. VIcrs. 82 Iowa, 397 144 V. Vincent. 24 Iowa, 570 86 v.Vogel, 22 Wis. 449 185 V. Waterman. 1 Nev. 543 41, 63 V. Weber, 22 Mo. 321 649 V. Welch. 21 Minn. 26. . . 22, 574 V. Welch. 26 Me. 30 177 V. Wentworth, 37 N. H. 218 266 V. Whalen, 98 Mo. 222 54 V. Wheeler, 108 Mo. 658. ... 54 V. Whpeler, 19 Minn. 98... 440 V. Wblttaker, 85 N. C. 566. . 379 V. Wilcox, 3 Yerg. 278. . 592, 603 V. Williams, 54 Mo. 171 53 V.Williams, 117 Mo. 379... 649 V. Williamson, 43 Tex. 502 23 V.Williamson, 68 Iowa, 351591, 698 V. Williamson, 106 Mo. 163 53 V. Wilson, 42 Kan. 587 649 V.Wilson, 72 Minn. 622 187 V.WIndahl, 95 Iowa, 470... 591 State V. Windsor, 5 Harr. (Del.) 512 532 V. Woolard, 111 Mo. 248. . 62, 73 Stewart v. Com., 2 Ky. Law Rep. 386 583 Stewart v. Huntington Bank, 11 S. & R. 267 640 Stinson V. People, 43 111. 397. . . 666 Stokes V. State, 18 Ga. 17 476 Stokes V. State, 6 Baxt. (Tenn.) 619 699 Stone V. State, 22 Tex. Ct. App. 186 93, 121 Storey v. People, 79 III. 45 313 Stuart v. People, 42 Mich. 255 369 Suit '. State, 30 Tex. Cr. App. 319 220 Sullivan V. Onieda, 61 111. 242.. 358 Sullivan V. State, 67 Miss. 346 617 Swan v. Keough, 35 App. Div. 80 96 Swan V. People. 98 III. 610 46 Swan V. State, 4 Humph. 136. . . 203 T. Talbert v. Strom, 21 N. Y. S. ijjg _ ^ _ goQ Taulman v. State. 37 Ind. 353.".' 377 Taylor v. Com., 3 Ky. Law Rep. 783 683 Taylor v. Forbes, 11 East, 315. . 380 Taylor v. Jones, 2 Head (Tenn.), 565 557 Taylor v. Taintor, 16 Wall. 371 406 Terra Haute & Ind. R. R. Co. V. .Tackson, 81 Ind. 19 556 Territory v. Brash, 32 Pac. Rep. 260 649 Thomas' Lessees v. Cummings, 1 Yates, 40 318 Thomas v. People, 23 Pac. Rep. 326 301 Thomas v. State, 2 Tex. App. 294 23 Thomas v. State, 36 Tex. Cr. R. 179 224 Thompson v. Best, 4 N. Y. Supp. 229 359 Thompson v. Com., 20 Gratt. 724 284 Thompson v. Hlgglnbotham, 18 Kan. 42 358 Thompson v. People, 96 III. 158 515 Thompson v. People, 144 111. 378 714 Thompson v. State, 51 Miss. 553 592 Thompson v. State, 92 Ga. 448 124 Thompson v. State, 60 Ga. 619 618 Thompson v. Thompson, 77 Ga. 692 3 XX.l AMKUICAN CIIIMINAL RKPORTS. Rcfeivnceg are to p:iKP«. Thorley'9 Cbho, K<'l>nK. 27. . . . Thrash v. Uennott, 57 Ala. u>» Thulemcyer v. State, ^8 Tex. Cr. API). 349 •;• Thurman v. State, :12 Neb. 2.>- Tlco V. Heove.s, ;{() N. .1. L. -iH TIndall v. State, 71 Ind. 314 ... Toler V. State, 16 Ohio St. 583 Torrey ft Glenn v. People, 17 111. 105 • Town of Northfleld v. Town of Plymouth, 20 Vt. 582 Town of Whiting v. Doob, 152 Iml. 157 Towne v. People, 101 III. 382. . . Town.send v. Burns, 2 Cromp. & J. 4fiS Trausch v. County of Cook, 147 111. 534 Trippo V. Wynne, 76 Oa. 200. . . Trultt V. People, 88 III. 518.... Trustees v. ChlcaRo, 14 111. 3,'?4 Tucker v. Hennlker, 4i N. H. 317 93, Tucker v. People, 156 111. 511. . TuKman v. Chicago, 78 111. 405 Tnrbevllle v. State, 56 Miss. 703 Turner v. Com. (Pa.), 27 Am. R. 683 Turner v. Com.. 86 Pa. St. 54. . Turner v. People, 33 Mich. 309 Tuttle V. Wilson, 24 111. 553. .. . 651 379 446 544 162 646 64, 67 378 162 370 515 379 3.-0 639 378 357 115 173 608 714 38 64 370 379 u. United States v. Brltton, 108 IT. S. 199 516 v.Carll, 105 U. S. 611 516 V.Collins, 79 Fed. Rep. 65 358 V. Collins. 1 Wood, 499 700 V. Cruikshank, 92 U. S. 542 516 V.Dodge, 2 Gall. 313 318 V. Gideon, 1 Minn. 202 592. 603 v.Hess. 124 U. S. 483 516 v.Hlrsch, 100 IT. S. 33 516 V. Hudson, 7 Cranch, 32 309 V.James, 60 Fed. Rep. 2br 700 V. McKee, 4 Dill. 128 628 V. Perez, 9 Wheat. 579 551 V. Polite, 35 Fed. Rep. 59.. 352 V. Rauscher, 119 U. S. 407 405 V. Routenbush, 1 Bald. 517 203 V. Simmons, 96 V. S. 360. . . 516 V. Tureaud, 20 Fed. Rep. 621 352. 306, 375 United States Express Co. v. Hutchlns, 58 111. 44 47 Usom's Case. 97'Ga. 194 677 V. Van Buren v. State. 24 MIbs. 513 200 Van n)iRon v. Newcomer, 40 Mich. 90 538 Van Kgan v. Herold, 19 N. Y. S. 4.-)6 380 Vogol V. Pekoe, 157 111. .339 359 VoHburg v. McCrnry, 77 Tex. 572 634 . w. Walker, In re, 82 N. C. 95 318 Walker v. State, 9 Tex. Cr. App. 177 384 Walker v. State, 37 Tex. ,366.. 76 Walker v. State 42 Tox. 369 03, 67 Walker v. State, 117 Ala. 42 400 Walls V. State, 90 Ala. 618 156 Walrath v. State, 8 Neb. 80 20 Walter v. State. 105 Ind. 589 644 Walters v. State, 39 Ohio St. 215 38, 4.5 Warenzak Case, Chi. Law Hul., Apr. 26, 1896 376 Warickshall's Case, 1 Leach, Cr. Cas. 263 282 Washington v. State, 53 AU 20 285 Washington v. State, 87 Ga. 12 124 Waterman v. People, 67 111. 91 434 Watson In re, 19 R. I. 342 29 Watson v. Com.. 95 Pa. St. 418 64 V.'att v. State, 61 Ga. 66 127 Weaver v. State, 83 Ind. 289.. 049 Webb v. State, 39 Tex. Cr. Rep. 5.34 446 Wells V. Com., 21 Gratt. 500 307, 309 Welsh V. People, 17 111. 3.39.... 566 Welsh V. People, 30 111. App. 399 3j() West v.'people. 137 ill. 189 ..'.".' 512 Westlnghausen v. People. 44 Mich. 265 329 Wetherbee's Ex'rs v. Wether- bee's Heirs, 38 Vt. 454 536 Wharton's Case, Yelv. 24 184 Wheeler v. Sawyer, 15 Atl." Rep. 67 246 While v. State, 30 Tex. App. 652 500 White V. Wager, 83 111. App. 592 379 Williams v. Brooklvn Elev. R. R. Co., 126 N. Y. 96 92, 09 Williams v. Com.. 27 Gratt. 007 289 Williams v. Davidson, 43 Tex. 33 634 TABLE OF CASES CITED. XXlil RoferencoH are to paKt*i> Willtama r. People, 101 III. 382 29.1 Williams T. People, 96 111. 158. . 615 Williams V. State, 54 Ala. 131. . 173 Williams V. State, 100 Oa. 511 698 WilllamR V. State, 32 S. E. Rep. 12!) 127 Williams V. United States, 108 IF. S. 382 121 Williams V. Williams. 63 Wis. 58 162 Willis V. Oil City, 52 N. W. Rep 652 325 Wilson V. Hill. 13 N. J. Bq. 143 175 Wilson V. State, 42 Mi.ss. (139.. 646 WilHon V. State, 19 S. W. Rep. 2r.r. 204 Wilson V. Territory, 1 Wyo. 155 318 Winn V. Pattprson, 9 Pot. 663. . 135 Winters v. State, 37 Tex, Or. Rep. 582 153 Wise V. Rogers, 24 Gratt. 169. . 322 Wisdom V. People, 17 Pac. Rep. 519 39 Wisdom V. Wisdom. 24 Neb. 551 28 WItten V. State, 4 Tex. App. 70 23 Wodlen v. Hunt, 4 Iowa, 355. . . 380 Wolverton v. State, 16 Ohio, 173 173 Womble v. State, 39 Tex. Cr. Rep. 24 433 Wood V. State, 34 Ark. 341 202, 575 Woodson V. Com., 21 S. W. Rep. 584 144 Woolfolk's Case, 81 Ga. 551 608 Wooster v. Plymouth, 02 N. H. 193 611 Wright V. Court et al., 6 Dowl. & Ry. 623 294 Wright V. People. 4 Neb. 407 . . 544 Wright V. State, 40 Tex. Cr. Rep. 447 693 Wright V. State. 30 Ga. 325 601 Wrompelmler v. Moses, 3 Bax. 470 2 Wyatt V. People. 17 Colo. 252. . 313 Y. Yance v. People, 34 Mich. 286 370 Yee Gee, Re, 83 Fed. Rep. 145. . 191 Young V. Cannon, 2 Utah, 560. . 318 Yundt V. People. 65 111. 374. .. . 9 m I AMERICAN CRIMINAL REPORTS Armstrong v. State. 101 Tenn. 389—47 S. W. Rep. 492. Decided October 18, 1898. Abatement: Verification of plea in abatement. "The defendant makes oath that the statements in the above plea are true," is a good verification. Appeal in error from Circuit Court of Hamilton County; Hon. Floyd Estill, Judge. Reversed. Cleft & Cummings, for the appellant. Attorney-General Picket, for the State. Caldwfxl, J. Albert Armstrong was indicted for the lar- ceny of a watch. The person arrested under that indictment filed a plea of misnomer in abatement. This plea was stricken out, because, in the opinion of the court, not sufficiently verified. The defendant refused to plead further, and thereupon the court directed a plea of not guilty to be entered. Upon the issue thus formed the defendant was tried, convicted, and sentenced to sone four years in the penitentiary. Motions for a new trial and in arrest of judgment were then successively made and over- ruled. The defendant appealed in error to this court, and here insists that his plea was improperly stricken out. The verifica- tion of the plea was in these words : "The defendant makes oath that the statements in the above plea are true." This the trial court ruled to be fatally defective, because not followed by the additional clause, "in substance and in fact." In this ruling VouXI — 1 I 1 i i ^ y 2 AMERICA:-: CUIMINAL REPORTS. tlio court U'Uv ^^■■,^^ in error. The affidavit was sufficient as m-vlc aiul tlio a.Mirion of tl.o otlior words c*nM have made it ,„i lK-tt(M- Tlie statute proscribes no particuhn- form of verifica- tion Its languaue is: "Xo plea in abatement shall be received in anv court, unless its truth is veritned by the oath of the party or otherwise." Code, § 2!>01 ; M. & V., § 3G11; Shannon, ^ 4022. If the defendant makes oath, as in this case, that the statements iahis ])lea are true, "its truth is verified by the .lath of the party ;" and that is all the statute requires. If he swears the plea is true, the truth of the plea is verified by his oath, and the ust of the words "in substance and in fact" add nothing to its legal cflfect. Judge Caruthors, than whom no bettor pleader under the eo.ln has been known, gives, as a prr.])er and sufficient form of verifi- cation of a plea in abatement, the following: "The defendant makes oath that the above plea is true." Hist. Lawsuit (Ed. 1800), sec. IS.'). In :Martin's edition of the same work tho clause, "in substance and in fact," is added. TTist. Lawsuit (Martin), sec. 8;1 Tho latter form is tho one given by Chitty (2 Chitty ri. 44.")), and is in rather general use. 1 Enc. PI. & Pr. 2!); 1 Enc. Forms, 20, 27, and citations. The form is un- doubtedly good, yet it is not tli*^ only one that is good. The re- quirement is, that the- affidavit as ^o the truth of the plea must be positive and leave nothing to be eollpcted by inference. 7>rt)i/.- r. Jones, 1 Swan, 391 ; ]Vroinpclmicr v. Mnscs, 3 Bax. 470. In the Bo'vh Case the statement was that the aftlant "is informed and believes that the above jiloa is true in substance and matter of fact." The court said the afF.davit was insufficient, because made on information and belief rather than upon knowledge; that the affidavit nnist be positive, stating "that the plea is true in substance and fact;" not meaning by the latter, however, to prescribe an exact form, but only to say what was requisite, as contradistinguished from a verification on information and be- lief. 1 Swan, 392. In the M'rowprJmirr Case the affidavit was, that the "facts stated in the idea are true, to the best of his knowledge, information, and belief." The court said the veri- fication would have been good if it had stopped with the state- ment that the "facts stated in the ploa are true," but that it was rendered uncertain and insufficient by the qualifying words fe-^ TAYLOR V. STATE. 8 added. 3 Bax. 470. The verification in the present case ia positive, absolute, and unqualified, and, being so,. it is entirely sufficient. Keversed and remanded. Taylor v. St/te. 105 Ga. 846—33 S. E. Rep. 190. Decided March 4. 1899. Abortion: Child Alive ob Not: Instruction thereon — New trial. 1. The word "child," as used in section 81 of the Penal Code, means a "living child;" that is to say, "an anborn child so far developed as to be ordinarily called 'quick,' " and which is still alive when the alleged unlawful means are employed to produce the mis- carriage or abortion. 2. When, in the trial of an indictment founded upon this section, one of the main defenses was that the child was not in fact living at the time the alleged offense was committed, and the evidence bearing on this question was so conflicting as to make it a close and doubtful case, the refusal to give in charge to the jury a writ- ten request, properly framed, and asking the judge to call the attention of the jury to this specific defense by instructing them that the child must have been in fact alive, or there could be no conviction, is cause for a new trial. This is so, although the court did in general terms charge upon the law relating to this sub- ject. Thompson v. Thompson, 77 Ga. 692, 3 S. E. Rep. 261; Met. R. Co. V. Johnson, 90 Ga. 500, 16 S. E. Rep. 49; Bell v. State, 103 Ga. 12, 29 S. E. Rep. 451. 3. There was no error in refusing to give to the jury the other requests to charge, as the principles embraced in such of them as were pertinent to the case were more fully and specifically covered in the general charge than in the requests. There was no error in any of the charges complained of. Some of the exceptions to the admission of evidence do not state what objection was made at the time, and others refer to the brief to show what the objectionable testimony was. These cannot be considered. The evidence of the admission of which complaint is properly made was legally admissible. The grounds of the motion for new trial which com- plain oi the overruling of the demurrer to the indictment cannot be considered, for the overruling of such a demurrer Is not ground for new trial. The grounds complaining of the refusal to change the venue, of holding that a juror over sixty years of age was in- competent to try the case, and of refusing to grant a new trial, because of newly discovered evidence, are likewise not considered, as the questions are not likely to arise on the next trial. (Syllabus by the Court.) AMERICAN CRIMINAL REPORTS. I- Judgment reversed, all the justices concurring. W. A. Taylor was convicted in the Superior Court of Douglas County, C. G. Janes, Judge, and appeals. Reversed. IF. T. Eobciis, Solicitor General, J. R. Huiclicson, and T. 17. Eiicker, for the State. J. S. James, B. 0. Griggs, IF. .1. James, and J. Y. Edge, for appellant. 'S 1 ^i |: 1 i! l! Pkople v. Abbott. 116 Mich. 263—74 N. W. Rep. 529. Abortion: Manslaughter: Grades of offense— Variance — Hearsay evi- dence. 1. Under the statute, death from an abortion on a woman not quick with child would be manslaughter rather than murder. 2. An act undesignedly resulting in the death of another, not amount- ing to felony, but malum in se, constitutes manslaughter. 3. The fact that the woman consented does not raise a fatal variance, because the information charges "with force and arms." 4. It is hearsay for a physician to testify that he understood that cer- tain money paid him was paid by defendant; and also hearsay are statements of a woman admitted in evidence, not made in the presence of defendant, that she was in the habit of performing such operations. Error tn ITilJpdale County ; Lano, .Tndge, Conviction for manslauiihter. Reversed. Fred A. Mai/nard, Attorney-Goneral, W. IT. FranMiaiiser, Prosecuting Attorney, and (linj M. (licsfrr, for the People. Noah P. Lovmidge and Corv'is M. Barro, for the appellant. IIooKKK, J, The defendant was convicted of manslauiihtcr. as an accessor/ hcfore the fact, in causing the death of Viola Stevens through the use of an instrument in an attempt to cause a miscarriage. To understand the points raised, reference should he had to the statutes relating to the subject. 2 How. Stat., § i»100, pro- vides that the wilful killing of an uiihorn quick child, l>y any injury to the mother which would be murder if it resulted in PEOPLE V. ABBOTT. the mother's death, shall he manslaughter. Section 9107 makes an attempt to destroy an unborn quick child through medicine administered to, or instruments used upon, the mother, man- slaughter when followed by the death of the child or mother, un- less necessary to preserve the life of the mother, or so advised by two physicians. Section 9108 punishes as a misdemeanor the wilful employment of drugs, etc., or instruments upon ii pregiiant woman, with intent to procure a miscarriage, subject to the exceptions mentioned in the preceding section. See 2 How. Stat., § 8438 ; People v. Olmskad, 30 Wid\. 431. The informa- tion ''ontained separate counts for murder and manslaughter, and also a count upon the last mentioned section, viz., 9108. In his charge to the jury the learned circuit judge said that the de- fendant could not be convicted of murder, and that he could not be convicted of statutory manslaughter under section 0107, be- cause Viola Stevens was not shown to have been pregnant with a quick child, in the sense that such term is used in the law. He instructed them that the defendant might be convicted of a mis- 2:]-X]i]. Li Com. V. Pad-er, 9 :^rotc. (^Niass.) 20.5, it was said: "The use of violence upon a woman, with an intent to procure her mis- carriage without her consent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt by drugs or instruments, the death of the mother ensues, the party making such an attempt, with or without the consent of the woman, is guilty of the mur- der of the mother, on the ground that it is an act done witlwuit lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of nmlice, jiny uu>re than in case of a duel, where, in like manner, there is the con- sent of the i)arties." In this case it was held necessary to aver and prove that the woman was quick with child, and the indictment was bold bad. The following language is signiiicant: "There being no aver- ment, in the first count in this indictment, that the woman was quick with the child, or any equivalent averment, and the judge who tried the case having instructed the jury that it was not necessaiy to prove such averment in the third count, the court are all of the opinion that, although the acts set forth are, in a high degree, offensive to good morals and injurious to society, PEOPLE V. ABBOTT. yet tlicy aro not punisliablo at common law, and that this indict- ment cannot bo sustained." Id. 268. From this and the foregoing authorities we may infer that, had the act been a misdemeanor at the common law, it would have supported an indictment for manslaughter. We arc not advised of any authority which limits the application of this rule to acts which were misdemeanors at common law, nor do we see any good reason for so limiting it. In Yundt v. People, 05 111. 374, it was held that manslaughter would lie in a case closolv analogous to the one before us. A further contention is that, granting that the act was in dictable, the infoinnation would not support a conviction under tlic proof, in that it alleg'cd that the act was committed with force and violence, while the evidence shows that it was done with the consent of Viola Stevens. It is urged that this was a fatal variance. We are cited to the case of People v. Olmstead. ?>0 !Mich. 438, in support of this claim. In that case the in- formation is very brief, and consists of the single statement that I'ospondent, on a day and year and at a ])lace named, "one ^fary A. Ilowers feloniously, wilfully, and wickedly did kill and slay, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Michigan." There was nothing there to indicate the fact of consent, or even the nature of the act. As the court said: "ITe might, perhaps, be fairly assumed bound to prepare himself to meet a charge of manslaughter by dii'cct violence or assault." Moreover, that was a statutory charge of manslaughter under section 0107, 2 IIow. Stat. The information in this case was more specific. It clearly apprised the defendant of the nature of the offense, unless it was newssary to allege Viola Stevens' consent, and to omit the allegation that the act was committed "with force and arms in and upon one Viola Stevens, in the peace of the People of the State of^Iichigan then and there being," etc. In our opinion this was not a fatal variance, especially as it was not necessary to allege or prove the assent of Viola Stevens to the act, and as the offense was the same whether she assented or not. We are constrained to say that we think the testimony of Dr. Niblack, wherein he stated that he understood that certain rr 10 AMERICAN CRIMINAL REPORTS. iiinno' 111 in y paid liiin by ^Ir. SlK"i)ar(l was paid upon behalf of Mr. Abbott, ^vfls hearsay, ami inadmissible. The prosecuting of- ficer urges that this\vas an adverse witness, but we think that d(K's not justify the introduetii.n of hearsay evidence. We think also that the statements of Mrs. Saunders, who is said to havo performed this operation, that she was in the habit of perform- ing them for the purpose of abortion and miscarriage, and her description to the witness of the inethod adopted, were inad- issible. It was competent to show tlie character of the act by )i-oving tlint Mrs. Saunders was engaged in tlie business of coni- itting abortions. As in the case of People v. Seaman, 107 Mich. 348, it was competent to show that others Avero operated upon for such a purpose by her, as it tended to establish the de- sign with which the operation was ])erfonne(l. This might have been proved by persons cf)gnizant of the fact; but the statements of Mrs. Saimders that she had done these things were but hear- say, though it would have been different had ^Mrs. Saunders been on trial. In that case they would have had the force of ad- missions. Here they have luit. They were not made in the presence of the defendant, nor do they appear to have been brought to his knowledge, and acted upon. The judgment is reversed and a new trial ordered. The other justices concurred. Note (by H. C. G.).— Information; statutory definition.— Where a statute, under the general head of "Abortion," provided a penalty for procuring a "miscarriage," etc., and the information used the word "miscarriage," held, that it was proper to follow the statute, and that the statute was not in conflict with the constitution in not clearly ex- pressing the subject matter under its title; that the terms are .so simi- lar in meaning and in common use. and as defined, as to practically mean the same thing. State v. Crook, 16 Utah, 212, 51 Pac. Rep. 1091 (1898). Plea of former acquittal. — Demurrer was sustained to an Information charging an attempt to produce a miscarriage, and defendant dis- charged, without any order that he be held for further prosecution. Subsequently the defendant was tried under another information, al- leging the same offense as in the prior one. Held, that the judgment on the demurrer was an acquittal, in the absence of any order of the court directing the defendant to be held subject to another information, or to have the case submitted to the grand jury. Id. Not necessary to save !ife.— Where the statute creating the offense provides a condition that the abortion was not necessary to save the life of the woman, etc., it is necessary to plead it, and also to show In 11 BONES V. STATE. 11 the proof that It was not necessary to save life. State v. Schuerman, 70 Mo. App. 518. Verdict not responsive to indictment. — Indictment charged the caus- ing of death by using Instruments with intent to produce .i miscar- riage. The verdict found defendant "guilty of procuring abortion," etc. Held, that the verdict was not in accord with the indictment. The stat- ute does not use the word "abortion," but provides a penalty for pro- curing a "miscarriage." But the defendant was indicted for causing death, not even for procuring a miscarriage, and in either view the verdict was not responsive. Florien v. State, 8 Ohio Cir. Dec. 171 (1897). lioNKs V. State. 117 Ala. 146—23 So. Rep. 485. Decided April 7, 1898. AnrsivE Language: Within hearing of a family. Uttering abusive language in hearing of family, need not be in hear- ing of the entire family; but should be in the bearing of more than one person. Appeal from the County Court of Bibb County; lion. "N. II. Thompson, Judge. Lou Bones, being convictecl of using abusive language near ii dwelling and within the hearing of a family, appeals. Affirmed. ir. S. Cary, for the appellant. irw. C. Fills, Attorney-General, for the State* ^fcCLKLi-AX, J. The affidavit charges that the defendant "did enter into or go sufficiently near the dwelling house of James Tarrant, and did make use of abusive or insulting lan- guage, within the hearing of the family of James Tarrant." The evidence shows that the defendant did enter into or go sufficiently near said house, and did there make use of abusive or insulting lanp^tiage, within the hearing of the defendant, his wife, and several of his children, but that two of his children were not at home that day. On this state of case, the defendar.t a.sked the following charges: ''(2) The court further instructs the jury that they should acquit the defendant provided the evi- T IS AMERICAN CRIMINAL REPORTa ti ii (loncc shows tlint flbnsivc or insulting Inngungo wns mndo U80 of within tho iicaring of sonio, and not nil, the menibors of Jnnics Tarrjint's family." "(3) Tho court instructs tho jury tliat it is thoir duty to acquit tho defendant provided tho evi- (Kmk'o shows that any moniher of James Tarrant's family did not hear any abusive or insulting language." These clinrges woro sevornlly refused, and the rulings of the court thereon are in- sisted upon here as erroneous. The statute (Code 18m;, § 40.31) under which tho prosecu- tion is had provides: "Any person who enters into or goes suf- fioicntly near the dwelling house of another, and in tho pres- ence or hearing of the family of the occupant thereof, or any nioniber of his family, uses abusive and insulting language," etc., "must on conviction be fined," etc. And the question is, what is meant by the word "family" in this section ? A family, r.i- vi termini, must be more than one person ; hence the provision of the statute for the protection of any member of the family. Without such provision it would be no offense to use the inter- dicted language in the presence of one member of the family. P)ut it by no means follows that, to fill tho other provision of the statute, all the members of the occupant's family should bo present. There is no room for saying, we think, that the occu- ])ant, his wife, and several children did not constitute a family in the sense of the statute, merely because two of his children were not present. To so hold would be a technicality of con- struction which the words of the statute do not require, and which is essentially repugnant to the manifest purposes of tho enactment. In ordinary acceptance, husband, wife, and several chihlren at the time present constitute a family, and, as such, are as much under the protection of the statute as if every mem- ber of the family was present. We accordingly hold that tho county court properly refused each of said charges, and its judg- ment must be affirmed. Affirmed. 1 I STATE V. GIFFORD. 13 State v. Giffokd. 19 Wash. 464—53 Pac. Rep. 709. Decided June 14, 1898. Accessoky: Pleading. 1. The statute abolishing the distinction between principals and ac- cessories does not alter the rule of pleading that the facts consti- tuting the offense must be set out. 2. An Information charging the accused with rape cannot be sustained by proof that he procured another to commit the act. Apponl from the Superior Court of Spokane County; Hon. Thomas 11. Brents, Judge. Reversed. Del Cory Smith and Fenton & O'Brien, for the appellant. John A. Pierce, Prosecuting Attorney, for tlie State. DiTNDAR, J. An information was filed hy the prosecuting nttornoy of Spokane county against the appellant, charging him with the crime of rape. Upon trial of the cause the defendant was found guilty as charged in the information, and was sen- tenced to the penitentiary for life. A motion was made to quash the information for the reason that the State was not entitled to prosecute the appellant herein hy information. We have decided this question adversely to ai)i)ollant's contention so often that we decline to enter into \\n investigation again. A demurrer was also interposed to the information ; appellant contending that it is not direct and certain as regards either the I)arty charged, the crime charged, or the particular circumstan- ces of the crime charged, and that the information did not in- form the appellant of the nature and cause of the accusation against him. The material part of the infornmtion is as io\- l(»ws : "Elmer Gifford is herehy charged with a public offense, to wit, the crime of rape, committed as follows, to wit: That on the 7th day of July, A. D. 1897, and within three years next before the filing of this information, at the county of Spokane and State of Washington, the said defendant, Elmer Gifford, then and there in the said county and State being, then and there unlawfully and feloniously did carnally know one Flossie 14 AMERICAN CRIMINAL REPORTS. ]mi]1( r, tlio said Flojjsic Fuller then and there being a female child under the age of eighteen years, and not the wife of tiie said Eliner Giflford — contrary to the statute," etc. We hardly see how the information eould have been more definite and certain in regard to the crime charged, or the party charged, or the particular circumstances of the crime charged ; and, that being true, we think tlie information informed the ap- l)ellant of the nature and cause of the accusation against him, and the ucnmrrer was therefore properly overruled. The tesrinio.iy, however, showed that the appellant was an accessory before the fact tpellant further objected to all testimony in regard to the guilt of said principals, on tiie grouiTdls as stated in his former bill. This was also overruled by the coiirt. By his bill Xo. 18, appellant asked the following in- struction : "You are instructed that, the State having admitted that the defendant Jack ^Moore is a full brother to Lou ^Moore, with whom he is charged in the indictment Avith being an acces- sory, and that E. L. Cady, the principal charged in the in- dictment, died Avhile under arrest upon the charge of murder of Addison Pate, and before the presentation of the indictment against this defendant, and the State having elected to submit this case upon the fourth count of the indictment, charging this defendant with being an accessory to Lou ]\loore and E. L. Cady in the murder of Addison Pate, you will find the defendant not i ■ 1 i ■ ■a_ ■"Hi 0') AMERICAN CRIMINAL REPORTS. guilty, and so roturn yovir verdict." This was refused by the crturt, and appellant reserved his bill of exceptions. So it would appear that appellant has thoroughly and completely saved the question as to his heing an accessory under the facts of this case. Article 89 of the Penal Code provides "that the accomplico may he arrested and tried and punished before the conviction of the principal offender, and tlie acquittal of the principal shall not bar a prosecution against the accomi)lice," etc. Article 90 provides "that the accessory may in like manner be tried and punished before the principal, when the latter has escaped ; but if the principal is arrested he shall be first tried, and if acquit- ted, the accessoi-y shall be discharged." Article 87 provides, among other things, that the brother or sister of the principal (iff(>nder cannot be an accessory to him. This last-mentioned article effectually disposes of the prosecution of this defendant as an accessory to his brother, Lou ^Moore. As to E. L. Cady, the other principal, the record shows that he is dead ; that ho died after his arrest on this charge, and before any indictment found against him. This identical question came before the Supreme Court of this State in State v. McDaniel, 41 Tex. 229, article 90 was construed, and it was there held that the escai)e of the principal was the only contingency that authorized the i)roKe- cution and conviction of an accessory without, in the first in- stance, the trial and conviction of his principal. Wo think the reasoning in said case sound, and not only properly construes our statute on the subject, but is in harmony with the common- law decisions and the courts of other States. Kingsbury v. Slate (Tex. Cr. App.), 39 S. W. Rep. 3G5 ; 1 Whart. Cr. Law, §§ 237 to 244, inclusive; Edivards v. State, 80 Ga. 127, 4 S. E. Rep. 268; Bay v. Slate, 13 Xcb. 55, 13 X. W. Rep. 2; Holmes v. Com., 1 Casey, 222 ; Starin v. People, 45 X. Y. 333. As stated before, it is not necessary to discuss other questions, for the record discloses a number of errors committed during the trial, as the views above expressed effectually dispose of this case. The judgment is accordingly reversed, and the cause re- manded. Brooks, J., dissents. 1. 2. ■m w T^T^-^^f-T" r — ~ " • WOOD V. STATR 23 Wood v. State. Texas Court of Crim. App. — 51 S. W. Rep. 235. Decided May 10, 1899. Adultery: Indictment — Variance. 1. The language "one thousand eight hundred and nine seven," in an Indictment, will be considered to mean 1897. 2. An indictment charging adultery "without living together," is not sustained by proof of the act by persons living together. Appeal from the County Court of Floyd. Appellant, convicted of adultery, appeals. J. W. Pndlt, for the appellant. Jloht. A. John, Assistant iVttorney-General, for the State. Brooks, J. Appellant was convicted of adultery, and her punishment assessed at a fine of $100, and she appeals. A motion was made to quash the indictment on the ground that it alleges the date of the commission of the offense as "one thousand eight hundred and nine seven," instead of what was prohably intended as "one thousand eight hundred and ninety- seven." We think this is not sufficient. Somcrville v. State, fi Tex. App. 438; Thomas v. State, 2 Tex. App. 294; Witten v. State, 4 Tex. App. 70 ; Hutto v. State, 7 Tox. App. 44 ; Slate V. Earp, 41 Tex. 487 ; State v. Wittiamson, 43 Tex. 502. We notice, however, that the indictment is for adultery hy habitual carnal intercourse, "without living together." The evi- dence shows conclusively carnal intercourse by the parties, liv- ing together. The allegation and proof on this question must correspond. It does not do so in this case; hence we are con- strained to reverse the judgment. Powell r. State, 12 Tex. App, 239; Eatidle v. State, id. 250; Burns v. State, id. 394; Ledbet- tcr V. State, 21 Tex. App. 344, 17 S. W. Eep. 427; Bird v. State, 27 Tex. App. C3C., 11 S. W. Rep. 041. Our able assist- ant attorney general confesses error upon this question. The judgment is reversed, and the cause dismissed. Note. — Statute in Georgia. — Defendant was indicted for committing adultery with a "married womQii." The statute refers to "adultery, or for fornication, or adultery and fornication." He was found guilty generally, but it appeared from the evidence that he was a "married 1:1; 24 AMERICAN CUIMINAL REPORTS. man," but that the woman was unmarried. This conviction was re- versed on the ground that the statute recognizes three grades of of- lenses; that while a married man might be guilty of adulter)) and forni- cation with an unmarried woman, under the statute he would not bo guilty of simply adulteri/, this being the offense when both are mar- ried. Kondrick v. State, 100 Ga. 360, 28 S. E. Rep. 120. A letter as evidence. — Defendant was on trial for adultery; it was held proper lo receive In evidence a letter written to him by the woman with whom the offense was charged to have been committed, the letter having been received and read by him, for the purpose of showing the disposition of the parties toward each other. State v. Butts, 107 Iowa, 653 (1899). Where the statute provided that prosecutions for adultery could only be brought by the husband or wife aggrieved, and where the woman with whom the alleged offense was committed and her husband sep- arated, and were divorced subsequent to the alleged offense, and again were remarried, after which the husband secured the Indictment of the defendant. It was urged by the defendant that by the decree of divorco the prosecutor ceased to be the husband of the woman In question, and that all of his rights as husband thereby lapsed, among them the right to institute the prosecution, and that the remarriage should be re- garded as a totally new marriage, and that he stood In the same relation as though he was for a first time marrying the woman subsequent i ^ such conduct. There was much force In this contention, but the court decided otherwise, holding that the term "husband or wife" referred to the relation existing at the time of the offense rather than to the time when complaint was made. State v. Smith, 108 Iowa, 440, 78 N. W. Rep. 687 (1899). State ,v. Watsox. I 20 R. I. 354—39 Atl. Rep. 193. Decided January 12, 1898. Adultehy: Indictment— Pleading— Former conviction— Effect of vacat- ing a decree of divorce, 1. One obtaining a divorce and then marrying another person may be convicted of adultery, if the new relations are continued after the decree has been set aside. 2. Defendant should plead to the jurisdiction before he pleads not guilty. 3. A former conviction with partial punishment for bigamy under a defective Indictment is no bar to an Indictment for adultery. Also the offenses are distinct and separate. 4. Motions to quash are addressed to the discretion of the court. 5. Matters outside of the record should be set up by plea instead of by motion to quash. 6. It is not essential In an indictment for adultery that the particeps criminis should be included. STATE V. WATSON. 25 Frnncis C. Watson, convicted of adultery, petitions for a now trial, etc. Denied. The Ailoi-ney-Gcncral, for the State. J, E. Dcnnison and G. 11. McKenna, for the defendant. TiLLixoiTAST, J. The defendant, who has been convicted of the crime of adultery ■with one Mary A. Watson, now jietitions for a new trial on numerous grounds, the substance of which, so far as we are able to understand them from the confused state- ment thereof, is that the verdict is ajijainst the evidence, and that tlic court erred in certain rulings which will be hereinafter men- tioned. Tlie uncontradicted testimony offered by the State shows that the defendant lived with the said ^lary A. Watson as his wife for nearly six years, during two of Avhich he lived with her in Ilo]>kinton, in this State, and that he had three children by her. While tlie defendant does not attempt to deny that he lived with .■iaid Mary as bis wife, yet he contends, and sets up as a defense to the indictment, that such cohabitation was not adnlteroiis, lu'cause, as he alleges, he had obtained a divorce from his former wife, and that he was lawfully married to said !Mary at that tiiiio; and the vital question, therefore, is as to the validity of said divorce. The facts are these: In 1870 the defendant was lawfully married to ^felinda Buddington, in the State of Con- !i('('ticnt. On the 21st day of ^fay, 18S9, the superior court of Windham county. Conn., upon a petition filed by him, grante, ISOO, the defendant was arraigned and pleaded "Xot guilty;" and that on ]\ray 19, 1S9G, without haviiig asked or obtain( d jiermis- sion to retract this plea, and without permission to file any further plea, he filed a plea to the jurisdiction, as ho styles it (although in fact it is a plea of anircfois convict, which is a plea in bar), in which ho sets up former jeopardy and former punishment for the same or a kindred offense. On June S, 1896, the defendant also filed a motion to dismiss tlie indict- ment for want of jurisdiction, on the ground of former jeopardy. On .Time 10th he filed what he denominates as a "^fotion to quash, in the nature of a substantial demurrer," on the gi-ound that the indictment charges no offense known to the law, and for various other reasons not appearing of record. On the same day he made a motion for leave to withdraw his plea of ''Xot guilty," which was denied by the court, whereupon the trial of the case proceeded, and the jury found the defendant guilty. First, then, as to said plea to the jurisdiction. This plea was filed too late. The rules of criminal pleading recpiire that a plea to the jurisdiction, like a demurrer, plea in abatement, jdea in bar, or any other special plea whatever, shall precede the ])le!i of not guilty. If the special plea is determined against the de- STATE V. WATSON. 29 ( 1 fpii4i*. It will at once be seen, therefore, that said "Plea to the jurisdiction," so called, ii without any force or validity. The indictment on which he was tried, convicted, and sentenced was not oidy for another and distinct offense from that with which he is charged in the indictment now before us, but, by reason of being fatally defective in the manner aforesaid, was a mere nullity. "Where there is no jurisdiction," as saitl by ^Fr. Wharton in his work on Criminal PI. and Pr. (0th Ed.), § 507, "or where the indictment is defective, even in a capital case, it is agreed on all sides the defcMulant has never been in jeopardy, and consecpiently, if judgment be arrested, a new indictment can be preferred, and a new trial instituted, withont violation of the constitutional limitation. Even partial endurance of punish- ment under a defective indictment will be no bar when the pro- ceedings are reversed on the defendant's motion, although it is otherwise when judgment is unreversed. But a judgment er- ■«l «:i 30 AMERIC.^N CRIMINAL REPORTS. B 1 ' iii ronroiisly arrested on a good indiotmont may be a hnr." Soo also KohJheiwcr v. Staia, 39 Miss. S-tS, cited by counsel for do- fendant. :Moreover, a plea of autrefois convict must allege that the two offenses arc the same; for when the offenses charged in the two indictments are distinct, though committed concur- rently, they are separately prosecutable. Thus, the fact that a person has been convicted of keeping a drinking house and tippling shop is no bar to an indictment for presuming to be a common seller, although both indictments cover the same period of time, and are supported by the same acts of illegal sale. Slaia r. Inncss, 53 ^Ic. 530. ]'dackstone says that the pleas of former acquittal or former conviction must be upon a prosecution for the identical act and crime. 4 ?>!. Comm. 330. And Chief Jus- tice Shaw says that, in considering the id th(> indictment in the case at bar, and find that it is in the ordinary form, and clearly and technically sets oiit and charges the crime of adidtery. As to that part of the motion which sets up matters dehors the record, we reply that, in the first place, it sets out no ground of defense, and, in the second place, even if it did, the matter slioul the 1 Ifoiil 13 li 'Y\\ that fend] quenj is co| indie ties to re orde heri' over PEOPLE V. ROBERTS. ol slioul"! have boon set up by plea and not by motion to qnasli, as tlic latter can be gi'anted only for defects apparent on the record. Ifoii'Jdnd V. School Dist., 15 II. I. 184. See also State v. Dninj, 13 K. I. 540; Stale v. Maloney, 12 E. I. 251; Whart. Cr. PI. &rrac., §§ 3SG-88. The only remaining motion to be considered in this case is that in arrest of judgment, which is merely a rehash of the de- fendant's "Plea to the jurisdiction," so called, and of his sidise- quent motions Avhieh we have already considered. The motion is coupled with an argument to the effect that the defendant, if indictable at all, should have been indicted for some other of- fense than that of adultery, and also that one of the guilty par- ties cannot be indicted without the other. It woiild not seem to require a very thorough knowledge of criminal pleadings in order for counsel to avoid mistakes of this sort, as well as those hoveiid)efore pointed out. The motion in arrest of judgment is overruled. We have examined the numerous other grounds contained in the defendant's petition for new trial, but do not find that they are entitled to any serious consideration. Petition denied, and case remitted to the Common Pleas Division for sentence. \ People v. RonERTs. 122 Cal. 377—55 Pac. Rep. 137. Decided November 19, 1898. Auni: Instruction assuming a fact as proven — Examination of wit- nesses. 1. It devolves upon the People to prove beyond all reasonable doubt that the accused Is guilty as charged, and no burden rests on him to prove an alibi. 2 It is reversible error for the court, in instructing the Jury, to as- sume that it was "proven that the crime was committed." 3. Overruling objections to questions that go more to form than sub- stance is not reversible error, if no injustice is done. Appeal from the Superior Court of Lassen County; Hon. F. A. Kelly, Judge. Appellants, being convicted of grand larceny, ap\oal. Ee- vcrsed. «ii! ::V. !l- 32 AMERICAN CRIMINAL REPORTS. Goodwin tC- Goodwin and If. il/. Boanlman, for the appel- lants. ir. F. Fitzgerald, Attorney-General, for the Peoi^le. Garoutte, J. Defendants have heen oonvieted of the crime of grand larceny, and appeal from the jndgment and order de- nyinc; their motion for a new trial. Tliey introduced evidence tending- to establish an alibi, and, as bearing upon this branch of the case, the court gave the jury the following instruction : "You are instructed that if the defendant, or the defendants, was at some other place at the time it is alleged or proven that the crime was committed, it is what, in law, is called an 'alihi.' When satisfactorily proven, it is a good defense in law. AVhether or not an alibi was proven and established to your satisfaction in this case is a fact for you to decide from all the evidence intro- duced before you; and if you believe that the defendants, or either of them, was not present at the time it was alleged or proven that tlie crime was committed, and therefore could not have committed the crime charged in the information, and did not aid or abet in its commission, then you should lind him or tliem not guilty." The foregoing instruction is attacked by de- fendants. It is first claimed that the instruction is errone(nis in assuming as a fact that the larceny was proven. Under tlie constitution of the State, a judge may state to the jury what the evidence introduced at the trial is, ])ut the power there granted gives him no right to declare, as a matter of law, that certain facts are established by the evidence. It follows that the contention of defendants in this regard is well founded. Ihit the most serious objection to the instruction is presented in the fact that it assumes throughout that an alibi is a matter of de- fense, and the jury are told that it must be established to their satisfaction. AMien a jury is told that any particular fact must be established to their satisfaction, such statement can only mean that such fact must be established at least by a preponderance of evidence; yet there is no such burden cast upon a defendant charged with a crime, except in certain particular instances, wliich are in no sense presented here. It is for the People to make a case against the defendant beyond a reasonable .lonbt, and the element of alibi is included in the case which the law PEOPLE V. FONG AH SING. 33 tleinands the People to make out, equally with all other parts of it. If the evidence offered by dofondanta tended to establish an alihl to the extent that it was sufficient to raise a reasonable' doubt in the minds of the jurors as to defendants' guilt, then those defendants should have been acquittcnl. It is thus aj)- paront that the alibi, to be efficacious to a defendant, need not be "satisfactorily proven," and need not be established to the satisfaction of the jury. It is next insisted that error was committed in allowing cer- tain (piestions to be asked of witnesses who were called for im- peachment purposes. The evidence of these witnesses bore upon tlie general reputation for truth, honesty, and integrity of cer- tain witnesses produced by the defendants. The objections here insisted upon go more to form than to substance. There is no rigid, inflexible rule to l>e followed by counsel in the form of the (piestions to be addressed to witnesses when testifying to general reputation as bearing upon the question of veracity. And any deviation from the general course to be followed, as marked out by the decisions of this court, will not be held reversible error, unless those deviations have resulted in some injustice to the defendant. In this case we find nothing of the kind. For the foregoing reasons the judgment and order are re- versed, and a new trial ordered. We concur: Habkisox, J., Van Fleet, J. People v. Fono Aii Sino. 64 Cal. 253—28 Pac. Rep. 233. Decided October 26, 1883. Alibi: Dying declarations. 1. Proof of an alibi is as much a traverse of the matters charged as is any other defense. 2. A reasonable doubt as to whether the defendant was present at the time and place of the alleged crime is suflScient for an acquittal. 3. It is error In rn instruction to say, "If the jury find the defendant to have been at another place." etc., because It infers that the de- fendant was required to prove his absence. 4. Evidence of dying declarations should be confined to the fact of the homicide, and not extended to prior acts. VouXI-3 1^ i! m 3^ AMERICAN CRIMINAL REPORTS. Appeal from the Superior Court of San Francisco. Reversed. L. Qvinl, for tlio appellant. The AUorncy-Gt'neral for the People. Ross, J. The dcfenilant was charged with the crime of mur- der. Ilis defense was that of olihi. he claiming that at the time the deceased was killed ho (defendant) was at certain rooms about three blocks distant from where the murder was commit- ted. Upon that question the evidence was conflicting, and u])on that state of facts the defendant, through his counsel, requested the court to charge the jury as follows: "Whilst the prosecution must establish beyond a reasonable doubt the guilt of the de- fendant, it is not incumbent on the defendant to prove an alibi beyond a reasonable doubt. Though the evidence offered to es- tablish an alibi falls short of the weight of moral certainty as to the existence of the alibi, yet if it leave in the minds of the jury such a doubt or uncertainty that, taken by itself, they could not find for or against the alibi, they are bound to carry such doubt into the case of the prosecution, and to array it there as an element of the reasonable doubt, beyond which the prose- cution must establish giiilt. The defendant is entitled as much to the benefit of such doubt as to any other doubt raised by the evidence ; and if its weight, alone, or added to that of any other, be sufficient to reduce belief in their minds as to the defendant's guilt to a reasonable dou1)t, they must acquit." This instruc- tion the court below refused to give, but instead gave the jury, as the law upon the subject of alibi, the following: "If the jury find the defendant to have been at another place, — as, for in- stance, in the society's rooms, which have been spoken of in the evidence at the time of this alleged shooting, — and if his being there then creates a reasonable doubt of his having been present at the place of the alleged crime at the time of its alleged com- mission, he should have the benefit of that reasonable doubt, and be acquitted." The instruction requested was substantially correct, and should have been given. The charge given was in- correct, and should not have been g^ven. The commission of a criminal offense implies, of course, the presence of the defendant at the necessary time and ])lace. Rroof of an alibi is, therefore, as nmch of a traverse of the crime charged as any other defense; PEOPLE V. FONG AH SING. 35 I .51 I anrl proof tonding to estnblish it, though not clear, may ncver- theloss, Avith tlio othor facts of the case, raiso clonbt enoii!:;h to ])ro(hico an acquittal. A reasonable floul)t of the defendant's ]n'csence at the time and place necessary for the conimis^iion of llie crime would seem necessarily to raise a reasonable doubt of his commission of it. But, according to the charge of the court bclnw, the defendant was not to liave the benefit of any doubt in regard to the alleged alibi, unless the jury should find as a fact: that he was at another place than the place of shooting when tlie sliooting occuri'cd. It is obvious that the finding of that fact would itself have established the alibi, and that would have ciidod the case of the prosecution. V»x\t proof tending to estab- lish an alibi, though insufficient of itself to establish that fact, is not to be excluded from the case. Whatever d of the Terri- tory ajrainst him mi^ht he. If he otl'ere.l sudi evi.hMice as w..uM create in the minds of the jury a reasoind)h' doubt as to bis pres- otiee at the time of tlio connnission of tlie crime, liis bunh-u was fully borne, and it was the diUy of the jury to acquit him, althouf-li the evidence so offered uiijiht fall very short of ])rovihht of the evidence, that ho was not at the scene of the crime at the time of its commission. There are some authorities holdinji>- the other way on this (pu's- tion; as, for instance, in Iowa, in the case of t^ialc of Town r. llamillon, :u Iowa, '.!»(!, 11 X. W. Re]). 5, it is hold that, where the defense of alibi is relied upon, the burden of proof is on the defendant to establish it by a ])reponderance of the evidence. But there is in this case a very strouij au(i. AVe think the learned judfje who tried the case below wa- iiii> led into giving this instruction by following the precedents given in Sackett in his work on Instructions, where the doeti-iiie is taken from the Illinois rule. It is true that the rule, as given, is suppcu'ted by the Illinois decisions. The dangerous departure from the ancient and time-honored rule of presuming the in- nocence of the defendant and lodging the burden of ])roof on the prosecution throughout all the stages of the case, could be no more forcibly exhibited than is done by the extraordinary rule finally reached by the Supreme Court of Illinois, as ex])ressed in the syllabus to the case of Klein v. The People, 113 ill. 5'JG, whiehl show 1| aUegeil lenglh| the pi!l the till Sue penitej forceni In whiehl that r' jury tl of an In tha tempt? the pr establ SHOEMAKER r. TERRITORY OF OKLAHOMA. 41 vliiclr i"*: ''A tlefcndnnt, to establish nn alihl, nuist not only tihow he was prosont lit somo otlior place about tlio time of the nllcficil criino, but also that he was at such other place such a Iciiftth of time that it was inipossiblt! for him to have boon at the i)lace where the crime was committed, either before or after the time he was at such other place." S\u*h a nile as that has probably htn(lel he takes on himself the affirmative of the proof, it also stated that "it is not necessary that he should establish his defense by a pre])(mderanco of the evidence." The !ir<>iunent is a stronfj one aj^ainst i)!acing the burden, to any ex- tent, upon the defendant, and is, in it^self, a refutation of the out- ward rule therein formed as to [)lacinp; the burden of proof on tlie defendant on such an issue. We nuist admit that we are unable to understand how the burden of jiroof could be placed upon a party when he was not retpiired to establish the same by even a pre])onderance of the evidence. A burden that need not l)e established by a prepon- derance of the evidence is, in law, no burden at all, for a pre- ]K)n(lerance of the evidence is the least degree of proof by which a nropiisition may be established. Xor can we consider the celebrated case of CommoniveaUli v. Wehslcr, 5 Cush. 21)5, as being an authority upon which we should lay down a different doctrine for the administration of 'Ik criminal law in this Territory. The accurate langmige there used by "Mr. Justice Shaw is spoken of in the case of Nevada v. Waterman, supra, as being a '"loose expression." Judge ]]eatty, in the Waterman Case, says that: "The only thing we find in the books at all tending to support the position 42 AMERICAN CRIMINAL REPORTS. 1 '. 1 taken by counsel for the State is a loose exijrcssion of Chief Jus- tice Shaw, in the charge he gave to the jury in the case of Com- monu-caUh v. ^V poster." Xm\ the language which he thus referred to is as follows : "In the firdinary case of an alibi, wlion a party charged with a crime attemjjts to prove that he Avas in another place at the time, all the evidence tending to prove that he committed the offense, tends; in the same degree to prove tliat he was at the place when it was ennnnitted. If, therefore, the proof of an alihi does not outweigli the proof that he was at the place when the offense was committed, it is not sufficient." This language cannot bear the test of reason, or else it is a mistake to say that the burden of proof is upon the prosecution in a criminal cause. As is said in tlie first two sentences quoted, tlie evidence tending to prove a crime by the direct act of a party cliargcd is divided into two primary facts. The one that he did the act which constituted tlie crime; the other that he Avas there when he did it. Of course these two propositions must be established, and must both be proved as against some one party, or there could be no crime committed, for no person could do the criminal act by whicli the crime was committed when such person was not present when he did it. And why should a person be required to sustain the burden of proof upon his claim as a defense that he was not present at the place where the prosecution put him, unless he was also required to sustain the burden of proof that he did not do it, that is, that he was not the person who did the criminal act charged and relied upon by the prosecution ? The one fact is just as necessarily a part of the proof, and is just as much undertaken to be established by the prosecution, as the other, and if either is wanting, the prose- cution must fall and the accused go free. Suppose the prosecution relies for the conviction of the de- fendant of murder on proof, however strong and positive it may be, that the defendant at the particular time and place sliot and killed the deceased. The two primary facts are that a i)crson 1.1 the time and place stated shot the dccased, and that that per- son was the defendant. Now no pei-son would contend tliat the burden of proof was on the defendant to show that the deceased was not shot by some one, but, in fact, came to his death somo SHOEMAKER v. TERRITORY OF OKLAHOMA. 43 otlior way. Xor woukl tlioy contend tliat tlie burden of proof ■\viis on tlie defendant to show that he was not the person who did the shooting. It will be admitted by every one that these two facts must be established by the prosecution. Xow the de- fendant is not precluded by the testimony of the prosecution, and ho is not required to meet it by any particular form of proof. lie may desire to meet it in the only way that many a ])(>rs(in who is the victim of an honest mistake or a wilful fabri- ciitifin could meet the seemingly strong proof against him, and tliat is by evidence tending to show that lie was not the person wild dill the shooting, because he was at some other place than the scene of the shooting when the shooting was done, so that he cduld not have l)ecn the person wdio did it; and he certainly, to our minds, no moi'e undertakes the burden «»f proof in a cause ])r('S(Miting liis defense in this way than he would by any other folia or name of proof which co\ild be offered under the plea of not guilty. if the language of ^fr. Justice Shaw states the principle cor- rectly in declaring that proof of an allhi is not sufficient unless it outweighs the proof that he was at the place where the offense was committed, then we see no reason why the courts, by mere judicial decree, might not go a stej) further and say that the jiroof that the defendant did not commit the criminal act could not be suflicient unless it outweighs the proof that he did com- mit it. And we would change the legal presumption that the defendant is innocent, although the grand jury has indicted him, to one holding him guilty until he has proved the indictment false. We are unwilling to take a single step in this direction, and must, therefore, for the error committed, reverse the judgment and order the cause remanded for a new trial. i McAtee, J., who presided in the case below, not sitting; all the other justices concurring. ! I u AMERICAN CRIMINAL REPORTS. II « I SciiuLTZ V. TKuniTonv. Supreme Court of Arizona, February 23, 1898-52 Pac. Rep. 352, Alidi: Burden of proof— Credibility of ivitness. 1. For a defendant to deny being present at the time and place of an alleged crime Is not an affirmative defense. 2. "Tlie burden of proof never rests upon the accused to show his In- nocence, or to disprove the facts necessary to establish the crime with which he is charged." 3. An instruction that the jury may reject the entire testimony of a witness who has sworn falsely to one material fact is erroneous, in that the witness might have been honestly mistaken. Appeal from the District Court of Yavapai County; Hon. John J. Hawkins, Judge. William Scliultz, being convicted of manslaughter, appeals. Reversed. }Yilliam II. Barnes, for the appellant. C. M. Frazier, Attoniej-General, and II. D. Ross, District At- torney, for the Territory. Davis, J. The defendant, William Sehultz, was tried at tho June term, 1897, of the district court of Yavapai county, upon an indictment charging him with murder. He was convicted of manslaughter, and sentenced to a term of ten years' imprison- ment in the Territorial prison. The appeal is from the judg- ment of conviction, and from an order denying the defendant's motion for a new trial. The appellant bases his contention for reversal upon two in- structions given by the trial court at the request of the ]irosecu- tion. One of these instructions was in the following language: "The court instructs the jury that the defendant claims, as ono of his defenses, what is known in law as an alibi; that is, that, at the time the homicide with which he is charged was com- mitted, he was at a different place, so that he could not have ]>ar- ticipated in its commission. The burden is upon tho defendant to prove this drfcnse for himself, by a preponderance of evi- dence; that is, by the greater and sujierior evidence. The de- fense of alibi, to be entitled to consideration, must be such as to show that, at the very time of the c(jnunission of the eriiiio SCHULTZ V. TERRITORY. 45 charged, the accused was at another place, so far away or under such circumstances that he coukl not with any ordinary exer- tinn have reached the place where the crime was committed so as to have participated in the commission thereof." While con- coding that it is not without authority for its support, we do not think this instruction fairly and correctly states the law appli- cahle to the defense of alibi The burden of ])roof never rests u]tnii tlie acciised to show his innocence, or to disj)rove the facts necessary to establish the crime with which he is charged. The defendant's presence at, and participation in, the co<-pus dcUcli, are alHrniative material facts that the prosecution must show ])eyond a reasonable doubt to sustain a conviction. For the de- fendant to say he was not there is not an atHnnative proposi- ticin; it is a denial of the existence of a material fact in the case. Ho meets the evidence of the prosecution by denying it. If a consideration of all the evidence in the case leaves a reason- able; ddubt of his presence, he must be acquitted. We hold that the instruction given may have misled the jury to the prejudice of the rights of the defendant. It, in effect, said to the jury iliat eviilence tending to show such alibi is not to be considered in favor of the defendant, unless it outweighs all the evidence in nj)i>iisition to it. We think it was the duty of the trial judge to have said to the jury that they must consider all the evidence in the case, including that relating to the alibi, and determine from tlio wh()l{> evidence whether it was shown beyond a reasonable (lonbt that the defendant had committed the crime with which he was charged. The burden of proof was not changed when tlu> defendant midertx^Hjk to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should doubt the defendant's guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi had been fully proved. People v. Nelson, 80 Cal. 421, 24 Pac. Rep. lOOG ; Projilc V. Tarm Poi (Cal.), 24 Pac. Rep. 998; Wallers v. State, •V.) Ohio St. 215; Davis v. Uniled States, IGO IT. S. 4(59, 59 Su]). Ct. 35.'{. The other instruction complained of was as follows: *'The court instructs the jury that if they find from the evidence, be- yond a reasonable doubt, that any witness in this case has sworn falsely as to any material fact, then the jury may disregard the ¥ til ^Q AMERICAN CRIMINAL REPORTS. whole testimony of such witness, except in so far as it is cor- roborated by ot'ier credible testimony." This instruction was also erroneous. Before tiie jury can disregard the testimony of a witness, it must appear that the witness has knowingly and in- tentionally sworn falsely. A witness might tfsstify falsely, and yet be honest; and the mistake of one who igJiorantly and unin- tentionally testifies falsely is not sufficient to permit his eniire testimony to be disregarded. As was said by this court in Follcft V. TcvrUory, 33 Pac. Rep. 8G0: "The maxim, 'Fahiis in uno, falsus in omnibus,' applies only in case the witness has know- ingly and wilfully sworn falsely." This instruction is also condemned in Pope v. Dudson, 58 111. 3G5 ; McChire v. ^yill- iams, 05 111. ^n;Danie\j v. Dudley (Kan. Sup.), 15) Pac. Rep. 550; Ilillman v. Schwcnl; GS Mich. 293, 3G K W. Rep. 77; Express Co. v. IMchins, 58 111. ■^l; Swan v. People, 9S 111. GIG. For the erroneous instructions given, the judgment and order appealed from are reversed, and the cause remanded for a new- trial. Note (by J. F. G.).— In ^VaUers v. State, 39 Ohio St. 215 (cited In above opinion), the court said: "We thinlc it was the duty of the judge to have said to the jury that they must consider all the evidence in the case, including that relating to the alibi, and determine from the ichole evidence whether it was shown beyond a reasonable doubt that the defendant had committed the crime with which he was charged. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should doubt the defendant's guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi was fully proven." Even wilful false statement does not necessarily destroy the entire testimony of the tcitness.—ln Hoge v. People, 117 111. 35, 6 N. E. Rep. 796, we find the following: "The eleventh and twelfth instructions, given at the instance of the People, are as follows: " '11. You are the sole judges of the credibility of the witnesses in this case, and the credit to be given to each is to be determined by you from considering the probability or improbability of their statements; their means or want of means of knowledge of the facts to which they testify; their manner upon the stand; their contradictory statements, If any, whether or not they were contradicted by other witnesses, or by facts and circumstances appearing in evidence. And if you believe, from the evidence, that the witness Hennessy has testified falsely as to any material fact in this case, then you may, and it is your duty to, disregard his entire evidence, except so far as he is corroborated by PEYTON ET AL. v. STATE. 4T other credible evidence, or by facts and circumstances proved on the trial. '• 12. If you believe, from the evidence, that the witness J. E. Hanna has received or agreed to receive any money in this case, then you should consider that fact In determining what credit, if any, you should give to his testimony. And If you believe, from the evidence, that J. E. Hanna has testified wilfully and corruptly false as to any material fart, then you will disregard his entire testimony, excepting so far as he is corroborated by other credible evidence, or by facts and circumstances proved on the trial.' "These instructions are both erroneous, and have frequently been condemned by this court. The eleventh omits the very material quali- fication that the false testimony shall have been wilful, and both assert that the Jury vtust disregard the testimony. The jury viay, but they are not hound to, disregard the evidence. United States Express Co. v. Hutchins, 58 111. 44; Pope et al. v. Dodson, Id. 360; Otmer v. The PeO' pie, 70 id. 149; GuUiher v. The People, 82 id. 146; Stcan v. The People, ^98 Id. 612." Peyton et al. v. State. 54 Neb. 188—74 N. W. Rep. 597. Filed March 17, 1898— No. 9,852. Alibi: Instructions — Evidence. 1. "Alibi," as employed to express the defense of the accused person in a criminal action, means the claim of tlie party charged of presence at the time the crime Is pleaded to have been committed at a place other than the one alleged of the crime. 2. The distance of the place where a party who is charged claims to have been at the time from the alleged location of the commitment of a crime, while necessarily elemental of the different places, is not the controlling fact or element; and it is not proper to in- struct a jury that In a defense of alibi it must appear that the dis- tance was so great as to preclude the possibility that the accused could have been at the stated scene of the crime charged. 3. In a criminal case the burden of proof is not upon the person on trial to establish an alibi, and an Instruction by which a jury is informed that it Is, Is erroneous. 4. Where the defense in a criminal action is an alibi. It Is sufficient to call for a verdict of acquittal if the jury, from a consideration of all the evidence, have a reasonable doubt of the presence of the accused at the place and time of the alleged crime, whether such doubt be from lack of proof on the part of the State, or from the evidence adduced in behalf of the party charged. (Syllabus official.) 4S AMERICAN CRIMINAL REPORTS. Ui f ; Error to the District Court, Douglas County; Hon. B. S. liakcr, J. llcvcrscil. T. J. Malwney and Duffxc & Van Dusen, for the plaintiffs in error. C. J. Smyih, Attorney-General, and Ed. P. Smith, Deputy Attorney-General, for the State. nARUisox, C. J. In an information filed in the district court of Douglas county the plaintiffs in error were charged in a first count thereof with the crime of shooting a designated person with an intent to kill him; in a second count, with shooting said person with an intent to wound him. On arraignment each pleaded not guilty. A trial of the issues resulted in a eonvic- *, tion of plaintiffs in error of the eonnnission of the crime charged in the second count of the information, and suhsoquontly each Avas sentenced to imprisonment in the penitentiary for a period of four years. Of the proceedings during tlie trial a review on behalf of the convicted parties is the object of the error proceed- ing in this court. Of the defenses interposed for plaintiffs in error in the trial court was that of an alibi Testimony was introduced which tended to establish, that at the time the crime was committed, with the perpetration of which plaintiffs in error were charged, they were at home, not present at the scene of such crime, and could not have been. In its charge to the jury the trial court gave an instruction, numbered G, on the subject of the d(>fonse, to which we have just referred, which instruction was in th(^ following terms: "The defendants claim as a part of their de- fense what is known as an alibi j that is, at the time the crime with which they stand charged was being committed they wore at such a distance and different place that they could not have participated in its commission. The defense of alibi, to be en- titled to consideration, must be such as to show that at the vorv time of the commission of the crime the accused were at another place, so far away and under such circumstances that they could not, with ordinary exertion, have reached the place where the crime was committed. Proof of an alibi must be sufficient to raise in your minds a reasonable doubt of the defendants' pros- PEYTON ET AL. v. STATE. 49 eueo at the time and place of the commission of the crime cliarged." This, it is insisted, Avas erroneous and prejudicial to the rights of the parties on trial, in that it emhodied an incor- rect definition of the defense relative to which it was framed and read for the information of the jury. An alibi in criminal law is defined in Black's Law Dictionary as follows: "Elsewhere; in another place. A term used to ex- press that mode of defense to a criminal prosecution, where the piM'ty accused, in order to prove that he could not have com- mitted the crime with which he is charged, offers evidence to show that he was in another place at the time ; which is termed sotting up an alibi" And in 2 Am. & Eng. Ency. Law (2d ed.), 5o, '*Tho word 'alibi' means, literally, 'elsewhere,' and a pris- oner or accused person is said to set up an alibi when he alleges tlint, at the time when the offense with which he is charged was cuniniittcd, he was 'elsewhere ;' that is, in a place different from tliat in which it was committed." The trial court made use of the words "at such distance and different place that they could not have participated in" the commission of the crime, in de- fining an alibi. The expression as to the element of distance was an incorrect one. That parties charged with acts constitut- ing a crime were at a place other than that of the alleged -acts embraces necessarily as elemental of its existence as a fact that tlu'v were also at some distance from the alleged place of the commitment of the crime. But that the distance disclosed by the evidence be long or short is not always an absolutely con- trolling fact. It can do no moi*e than to lend greater or lesser countenance and force to the defense in a degree proportionate to its extent. That the distance must be such as to preclude any possibility of a participation in the crime as was expressed in the instruction quoted was incorrect, conveyed a wrong impres- sion, and was calculated to prejudice the rights of the parties on trial. What we have just said is equally forcible and applicable to the portion of the instruction in which the jury was told that the defense presented, to be entitled to consideration, must es- tablish that when the crime was committed the accused were so far away and under such circumstances that they could not by ordinary exertion have reached the place of the crime. This VouXI-4 f ! I! 60 AMERICAN CRIMINAL REPORTS. was wrong in its absolute requirement that it bo shown that the ])lnc(' wboro plaintiffs in error claimed to have been other than tluit of the crime was so far distant from the latter that the par- ties charged could not by any ordinary exertion have been at the liitter place. The instruction was also objectionable for casting the burden of proof of the alibi on the plaintiffs in error. In regard to the burden of proof generully in criminal cases it was stated in Gmvoly v. Slate, 38 Xeb. 871: *'In criminal prosecutions the burden' of proof never shifts, but, as to all defenses which the evidence tends to establisli, rests upon the State throughout; honco a conviction can be had only when the jury are satisfied, from a consideration of all the evidence, of the defendants' guilt beyond a reasonable doubt. That rule applies not alone to the case as made by the State, but to any distinct, substantive defense which may be interposed by the accused to justify or excuse the act charged." (See citations in the body of the opin- ion, page 873.) It was said by Maxwell, C. J., in Burger v. Stale, 34 Neb. 397: "An instruction that 'if you find the de- fendants tendered a reasonable doubt' is erroneous, as it in effect shifts the burden of proof onto the accused. The true rule is that if upon all the evidence the jury entertain a reasonable doubt of the guilt of the accused they should acquit." In Casey V. State, 49 Neb. 403, directly on the subject of the defense of an alibi, it was held: "It is error to instruct that the accused in a criminal prosecution is required to prove an alibi. It is suffi- cient to entitle him to an acquittal if the jury, from a considera- tion of all of the evidence, entertain a reasonable doubt of his presence at the commission of the crime charged, whether such doubt arise from a failure of proof on the part of the State, or from evidence submitted by the accused in his own behalf." In the body of the opinion it was stated : "There are, it must be confessed, precedents for the instructions complained of, but the sound rule is believed to be that the accused in a criminal prosecution is entitled to an acquittal whenever the jury, from a consideration of all of the evidence adduced, entertain a rea- sonable doubt of his presence at the time and place where the crime is shown to have been committed." In the opinion in the case of Henry v. State, 51 Neb. 149, appears the following state- ment: ing in! posed county have b lows h court, tire pe comini over til ;i roasr THE STATE v. TAYLOR. 51 incnt: "We are also of the opinion that the court errod in giv- ing inptnictions Nos. 10 and 11, by which the burden was iin- poscMl upon the accused of proving his presence in Franklin county for such length of time that it was impossible for him to liinc boon present at the commission of the honncide. It fol- lows logically, if not necessarily*, from the decisions of this court, that the proof of an alibi is not required to cover tlie ou- tiro period within which the offense might possibly have been ooniiiiittcd, but that the accused is entitled to an acquittal when- cvor the evidence is sufficient to create in the minds of the jurors a reasonable doubt of his presence at the commission of the of- fense with which he stands charged." See also McLain v. State, IS Xob. 154; Bed- v. State, 51 Xeb. 100; State v. Child, 40 Kan. 482, 2 Am. & Eng. Ency. Law (2d ed.), 55, note 3. For tlio error in giving the instruction under consideration, the j\idg- nuMit must be reversed and the cause remanded. There are other assignments of error argued in the briefs filed heroin, but we do not deem their discussion necessary and will ouiit it. lieversed and remanded. Audi; The State v. Taylor. 118 Mo. 153—24 S. W. Rep. 449. Division Two, November 21, 1893. Discrediting witness — Res gestir — Separate offense — Remarks of coujisel — Error presumed prejudicial. 1. A witness, to discredit him, may be aslved whether he was arrested for another offense and sent to jail. State v. Miller, 100 Mo. 606, followed. 2. Evidence against a defendant, competent as part of the res gestw, is not admissible because it may show him to be guilty of an- other crime. 3. Testimony of a police officer that he met defendant, who was on trial for rape, on the night of the crime near where it was com- mitted, just as defendant was approaching a bridge near the line of another State, and that on his attempt to stop him defendant fired a revolver at the officer, is competent as showing defendant's presence in he vicinity of the crime and also as showing an at- tempt to escape; and this is true although the officer had not been informed of the crime. '■"W^ AMERICAN CRIMINAL REPORTS. ? 4. Improper remarks of counsel not made the subject of an exception will not be considered on appeal. 5. An instruction to find the defendant not guilty, if at the time the offense wa3 committed he was at a place other than that of Its commlasion, is erroneous, because it is not required that the Jury should find as a fact that defendant was at such other place, wlicreas he is entitled to an acquittal if there Is a reasonable doubt that he was present. 6. Nor Is such erroneous instruction cured by a general one given on the subject of reasonable doubt, for the two instructions are nec- c.Kgariiy conflicting. 7. Under Revised Statutes, 1889, section -1200, the trial court should in a criminal case specially Instruct the jury on the law in refei- ence to an ulihi, where that defense is raised by the evidence; and where an erroneous instruction is in such case asked by the defendant, it is the duty of the court to give a correct one in place of It. 8. "Wherever it is the duty of the trial court upon a proper request. in a criminal case, to Instruct the Jury upon any material question of law arising on the evidence, it is equally obligatory upon it, of Its own motion, to instruct the jury upon such matter, whether requested to do so or not. Ap])oal from Jnck.^fin Criminal Court; Hon. Jiio. W. Wof- ford, Judgo. Eevcrscd and remanded. Scoit Ashton and /. S. Brools, ft)r appellant. (1) The court erred in refusing to give in.structions num- bered 9 and 9a of the instru('ti(tns a^ked In- defendant. They projierly stated the law as to tlie defense of an nUhi. 2 Thomp- son on Trials, sec. 2440; McLahi r. Stale, IS Xeb. 100; Camp- hcll V. People, 109 111. .jO.-); Stale r. Edwards, 109 :\[o. 31.";. (2) The court erred in not granting a new trial because of tho inflannnatory language of the prosecuting attorney, who stated in his closing argmnent to the jury, ''All the sixteen-year-ohl girls and the fathers of all girls in Jackson county Avhisper to you to-day to convict this man." IlaijHcs v. Trenton, lOS Mo. 133; State v. Jackson, 93 Mo. G53; Conn v. State, 11 Te.\'. App. 400. (3) The court erred in permitting Officer Thomas to stato to the jury the ground of his feeling against the defendant. Butler V. Slate, 34 Ark. 4S0; People v. State, G2 Ala. 237; Chelfon V. State, 45 Md. 570. (4) The court further erred in permitting the witness Copeland to tell that defendant got ton cents from him, thereby permitting the State to prove an addi- tional and different crime. (5) The verdict is contrary to tho evidence. ! THE STATIi V. TAYLOR. 68 7?. F. WdlJi'ci', Attnrnov-Gcncrnl, Morion JnunJan, Asniistant, nml Marnj K. Jimirn, ProHccutiiig Attorney, for the State. (1) The tostiiiKtiiy of OlHcei* Tliomas was coinpotont. 1 I!i-lio|., Crim. Trne. (fM <>(!.), sees. 118-120; State v. Leatw, 89 :M..., Iov. lit. 258; Ucv. Stat. 1889, sec. 415; State v. Kedo. 105 31 n., !,>c. c'lt. 42; Slate v. Dc Mossc, 98 Mo, 342; State v. Jack- soil. !I9 Mo., he. cil. G;3; 1 Ijishop, Cr. Law, sees. 995, 990. [■2) The extent to which parties may pursue even colhUoral niat- tciH, in the examination of witnesses, for the purpose of cstab- lishinji,' the prejudice or feelings of a witness toward the parties, rests larudy in the discretion of the trial court, which will not be tno severely reviewed by the higher tribunal. Ellsworth v. ]'ollrr, 41 Vt. 085 ; Powers v. Leach, 20 Vt. 270. (3) Any ef- forts of a defendant, shortly after the commission of a crime, to escjipe, or to evade or avoid arrest, or to elude justice, and all acts (luiic toward consummating such escape, or evading such arrest, liMve ahvays been held admissible as creating a strong presump- tinn of guilt. 1 Bishop, Crim. Proc. (3d ed.), sec. 1250; State r. Moore, 101 ]\Io., loe. cil. 339; State v. King, 78 Mo., loc. cit. riTil ; Slate V. ]Villla»is, 54 3[o. 171. (4) It is alwaj's competent for the State to show all the acts of a defendant having any tendency to prove or bearing ui)on his guilt, even though such acts involve the commission of another and totally diiferent crime. State v. Rider, 95 3Io., loc. cit. 485; Stale v. William- son, 100 :3[o. 103; State v. Green wade, 72 ^[n. 298; 1 Pishop, (rim. Proc. (3d ed.), sees. 1120-1128, 1129; 2 Pishop, Crim. Prop. (3d ed.), sees. 201, 428. (5) The court did not err in its ruling on the instnictions, and the evidence is amply sufficient to support the verdict. (0) It was imi)roper to ask witness if he hml been arrested and put in jail for stealing; though to show his conviction of that offense would have been proper. Stale v. Douglass, 81 Mo. 234; State v. liiigan, 08 Mo. 214; State v. McGraw, 74 Mo. 573; State v. Lewis, 8 ^h\ 110; Slate v. Jen- nings, 81 Mo. 185; State v. Howard, 102 Mo. 142; Slate v. Taylor, 98 Mo. 240. (7) The instructions on the question of alibi were complete, correct, and in the forms approved by this court. State v. Rochett, 87 Mo. 008 ; Stale v. Johnson, 91 Mr>. 442 ; State v. Sanders, 100 Mo. 195 ; State v. Shroyer, 104 :Slo. 448 ; Slate v. McCoy, 111 Mo. 517. (8) The same doctrine has ■^ 6^ AMtUICAN CRIMINAL REPORTS. I I loon npprovcil in Slide v. Sutton, 70 lown, 208 ; Stale v. Leed, C2 Iowa, 40. (1>) A jreneral instruction to acquit, if n rcnson- ablo doubt exists, is sulKciont. State v. ^yhcclcr, 108 :^^o. (5.')S ; Stale V. Dunn, IS :Mo. 419; State v. Crawford, 34 Mo. 200; Stak V. Iloddt, supra; State v. Elliot, 98 ^[o. l.M; State v. ]Yhalcn, 98 Mo. 222; =s evidonee is to be credited it allows a complete alihi, as it covers the time of the rape, fully, and places defend- ant at a considerable distance from the place of its perpetration. The other facts and the insti'uctions complained of will ap- pear ill tlu; further discussion of the case. I. There was sufficient evidence to justify the verdict of the jury, if credited by them. II. Counsel fur defondaiit, in the cross-examination of the State's witness ^Miller, asked this (juestion: "After this thing occurred, were you not arrested f(tr stealing billiard balls fnim Boulander's saloon, rind sent to jail ?'' On the objection of the prosecuting attorney, the court ruled the witness need not an- swer. The defendant was entitled to have the question an- swered The c\ideiit pur])ose of the interrogatory was to dis- credit the witness. In such a case the mere fact that it touched upon a conviction which must have been of record is not sulH- cieii^ to exclude it. Wharton, Crim. Ev., in see. 474-, states the rule as follows: 'Vin a leailiiig case, Lord Enenborough, ('. J., compelled a witness to aiHwer whether he had not been confined, for theft, in jail; and, or, the witness's appealing to the vuurt, said, 'If you do not an>«'.vor I will send you there.' In this coun- try there has been some hesitation in jiermitting a question the answer to Avhicli not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, ti> re- quire an answer." Citing Urnl v. People, 42 X. Y. 270; Com. V. Bunner, 97 ^fass. 587, and many other cases. This court in Slnic v. Miller, 100 ^\o. 00(i, in an opinion by Sherwood, Judge, adopted the rule as stated by Wharton as fol- lows: "Was error commitred in refusing permission to the de- fen.hint to interrogate Mortimer as to whether lie had not l>een in the penitentiary two or three times? In order successfullv to ask and have answered such a question, it seems to he unneces- sary to pronce. li is otherwise, however, where the question is asked the witness for ilie purpose of hon- THE STATE v. TAYLOR. 57 estly discrocliting him ; then the question is competent. This is the tendoncy of adjudication in tliis country." Wliarton, Crim. Ev. (rth ed.), sec. 474, and cases cited; Cliambcrlain's Best on Ev. (Ed. 1893-94), p. 002, American Xotes, 2; 1 Bishop, Criiii. Proc, sec. 1185. But it is iisisted that, notwitlistanding error was committed jiy the trial court in not pci-mitting the witness to answer this question, still, inasmuch as the court permitted defendant to show in the subsequent examination of this witness that he ivas in the comity jail, and had conversatin w"ll argiu^d that he was merely a visitor to the jail to see Clark. IMerely being in a jail is quite a different thing from being sent to jail for theft. The rulings positively excluded the evidence Avhieh tended to dis- credit the witness, and the subsequent examination did not sup- ply i, aiul did not cure it. When it is considered that this witness is the principal one by whom the State identified the defendant, in the inuuediate vicinity of the crime at two o'clock that night, it can readily be seen how impoi'tant to defendant was the right of a searching cross-examinati*m and any evidence that might discredit him. The crucial test of any witness is his cross-examination. It will not do to deprive one on trial for his liberty of this privilege, and then denominate it in this court as "harmless error." Green- leaf, Ev. (15th ed. ), sec. 440. Error is "presumptively preju- dicial," and it devolves upon the party asserting its harmless- TS.I ■t AMERICAN CRIMINAL REPORTS. I ll ■j '-' ■■ i; ■ i ,>;' noss to sliow it affiniiatively. Tliis is the nile in this court. Uaires v. Stoch Yards Co., 103 ^lo. CO; Dayharsh v. Railroad, 103 Mo. 570 ; McGowan v. Si. Louis Ore and Sled Co., 109 Mo. 518. The Supreme Court of the United States has gone further S'till and asserted that "i": must appear so dear as to he beyond doubt that the error did not and could not liave prejudiced the party's rights." Decry v. Cray, 5 Wall. 807; Smith v. SJioe- mal-er, 17 Wall. G30; Uilmerv. Iliglcy, 110 U. S. 47; liailroad V. O'Brien, 119 U. S. 99. In view of the fact that this is a criminal charge of the most heinous character, one for which the ])enalt}' may he death \inder onr statute, and in view of the principle involved, we are con- strained to hold the refusal to permit the question to he answered was reversible error, ^fuller r. Iluspital Ass'n, 73 Mo. 242; Slate V. Leabo, 84 .Mo. 108; ^7r//c v. Cox, 07 Mo. 392. III. When the witness Copeland was on the stand, the prose- cuting attorney asked him if the defendant got anything from liim, and he answered "he got ten cents." This is assigned as error, because tending to prove a distinct oifense from that charged in the indictment. The answer Avas clearly admissible, as part of the res gcsla', and in such a case it is not incompetent because it tended to show defendant guilty of robben- as well as rape. Stale v. Grccnwadc, 72 Mo. 298; Stale v. Umlerwood, 75 Mo. 230. IV. There is no merit in the eighth assignment. The witness answered the qiiestion widiout hesitation, and the trial court very properly refused, under these circumstances, to permit coun- sel to badger her and require her to answer whether she had told the truth on a former trial. Siudi a mode of cross-examination is only tolerable when a witness is contumacions. The facts in this case did not warrant such a course. V. The court did not err in refusing to instruct the jury that, in arriving at their verdict, they should not consider the testi- mony of Officer Thomas as tending to ])rf>ve the offense charired in the indictment, nor was there error in receiving his evidence to the effect that he met defendant on the night of the commis- sion of the rape, in the southern iH.rtirm of the city, and that defendant, without provocation, slif,t at him. It Avas proper for the State to show any and all act^ of the defendant that had a THE STATE v. TAYLOR. 69 tc'iulciicy to prove his guilt. It is not a question of the weight, lull i1k3 competency, of the evidence. It was competent as tcud- iii"- to rebut the alihi. The mere fact that the officer did not know that defendant was suspected or charged with the offense did not render the acts and conduct of the defendant incompe- ttiit. Shtte V. Grant, 79 Mo., loc. cit. 130. When the defendant ciK'nuiilcrcd the officer in his uniform and armed and was lin'ii'd, if guilty, he was conscious of the danger tliat mi^rht ( ii-ii<> from arrest, and he evidently determined, if necessary, to kill tlie officer to prevent arrest. If innocent, he had nothing to four from any office i. His conduct in thus eluding the officer is strong evidence of his guilt. Stale v. Moore, 101 Mo. 319, 14 S. W. liep. 182; 1 Bislmp, Crim. Troc. (3d ed.), sec. 1219, and cases cited. I)cf(Midant is certainly in no position to complain that the cntiit did not instruct the jury that his flight was evidence of his <;uilt. \' r. We arc forbidden to notice the alleged improper remarks of tlie prosecuting attorney, because they were not made the iirniuid of an exception at the time to the court. The mere in- (•(ir|)half of the State the follow- inir instruction: "4. If the jury shall find and believe from tlie evidence that, at the time the offense chnri>ed in the indict- niciit was committed, if you find that such offense was commit- ted, the defendant Avas at a place otlier than the place where such fitTcnse or crime was committed, the jury will find defen. Tho court iiistrucis tho jury that such di>- fenso is as proper and loiiiliinato, it pmvod, as any other, aiul all cvideiic(> hcariiii;' on that point should ho oarorully consid- ered hy tho jury, if, in view of all tho ovidonco, the jury havo a roasoiiahio douht as to whether defeudant was in some other place when llie crime was committed, they should jjive him tho heuefit of the iuslruclo(I liiat tho dofomlant is not re- quired to prov(.' that del'eus(> li(youd a reasomdde douht to eulitlii him to an ac(iui(tal. It is siillicieut if tho dofeiiso npoii tho point raises a reasouahle douht of his ])reseiu'o at tho time and place of the connuission of the crime charnd to hy some of Ch^- fendaut's witnesses, and was not present at tho scorio of (ho I'apo at the time of tlie conmiission, then you must acquit llu' dofotul- ant. ''The jury are instructed that, if you entertain a reasouahln donl)t as to whether or not the defendant, Taylor, was at Tal- hott's hilliard room or at tho scene of (ho ra|)o at th(> time tho rape was counnitted, tlu>u it was your sworn duty, under (ho law, to give the heneiit of the douht to the dofeiulant." '•lb. The jury are iustruoted that, if you entertain a reasou- ahle douht as to defendant's guilt, he sliould he acquit led, al- though the jury might not he ahle to fiuy can convict the defendant they nnist he ' the evidence to sustain this defeii'^e \\- 3 kmmB.oiii/&im ^atW ll'fcia'' i| mm \m&f 62 AMERICAN CRIMINAL REPORTS. liavc often inaecuratoly stated that tlic ovidonoe of the alibi must cover the entire time within which the crime conhl have been committed MiJJcr v. People, 39 IlL 457-40-t. If by this is meant that such cvi(h-iico if true wouhl be absolutely conclu- sive of innocence, it might be true; but to make the evidence competent no such perfect proof is required, nor is such an abso- hile demonstration necessary to entitle a defendant to his ac- quittal, as we shall abundantly show from the authorities. The weight of the evidence tending to prove an alibi is to be do- terminod by the jury and altlMUgh it falls short of absolute con- victiim of its truth, still, if it raises in their minds a reasonable doubt of the presence of the defendant at the commission of the erime, he is entitled to an acquittal, and it is not material Avhetlicr this doubt arises from the defect in the evidence of the State, or tlie evidence of the defendant in rebuttiil. Ill People V. Fang Ah Sing, O-t Cal. 253, it was said: "The ciinimission of a criminal offense implies, of course, the presence of the defendant at the necessary time and place. Proof of an aVibi is, therefore, as much of a traverse of the crime charged as any other defense, a.id proof tending to establish it, though not clear, may, nevertheless, with the other facts of the case raise doubt enough to produce an acquittal." This statement of the law by the Supreme Court of California received the unqualified and unanimous sanction of all the judges of this court in Stale V. Howell, 100 .Mo. G2S. In Stale v. Lewis (1878), G9 :N[o. 92, the defendant ashed the trial court to instruct the jury that, if they had a reasonable doubt that the defendant was absent at the time the homicide was committed, they should acquit him, but it was refused and this court all concurred in reversing the ease for this reason alone. In Slnle v. Wonlard, 111 ]\[o. 248, this divisioii all eoneurroi' in holding that "if the defendant's evidence is suihcient to raisn a reasonable doubt of his presence at the commission of the crime, or if the State's evidence is so defective as to raise n rea- sonable doubt, or if, taking all the evidence on both sides, there is a reasonable doubt of the defendant's guilt, he is entitled to an acquittal. In State v. Jennings, 81 'Mo. 1S5, this court held that the '— -««ih THE STATE v. TAYLOR. 68 bunion of GstaLHsliing an alibi rcstcJ upon tlio dcfondant and lio nnist sustain it by a preponderance of tbe evidence. In tbe IIowcll Case, 100 Mo. C28, tbe Jennings Case was overruled in tei'ins, and, we tbink, correctly. Tbe rule in tbe Jennings Case required a defendant to prove bis innocence and cannot be sus- tained on principle. Alibi is not an extrinsic defense. It is a traverse of tbe material averments of tbe indictment "tliat tbe (Icfendant did tbon and there tbe particular act cbargod.'' 1 IJisbop, Crim. Proc. (3d ed.), sec. 10G2; Wbarton, Crini. Ev., soe. 333. We are aware tbat some courts bave required tbe defendant to cstablisb bis alibi by a preponderance of ilie evidence; but in our opinion sucb a rule is contrary to tbe presumption of inno- coii('(>, to wbicli every defendant is entitled in a criminal prose- cut inn, and to tbe rule tbat requires tbe Stato to establisli bis fiuilt beyond a reasonable doubt. Tbe burden is on tbe State and must remain on it tbrougbout tbe triab Tbe decisions in tbe Lewis, IIowcll and Woulard Cases are in barmony witb tbe rule laid down in many otber courts, and by approved text writers. 1 11 Slate V. Waterman, 1 Xev. 543, it is said : ''Tbe rule of liuv and of common sense is, tbat wbere tbere is a reasonable doubt as to wbetber a prisoner bas committed tbe act or offense witb wbicb be stands cbarged, be must be acquitted, wbetber that doubt arises from a defect in tbe evidence introduced by tbe State or from tbe evidence introduced in rebuttal by tbe defend- ant." French v. State, 12 Tnd. 670; Adams v. State, 43 lud. 373 ; Binns v. State, 4G Ind. 311 ; Howard v. State, 50 Ind. 190. In V,'<,Jl-er v. State, 42 Tex. 3(50, Cbiof Justice Roberts, in bis usual clear style, states tbe law on tlie subject as follows: "Tbe trial court instructed tbe jury as follows: 'Tlir burden of prov- ing tbat be was elsewbero is cast upon bim. If tbe defendant has adduced evi^Vuco to tbe entire satisfaction of tbe jury, tbat I'll tbe niji,bt the murder is cbarged to bave been cunanitted, tbat be was at SO great a distance tberefrom, or tbe time was sucb as to make it impossible for bim to bave committed tbe itTense, then tbe deftMidant must be acquitted.' " Tbe learned cbiof jus- tice said as to tbis instruction: "'riiis cbarge was well calculated to convey tbe idea to tbe ju^'V tbat tbe ease of tbe State was made out j)y tbe dying declarations, Svortby of the same credit as other J. 11. ?■■ :Vi aft 1; ' U AMERICAN CRIMINAL REPORTS. cvidoiico/ subject to bohig .Icfcatful nloiic by the dcfoiKbrnt pvov- iiv, lioyond a reasonable (loul)t, or to a iiiornl certainty, or 'to tlioir entire satisfaction,' tliat it was not possible for Walker to have been at Ihitler's when lie was killed. It makes an alibi a. (Icfonse in the nature of a plea of confession and avoidance in a civil suit ; whereas it is not a defense at all in any other senso than iis rebutting evidence tending to disprove the fact alleged in the iiulictnient, that Walker kil]e ^Miss. 410; Milter v. People, 39 111. 4.57; IIopps v. People, ?,1 111. 30.'3; Watson V. Commomeealtli, 95 Pa. St. 41S; Turner v. Com- monwealth, 80 Pa. St. U;Lan(lis v. State, 70 Gi. 652 ; Chappel V. State, 7 Cold. (Tenn.) 92; State v. Hardin, 46 Iowa, 023; State V. Jai/nes, 78 X. C. 504. Indeed, we have found but two States and one Territory com- mitted to the doctrine that an alihi must be established bv tho atlM THE STATE v. TAYLOR. 66 (Icfcndant by n prcpoiulcvnuce of the evidence, and they are Tn\v;i. Illinois, and Xcw ^Mexico. Adhering!:, tlien, to the rule that the accused is entitled to an ^(•(luittiil if the evidence as to the nlihi raises a reasonable doubt ill I lie minds of the jury, was there error in the giving and rc- fiisil of the instructions i 1'lie attorney-general, in an able and exhaustive brief, insists l]i;it ilicre was no error in the instructions. If we understand his position, it is, /ird, that it is unnecessary for the court to in- striut spccitically upon the subject of alihi if it has otherwise i.i\( 11 a correct instruction on reasonable doubt, with a view to ;ill the evidence in the case; second, that, even if required to iu- -irnct on allhl, the instructions given in this case were consist- t lit, iiiid announced the correct nile. It was with a view to the review of the cases in this court iliiit a rehearing was granted. Section 1208, lievised Statutes n all ipiestions of law arising in tlie cMse which are necesary for their inforniatir)n in giving their vci'lit't; and a failure to so instruct in cases of felony shall be a p 1(1(1 caiisc, when the def(>ndant is found guilty, for setting ;i-i(le the verdict of the jury and granting a new trial." This section was, in spirit, the reiteration of a rule announced over and over again by this court, beginning with Hardy v. Slate, 7 .Mo. 008, and extending to the present time. In view of the conflict of authority as to the burden of proof ii- to an alibi as to the amount of proof required to justify or re- •inire an ac(piittal, one would hardly aflfirm it is not a question of law arising in a case where there was evidence to sustain it. That it has been deemed a proper subject for instruction by the liii:liest courts of the lam^ will not be denied, in view of the aiiKiunt of discussion that can be found in the text-books and adjudicated cases. If a question of law, the measure of duty is iixed by the statute. When learned courts disagree as to the pr(^>|)er instruction to give on tliis subject, it can hardly be as- sumed that a jury of twelve will be able to reconcile their pre- conceived opinions in the absence of an authoritative declara- tion by the court hearing the cause. If it is the law, as we assume it to be from the adjudications Vol. XI -5 It;; \ivmf,.'- I I QQ AMERICAN CRIMINAL REPORTS. of llil= court, that, if tlic evidence tending to prove nn allh! 13 Piifllcioiit to. mill does, gciipvate a roasonnl)lo doubt of defendant's giiilr in t!io minds of tlie jnry, tlioy nnist acipiit liini, surely no eiili";lit<'MC(l svstcni of jurisprudence Avould deny one on trial for 111- life or liberty tlio bcneCit of tliis benign rule of Iftw. TUh court lias licretoforo aligned itself on the affirmative side of this ])rnposition, even in the absence of a stjituto. Thus, in Slate r. Sl^nnim, 02 .Mo. 5!)7, where no instruction was asked, the court, through Wagner, .Judge, said: *Mn Slafe v. MaUicws, 20 ]\lo. 55, it was expressly adjudged that it is the duty of the court ill all criiniiial cases to instruct the jury as to the law; that if the instructions offered are objectionable, the court shoull proceed to give such a- the law requires." Jn Stale, v. Brnn.^trttcr, 05 ]\lo. 141), this court reversed the cause, because the circuit court failed, of its own motion, to in- struct u])on all the grades of the otiense to which the evidence was applicable. This case was limited, by Stole v. KiJgorc, 70 'Mn. 55s, to the grades of i>ffense. Jn Stale v. Ihvils, 73 !Mo. 592, the defendant testified In his own behalf. His testimony tended to show he was guilty of a lower grade of homicide than nninlcr in the first degree, of which he was convicted ; but the trial court did not instruct mi the lower grade, and this court reversed the case upon that ground alone. In Slate v. Palmer, 88 Mo. 508, it was re- asserted. In Slalc V. Brooks, 02 !^[o. 542, in a most exhaustive discus- sion of this particular question, Sherwood, Judge, in his dis- senting opinion reviewed all the cases in this State, and favored the reversal of that cause for the failure of the court to instruct the jury upon the law of extra-judicial confessions, hut the ma- jority of the court held that, as to collateral matters, defendant must ask the instruction if ho desired it. Sfnle v. Patrick, 107 Mo. 117; Stale v. Ilenson, 100 Mo. GO; Slate v. Moxley, 102 Mo., he. c«<. 392. But this court, in State r. Sidiiei/, 74 Mo. 390, held that tlio failure of the trial court to instruct the jury n]ion the considera- tion to be given an alibi, was reversible error of itself. In Slate v. Kelly, 73 Mo. 008, the court had sustained the pro- «»■■ THE STATE r. TAYLOR. 6T nriofy of nn instniction for tlio State, to tlio cfTcct tlint rccont itii.-sc-ision of stolon pvoporty wan prima fade vy'iAonco of i>nilt, imd, if not satisfnctitrily oxplainod, bocnnie conclnslvo, but licM lliiit this presmniptinu wns rchiil IJie accusal ion ; Icnliinonij u'liith, if hclirvcd hij II"' ji'i'!J> v'cidd yell hare xvarranlod them in acquitling Ihc pris'iiirr. I>ut such testimony was altogctlior ignored by the in- -inictidn. This was clearly erroiu'ous; for the jury were, in el't'ecl, told: 'It is true there is evidenee of an alihi, l)ut you need ]iiiy no attention to that, and, if yitu liinl that defendant had the slolen property in his jiossession reeently after the theft, then let urn a verdict of guilty.' It is obvious tliat testimony as to gddd character, and testimony as to the absence of the prisoner, uiu' PholDgra|±ic Sdmces Corporalion 33 WBT MAM STIMT «VltSTIR,N.Y. HSM (716) •72-4903 C3 AMERICAN CRIMINAL REPORTS. ii . r ! tl:at case the jury were fully instructed as to a reasonable doubt upon the whole case. State v. Edwards, 109 Mo. 315. But wo are confronted by +he attorney-general with the decisions of this court in State v. Eoclcett, 87 Mo. GGG; State v. Johnson, 91 Mo. 442 ; State v. Sanders, lOG Mo. 195 ; State v. Shroyer, 104 Mo. 448. In State v. RocMt, this court, without overruling, but ex- pressly distinguishing State v. Lewis, held an instruction as to reasonable doubt sufficient ichen there ivas already an inslruc- tion on alihi. Certainly this does not conflict with any view by us herein so far expressed. But the learned judge who wrote that opinion cites State v. Jennings, 81 Mo. 185, as an au- thority, on the instruction as to alit)i, but that case was unani- mously overruled in IloweU's Case, 100 Mo. G28. State v. Bockett, in so far as it approves Jennings' Case, is to a like extent overruled by Howell's Case. In State v. Johnson, 91 ilo. 442, the defendant was indicted for rape. The court gave this instruction : "4. If the jury be- lieve and find from the evidence that the defendant was not present at the place and times the alleged rape is stated to have been committed, by the prosecuting witness, Kate Farrell, but that the defendant, at the time of the alleged rape, was else- where, at another and different place than whore the alleged rape is stated to have taken place by said Kate Farrell, then you shoulil acquit the defendant." Xow, this instniction is the same in effect as the number 4 given in this case. It was, as stated by the attorney-general, approved by this court ; but let us see upon what the court based its decision. Xorton, Chief Justiw, said : "The court of appeals rcrerscd the judgment of the circuit court, as stated in the opin- itin, 'because (in the fourth instruction) the jury were directed to the defense of an alihi in language which would bo likely to convey to their minds the idea that it was a substantive affirma- tive defense which must be made out by a preponderance of evi- dence, an error which was not cured by the giving of an appro- priate instruction as to reasonable doubt, in its application to tlie whole case.' The precise question involved in the above ruling was niled otherwise by this conrt in the case of Slate v. Jennings, 81 Mo. 185, and State v. Eockett, 87 :Mo. GGG." ITo THE STATE v. TAYLOR 69 then cites the paragraph of Judge Shenvood's opinion in RocTc- ell's Case already alhidcd to. The raUonalc of Judge Norton's decisiun is simply that, this court having held in Jennings' Case that the burden was on the dct'cudant to prove his alibi by a preponderance of evidence, the instruction 4, condemned by the court of appeals, was not error hoeausc it also required the defendant to make that defense by affinnative proof. JJut when the court afterwards, in Howell's Case, unani- mously agreed that Jennings' Case on this very point was not the law, it swept the whole foundation from Johnson's Case, and destroyed the only ground upon which it could possible stand, because Judge Sherwood in Rockett's Case had expressly said, in the line of the general nile, that it ivas only rebuttal evidence, and not an affirmative defense. See State v. Reed, C2 Iowa, 40 ; 1 Bishop, Crim. Proc. 10G2-10G6. It must follow that /o/oj- S'ln's Cose, like Jennin/js' Case, was overruled by Howell's Case. The instruction number 4, given in this case, is just like the one given in Johnson's Case, and the one condemned in People v. Fung Ah Sing, 04 Cal. 253. The attorney-general denominates so much of Chief Justice Ray's opinion as approves the California case as obiter dictum. This is a misapprehension of the Howell Case. This court adojited the reasoning of the Su))reme Coiu't of California con- demning an instruction which required the defendant to estab- lish his alibi as an affirmative defense. The instruction in /en- nings' Case was in effect the same as in HoiveU's Case and Roch- clt's Case, and the same as in Johnson's Case and Ah Sing's Case. The reasoning condemned the principle involved in each. Judge Sherwood, wiio had writtoiji one and agreed to the others, Cf»ncurred in overruling the Jennings Case. The Howell Case was unanimously followed by this division in State v. Woolard, 111 ^{o. 248. So that the instruction number 4 has been con- demned by three decisions of this court, which are irreconcilable with the decision in Jennings,' Roclett's and Johnson's Cases. Inasmuch as the great weight of authority and reason are with Howell's Case, we see no reason for departing from it, or ques- tioning its controlling autlxn-ity, and it must be held that in- struction number 4 given for the State is reversible error, un- 70 AMERICAN CRIMINAL REPORTS. m Bs^ iv; :i m less cureJ by the general instniction on reasonable doubt, which we imderstand to be the most serious contention of the attorney- genei'al. Let us see in what position these two instructions left the de- fendant. The one on reasonable doubt requires the jury to acquit him, if they had reasonable doubt from all the evidence; but the one on alili. Ids only defense, required them to acquit on that, only, if taey found that defense to be true. Could two instructions be more inconsistent and irreconcilable ? The latter excludes the reasonable doubt, as to the alibi. As said by Hurt, Judge, in Johnson v. Stale, 21 Tex. App. 368, "These proposi- tions are inconsistent and in direct conflict. If the burden of proof is on defendant to establish his alibi by a preponderance of evidence, then the doctrine of reasonable doubt cannot pos- sibly apply. Whenever in a criminal or civil case a party is re- quired to prove a fact (and this always means by a preponder- ance of testimony), the reasonable doubt does not obtain, and cannot be applied to the negative or opposite of such fact. If A. be at Galveston at a given time he is guilty, but if at Houston at that time he is not guilty. The burden is on A. to prove that he was at Houston. If this be so, a doubt that he was at Galves- ton is not in the proposition, because he must prove that he Avas at Houston, and this proof must be made by a preponderance of evidence; and a doubt that he was at Galveston does not aid his proof that he was at Houston. On the other hand, his proof that he was at Houston may not be by a preponderance of the evidence, but amply suiEcient to raise a reasonable doubt that he was at Galveston." See also Bennett v. State, 17 S. W. Rep. (Tex.) 545. In the present case the defendant, to correct the error of the fourth instruction, asked the court to instnict that if the evi- dence as to '>is alibi raised a reasonable doubt as to his guilt they should acquit him, but the court refused the instruction, clearly indicating that in its opinion a reasonable doubt alone, created by defendant's evidence, was not sufficient to acquit him. It will not do now to say that the reasonable doubt instruction cured the fourth given for the State. The burden placed upon the defendant to show his presence elsewhere, took away the free action of the minds of the jury in forming a reasonable doubt THE STATE v. TAYLOR. 71 upon the wliole evidence, for the simple reason that the evidence which tended to establish his alibi was to be excluded from their consideration on that subject, and to only become available if it established the defense affirmatively. The instructions are contradictory and the one as to alibi er- roneous. The defendant's ninth instruction to the extent, first that it requires the court to comment upon the evidence, was er- I'onoous ; and secondly, so much of it as seemingly required the defendant to prove his alibi by a preponderance of the evidence was erroneous, but so innch of it as stated that it was sufficient, if the evidence upon the alibi raised a reasonable doubt of his presence at the time and place of the commission of the crime, waj a correct statement of the law. Willie we do not think the defendant intended to require more liy his instruction, we think the criticism of the attorney-general on that instriiction is just, in that it apparently places the Imvdon of proving the alibi on defendant as a condition prece- dent to acquittal, when a reasonable doubt would have sufficed fiir his acquittal. The attorney-genoral has with great industry and discrimina- tion collated cases showing that a general instmction to acquit the accused, ii they have a reasonable doubt of his guilt on the wliolo f 'idence, is sufficient. Generally speaking, this is true; liiit, as was said when this case w-as decided before: "It woiild have been far better for defendant had the coiul; said nothing dn the subject of an alibi, for then the general instruction of reasonable doubt would have enabled him to have required the State to show his participation in the crime at the time and place charged ;" but the court in this case was not content with such an instruction, but of its own motion went further and re- quired the jury to find (of course from defendant's evidence, for he alone offered testimony to show the alibi) as a fact that he was not at another place, before he was entitled to have the benefit of a reasonable doubt as to his alleged alibi. The au- thorities cited are no authority for the contradictory and damag- ing instruction in this case. The case cited by the attorney-general to show that it is not necessary to tack a reasonable doubt clause to every instruction, unquestionably announced the rule that has prevailed in this ■^ I i I % .Ta AMERICAN CRIMINAL REPORTS. court since its organization, for the reason that the reasonnhlc doubt instruction was presumed to qualify each of the other in- structions, but tiiat cannot be true in this case. For instance, no court wouhl justify the fourth instruction, if to it could be added the words ''beyond a reasonable doubt." This would be to de- clare that an alibi must be proven by defendant beyond a reason- able doubt, a rule that obtains in no State of the Union, avd should not in any civilized country. I say by the defendant, be- cause it goes without saying, that tlio State will not occupy the contradictory position of attempting to show the defendant was not present at the time and place of the commission of the crime. The case of State v. Sanders, 106 Mo. 188, simply holds that the instniction given in that case was substantially a correct in- struction on the subject of alibi, and neither adds to, nor de- tracts from, any position assumed in this opinion. In the case of State V. Shroyer, 104 !Mo, 448, no instruction was asked by defendant on the defense of an alibi, and the court gave none of its o^\^l motion, so that the questions involved in this record were not before us. For the error in refusing to permit defendant on cross-ex- amination of the witness ^liller to ask if the witness had not been arrested for stealing Boulandor's I)illiard balls, and sent to jail, and in giving the fourth instruction on the part of the State and refusing a pro])er one to defendant as' to an 'ibi, the judgment is reversed and cause remanded. As the cause must be tried again, it is thought best that we should express our opinion as to the necessity for instructions on evidence tending to prove an alibi. We think that evidence tending to prove an alibi requires the trial court, under section 4208, Revised Statutes, 1881), to in- struct the jury on the defense thus raised. If an erroneous instruction on the question is ashed by defendant* it is the duty of the court to give a correct one. State v. Sidney, 74 :Mo. 390 ; State V. North, 95 ^Ux 010; State v. Edwards, 109 Mo. 31.5. Especially do we hold that it is error to refuse an instruction on such evidence M-hioh informs the jury that if the evidence as to the alibi raises a reasonable doubt of defendant's guilt, he is en- titled to an acquittal. This we regard as settled by State v. THE STATE v. TAYLOR. 73 I Lewis, G9 Mo. 92 ; Slate v. Howell, 100 Mo, 028 ; State v. Ed- wards, 109 Mo. 315 ; State v. Woolard, 111 Mo. 248. Wherever it would bo the duty of the trial court upon a proper request to instruct the jury upon any material question of hv arising on the evidence, it is equally obligatory upon it to instruct the jury upon such matter of its owti motion whether requested or not. The judgment is reversed and cause remanded for a new trial. All concur. Note (by J. P. O.). — Should a witness, or defendant, on cross-exam- ination be asked whether he has been previously arrested for or con- victed of crimeT In Bartholomew v. People, 104 111. 601, In construing a section of the Illinois statute, which provides that no person shall be debarred from testifying because of a previous conviction for crime, but that such conviction may be shown for the purpose of affecting credibility, the court held that the statute only referred to such crimes as at common law rendered -he convict incapable of testifying, 1. e , infamous crimes; and that no conviction could be proven to affect the credibility of the witness except a conviction for an Infamous crime, which conviction could not be proven by a copy of the mittimus, or the books of the penitentiary, but only by the record of the conviction. Fol- lowing the Bartholomew Case in Simons v. People, 150 111. 66 (on page 74), the court says: "The defendant was called as a witness In his own behalf, and on cross-examination he was asked If he was not In- dicted and convicted of perjury in the circuit court of Barber county, West Virginia, in 1880. A general objection was Interposed to the ques- tion, overruled, and the witness answered: 'I was.' The ruling of the court in the admission of this evidence is relied upon as error. The fact that the defendant may have been convicted of perjury would not disqualify him as a witness. His conviction could only be shown for the purpose of affecting his credibility. For that purpose the People had the right to prove a corvlction; but they have no right to prove the fact by parol evidence. The judgmeut of the court where the con- viction was had was the only competent evidence to establish a convic- tion, and that judgment could only be established by producing the record of the judgment, or an authenticated copy of the record, as we have heretofore held In Bartholomew v People, 104 111. 608." However, the court held, in the Simons Case, that the objection was properly overruled because it was a general objection, notwithstanding the fact that it is a common-law duty of the court to guard the rights of a per- son who Is on trial accused of crime. The doctrine that parol testmony shall not be received to prove the contents of a record is based jn the theory that the record Is the best testimony of what it coniains. This being true, it is dangerous to ask a witness as to waether or not he was charged with, or convicted of, a particular offense; for he may not have an accurate knowledge of 1 :lil ■':■ 1 1 . 1 ^'l \ t I t 1 1 ill II iiji (■■■' mr'n 74 AMERICAN CRIMINAL REPORTS. the legal effect of such conviction or charge. If the clerk of a court, or other person familiar with court proceeding, cannot testify as to the contents of a record, without producing the record or a certified copy of the same, certainly a person, who by the question asked la pre- sumed to be one of the criminal class and not educated or cultured, should not be called upon to give his construction or opinion as to a matter of record. Considering the fact that many of the common-law offenst's are modlfiea by statute, and that indictments frequently con- tain many counts charging the same matter in different forms and to come under the provisions of various statutes, it is very improbable that the accused himself can always tell what he is charged with or convicted of; thus the accused might have been indicted for burglary and convicted of larceny, or of receiving stolen property; or he may have been Indicted for both larceny and embezzlement, with counts to fit the various provisions of the statute; or he may have been indicted for a statutory crime making it a misdemeanor or even a felony to burn personal property, and being convicted the convict might believe he was convicted of the infamous crime of arson. The Illinois rule that the record or a certified copy thereof Is only competent proof is logical. The practice of asking a witness whether he has been arrested for, or in jail accused of, a certain offense is still more objectionable, for frequently arrests are the direct result of malice and revenge, and not founded upon any reasonable or just ground. The late Daniel Sculley, who for many years was a justice of the peace in Chicago and noted for his worthy qualities and exact justice, once informed the writer that as presiding magistrate of the police court he refused to issue warrants upon Saturdays, because such warrants were frequently pro- cured (on Saturday) with the object of having the arrest made late in the afternoon, that the accused, upon failure to give ball, because of the late hour at which he was arrested, would thereby remain in cus- tody over Sunday, to the gratification of his revengeful accuser. So many are the arrests, and even indictments, founded either on a mis- conception of the law or upon a desire for revenge without any mer- itorious cause of action, that no weight whatever should be attached to the fact that a certain witness has been arrested for, or accused of, some criminal offense. 1 ■; ■ 1 ; I ■ i ■' ■ t i' I : ji - li i ■ M 1 i:,:;... State v. Ceowell. • 149 Mo. 391—50 S. W. Rep. 893. Decided May 9, 1899. Alibi: Robbery — Instructions. 1. The indictment charging that the robbery was committed by put- ting in fear, it is error to charge that a verdict of guilty could be based on "force and violence," as the means of committing the act. 2. It is error for the court in an instruction to say, "though an alibi is a well-worn defense, yet it is a legal one." STATE V. CROWELL. 75 Appeal from Circuit Court of Barry County; Hon. J. C. Lampson, Judge. Keversed. J. S. Davis and I. V. McPhcrson, for the appellant. E. C. Crow, Attorney-General, and S. B. Jefferies, Assistant Attciincy-General, for the State. SiiKuwooD, J. Defendant was indicted for robbery in the fust degree, convicted, and his punishment ass'issed at five years* imprisonment in the penitentiary. There was testimony to war- rant the verdict. 1, The first instruction given at the instance of the State was this: "The court instructs the jury that if you find and believe friiiu tlie evidence in this case, beyond a reasonable doubt, that at the county of Barry in the State of Missouri, at any time within three years next before the finding of the indictment herein, to wit, on the 21st day of October, A. D. 1897, the de- feiulant, Edward Crowell, either alone or with another in and upon witness, J. A. Roller, did make an assault and any money of any amount or any value whatever of the property of wit- ness, J. A. Roller, then and there by force and violence to the jierson of said J. A. Roller, did rob, steal, take and carry away, with a felonious intent to deprive the owner of Lis property and to convert it to a use other than that of the owner or Avithout his eoneent, and without any honest elnim to it on the part of the t;ilKal paradox, that while it is incumbent on the prosecution to prove beymul all reasonable doubt that the defendant was present at the time and place of the alleged crime, nevertheless, the burden of proof is also on the defendant to prove that he was elsewhere, and at a partlci'la • place, when the alleged criminal acta were committed. The general misty air surrounding Liiio "-ubject has induced many courts to indorse er roneous instructions based on this double-headed anomaly. Analysis of the dortrine by Mr, Justice Hurt of Texas. — In his opin- ion In Johnson V. State, 21 Tex. App. 308, 17 S. W. Rep. 252, Mr. Jus- tice Hurt saj's: "There was testimony of quite a number of witnesses very strongly supporting an alibi. Upon this subject the learned Judge charged the jury 'that the defendant relies on an alibi as a defense; that is, on proof that, at the time of the offense, If any was committed, he was at another place, which rendered It Impossible for him to have been present at the commission of the offense. On this issue the burden of proof is on the defendant to show by a preponderance of evidence the facts establishing an alibi. But If the defendant has shown such facts as raise a reasonable doubt as to whether he could have been present at the commission of the offense ... or not, you will acquit him." "These propositions are inconsistent and in direct conflict. If the burden of proof Is on the defendant to establish his alibi by a pre- ponderance of evidence, then the doctrine of reasonable doubt cannot possibly apply. Whenever, in a criminal or civil case, a party is re- quired to prove a fact (and this always means by a preponderance of testimony), the reasonable doubt does not obtain, and cannot be ap- plied to the negative or opposite of such fact. "If A. be at Galveston at a given time he is guilty, but If at Houston at that time he Is not guilty. The burden Is on A. to prove that he was at Houston. If this be so. a doubt that he was at Galveston Is not In the proposition, because he must prove that he was at Houston, and this proof must be made by a preponderance of evidence; and u doubt that he was at Galveston does not aid his proof that he was at Houston. On the other hand, his proof that he was at Houston may not be by a preponderance of the evidence, but amply sufficient to raise a reasonable doubt that he was at Galveston. "Let us view these propositions at work. One of the Jurors says: 'I doubt that A. was at Galveston.' To this another replies: 'So do I, but has A. proved by a preponderance of evidence that he was at Houston?" 'No,' says the first, 'but I doubt, from his evidence in sup- port of his being at Houston, that he was at Galveston.' 'But,' replies the other, 'I know that he has not proven by a preponderance of testi- >h iii gQ AMERICAN criminal" REPORTS. mony that he was not at Galveston, and we are Instructed by the Judge that he must do this-that this burden is upon him.' In comes the third juror, and suggests that the only way out of this trouble is to obey all that the judge says upon this subject. To this all agree. 'Now. then,' says he, 'we will hold defendant to the proof that he was at Houston, for we are told by the judge that the burden is on him, and that he must prove by the preponderance of the evidence. Has he dis- charged this burden?' All say: 'No.' Then he must be convicted. But it he has discharged this burden, then the jury might have a reason- able doubt of his being at Galveston. But the first juror replies: 'The judge charged us that if defendant has shown such facts as raise a reasonable doubt as to whether he was at Gal 'CPton or not, we should acquit.' To this all agree; but the second juror says: 'We are also very plainly told by his honor that the burden is on him to prove that ho was not at Galveston, and this must be done by the preponderance of evidence, and we have all agreed that it has not been done by him.' "We have adopted the above manner of showing that the two propo- sitions are in conflict, and not at all consistent, and for the further purpose of showing that they are misleading, and calculated to con- fuse the jury. We desire simply to add that it is well settled in this State that the burden of proving an alibi is not on a defendant; that an alibi is an attack on the presence of defendant at the place of the crime, and hence an attack on guilt." The doctrine as announced in Oregon. — In the case of State v. Chee Gong, 16 Oreg. 534, error was assigned upon the giving in the court below of the following instruction: "Evidence has been introduced on behalf of the defendants to prove an alibi: that is, that the defend- ants were not present at the alleged fatal assault. When this is made out to your satisfaction it is one of the most conclusive defenses that can be set up; in fact, an alibi is not only a proper defense, but to an innocent man is almost always an essential defense, and, indeed, it may be his only defense. It Is a defense, however, that is very often resorted to by guilty persons as well as innocent ones, and one in which perjury, mistake, and deception are often committed. The bur- den of proof is on the defendants to make out the defense of an alibi when so set up by them as a defense, the State having first introduced proof and shown that the defendants were present at, and committed, the alleged fatal assault. Therefore, while an alibi is a defense that should not be discredited on account of its character, still it devolves upon the jury the duty of carefully scrutinizing the testimony in such cases, and of exercising urusual care and minuteness in considering it." In reversing the conviction because of that instruction the court said: "The evidence of an alibi was not a defense, except so far as it controverted the testimony upon the part of the State, tending to show that the appellants were present and participated in the affair charged In the indictment. When proof is given on the part of the prosecution which gO'^s to show that the defendant did the acts charged against him, he has a right to disprove it by showing that he was at another place at the time of their alleged commission; and it is the exclusive STATE V. CROW ELL. 81 province of the Jury to judge of the weight of the testimony Introduced for that purpose, as much as of any other testimony In the case. It Is, as said by Mr. Bishop, mere ordinary evidence in rebuttal; and any charge to the jury that it is not, as thut the law looks with disfavor upon it, or that it should be tested differently from other evidence, is erroneous. 1 Bishop, Crlm. Prac. (Sri ed.), § 106. "The establishment by the prosecution of a prima facie case does not change the burden of proof; that remains with the prosecution to the end, 'the jury, to be authorized to convict, being required to take Into the account all the evidence on both sides, including the presumptions, and to be affirmatively satisfied from it with the certainty demanded by law of the defendants' guilt.' 1 Bishop, Crlm. Prac. (3d ed.), § 1050. The prosecution undertakes to prove the defendant guilty be- yond a reasonable doubt, not in view alone of the direct testimony ad- duced by it, but in view of rebutting testimony as well. The State can- not stop after making out a prima facie case against the defendant, and require him to prove himself innocent." The doctrine as announced in Indiana. — In Parker v. Btate, 136 Ind. 284, 35 N. E. Rep. 1104, in reversing a conviction the court says: "The court, of its own motion, gave to the jury the following Instruction: '(19) Evidence has been introduced on behalf of the defendants tend- ing to prove an alibi; and if you should find, upon considering this evi- dence, that it is sufficient to raise a reasonable doubt in your minds as to whether the accused, or either of them, were at the (lace where the alleged crime v/as committed, then the accused, or the one as to whom such doubt arises, if it arises as to any, is entitled to acquittal; and the failure of either defendant to account for his whereabouts dur- ing all the time within which the offense might have been committed is not of itself a circumstance tending to prove his guilt, but a failure of this character may be properly considered by you in connection with any other evidence in the case tending to prove guilt, if you find that there Is such.' So much of this instruction as Informed the jury that a failure of the appellants to account for their whereabouts during all the time within which the alleged crime might have been commit- ted was a fact which might be properly considered by them in con- nection with any other evidence In the case tending to prove guilt is, in our opinion, erroneous. The defense of alibi stands upon precisely the same footing as any other defense, and evidence tending to support such a defense is sufficient to secure an acquittal if it raises a reason- able doubt of the guilt of the person charged. French v. State, 12 Ind. 6'(0; Howard v. State, 50 Ind. 190. In criminal cases the entire burden Is upon the State from the beginning, and the accused is not bound to explain anything, and his failure to do so cannot be consid- ered as a circumstance tending to prove his guilt. Doan v. State, 26 Ind. 495; Clem v. State, 42 Ind. 420. This being trus, for a much stronger reason the failure or inabil •)t an accused to fully establish, by his evidence, a defense which he attempts to prove, should not be considered by the jury as a circumstance tending to show his guilt." In Fleming v. State, 136 Ind. 149, 36 N. E. Rep. 154, error was assigned Vol. XI— 6 82 AMERICAN CRIMINAL REPORTS. II- i 4 hi ' ,"« upon the refusal to give the following instruction: "And the reasonable doubt may arise from the evidence already given In the case, or for want of evidence. In this case the defendant has Introduced evidence before you that he was with a young lady that he was waiting on, by the name of Lena Brattain, from about half past nine on the night of the transaction until twenty minutes of one the next morning. If this evidence raises a reasonable doubt in your minds as to whether the defendant was the person that committed the alleged transaction in the manner and form alleged, then, and In that event, you cannot con- vict the defendant." In reversing the conviction the Supreme Court said: "That the In- struction states correctly propositions of law applicable to the charge and the evidence Is not disputed, but it is claimed by tho appellee that the same propositions were Included in charges given to the jury. We have read carefully all of the charges given, and feel constrained to hold that they do not cover fully the propositions of the instructions refused. The jury were nowhere told that a reasonable doubt might arise upon the evidence given, as well as for the lack of evidence. While the instruction refused is not clearly stated, it was Intended to, and we think it did, present the further question that a reasonable doubt could properly arise from a consideration of the alibi evidence referred to, and that. If it did so arise, the jury could not convict. A general charge was given upon the subject of reasonable doubt as It should affect the jurors collectively and Individually, and as It should apply to the Identity of the person claimed to have committed the larceny charged, but the specific elements of the instruction asked were not given in any other charge. The first proposition stated in the instruction should have been given, if the remainder had been covered by other charges given, or, if we are in error in our construction of the second proposition stated, provided such second proposition, under any reasonable construction, was not erroneous, as a question of law ap- plicable to the charge and to the evidence. That such second proposi- tion was not erroneous is, as we have said, not questioned. A general instruction does not authorize the refusal of a specific instruction ap- plicable to the charge and the evidence. Parker v. State, 35 N. E. Rep. 1105 (present term); Carpenter v. State, 43 Ind. 371. We conclude, therefore, that the refusal of this instruction was error, and that the judgment of the circuit court should be reversed." The doctrine as announced in Alabama.— In Pate v. State (Ala.), 10 So. Rep. 665, error was assigned upon the refusal of the following instruction: (4) "Gentlemen, it Is not necessary that the evidence In support of an alibi should cover every moment of time in which the offense was committed. It is only necessary to create a reasonable doubt that the defendant was there, and if, under aH the evidence, there is any reasonable probability that the defendant was not present when John Orr was killed, then you must find him not guilty." In passing upon this instruction the Supreme Court said: "When the defense is that of an alibi, the law casts the burden upon the defendant to reasonably satisfy the jury that he was elsewhere at the time of the STATE V. CROVVELL. 83 commission of the offense. Pellum v. State, 89 Ala. 32, 8 So. Rep. 83. This rule of law, as applicable to the defense of an alibi, does not re- quire of the defendant to reasonably satisfy the jury of his exact where- abouts every moment of the time necessary to cover the period when the offense was committed, but he is required to prove such a state of facts or circumstances as to reasonably satisfy the Jury that he was elsewhere than at the place where and at the moment when the offense was committed. 1 Amer. & Eng. Enc. Law, pp. 454, 455; 1 Bish, Crim. Proc, §§ lOCC, 1067; Pellum v. State, supra; Allhritton v. State, 10 So. Rep. 426. "The first part of the charge requested in reference to the alibi was oltjectionable, for the reason that is was calculated to mislead. The jury might have inferred from the charge that the alibi was sufficiently established, although the testimony adduced in support of it did not reasonably satisfy the jury that he was elsewhere when the offense was committed. A case will not be reversed for refusing a charge which calls for an explanation. We lay down the true rule to be that proof a Iduced to support an alibi should be considered by the jury with the ether evidence in the case; and if, upon the whole evidence, there is a reasonable doubt of the defendant's guilt, he should be acquitted." It will be observed that the Instruction was based on a false theory, in that It conceded that it was necessary for the defendant by evidence "to create a reasonable doubt." Thr svbfect as it is treated in Illinois. — In Illinois there seems to be no settled doctrine, as a review of the authorities will indicate. Ilopps V. People, 31 111. 385,. is referred to by later authorities as a precedent upon this subject. In that case the defense was insanity. The court said: "Suppose the question was one of Identity, would not a reasonable, well-founded doubt on the point acquit the prisoner? Suppose an alibi was sought to be proved, and proof sufficient was of- fered to create a reasonable doubt whether the accused was at the place, and at the time, when and where the offense was alleged to have been committed, is not the prisoner entitled to the benefit of the doubt? So, if the defense be that a homicide was justifiable or excusable, is not the principle well settled, a reasonable doubt will acquit? The r .le is founded in human nature, as well as in the demands of justice and public policy. Innocence is the presumption, guilt ba.ng alleged; the State making^the charge is bound to prove it; the State is bound to produce evidence sufficient to convince the mind of the guilt of tho party, If a reasonable doubt is raised, then the mind Is not convinced, and being in that unsettled state, whatever the probabilities may be, a Jury cannot convict. It is entirely impossible for them to say the ac- cused is guilty, when they entertain a reasonable doubt of his guilt. . . . It 1b urged by the prosecution that the burden of proof is on the accused, to make out his defense. That sanity being a normal condi- tion, insanity must be established by preponderance of evidence. . . . We do not understand the burden of proof is shifted on the defendant. Every man charged with crime is entitled to claim the benefit of all the provisions of the law. In every case of murder the first inquiry is, 84 AMERICAN CRIMINAL REPORTS. 14 ■ m It Has the homicide been committed? Did the prisoner do the deed? Did he intend to do it? Was he of sound mind and not affected with in- sanity when the act was done, and was the act done with malice afore- thought, expressed or implied? These are, all of them, affirmative facts, and must be proved by the prosecution." In this case, notwithstanding the fact that all persons are presumed to be of the same mind, the court places the burden upon the State to prove such fact, evidently meaning that, imless the circumstances sur- rounding the case show that the defendant acted as a rational being, he should be acquitted. The reasoning of the court applies with greater force to the question as to whether or not the defendant did the act; for upon that question there can be no presumption against the de- fendant. The only objection to the decision is that it indicates a rea- sonable doubt created by the evidence, when in fact the evidence for both the prosecution and the defense should be considered as a unit, and then the question is, does the entire evidence esta1)lish guilt be- yond a reasonable doubt. Miller v. People, 39 111. 457, while citing Hopps V. People as an au- thority, departs from the doctrine announced; the court saying: "The theory of an alibi is that the prisoner was so far removed from the scene of the crime at the time of its commission as to make it impos- sible that he should have committed it, but he is entitled to the benefit of any reasonable doubt the jury may entertain on this point." (Re- versing a conviction.) In Garrity v. People, 107 111. 162, the court departs from the doctrine announced in the Hopps Case, and says: "It is apparent, from this re- view of the testimony, that the greater portion of it is directed ex- clusively to the question of alibi. This, indeed, was the controlling and absorbing issue on the trial in the court below. It is well settled that the onus of proving this defense devolves upon the accused, and it must be clearly and satisfactorily established before it can avail, where the evidence otherwise makes out a clear case against the accused." The court here evidently loses sight of the fact that no clear case is made out against the accused until all of the evidence or. both sides is in; and then only if all of the evidence, considered as a unit, establish guilt beyond reasonable doubt. The court also departs from the doc- trine In the Hopps Case, that if a reasonable doubt arises from the testimony the defendant should be acquitted. In Mullens v. People, 110 111. 42, the court says: "The general rule is, where the prosecution makes out such a case as would sustain a ver- dict of guilty, and the defendant offers evidence, the burden is on him to make out that defense, whatever it may be; but as to an alibi, and all other like defenses that tend merely to cast a reasonable doubt on the case made out by the prosecution when the proof is in, then the primary question is,— the whole evidence being considered, both that given for the defendant and for the prosecution,— is the defendant guilty beyond a reasonable doubt." At least a portion oi the doctrine announced in the Mullens Case is repudiated in Hoag v. People, 117 111. 35 (see p. 44). The court. In re- versing the conv'ction because of erroneous Instructions given in the STATE V. CROWELL. 85 court below, said: "To require the defendant to 'satisfactorily' explain his recent possession of the stolen property, and to 'satisfactorily' es- tablish an alibi, before it can aval), is imposing a burden on him but little short of convincing the jury beyond a reasonable doubt {Uerrick V. Gary, 83 111. 89), whereas the burden is upon the People to establish his guilt; and if, after considering the evidence introduced by him as to either or both of these questions, in connection with all the other evidence in the case, and giving due consideration to the entire evi- dence, the jury shall have a reasonable doubt of the defendant's guilt, he cannot be convicted. Hopps v. The People, 31 111. 385; Miller v. The People, 39 id. 465; Mullins v. The People, 110 id. 42." In Acker son v. People, 124 111. 563 (on p. 568), the court said: "The burden of making good the defense of alihi is upon the accused, and to make It availing he must establish such facts and circumstances, clearly sustaining that defense, as will be sufficient, when considered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him." This annunciation, requiring the defendant to "establish such facts and circumstances clearly sustaining that defense," certainly is not consistent with the doctrine announced in Hoag v. People. In Aneals v. People, 134 111. 401, in reviewing an instruction upon this subject (p. 416) the court said: "The jury must believe, beyond a rea- sonable doubt, from a consideration of all the evidence, that the defend- ants are guilty, before they would be justified in so finding. But these Instructions did not relate to the question of guilt or Innocence, strictly. By them the jury were told, in effect, that if, after considering the facts and circumstances in proof, they had no reasonable doubt of the pres- ence of the plaintiffs in error at the house of Knox at the time of the assault, then the defense of alihi had not been made out, and was un- availing. The instructions were entirely proper, and not in conflict with the rule stated." It Is difficult to understand why the question of guilt or Innocence Is not Involved In the question as to whether or not the accused was present at the commission of the offense. If he was present, he might have been guilty; but If he was absent he could not have been guilty; accordingly the instruction did refer to the question of guilt or innocence. In Carleton v. People, 1.50 111. 181, the court says: "As to the defense of an alibi the burden of making It out was upon the plaintiff In error (Ackerson v. The People, 124 111. 563), and, in order to maintain it, he was bound to establish in its support such facts and circumstances as were sufficient, when considered in connection with all the other evi- dence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him (Qarrity v. The People, 107 111. 162; MulUna v. The People, 110 id. 42)." If the testimony upon part of the prosecution, considered by itself, does not prove guilt beyond a reasonable doubt the defendant should be acquitted; yet the court says that as soon as the defendant denies that he was present, the burden is on him to prove his absence and maintain it by evidence that will create a reasonable doubt in the mind of the jury, which doubt may have existed before the introduction of the defendant's testimony. 8G AMERICAN CRIMINAL REPORTS. !'t5 n. h V A review of loica cases.— The case of State v. Hamilton, 57 Iowa, 596, has several times been cited by the Supreme Court of that State as a leading authority; but all that was said In that case upon the subject is as follows: "The defendant claimed that he was at another place when the rob- bery was committed. The court Instructed the jury that the burden of proof was on the defendant to establish the fact that he was not pres- ent l)y a preponderance of evidence. This Instruction was correct and is now the settled law of the State," citing 24 Iowa, 570; 46 Iowa, 623; 53 Iowa, 69; 48 Iowa, 583; 54 Iowa, 183. In that case Adams, C. J., filed a dissenting opinion in which he com- pletely refutes the doctrine, and in which appears the following: "This court has never undertaken to abrogate the rule that a reason- able doubt of guilt justifies an acquittal. It has. Indeed, recognized this rule in the very cases relied upon by the majority as holding that when the defendant relies upon proving an alibi he must prove it by a preponderance of evidence. Both rules cannot be correct because they are inconsistent with each other. No jury can follow both. Let us suppose a case where the evidence of an alibi does not preponderate, but does raise a reasonable doubt of guilt, what shall a jury do? If they follow the instruction that evidence of an alibi must preponderate, they must convict and disobey the instruction as to reasonable doubt. On the other hand, if they follow the instruction as to reasonable doubt, they must acquit and disobey the instruction as to the evidence of an alibi. I cannot regard the rule adopted by the majority as to evidence of an alibi as being the established doctrine of this court, so long as it is inconsistent with another rule to which the court still adheres. If the court adopts the rule in question as to an alibi, then, to be con- sistent, it should modify the rule as to reasonable doubt. The rule as modified would be as follows: A reasonable doubt of guilt is sufficient to justify an acquittal, unless it is raised by evidence of an alibi, and if it is, then it is not sufficient." The cases cited in the Hamilton Case fall to logically sustain the conclusion arrived at by the majority of the court. In State v. Vincent, 24 Iowa, 570, without the support of any authorities, the court says: "One of the defenses made by the prisoner is, that the body of the de- ceased is not that of Claiborn Showers, and that after it was found he was in life, and was seen by four witnesses at different times and places. This defense is termed an 'alibi of the alleged deceased' in the instructions of the court and arguments of the cdunsel, and the jury were instructed that, to sustain it, the same weight of evidence was necessary as to sustain the alibi of the prisoner, which was also a de- fense, and that the burden of proof of each was upon the prisoner. This, it is urged, is error. The alibi of the prisoner, and the existence in life of Claiborn Showers at the time of the alleged murder, are each independent propositions totally inconsistent with the guilt of the prisoner. It is evident the burden of proof of each rests upon the prisoner, for neither, against prima facie evidence of its corresponding inconsistent proposition of the prosecution, will be presumed. These defenses, then, must be sustained by the prisoner, and the evidence nee- STATE V. CROWELU 87 3 eB!!ary to sustain either of them must be sufficient to outweigh the proof tending to establish its contradictory hypothesis. This is the doctrine of the instructions objected to, and it is sustained by reason and the authorities." If the reasoning of this case were followed, it would relieve the State from proving the corpus delicti; for if it devolves on a defendant to prove by a preponderance of the evidence that a certain person was alive, the burden is not on the State to prove his death: one of the most essential matters of proof in a homicide case. In State v. Hardin, 46 Iowa, 623, Day, C. J., says: "There is not en- tire harmony in the decisions as to the degree of proof of an alibi which must be produced in order to entitle the defendant to an ac- quittal." He then proceeds to review several authorities, and says: "In the opinion of the writer, these cases present the only logical and consistent doctrine. For if a reasonable doubt be created of the pres- ence of the accused at the time and place of the commission of an of- fense, which he could not commit when absent, a reasonable doubt is raised as to his guilt, and a reasonable doubt of guilt, all authorities hold, entitles the accused to an acquittal." In Iftate v. Northrup, 48 Iowa, 583, the matter is disposed of in a very few lines, the court stating that there is a diversity of opinion upon the subject, but that a majority of the court adhere to the rule laid down in the 24th Iowa. In State v. Red, 53 Iowa, 69, the court attempts to reconcile the doc- trine of requiring an alihi to be proven by a preponderance of evidence and the doctrine of reasonable doubt, and says: "This rule does not abrogate the doctrine of reasonable doubt. A prisoner cannot be con- victed upon a preponderance of evidence. There must exist no reason- able doubt of his guilt based upon the evidence, but there may be a preponderance of evidence against him, and yet a reasonable doubt of his guilt. In such case the jury may acquit. This reasonable doubt may be based upon the whole evi d fingers rolls of dirty one-dollar bills. Look at their worn anerous, a ])ublic official has no right to make an assault upon the public treasury or to aid others in doing so, and he must be tried only for the crime be has commit- ted, if he has committed one, and it would be wrong in the ex- treme to assume anything and allow it to w'cigh against this do- fcmlant because of hard times, or because of diffieulties which tho people who pay money into the city treasury may or may not have in acquiring the means of making the payment." Upon the request of the defendant he further charged: "That there is no evidence in the case Avhich would justify the jury in find- ing that it was more expensive to live upon Eighth avenue than in Prosj)cct avenue," and "they are not to consider any facts but those which have been proven by the witnesses or the exhibits." We do not wish to express any views which would restrict counsel in fair argument, comment, or appeal. We object, how- 02 AMKRICAX CRIMINAL KEPOHTS. m Jifc' ; 1 I I J'! I' I "' lU 1] i :i: If'': ever, to tho nssortion by the lonrneci district nttornoy of facts not provt'd, to his inlliiiimiiit..ry npjioalrt to passion and proju- dico, and to his tliront to tho jury of i)opnhu dcnnncintion, all under tho sniictioii of the trial court. If the record in this case is sustiiiiu'd I»y tho doliin'riito jndfjniont of tho court of last re- sort, it is (lirti(!ult to soo tho liiiiit to iiitomporato language, un- proved assertion or pornioioiis appeals on the part of counsel for tho prosecution, except their own sense of propriety. Tho law, in our judgment, does not thus leave an accused person, pre- sumed to he innocent until proved *^o bo guilty, bound and help- less in the liauds of his accuser. Even ill a civil action when counsel arc permitted, under ob- jection and exceptiim, while s\innning up, to road to tho jury an abstract from a pami)hlet or newspaper, or to exhibit a cartoon, not in evidence, it is good groiunl for reversal. Koelgrs v. Gunnlhni Life Ins. Co., 'n X. Y. 038 ; Williams v. Broohhjn FJcvalcd n. 11. Co., 120 X. Y. 90; McKcevcr v. Wcyer, 11 \Veekly Digest, 238. So statements nuido by counsel, outside of the evidence and subject to objection, which strongly tend to arouse sympathy, prejudice or resentment in tho minds of tho jury, require a new trial, even if the court charges that they have nothing to do with tho case, and must be disregarded. llaJliern v. Nasmu EJcc. E. R. Co., 10 App. Div. 90 ; liacjuVy v. Morning Journal Ass'n, 38 App. Div. 522. Language which might be permitted tc? counsel in sununing up a civil action cannot with propriety bo used by a public prose- cutor, who is a f/wrtsZ-judicial officer, representing the people of the State, and presumed to act impartially in tho interest only of jus ice. If he lays aside the impartiality that should charac- terize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, ho ceases to properly repre- sent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment. By such a course, in tho long run, he throws away much of his strength, because his violent and reprehensible language betrays his bias and finally weakens his influence with the jury. As was said by Judge Earl in People v. Greenwall, 115 X. Y. 520, 526, "the district attoraey, representing the majesty of the pec- PEOPLE v. FIELDINO. 08 plo, nnd having no rospnnsiltility, cxpopt fairly to ili«cliurgc his eal from the general term, it had no power trcsent with him to break the chain, he should use such means, and the inference is that, if he does not, it is a circunii^tance against him. We think no juror would listen to such a state- ment, in a case where a defendant Imd not been a witness, and fail to understand that it meant that, if the defendant could deny the facts proven against him, he would take the witness stand and do it. In the first part of the statement reference is made to evidence to be obtained from others, while in the last ])art reference is made to what the accused has, as, if he has nothing more to do than take an instrument from his pocket and snap the chain asunder, he should do it. The State of ^lissouri has a statute quite similar, providing that, in such a case, the fact of not testifying shall not "be referred to by any attorney in tlie case." Rev. Stat. 1889, § 4219. In the case of State v. Moxley, 102 :Mo. 374, 14 S. W. Rep. 909, the prosecuting at- torney used the folhnving language: "They have offered not a word to explain or show how that woman came to her death. Kot a neighbor was put upon the stand, if I am right, — man, woman, or child, kinsman or stranger, — to show what he said had caused hor death, gentlemen. Instead of hunting up an ex- planation made by him to his neighbors, — or, if they ever made an effort, they never produced the result of that effort in the court. There they are, alone, — she in perfect health ; and in the night-time she comes to her death suddenly. We say that com- mon honesty, common decency, require, at the hands of that man, when he sees his neighbors, to tell how she came to her death. I don't care whether innocent or guilty. If guilty, he goes to work to make up a story ; if innocent, he tells the truth. The neighbors expected it of him. Your neighbors would ex- pect it of you; and, gentlemen, you would expect it of your- selves." In that case the court, after defining the words "I'c- ferred to" as meaning "alluded to," said as follows : "If the ob- ject of the statute was to prevent the jury from considering the fact that a defendant has failed to testify, it is easy to see that ifi ■■'I luo AMERICAN CRIMINAL REPORTS. •i :■■ . 1! w 1 i(i ■ s 1 t t| Jh ■i i'5: ,'^^E i (3 ' f s 11. 1 ■i" -Sai ij ^ 1 .=4 OS mnc'li couM be nccoiuplislietl to (1( feat that object by an al- lusion to such facts as by rcfciviico thereto. The language of Avhich conipliiint is made was simply an adroit and insiniiativo Httcmpt indirectly to accomplish what could not have been ac- complished by a direct statement. The statute does not permit such evasions of its manifest purpose." The language in that ease is not as clearly violative of the statute as is the language in this case. It may be well to also state, as this is a criminal case, that the language used does not meet the letter or spirit of the law in a criminal case. It violates the rule substantially an- nounced in ail L-rimlnal trials, that the defendant is presumed innocent until guilt is established by the State. Guilt is not to be presumed from a failure to disprove any fact. No convic- tion could rest under an iiistruction announcing a rule like that involved in the statement of the county attorney. A new trial Avas asked because of the langmige used by the county at- torney, and it was error to refuse it. Keversed. Pickett v. State. Texaa Court of Criminal Appeals— 51 S. W. Rep. 374. Decided May 31, 1899. Argumext of Counsel: Error to refer to previous trial of same case. The provision of the statute which reads: "The effect of a new trial Is to place the cause In the same position In which It was before any trial had taken place. The former conviction shall be re- garded as no presumption of guilt; nor shall it be alluded to In argument," is mandatory; hence it Is reversible error for the prosecuting attorney, in his argument, to state to the jury, "the defendant has been three times tried and once convicted." Appeal from tlie District Court of Brown County. G. W. Pickett, being convicted of manslaughter, appeals. Rolert A. John, Assistant Attorney-General, for the State. Brooks, J. Appellant was convicted of manslaughter, and his pimishment assessed at confinement in the penitentiary for a term of two years ; and he appeals. \\\ and, eusso .if tb» tlie .i» West* by V the ti det'e' his a An.l tn tl and ceptc as f«i ant you i'roc cans take siuu Jud .s7(// mis (if t in i PICKETT V. STATR 107 We linvo examined nil of npiu'llant'- assignmenta of error, and, in the view we take of this cane, it is only necessary to dis- (M1SH one of them. Appellant's hill of exceptions No. 8 complains ot" the action of the district attf)rney in his opening argument to the jury, in that ho nsed the fidlowing Inngnnge, to wit: "Cliff Wi'stcniian says that he never told any one of the threats made hy Ftisfer until after defendant was convicted. Ah! then was the time to dig this evidence up, and they dug it np." To which defendant excepted, and the district attorney proceeded with his argument, without any statement heing made by the court. And T. C. Wilkinson, private ])roseoutor, in his closing address to the jury, said: ''The defendant has been three times tried, iind once convicted." To which statement the defendant ex- eeptcMl. Thr' court charged the jury in reference to this matter as frdlows: "The remarks made by the prosecution, that defend- ant had been once before convicted, will not be considered by you for .my purpose." Article 823 of the Code of Criminal Procedure provides: "The effect of a new trial is to place the cause in the same position in which it was before any trial had tiiken itliice. The former conviction shall be regarded as no pre- suiiiptiou of guilt, nor shall it bo alluded to in the argument." cFudge White, in delivering the opii.ion of the court in Hatch v. Slate, S Tex. App. 420, uses this language: "There can be no mistake as to the meaning of the words used, or the intention of the legislature in prescribing that upon a second or new trial in a criminal case a former conviction shall be regarded as no ]>resumption of guilt, nor shall it be alluded to in tlie argmncnt. ^len are oftentimes convicted illegally, and in contravention of some important right conferred by law; and it would be not oidy unjust, but inhuman, to claim that such conviction should weigh a single particle in the estimation of their guilt upon an- other trial. The fact that the former conviction has been set aside and a new trial awarded, even if done upon grounds merely 'technical,' or upon grounds which, in the estimation of some, may a])pear 'foolish,' does not in the slightest alter the rule, or the reason of the rule." Ever since the decision in the above-cited ease, this court has uniformly held that the fact of a former conviction shall not be alluded to in the argument of the case by the prosecution, and yet Ave find in this case that it iiA 108 AMERICAN CRIMINAL REPORTS. was done in two several instances by the prosecuting attorneys. The statute above quoted is mandatory. We have no inclination or power to disregard its beneficent provisions. We are con- strained to reverse this judgment because of the violation of a plain and positive provision of the statutory law of this land. House V. State, 9 Tex. App. 5G7; Moore v. State, 21 Tex. App. GC)G, 2 S. W. Rep. 887. The court's charge, together with the requested charges given, cover the law of this case. For the error discussed, the judg- ment is reversed, and the cause reiuanded. People v. Smith. 121 Gal. 355—53 Pac. Rep. 802. Decided July 1, 1898. Argument of Counsel: Homicide: Venue — Use and scope of a deposi- tioii — Plea of once in jeopardy. 1. Although no witness expressly testified as to venue, yet It may be regarded as proved where it sufficiently appears from all of the evidence taken together. 2. Such proof may be gleaned from a deposition taken at an inquest, and which was used at the trial without objection, although it was introduced for a different purpose. When once in evidence it was competent evidence for any legitimate purpose. 3. A defendant may waive the incompetency of evidence, by failing to object to it on that ground. 4. If a defendant pleads both once in jeopardy and not guilty, and the former is found against him, and there is a disagreement as to the la ".'■, on a new trial it is not necessary to retry the former issue; out if the defendant desires to avail himself of any errors in the trial of the former plea he may assign them when he makes his motion for new trial on the verdict of guilty. 6. It is highly improper for the district attorney to argue to the jury that because the defense did not call a certain witness alleged to have been present at the homicide, that therefore the presumption of law is that his testimony would have been adverse to the de- fense; and to tell them that such witness had been subpoenaed by the defense. Appeal from the Superior Court of Kern County. The facts appear in the opinion. IT'. F. Fitzgerald, Attorney-General, and He7iry E. Carter, Deputy Attoniey-General, for the People. /. ir. Ahem and J. IF. Laird, for the appellant. PEOPLE I'. SMITH. 100 Van Fleet, J. Defendant Avas convicted of manslaughter for the killing of one Emelio Bencomo, in the county of Kem, and was adjudged to suffer imprisonment in the State prison for the term of ten years. lie appeals from the judgment and from an order denying him a new trial. 1. Appellant's first contenti(in is that there was no evidence to prove venue. But this ohjectiofi is not sustained by the rec- ord. It is true, as appellant urges, that no witness was asked the direct question, nor testified in so many words, that the kill- ing took place in Kern county ; but this was not essential if the fact otherwise sufliciently appeared. Appellant contends that the only evidence touching upon the question was contained in tlie deposition of the witness Miller, taken at the coroner's in- quest; that this deposition was introduced at the trial for an- other pui-pose, and was not competent or admissible to prove venue. The deposition was introduced and read in its entirety without objection, and while the primary purpose of its intro- duction was apparently other than to establish the venue, the purpose was not limited, and, being in evidence, could be re- garded in aid of any fact which it intended to establish. A de- fondant may waive the objection that evidence is incompetent, and a failure to object to it on that ground is such waiver. But, independently of the deposition, there was evidence sufiicient to show that the offense was committed in the county of Kem. All of the witnesses refer to and designate the place where deceased was shot and killed as being at ''Scodie's store," and it incident- ally appears in the testimony of several of the witnesses, and without conflict, that this store was in the town of Onyx, in Kem county. 2. At the first trial of the case in February, 1897, the defend- ant, with his plea of not guilty, introduced the plea of "once in. jeopardy." As a result of that trial the jury returned this ver- dict: "We, the jury impaneled to try the above-entitled cause, find for the People pon the plea of once in jeopardy, intro- duced by defendant, that is, we find that he has not been in jeopardy. James Curran, Foreman." But upon the plea of not guilty to the charge laid in the in- formation the jury announced that they were unable to agree upon a verdict, and were discharged. Subsequently, in May. Hr:1 110 AMERICAN CRIMINAL REPORTS. 1*4' I, in Sir:>. 1897, the cause was tried a second time. The record does not ee.— "That no man who had lived in the defendant's neighborhood could have anything but a bad character; that defend- ant polluted everything near him, or that he touched; that he was like the upas tree, shedding pestilence and corruption all around him." These words were used by plaintiff's attorney in a civil case and were objected to because defendant's character had not been impeached, etc. The Supreme Court said there was nothing in the record to justify such an "unprovoked and wanton assault," the object of which was ta humiliate and degrade the defendant, and prejudice him before the jury, and reversed the case on this ground. Coble v. Coble, 79 N. C. 589. Error for prosecutor in his argument to turn toward the defendant and iiiferentiaUy call upon him for an explanation of ichere he was, on certain dates, connected icith the charge against him. — From opinion: "In the opening argument, counsel for the State said: 'We have proved where the defendant was on the 29th, 30th, and 31st of January, 1893, and on the 1st, 2d, 3d and 4th of February, 1893, and we have shown by the witness Forrester that the defendant was present and committed this burglary;' and then, facing the defendant, said: 'Now, where does he say he was, if he was not there?' On objection being made, the court admonished the counsel not to refer to that, and told the jury not to consider it. It seems from this that the trial judge understood the counsel to be referring to the fact that the defendant had the op- portunity to testify with regard to this matter, and had not availed himself of the privilege. We think the remark bears this construction, and under repeated decisions the allusion is cause for reversal; and the fact that the court rebuked them, and withdrew them from the con- sideration of the jury, does not cure the vice." Brazell v. State, 33 Tex. Cr. Rep 333, 26 S. W. Rep. 723. Uuuarranted insinuations of bribery against tcitness. — One of the prosecuting attorneys, in the closing to the jury, said: "I tell you, gentlemen, money talks. Oliver Helm, Amanda Helm and Ed. Short were witnesses before the grand jury and at the coroner's inquest. They were then witnesses for the State. Now they are witnesses for the defendant. We have been prepared for this thing. We knew some- one had been to Ottumwa and Bonaparte, and were prepared for the evidence from there." The Supreme Court held that the remarks inferred that the witnesses had been bribed, and were wholly outside of the case, there being noth- ing in the record to justify any such assumption. These witnesses were not called by the State, but no explanation was made, and no con- flict between their testimony on the trial and elsewhere was In any way shown; and the tendency of these unauthorized declarat'ons was to Impair their credibility, ^tate r. Helm. 92 Iowa, 540. Abusing defendant: defying court of app'r^fi and defendant's counsel, and general ran*.— The court of appeals had granted a new trial, and on retrial one of the prosecuting attorneys, in summing up, told the jury the defendant was guilty, and, on exceptions being taken, said. PEOPLE V. SMITH. 123 "Ye3, take your bill, and as often as this case is taken to the court of appeals and reversed on some foolishness or technicality, I will, as often on a new trial, as I can get the case before twelve honest men, convict him (defendant) again and again," and repeated this language with additions. And on exceptions to his remarks being allowed, and being admonished by the court to confine himself to the evidence, he continued his remarks, and referring to other similar indictments he was going to try, said, "and when they, as has this defendant, been once fairly convicted by twelve honest men, and by a dodge and tech- nicality had the case reversed, and now represented by able counsel watching for an error, I will teach them to throw themselves upon the mercy of the jury and the court," and more in this strain. The court held that reference to a former verdict against the defendant was against the letter and reason of the law; and read a lecture to prose- cutors who by their intemperate zeal themselves cause their cases to be reversed. The remarks were characterized as vituperative and reprehensible. And the court held that the judgment must be reversed "because of the character and course of argument indulged in" by the prosecutor." Hatch v. State, 8 Tex. Ct. App. 416. Wroiifi to state that claiming a legal privilege is evidence of guilt. — The case of Oossett v. State, G5 Ark. 389, 46 S. W. Rep. 537 (1898), is pertinent not only on improper argument of the prosecutor, but also on the question of inferring guilt from refusal of defendant to explain evidence apparently against him. Convicted of stealing two barrels of whiskey, etc., from a car. He denied knowledge of the theft, but ad- mitted that about the time thereof he had two gallons of whiskey. He refused to answer where he got it, because he was under indictment In the federal court for illicit distilling, anl his answer might tend to incriminate him on that charge. The trial j'utge held that he need not answer. The prosecutor argued to the jury that defendant's refusal to &«:i;!ain his possession of the whiskey was evidence of guilt. The Supreme Court said that his refusal to answer because his answer might tend to convict him of another offense was no evidence of guilt in this case; and that the jury had no right to draw a conclusion of guilt from his refusal to answer a privileged question, although such course might affect his credibility; and that the argument of the prosecutor was improper and the ruling of the court below permitting him to so argue was erroneous, and reversed the case. "Good lime" argument, to increase penalty. — "Counsel for the People, in his argument to the jury, called attention to what is generally linown as the "good time" statute, and insisted that it should be taken into consideration in fixing tlie defendants' terms of imprisonment, if they were found guilty. To this defendants' counsel interposed an ob- jection, but it was overruled and an exception taken. This was error. That statute has no application whatever to criminal trials. It relates purely to prison government and discipline. Whether a convict shall receive a reduction of time for good conduct during his imprisonment is a question between him and the prison ofllcials. To permit a jury to be in any way influenced by it, in fixing a prisoner's punishment, would tend to defeat its object." From Farrell v. The People, 133 111. 244. ■V m' i% * w^? x !|i ^1 1 I 124 AMERICAN CRIMINAL REPORTS. Frequency of "burnings," Krped.— Defendant on trial for arson, and prosecute in his closing argument alluded to the frequency of burnings throughout the country, and urged upon the jury the Importance of strictly enforcing the law in this case. The court held that this was extraneous matter. That the fact was not one of such public notoriety or matter of history as that the court or jury could talte judicial cog- nizance of it. That counsel can only state facts of which there is no evidence when they are of such character as to be noticed judicially without proof; and that the remarks were intended to prejudice the defendant. Washington v. State, 87 Ga. 12. Murders, mohs, vigilance committees, etc. — It was held to be error for the prosecutor to refer to the frequency of such things in the com- munity and to state that they are caused by a lax administration of the law, and urge the jury to make an example of the defendant. Ferguson v. State, 49 Ind. 33. Lugging in alleged action of another judge against defendant and artistic epithets.— Con\icted of bigamy. In his closing argument to the jury, the prosecutor repeated remarks attributed to Judge Gibson on a hearing for alimony in another court, and said that Judge Gibson had ordered defendant into custody and was at the bottom of this prosecution, etc., there being no evidence touching such matters. Prosecutor also called defendant "a sugar-loafed, squirrel-headed Dutch- man;" all of which was censured by the Supreme Court as reversible error. State v. Vlrich, 110 Mo. 350, 19 S. \V. Rep. 656. Had time to prove good character. — The prosecuting attorney so In- formed the jury, and reasoned therefrom, that, because the defendant had not seen fit to avail himself of the benefits of his glorious privilege, he was unable to produce one. From the unceremonious manner in which the Supreme Court re- versed the judgment, one would infer that it did not share the prose- cutor's opinion, that time was of the essence of a defendant's good character. Thompson v. State, 92 Ga. 448. hi examination of defendant. — Improper for prosecutor, when ex- amining defendant and asking him about an old alleged assault upon a party not ccuinected with the case, to say to him in hearing of the jury, "You never beat him up but once, and that was enough to nearly kill him." Morrison v. State, 44 S. W. Rep. 511. A personal acquaintance of the prosecutor. — It is a palpable abuse of privilege for the prosecutor to argue to the jury (the defendant being tried for selling liquor to an intoxicated person) that he knew person- ally the defendant, and that he was guilty of this, and he was sure of other crimes. Brow v. State, 103 Ind. 133. CARTER V. STATE. 125 Carter v. State. 106 Ga. 372—32 S. E. Rep. 345. Decided February 2, 1899. Arson: Indictment — "House" — Instructions — Evidence — Accomplice — Jury — Qualifications. 1. It is not brisential that an indictment for arson, charging the burn- ing of an "outhotise," should allege whether or not the same was located in a city, town, or village. 2. A freight-car body, which has been detached from the wheels, and placed upon permanent posts near a railway track at a station, and to which a platform has been attached, thus constituting a structure to be used as "a freight warehouse," and which is used for this purpose only, is a "house" within the meaning of section 136 of the Penal Code. 3. Such a house, located elsewhere than in a city, town, or village, may be characterized as an "outhouse," though not appurtenant to any other building. 4. When the principle embraced in a request to charge is so fully cov- ered by the general instructions given to the jury that they could not possibly be mistaken as to the true law of the point in ques- tion, refusing to give such a request is not cause for a new trial. 5. According to the rule laid down by this court in Byrd v. State, 6S Ga. CGI, the acts and declarations of one accomplice, done and made during the pendency of a common purpose and effort to con- ceal a crime already perpetrated, are admissible against another accomplice. 6. A new trial will not be granted because of a refusal by the court to inquire whether or not any of the panel of jurors were dis- qualified by relationship, when it is not shown that in point of fact a Juror thus disqualified was placed upon the panel. 7. The discretion of the trial judge in determining, upon conflicting evidence, whether or not a juro/ was impartial, will not, unless abused, be interfered with by this court. (Syllabus by the Court.) I* I'ft jW- Appeal from Wayne County Superior Court; J. L. Sweat, Judge. 11. 13. Carter was convicted of arson. Judgment affirmed. John W. Bennett, Solicitor General, Goodyear cause it instnicted the jui-y that if they found the defendant guilty as charged, they should assess his punishment at not less than ten years' imprisonment in the penitentiary, an instruction only proper where a trial occurs for arson in the first degree. There are, as it seems to me, several defects in this indict- ment which I will now proceed to make comment upon: To begin with, the indictment is bad because it does not allege that the building burned was a "dwcllinfj-lwusc," because where this STATE V. WHITMOUE 133 is tho statutory term employed, there, the indictment must use it or else the indictment will be ill. McLnne v. Stale, 4 Ga. S.'JS; Sfate v. Sulclilfe, 4 Strobh. Law, 372; 1 Whart. Crim. Law (10th ed.), sec. 840. These words are words dcscriptivo of the crime of arson in the first degree, and therefore must be employed. Within the meaning of section 3512, a jail, when "usually occupied by persons lodging therein, shall be deemed a dwelling- house of any person having charge thereof or so lodging there- in;" but in order to make the burning of such building arson in the first degree, there must be in the building, at the time of the burning, some human being. At common law the owner- ship of the house must be alleged and proved as laid. Whart. Crim. Law (10th ed.), sec. 841. Our statute has not done away with this requisite of the com- mon law. In fact, section 3512 has made such provision as ren- ders it easy to allege and prove the gwa^i-ownership. Such ownership should therefore have been alleged; and as the jail was in charge of the sheriff, and as he with his family lived in the upper story of it, the ownership should have been laid in him, giving his name. In Xew York, where the statute in regard to arson in the first degree is, with the exception of the words "in the night time," substantially identical with our own, it has been ruled that the house or the building burned must be described as the house or building of the person in possession. People v. Gates, 15 Wend. 159. We have been referred to State v. Johnson, 93 ]\[o. 73, as np- holding the view that the ownership has been sufficiently alleged in this case ; and it is true that case does so hold, but that ruling was made by quoting only a portion of section 3512, to wit: "Every house, prison, jail, or other edifice which shall have been tisually occupied by persons lodging therein," thus cutting the section in two and leaving off the important and controlling words, "shall be deemed a dwelling-house of any person having charge thereof, or so lodging therein." With these words thus omitted, that ruling was correct, but their omission was an emascxdation of the statute, and wholly unwarranted. That case, therefore, should no longer be held as binding authority. : I I 134 AMERICAN CRIMINAL REPORTS. I- I ^5 .i lit i ! 11: ,r < r 1 I' il^' w it' ^'' An ncMitionnl reason occurs why Johnson's Case should not be followed ns n procedent: the indictment, though for the samo degree of arson as the present one, docs not allege that there was a human being in (he penitentiary at the time of the bwn- ing. This was doubtless the fact, but that did not help the inr dichncnt. There are doubtless cases where the charge consists in burn- ing a public building, where no ownership is necessary to bo specially alleged, any more than to say that it was *Hhe county jail of county." Com. v. Williams, 2 Cush. 582; State v. Hoc, 12 Vt. 93. If the present indictment had been drawn under section 3515, such a general averment would indubitably have been sufficient. But the indictment was drawn under section 3512 aforesaid, and therefore it is unnecessary to consider, except by way of illustration, what would have been the proper form of an indict- ment drawn under section 3515. Again, defendant having been tried and convicted under sec- tion 3512 of arson in the first degree, the State will not be al- lowed to treat matters of description which arc only necessary to be alleged under that section, as inmiaterial and surplusage, and thus bring this case under the provisions of section 3515. In civil cases, a party will not be allowed to take inconsistent positions in court. McClanahan v. West, 100 'Mo. 309, and cases cited. And in criminal cases in like circumstances, the State should also be estopped from trying a cause on one theory in the lower court, and then insisting, in this court, upon affirm-, ance of the judgment on another and different theory. Inasmuch as the indictment in this case is, for the reasons stated, wholly insufficient, the judgment shculd be reversed and defendant discharged, and it is so ordered. All concur. Note (by H. C. Q.).— Confessions and instructions. — Where defendant In an alleged confession stated that another defendant, Spivey, to be tried separately, had asked him to get into his buggy and take a ride, and told him that he was going to burn Mr. Cosby's house; that it was all right, that he was to be paid for it by one Holmes, who acted for the owner, Cosby, and that defendant took care of the horse while the other set the fire, an instruction that if the jury believed beyond a rea- sonable doubt that defendant had been informed by Spivay of his ob- ject in going to the premises, and if he held Splvey's horse while he STATE V. WHITMORE 135 or another set fire to the house, etc., that defendant would be guilty of the offense charged, was not erroneous, as It did not tell the Jury bow to And the facts, but simply what conclusion to draw if they found the facts to be such. Pcoplt. v. Jones, 123 Cal. 65, 65 Pac. Rep. 698 (1898). Corpus (IcUcH and confessions. — h is not necessary that the evidence of the criminal act should be conclrsive in order to admit a confession in evidence; nor is it necessary that the evidence of the corpus delicti should itself connect the defendant with its perpetratioQ, to admit it. "A building may be burned under such, suspicious circumstances as to indicate the act of an incendiary, and thus a corpus delicti estab- lished, and the doors opened for the defendant's admissions and con- fessions; but there must be some evidence of some kind, tending to show the incendiary character of the fire, aside from these admissions and confessions." Id. Copy of insurance policy as evidence. — "A copy of an insurance pol- icy covering the burned property was received in evidence, over ap- pellant's objection, after his failure, on due notice, to produce the original. No reason appears for not introducing the copy made from the original, and in the absence of some showing for such omission, it wti. "^rror to receive a copy made of a copy therefrom. See Drumm v. Cessnun (Kan. Sup.), 49 Pac. Rep. 78; Winn v. Patterson, 9 Pet. 663." From iitate v. Cohen, 108 Iowa, 208, 78 N. \V. Rep. 857. Copies of policies admissible. — "Other assignments of error have ref- erence to the means employed to prove that the stock of merchandise and store building mentioned In the information were insured at the time of the fire. We think the evidence Introduced was the best ob- tainable, and that is all the law requires. The policies were in posses- sion of the defendant, and he refused to produce them after being noti- fied to do so. It was then competent to show their contents; that they were made out and delivered by an authorized agent of the companies; and that the defendant was claiming indemnity under them." From fft^fahts V. State, 58 Neb. 225, 78 N. W. Rep. 508 (1899). ihi ncr.ship of the property burned. — Indicted for conspiring to burn thp property of Winne, trustee. Appellant, one of the defendants, was til' iwner of the premises where he had his dwelling-house, but Winno haa a trust deed therefor. Held, that the interest of the appellant was a contingent one, depending upon his payment of the notes secured by the trust deed; that it was simply an equity of redemption, and that the ownership was properly laid in Winne. Lipschitz v. People (Colo.), 53 Pac. Rep. 1 1 (1898). Defective indictment — Necessary ingredients. — The court said that at common law arson was a crime against the habitation rather than against property rights, and that the object of the statute was to extend the scope of arson, so as to more fully protect property rights. The in- dictment wa lor a conspiracy to burn, under a statute providing that "every person who shall wilfully and maliciously burn, etc., any dwell- ing-house, . . . office, etc., the property of any other person, etc., shall be deemed guilty of arson, etc." The court also said that the mere burning the house or another vyas not arson at common law, nor 15 f h fi ( 186 AMERICAN CRIMINAL REPORTS. under the statute; that arson consists In the wilful and malicious burn- ing of a house. That every ingredient under the statute should have been pleaded. The allegations were, "feloniously, wilfully and ma- liciously did conspire, etc., to burn, etc., a certain residence building of the property of Winne, trustee, etc., etc." It was held that the words wilfully and maliciously used, clearly referred to the conspiracy charged, and not to the object of the conspiracy, and that the indict- ment was fatally defective in not charging that the conspiracy was to wilfully and maliciously burn the building. Id. Insufficient evidence. — Indicted for burning a barn a mile and a half away from his home. His wife had left him and lived with the owner of the barn and her son. Defendant said that they had made him trouble, and that if they did not send his wife away, he would hurt them; that he could do a private injury and that the law could not hurt him; that on Friday before the fire, which was on Saturday night, he Inquired whether a creek could be crossed at a certain place, being on a short cut between their places, and that defendant went in that direction; that a witness saw some one at four o'clock the night of the fire passing in the direction where defendant and others resided; that when defendant was arrested on Sunday, he said he had been up to midnight the night before killing a beef. The court said that "eliminat- ing the threats, there was nothing left," and that the jury should have been instructed to acquit. State v. Rhodes, 111 N. C. 647, 15 S. E. Rep. 1038. Atkixsox v. State. 58 Neb. 356—78 N. W. Rep. 621. Decided March 22, 1899. Assault with Ixtext: Instructions — Reasonable douht — Defending one's property on Halloween night. 1. In a felony case, it is reversible error for a court to charge the jury that it may find the defendant guilty if it entertains a reasonable doubt of the truth of each or all of the material allegations of the indictment. 2. The law is that, if the jury entertains a reasonable doubt as to the truth of any material allegation of the indictment, the prisoner is entitled to an acquittal. 3. When a citizen assaults one of a mob in the wrongful possession of, and taking away, his prop-rty, for the purposes of injuring or de- stroying it, w'e b ••, under all the circumstances, he was justified in making the assault, is a question for the jury. 4. An assemblage of men, on Halloween night, October 31st. engaged in moving, injuring, and destroying property, is a mob engaged ATKINSON V. STATE. 13( In vlclatlng the law; and the citizen may use such force as is actually necessary to protect his person and property from injury at its hands. (Syllabus by the Court.) (The above is the syllabus as officially reported; but there is an evi- dent error in the first paragraph, the instruction referred to being: "You are instructed that if you are convinced by the evidence, beyond a reasonable doubt, of the truth of each and all of said material alle- gations, then you may find the defendant guilty. If not so convinced, or if you entertain a reasonable doubt of the truth of each or all of said material allegations, then you should find the defendant not guilty." — J. F. G.) Error to the District Court of Dawson County; Westover, Judge. Harley Atkinson, being convicted of assault with intent to commit groat bodily harm, brings error. Reversed. G. W. Fox and E. C. Cook, for the plaintiff in error. C J. Smyth, Attorney-General, and TF. D. Oldham, Deputy xVttomey-General, for the State. Raoan, C. Harley Atkinson, in the district court of Dawson county, was indicted for having on the 1st day of November, 1898, in said county, assaulted one >Villiain King, with intent then and there to inflict upon him great bodily harm. Atkinson was convicted, and to reverse the judgment pronounced thereon he has filed here a petition in error. The evidence, and especially that on behalf of the prisoner, tends to show that Atkinson lived with his family, in Cozad, !N^eb., and on the 31st day of October, 1898, was operating a threshing machine some six miles from his home. On the even- ing of that day he borrowed a buggy from the man for whom he was thre?hing, in which he drove to his home, which he reached about nine o'clock at night. There was no place in his barn where a buggy could be stored, and he left it standing against the outside of his barn. During the night a crowd of men were parading the streets of Cozad, disturbing and injur- ing property, and ignoring the efforts of the officers of the law and others to restrain them. Wagons, buggies and water-closets were being moved and hauled away, and in some instances ( '■ i ^ ll m » 138 AMERICAN CRIMINAL REPORTS. broken and injured, by this crowd. The crowd wished to got possession of the hviggy in which the prison 3r had ridden to town. Some of the crowd tried to get the buggy about ten o'clock that evening. The prisoner fired a gun over them at this time to frighten them away, and this enraged the crowd, and it threatened to get possession of the prisoner's buggy at all haz- ards, and to destroy it. The prisoner heard these threats. Some persons in the crowd threatened to shoot the prisoner and to whip him, and some of the crowd tried to get hold of the pris- oner for the purpose of hurting him. The prisoner knew of these threats and attempts. This crowd was repeatedly warned by the prisoner and others that the prisoner would shoot, if an attempt was made to take his buggy. The crowd replied that they would have it, if they did get shot, and that when they did get it they Avould destroy it. This disorderly mob paraded around until between three and four o'clock in the morning. At that time a man named King, one of the crowd, followed by the others thereof, took hold of the buggj' and started to run away with it. The prisoner called to him to drop it. This King re- fused to do. The prisoner then fired a gun over him, with a view of frightening him. King still retained possession of the bugg}', and was moving off with it, when the defendant inten- tionally shot him in the leg Avith a shotgun, inflicting a flesh wound. The prisoner believed at the time he shot King that the crowd intended to inunediately destroy the buggy if King got away with it, and he shot him for the puiiiose of stopping him, and preventing the crowd from taking the buggy away and destroying it. The prisoner at this time was afraid to leave his house to procure an officer of the law to protect his property, be- cause he was afraid of violence at the hands of this mob. On the trial the district court, after instructing the jury as to the material allegations of the information, charged them as follows: **You are instructed that if you are convinced by the evidence, beyond a reasonable doubt, of the truth of each and all of said material allegations, then you may find the defend- ant guilty. If not so convinced, or if you entei-tain a reason- able doubt of the truth of each or all of said material allega- tions, then you should find the defendant not guilty." The giv- ing of this instruction was prejudicially erroneous. By it the ATKINSON V. STATE. 139 court, in effect, told the jury that, to entitle the defendant to an acquittal, they must entertain a reasonable doubt as to the truth of each or all of the material allegations of the information. This is not the law. On the contrary, the law is that, if the jury entertain a reasonable doubt as to the truth of any material allegation of the information, the prisoner is entitled to an ac- quittal. 2. Another instruction given by the court was as follows: "The court instructs the jury that an assault is an unlawful at: tempt, coupled with the present ability, to commit a violent in- jury upon another; and in this case, unless the jury believe from the evidence, beyond a reasonable doubt, that the defendant shot William King with a loaded shotgun, intending to shoot him, and with the then present ability to shoot him, then the jury should find the defendant not guilty." This instruction, in view of the evidence, was wrong. The prisoner did not contend that he did not shoot William King with a loaded shotgun, nor that he did not intend to shoot him, nor that he did not then and there have the present ability to shoot him ; but the defense was that ho shot him in defonf^e of his property, and resorted to this means because he was afraid to leave his house to procure the apsistance of the officers of the law for the protection of his ])roperty, as he feared that, if ho did so, he would receive great bodily injury at the hands of this mob. • Ey the instruction last <|uoted the court, in i-fTeet, took this defense of the prisoner from the jury, and told thom in convict the prisoner, if they found that he, with ability to slu)ot, intentionally shot King with a loaded shotgun. We do not decide whether the prisoner was, under the circumstances detailed in the evidence, justified in shooting King. Whether he was or not was a question of fact for the jury, and this defense the prisoner was entitled to have the jury pass upon. By the instruction under consideration, the court took that theory entirely from the jury, and, in effect, instructed them to find him guilty. We are not justifying the possessor of property for shooting one who is committing a tres- pass thereon. But here was a man in his own home, in the peaceable and quiet possession of his property. A howling mob of brawlers, masquerading under the name of "Ilalloweeners,'' is parading the streets of his town, injuring and destroying il m Mil :"i 140 AMERICAN CRIMINAL REPORTS. property; threatening to take the property of this prisoner and destroy it; threatening him with bodily injury if he interferes; and this mob takes possession of his property and attempts to take it away. It was for the jury to say whether the prisoner, as a reasonable human being, was justified, under the cii'cum- stances, in making the assault he did for the purpose of protect- ing his property; for he certainly had the right to protect his OAvn. The fact that this crowd was observing the barbarous l)ractice of committing mischief and depredation on the even- ing of the 31st of October did not deprive the prisoner of the right to defend himself and his property against their unlawful attacks, for, no matter under what name they may have mas- queraded, the crowd was a mob, violating the law; and the county attorney of Dawson county woTild do no more than his duty if he caused each member of this crowd of midnight marauders to be indicted and punished. For the errors pointed out in the instructions, the judgment of the district court is re- versed, and the cause remanded. Reversed and remanded. State v. Goeeing. 106 Iowa, 636—77 N. W. Rep. 327. Decided December 14, 1898. Assault with Intent: Self-defense — Instructions. 1. One unlawfully assaulted may, in defense, repel force by force, the degree of which depends on the character of the assault. It la error to instruct the jury that such right to repel by force can only be used when there Is apparent danger of such person being killed or suffering great bodily injury. 2. If the court undertakes to instruct the Jury as to the law, "it is its duty to do so correctly; and a failure in this respect can be taken advantage of by defendant," without asking for a counter instruction. Appeal from District Court, Marion County; Hon. J. D. Gamble, Judge. Defendant, befng convicted of an assault with intent to in- flict great bodily injury, appeals. Reversed. STATE V. GOERING. 141 WATERJtAN, J. The assault is charged to have been made upon one Lewis Leits. The evidence is not before us. The record we have sets out the indictment and the instructions given the jury, and this statement of facts: "There was evi- dence on the part of the State tending to prove that the defend- ant struck and beat one Lewis Leits witli a chib and whip, the said Lewis Leits being at the time unarmed. On the part of defendant, there Avas evidence tending to show that the said Lewis Leits assaulted the defendant with a knife in his hand, and that, when said assault was made, the defendant struck him several blows, but with his fists only, and that he did not at any time strike him with anything but his fists." The sole coni- ])laint is of the tenth paragTaph of the court's charge to the jury, which is as follows: ''The defendant pleads not guilty, which plea puts in issue every material fact necessary to support the indictment, and which must be established by the evidence be- yond a reasonable doubt. And, for further and additionul de- fense, the defendant claims that, at the time of the altercation with the said Lewis Leits, he was acting in self-defense. It is incumbent upon the State to prove beyond a reasonable doubt that the defendant at the time did not act in self-defense. It is a law that a person may resist force willi force in the defense of his person against one who manifestly intends or endeavors by violence to kill him or inflict upon him great bodily injury, and if a conflict ensues in such a pase, and injury follows, such re- sistance is justifiable. To justify the defendant, however, in thus resisting and inflicting such injuries in self-defense, he is authorized to use such force, and such force only, as may be necessary, or ajipear to him, as a reasonably careful, prudent, and cautious man, to be necessary, to protect himself from in- jury. While the danger must be imminent and perilous, yet it is not necessary that the danger should be actual, but it must appear to him, as a reasonably careful, prudent, and cautious man, to be actual, and such as that a reasonably careful, pru- dent, and cautious man would have good reason to believe that his life was in danger, or that he was about to suffer bodily in- jury. And, if such be the fact, he would then be authorized, 'under the law, to make resistance thereto, even though such re- sistance might result in the death of his assailant, or in his suf- If' 142 AMERICAN CRIMINAL REPORTS. faring great bodily injury. "Wliere an assault is made, and there is a reasonable opportunity for the assailed party to with- draw and avoid the conflict and the threatened or feared injury, it is his duty to withdraw and avoid the conflict or injury. If he has such reasonable opportunity to withdraw, and fails to do so, then he would not be justified in self-defense in inflicting pain- ful or hurtful woinds upon his assailant. An assailed party is not required to run away or withdraw when an assault is made with such a violence that he cannot safely withdraw, or if it appear to him, as a reasonably careful, prudent, and cautious man, that he could not safely withdraw and avoid the conflict and the injury threatened; but under such circumstances he would be authorized to stand and resist the assault with such force, and only such force, and with such weapons or means, as were necessary therefor, or such as would appear to him as a reasonably careful, prudent, and cautious man, under like cii'- cumstances necessary therefor. And in this case, if you find fi-om the evidence that Lewis Leits assaulted the defendant in such a manner and under such circumstances as that the defend- and did believe, or a^ a reasonably careful, prudent, and cau- tious man had reason to believe, that he was about to be hilled, or to suffer some great bodily injury, and that he could not with- draw and avoid the assault and encounter, then he would be justified in using such force, and cuch force only, as would en- able him to resist the assault, and protect his life, or protect himself from such great bodily injury, and would be authorized, if it were necessary, as hereinbefore defined, to inflict upon the said Lewis Leits such injury as was reasonably necessary for his protection. But if he could have withdrawn from the con- flict, and avoided the same, or if it were not necessary, or if it did not appear to him, as a reasonably carefid, prudent, and caidious man, necessary to protect his life, or to protect himself from great bodily injury or harm, to inflict painful or hurtful wounds or other injury upon the said Lewis Leits, then he wotdd not be authorized, under the law, in self-defense, to have inflicted such painful or hurtful ivounds or other injury upon the said Lewis Leits. In determining whether an assault, if any, was made in such a manner by Lewis Leits as would au- thorize the defendant in self-defense, as hereinbefore defined. to infl if anj consic tics; Lewis weap( or fis and given facts this Tl right STATE V. GOEBINO. U3 to inflict upon tlio said Lewis Leits painful or hurtfiil wounds, if any, or to inflict upon him any injury, you should take into consideration the relative strength of the two contending par- tics; the nature and character of the assault, if any, made by Lewis Leits upon the defendant; whether made with anns or weapons of some kind, or whether made simply with the hands or fists ; the feeling existing between the parties at the time of and prior to the assault; the character and number of blows given by the defendant, if any; and all the other surrounding facts and circumstances disclosed and shown by the evidence in tliis case." The complaint made of this instruction is that it limits the right of defendant to act in self-defense to cases where he is in reasonable fear of losing his life or of suffering great bodily ha "m, at the hands of his adversary. We have italicised the por- tions of the instruction to which appellant excepts. A very cursory reading will show that there is good ground for the crit- icism made. Fo\ir times in this single paragraph is the thought repeated that, if Leits assaulted defendant, the latter had no right to defend himself unless it reasonably appeared to him that his life was in danger, or that he was likely to suffer great bodily harm from such assault. As an abstract proposition of law, this statement is incorrect. The rule is elementary that one unlawfully assailed may, in self-protection, repel force with force. The extent to which he may go is to be measured by the character of the assault ; but the right, as we have stated it, ex- ists under any and all circumstances. Counsel for the State insist that the instruction may have been correct imder the evi- dence in this case, and that, as the evidence is not before us, we should presume a state of facts justifying the rule given. It does, however, appear in the record, that there was evidence on the part of defendant tending to prove that Leits, armed with a knife, assaulted him, and that defendant, in resistance, struck his assailant with his firsts, and with those only. It is manifest that the rule announced is erroneous when applied to any such state of facts. 2. But counsel for the State say that the defendant cannot be heard now to urge an objection to this instruction, because he did not ask that any different rule be given. Where the court HI f^i t\ 1;^ 1 fv^' 1 1' ■ ' I 1^ ' s;-M i my-^^ ' -??• of wliieli the plaintiflf in cvrov was clinrgod with an assault upon (MinrU's T. JcMildns with intent to kill and murder him; and in the rtccniid eoiint the accusation was of an assault upon the sanio ])cis()ii with intent to do him great hodilj injury. The nccused, oil arraignment, pleaded not guilty; and a trial rcsiilted in a verdict of his gnilt of the charge in the second count of the in- f<.rmation, an('llant, it is necessary to give a statement of the evidence. Chester Allen, the injured party, testified: That on Saturday, before the trouble, a woman whom he was courting, named Ade- line Givens, borrowed a horse from him to ride to town, and wanted witness to go with her, but he could not, and asked ajv pellant to let her go with him, to which appellant agi'cod, anvitness was living, and asked witness why he had quit boarding wiih them, and witness told her. On Juno 27, 18!>7, the day of the assault, witness was at home, and appel- lant's little girl came down and told witness that her fatbor said for witness to come up there. Witness did not tell her wbether ho would come or not, and the girl went back home. Witness got up, and went down to water his horse at a well near by; and, before he returned, appellant, his wife, and a woman that was staying with appellant (l-etsy Shaw) were standing in front of witness' house. AVitness went up, and a])pellant spoke to wit- ness, and asked him what he had been telling his wife about him and Adeline Givens: and witness started to tell him, and defendant stopped him, and would not permit him to tell it, and said he had come down there to kill witness, and was going IV- I f ''t tl* 1 l( '. ! hI h lotJ AMERICAN CRIMINAL REPORTS. to do it, iiii'l iimucdiately pickod up a brickbat, and tlimw it at M-itnt'ss with all liis power. Witness stooped down and picked np a rod of iron near by, and, Avben lie did so, Dan Sand.ers spoke to witness, and said, "Put it down;" tluit dofendr.nt liad a jiistol. And witness looked around and saw liia pistol, and bo and Dan Sanders were sculHing- over it. Witness at once dropped the iron, jumped over the woodpile, ami ran in tbo bouse. A])pellant either ^ot loose from Sanders or was turned loose, and ciiiue to the door and repeated several times that wit- ness bad as well come out ; that be luul come to kill bim, and was fidiui;' to do it. Witness <>) night we went to town, an kept on, and l)icked up a brickbat and threw it at me. T picked up one and threw it at him. Jle then ]iicke(l u]» a rod df iron, and Dan Sanders got him and made bim lay it down. He then ran in tbo hi. use and gnt a gun. T then pulled out my pistnl, ami l,e snapi»ed the gun at me, and I shot olf my jiistid. I did not sbool^^ at him, but shot to scare bim. T did not try to shoot bim any more. I did not have intercourse with Atleline, and the reason that we were so late was because it rained, and we could not get home sooner. T distetl charge is as follows: "Vou are further instructed by the court that, before you can convict de- fendant of the charge as set out in the indictment, you nuist ir m pi: JK^ AMERICAN CRIMINAL REPORXa bcliove that di fondant was actuated by malice, as malice is de- fined in the main charge, in committing the assault, if any." We tliink this charge was amply covered in the court's charge. Apiiollant's seventh assignment of error is: "The court erred in its charge to the jury upon the subject of 'provoking the diffi- culty,' because the issue was not fairiy raised upon the trial, and was prejudicial to appellant." Without discussing the evi- dence in detail, we believe that the issue of provoking the diffi- culty was presented, arising naturally' out of the evidence as contained in the record. The eiffhth assiffument of error is: "The court erred in its charge to the jury upon the subject of provoking the difficulty, in that the court failed to indicate from the evidence what the act of provocation is, and define its effect and bearing upon the casf^, and to explain to what extent such act thus indicated would limit or abridge defendant's right of self-defense, but left the jury to speculate and conjeeturo as to the nature and qiiality of such act, and the extent of its limitation and abridgment of defendant's right of self-defense as is shown by bill of ex- ceptions." We have frequently held that, where the evidence raises the issue as to provoking the difiiculty, it is the duty of the trial court to tell the jury the circumstances indicated by the evidence raising the issue of provoking the difficulty. In Ahram r. State, 3G Tex. Cr. E. 40, 35 S. W. Rep. 300, the court said : "The court should have instructed the jury that if they believed from the evidence, l)eyond a reasonable doubt, that the defendant and deceased were engaged in a verbal altercation ; that the deceased ordered him to dry up or go off, or else ho wouM make him; that they got into a quarrel, each party en- gaged in cursing the other; and that the defendant with a knife, being a deadly weapon, stabbed deceased and killed him with malice aforethought, — that he would be guilly of murder," etc. Upon referring t.o the court's charge, we find that the court charged, in substance, as follows: "Unless you furtlu^r believe from the evidence, beyond a reasonable doubt, that defendant sought the meeting with the said Chester Allen for the ])urposo of provoking a difHculty with said Chester Allen with intent to take the life of the said Chester Allen, or do him such serious bodily injury that might probably end in the death of the said CHAVANA V. STATE 153 Chester Allen, and if you so believe from the evidence beyond a reasonable donbt, then you are instructed that, if the defend- ant sought such meeting for the said purpose and with such intent, tlie defendant would not be permitted to justify on the ground of self-defense, oven though he should thereafter be cora- i llud to act in his own self-defense." We have never hold 'that the mere fact that a party sought a meeting for the pur- pose of provoking a difficulty" would deprive him of the right of self '1i lWi?<', but we have uniformly held that the party must not only '0(1^ the meeting, but do some act or acts indicating the de- sire to bring on the difficulty, and thereby cause death or serious bodily injury to his adveri^:iry. The mere seeking of a party fcr the purpose of bringing on a difficulty, as stated, is not the gist of the offense, but it is doing the acts that produced or pro- voked the difficulty that deprives him of the right of self-de- fense. We think the court's charge is subject to the criticism urged by the able brief of appellant's counsel. White's Ann. Pen. Code, par. 1188; Id., par. 1281, § 4; Morgan v. Slate, 34 Tex. Cr. Kep. 222, 29 S. W. Kep. 1002 ; Abram v. State, 36 Tex. Cr. Rep. 44, 35 S. W. Rep. 389 ; Carter v. State, 37 Tex. Cr. Rep. 404, 35 S. W. Rep. 378 ; Winters v. State, 37 Tex. Cr. Rep. 582, 40 S. W. Rep. 303. For the error of the court in failing to give the charge above commented upon, and the fur- ther error in not properly defining what the court meant by "provoking the difficulty," the judgment is reversed and the cause remanded. .'1 CiiAVANA V. State. Texas Court of Crim. App.— 51 S. W. Rep. 380. Decided May 31, 1899. Assault with Intent: Necessity of instruction as to grades of the offense — No intent to destroy life. In a trial upon an accusation of assault with intent to commit mur- der, the evidence not showing any fixed malice or apparent de- sire to destroy life, but that the defendant while Intoxicated, using a knife, with a blade one and one-half inches long. Inflicted a wound only one-half inch in depth, the court should have in- structed the Jury as to the law relating to aggravated assaults. 154 AMERICAX CRIMINAL REPORTS. Appeal from the District Coxnt of Webb County. Manuel C'havana, being convicted of assault with intent to connnit nuirtler, ajipcals. Bohert A. Jolin, Asst. Atty. Gen,, for the State. Hexdebsox, J. Appellant Avas convicted of an assault Avith intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years ; hence his appeal. The only question presented is an exception tal en to the ac- tion of the court in failing to give a charge on aggravated as- sault. The circumstances connected with the assault are very few. They merely show that defendant, prosecutor, and several others were returning home from a dance at night ; prosecutor and defendant both being somewhat under the influence of liqur)r. Defendant lagged behind the parties a short space, and called to prosecutor to come back. lie turned around and stepjied towards defendant, who immediately stabbed him in the right breast, and then ran. The doctor states that the wouiul was a half to three-fourths of an inch in depth, and that tho prosecutor lost a great deal of blood from it ; that it Avould prol)- ably have been a fatal wound, if in a different portion of the body; he was in bed some eight days, suffering from the effects of the wound. The Avitnesscs describe the knife as beinc- a pocket-knife, Avith a narrow Idade, about an inch and a half long. Tho testimony of all tho Avitnosses is about to the same effect. The court instructed the jury that appellant nmst have entertained the specific intent to take the life of the prosecutor, before they could convict him of an assault Avith intent to mur- der, and further charged them, uidess they fouml that ho did have the specific intent to kill prosecutor, to acquit him, but failed to give a charge on aggravated assault. Under the cir- cumstances, Ave believe the court should have given a charge on aggravated assault. There Avas no grudge shown betAveen the parties, and the assault Avas not followed up. Defendant ap- pears to have merely stuck the knife in prosecutor to the dci.th of a half inch, when he might have run it in an inch and a half, and then not only failed to fellow it up, but, Avithout inter- ference, ran off. As it Avas, the jury found him guilty of as- sault Avith intent to murder, and gave him tho lowest punish- CHAVANA V. STATE. 155 I f'l iiicnt. If the court had given a charge on aggravated assault, tlio jury might have found him guilty only of that offense. AVo would not be understood, however, as holding that we would not .sustain a verdict for an assault with intent to murdci*, but we do say that the court should have given an instruction on aggra- vated assault. The instruction to acquit if the jury found that defendant did not entertain the specific intent to kill was clearly misleading, because there was no question that the assault was unlawful. The judgment is reversed, and the cause remanded. Notes (by J. F. G.). — Elements of the offense. — Two essential ele- ments are necessaiy to constitute assault with intent to commit mur- der: (1) The assault must be committed with that degree of malice, premeditation, and deliberation, that if death ensues therefrom, the offense, if any, would be murder, and not manslaughter; (2) The as- sault must be made with the actual desire to destroy life. The object of statutes of this nature is not to make felony of that class of assaults where the natural and probable result would be the death of the per- son assaulted; but where the assault is made with the actual intention to produce such results. If a man taking deliberate aim flres at an- other with the intention of wounding him in the arm, but the bullet pierces the heart and death ensues, the offense might be murder; be- cause, death l)eing produced by an unlawful act, the law presumes malice and that the party firing the shot intended the natural and or- dinary consequences of the act; but if the wound is made as contem- plated, and without just excuse, the offense might be an asi It with Intent to commit a serious bodily injury, but not assault with intent to commit murder, unless the circumstances indicate such intent. In the Chavaiia Case the fact that the defendant had the present ability to commit a more serious injury, and did not, is a very f.trong cii< im- stance indicating the absence of an intention to destroy life. J'cvicw of authorities. — The authorities supporting this view of the subject are numerous. But a few of them will here be briefly noted. The case of People i\ Ifobcrts. 19 Mich. 401, is a leading case upon the subject of specific criminal intent as applied to assault to commit murder. In that case, in reversing a conviction, the court said: "The first question presented by the record is whether, under this informa- tion, the jury could properly find the defendant guilty of the assault nith thejnlent charged, without finding, as matter of fact, that the de- fendant entertained that particular intent? We think the general rule is well settled, to which there are few, if any. exceptions, that when a statute makes an offense to consist of an act combined with a particu- lar intent, that intent is just as necessary to be proved as the a( t itself, and must be found by the jury, as matter of fact, before a conviction can be had. But especially, when the offense created by the statute, consisting of the act and the intent, constitutes, as in the present case, substantially an attempt to commit some higher offense than that which the, defendant has succeeded in accomplishing by it; we are > I Jji P. I \\h 15G AMERICAN CRIMINAL REPORTS. aware of no well-founded exceptions to the rule above stated. And in all such cases the particular intent charged must be proved to the sat- isfaction of the jury; and no intent in law, or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter. Rex v. Thomas, 1 East, P. C. 417; 1 Leach, 330; Rex v. Holt, 7 Car. & P. r.l8; Cruse's Case, 8 Car. & P. 541; Reg. v. Jones, 9 id. 25S; Regina v. Ryan, 2 Mood. & R. 213; Rex v. Duffln, Russ. & Ry. 364; Ogle- tree V. The atatc. 28 Ala. 693; Mahcr v. The People, 10 Mich. 212; Peo- ple V. Scott, 6 Mich. 29G (per Campbell, J.); Roscoe, Cr. Ev. 775, 790; 1 Bish. Cr. L., §§ 660, 667." In State v. y ''xi3t without r<><|pction or premeditation. In this case the in- tent with vhich the assault was committed is a necessary fact to be shown or implied lo constitute the crime. When it appears there was an intent to take life, either express or implied, where the killing would not be excusable or justifiable, and an assault is made with that intent, then it would be an assault with intent, to commit murder. It would follow, therefore, that for one to assault another with intent to commit manslaughter, would be a contradiction in terms. People v. Lilley, 43 Mich. 521, 5 N. W. Rep. 982. It was ?VVP»' to overrule the !■ ii .' I '1 ; 158 AMERICAN CRIMINAL REPORTS. i motion in arrest of judgment. The judgment is reversed, and the oause is remanded. (The indictment was on section 23 of the Criminal Code, which is section 45 in Starr & Curtis' edition.) GicK V. State. Statk v. Slavkxs. 60 Ohio St. 485—55 N. E. Rep. 48. Decided June 13, 1899. Bastardy: Evidence of the finding in a civil case. On the trial of the issues joined by a plea of not guilty to an in- formation or an indictment charging the defendant with unlaw- fully and negligently failing to support his illegitimate child, the record of a bastardy proceeding instituted by the mother of the child, in which the defendant was adjudged to be its father, is not admissible in evidence. (Syllabus by the Court.) In former case, error to the Circuit Court of Cuyahoga County. In latter case, exceptions to decision of Common Pleas Court of Scioto County. In the former case Gee was convicted in the police court of the city of Cleveland upon an information which charged him with unlawfully, negligently and wilfully depriving his illegiti- mate child of necessary food, clothing and shelter. Upon the trial of the issues joined by the plea of not guilty, the record of a civil proceeding under the bastardy act was, against the objec- tion of defendant, admitted to establish his paternity of tlie child which was alleged to have been neglected by him. The sentence of the police court was affirmed by the court of common pleas and the circuit court, and this petition in error is for the reversal of the judgments of the three courts for the admission of said evidence. « T. J. Ross, for plaintiff in error. AlheH T. Holmes, for defendant in error. In pleas with Vpon recor* the c( be th by tl prose excel REYiNOLDS v. STATE 150 In tlic socoiul case Slnvons was placed on trial in the connnoii picas court of Scioto county upon an indictment charging liini with neglecting and refusing to support his illegitimate child. U])on the trial the prosecuting attorney oflFered in evidence tlie record in a proceeding luiJer the bastardy act instituted upon the complaint of the mother, in which Sluvens was adjudged to be the reputed father of the child. This record was excluded by the court on objection by the defendant's counsel, and tho prosecuting attorney excepted. The cause is before us upon that exception. Henry Bannon, for the State. l^uali J. Dever, contra. ]jy TiiK Court. The record offered is not competent under the general rule that in a criminal proceeding the record of a civil action cannot be introduced to establish the facts on which it was rendered. The judgments offered followed verdicts which might have been lawfully returned upon a mere prepon- derance of evidence. A higher degree of evidence was required to convict under the indictment and the information. Greenl. on Ev., sec. 437; Britton v. The State, 77 Ala. 202; Riher v. Hooper, 35 Vt. 457. In the former case the judgments of the courts below are re- versed. In the latter the exception is overruled. 1 Reynolds v. State. 58 Neb. 49—78 N. W. Rep. 483. Decided February 23, 1899. Bigamy: Void marriage — Covipetency of evidence as to death. 1. A married person will not be absolved from the bonds of matri- mony by believing, even upon information apparently reliable, that the marriage has been dissolved by death or divorce. Public policy forbids that the permanence of the marriage relation should depend upon anything so precariouf as the mental state of one of the parties. 2. Whether, in a prosecution for bigamy, an honest and reasonably grounded belief entertained by the defendant in the death of an absent spouse is of itself a complete defense, quare. i H .) •' ICO AMERICAN CRIMINAL REPORTS. 8. In a prosecution for bigamy it is prejudicial error to permit the State to re-enforce a disputable presumption in regard to the ca- pacity of one of the parties to contract a valid marriage by the introduction of incompetent evidence directly bearing upon the question. 4. To prove a divorce, the record of the decree, or a duly authen- ticated copy thereof, Is the appropriate and only competent evi- dence. 6. In the absence of an exception, a ruling made by the district court during the progress of the trial cannot be reviewed. 6. AVhen a reputable presumption, possessing no inherent probative force, is met by opposing evidence, it is entirely destroyed, and ceases to be a factor in the trial, unless it be required to turn an evenly balanced scale. (Syllabus by the Court.) Error to District Court of Hayes County; Xorris, Judge. Frederick D. Reynolds, being convicted of bigamy, brings error. Reversed. J. L. McPheely and E. F. Ferns, for the plaintiff in error. C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State. h 1 SuLT.TVAx, J. The defendant, Frederick D. Reynolds, was convicted of bigamy, and sentenced to imprisonment in the peni- tentiary for a term of seven years. He was found guilty on tho first count of the information, which charges a first marriago with Jennie Ford in Beaverhead county, in the State of ]\[on- tana, in February, 1895, and a second marriage with Lizzie J. Caulk, in Hayes county, Nebraska, in July, 1897. The sol- emnization of both marriages, as alleged in the information, was shown by competent evidence, and was admitted by the defend- ant Avhile testifying as a witness in his own behalf. The hy- pothesis upon which the defense was conducted was that tho ^Montana marriage was void, for the reason that both the con- tracting parties were at the time bound by prior matrimonial alliances, and so lacking in legal capacity to marry, or live in lawful wedlock. Jennie Ford, being produced as a witness for the State, on cross-examination gave testimony from which it appears that she, as well as the defendant, was incorrigibly ad- dicted to matrimony. She testified that she married J. J. Jor- REYNOLDS v. STATE. ICl don at Vinton, Iowa, in 1883; that alio married Frank Ford in Chicago, in 1884; and that, at Dillon, Montana, in Augnat, 18!)2, she waa wedded to Mack S. Punnan. At the cf)nclu8ion of the cross-examination she was dianiissod by tlic State, but was subsequently recalled, and, over defendant's objection, testi- fied that at tlie time she married Reynolds all of his predecessors in marital right wore dead. She also testified that she had ob- tained a divorce from Purnian in 1893. During the course of a further cross-examination it was developed that the only information the witness possessed in regard to the death of I'ur- num was derived from a letter written to her by some one in Kansas City, whereupon the defendant moved to strike out the testimony. The motion was denied for the reason suggested by the following remark of the judge who presided at the trial : "An honest belief of the death of a husband or a wife, together with some reasonable ground for their believing it, would be a good excuse. 1 believe on that ground it ought to be overruled." The motion should have been sustained. The mere reception of the letter did not render the witness an eligible candidate for matrimony. Neither reason nor authority sustains the position of the trial court upon this question. There are, it is true, cases which hold that an honest belief in the death of a former husband or wife, when such belief is reasonably grounded, is a defense to a prosecution for bigamy ; but, if the doctrine of these cases is sound, — which we do not concede, — it has no applica- tion whatever to the facts of this case. The witness was not on trial. Her intent, whether criminal or innocent, was not in is- sue, and therefore her belief touching the contents of the letter was wholly immaterial. A married person cannot become ab: solved from the bonds of matrimony by believing, even upon in- formation apparently reliable, that the marriage has been dis- solved by divorce or death. Public policy forbids that the per- manence of the marriage relation should depend on anything so precarious and elusive as the mental state of one of the parties. But it is contended by the attorney-general that the refusal of the court to sustain the motion was not prejudicial error, be- cause the law would presume, in favor of the innocence of Jen- nie F \ , ,t am offiense is committed by one who, being married, contracts a common-law marriage lacking the formalities which the 9tat\ite prescribes for the solemnization of marriages. The testimony on the part of the People tended to show that the respondent and the complaining witness, Bertha A. Poyle, entered into an agreement in writing as follows : "I, Augustus C. Mendenhall, do hereby solemnly agree to take Bertha A. Poyle as my wedded wife, to live together in the holy state of matrimony, to love her, comfort her, honor and keep her in sickness and in health, and, forsaking all others, keep her only, so long as we both do live. I, Bertha A. Poyle, do hereby solemnly promise to take Au- gustus C. Mendenhall as my wedded husband, to live together in the holy state of matrimony, to love, honor, comfort, and keep him in sickness and in health, and, forsaking all others, keep him only so long as we both do live. Augustus C. Mendenhall. Bertha A. Poyle." That this agreement was signed in the presence of witnesses; and that, acting on this agreement, the parties immediately commenced to cohabit as husband and wife, and continued to so cohabit for some weeks, when the complain- ing witness learned of the former marriage of the respondent. The circuit judge charged the jury : "If yoxi find from the evi- dence, and beyond a reasonable doubt, that Bertha Poyle entered into the contract in question in good faith, for the purpose of cre- ating the marriage relation between her and Mendenhall, and not for the purpose of establishing or covering up unlawful sexual intercourse between them, aijd that she did this without knowl- edge or information that Mendenhall had a prior wife living, from whom he was not divorced, and that the marriage contract so entered into was followed by marital cohabitation, submitted to by her in good faith, supposing she was his lawful wife by virtue of such contract, then you should regard the second mar- riage charged in the information as sufficiently proven ; other- wise, you should not." The respondent's counsel stated his claim as follows: "The presumption of a valid marriage from the circumstances of cohabitation and the declaration of the parties, Avhile it may be conclusive where there is no impedi- ment in the way, yet we apprehend that where, as in this case, there is an impediment, to wit, a first marriage, and that impedi- ment is proven, what is at most lewd and meretricious cohabita- PEOPLE V. MENDENHALL. 16JS tion cannot, by a humane presumption of the law, be converted into a predicate for the second marriage required under the statute of bigamy." It is a settled rule in this State that a mar- riage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as hus- band and wife, consummated by cohabitation. Hutchins v. Kimmdl, 31 Mich. 12G, 118 Am. Rep. 1G4; Clancy v. Clancy, 06 Mich. 202, 33 K W. 889 ; People v. Loomis, lOG Mich. 250, 64 X. W. Rep. 18. It follows that such infonnal agi'eemont constitutes a marrying, within the meaning of section 9280, 2 How. Ann. St. It is none the less a marrying because one spouse is already married. It is true of every case of a big- amous marriage that the second marriage is void; and, as was said in People v. Brown, 34 Mich. 339, it is the entering into a void marriage while a valid marriage exists which the statute punishes. In Bish. St. Crimes, § 592, it is said, "In a State where mutual consent alone constitutes matrimony, as with the first marriage, so with the second, — ^no added formalities need be shown." See also Hayes v. People, 25 H^. Y. 390. The con- viction is affirmed. The other justices concurred. Note. — Proof of common-law marriage. — In Hiler v. People, 156 111. 511, 41 N. E. Rep. 181, a prosecution for bigamy was based on the theory that the llrst alleged marriage was a common-law marriage. In < -^versing the conviction, the court said: "To constitute the offense charged in this Indictment it is Incum- bent upon the prosecution to show against the defendant two suc- cessive marriages; one legal and innocent, the other penal. Both must be actual. The first marriage must be valid and binding, and a mar- riage in fact. Marriage with capacity and consent, proved by direct testimony, as by the evidence of witnesses who saw and heard the marriage celebration performed between the parties, or record evidence, with identification, would be evidence of actual marriage in fact. Under the decisions of this court, a marriage legal at common law la recognized as valid and binding in this State. What constitutes such common-law marriages legal and valid has been recognized by repeated adjudications. To constitute a marriage legal at common law, the com- tract and consent must be per verba de pr(rsenH. Or, If made per verba de futuro cum copula, the copula Is presumed to have been al- lowed on the faith of the marriage promise, and that as the parties at the time of the copula accepted of each other as man and wife. Port V. Port, 70 111. 484; Hebblethwaite v. Hopworth, 98 111. 126; Cartwright V. McOown, 121 111. 388, 12 N. E. Rep. 737. Under the evidence in this record it is not shown that any marriage ceremony was performed. No actual marriage in fact is proven between the defendant and Lizzie lii :■ I': 166 AMERICAN CRIMINAL REPORTS. .* 1 , \ it WW . Myers. The evidence discloses the fact that the defendant and one Lizzie Myers lived together as husband and wife, etc., spoke of and introduced each other to others, and letters from the defendant to her so designated her as his wife. They were by repute husband and wife during this cohabitation. On many questions, cohabitation and repute are adequate evidence from which marriage is presumed. For the de- termination of many cases, declarations, whether verbal or In writing, with evidence of cohabitation and repute, are adequate evidence of marriage. The manner in which persons living together as husband and wife are received among their fr this provision of the statute removes the disqualification of witnesses by reason of Interest. But does it touch a disqualification based upon reasons of public policy? We think not. The question has arisen in England and in several of the States, under statutes similar to ours, and it has been uniformly held that a statute removing Incompetency, by reason of interest, did not remove it as to husband or wife." And the same court, in Reeves, Jr. v. Herr, 59 111. 79. in referring to the ex- clusion of i,uch evidence based on the ground of unity of interest, said: "But we conceive this rule of exclusion does not rest solely upon that ground, but on considerations of public policy as well." And the court refers to Coke on Littleton as laying down the doctrine that a wife cannot be produced for or against her husband because it might be a cause of implacable discord and dissension between them and a means of great inconvenience. Iii Miner v. The People, 58 111. 59, which was an indictment fot adultery against Miner and Eliza Jones, and on the trial of w'hich Samuel Jones, her alleged husband, had been permitted to testify, the court said he was an incompetent witness; and that "It may be as- sumed as an inflexible rule that, where husband or wife is a party, neither can be a witness, either for or against each other, except as modified by the statute. This is not changed by the act of 1867." "This provision only removes the disqualification of witnesses by rea- son of interest or conviction of crime. The exclusion of husband and wife from being witnesses for or against each other is not solely on the ground of interest. This exclusion is partly founded on the iden- tity of their legal rights and interests, and partly on principles of pub- lic policy, which lie at the basis of civil society." 1 Oreenl. Ev., sec. 334; Roscoe's Crim. Ev. 147 (5th ed.). Under a similar statute re- moving the incompetency of witnesses by reason of interest, in civil cases, this court held that the statute did not reach a disqualification based upon reasons of public policy, and so did not remove the incom- petency as to husband and wife. Mitchinson v. Cross, 68 111. 366." From Creed v. People, 81 111. 565. Mr. Greenleaf (sec. 334, vol. 1), after stating the common-law gen- eral rule to be, that neither could give evidence in a civil or criminal case to which the other was a party, proceeded: "This exclusion Is founded partly on the identity of their legal rights and interests, and partly on principles of public policy, which lie at the basis of civil society. For it is essential to the happiness of social life that the confidence subsisting between husband and wife should be sacredly protected and cherished in its most unlimited extent; and to break down or impair the great principles which protect the sanctities of that relation would be to destroy the best solace of human existence."^ 2 Starkie's Ev. 706 (Metcalfs 3d Am. ed., 1830), lays down the rule: "The husband and wife cannot be witnesses for each other, for their in- terests are identical, nor against each other, on grounds of public pol- icy, for fear of creating distrust and sowing dissensions between them, and occasioning perjury. So important is this rule that the law will not allow it to be violated, even by agreement; the wife cannot be examined against the husband, although he consents; and the principle Is fu tie vorc< In said inal mon fe |.i»ricMaW wz COMMONWEALTH v. MILLIKEN. 177 is further preserved by adhering to the rule even after the marriage tie has been dissolved by the death of one of the parties, or by a di- vorce for adultery." In Roscoe's Cr. Ev. 12E^, referring to the statutes on evidence, it is said: "An important exception, however, was expressly made in crim- inal cases with regard to husbands and wives, who remain as at com- mon law, incompetent witnesses either for or against each other." . . . "The rule is in general absolute, and cannot be waived. It excludes them from givin,-; evidence, not only of facts, but of state- ments made by either in the nature of admissions." This rule was ably discussed in North Carolina, and in State v. Hussey, 44 N. C. 123, after alluding to the rule as established, the court said: "This rule has been adopted partly on the ground of interest and partly on principles of public policy, which lie at the basis of civil society. A contrary rule would break down or weaken the great prin- ciples which protect the sanctities of the marriage state. The con- fidence existing between husband and wife should be treasured and rendered inviolate." In Overton v. State, 43 Tex. 616, which was an indictment against Overton for appropriating a mule claimed by the wife to have been her special property, the Supreme Court said that the wife was an incom- petent witness; that the evident intent and purpose of the law in per- mitting an exception to the rule where personal oilenses against each other were to be inquired into did not mean injuries to property, but strictly personal offenses by the one against the other. In State v. Welch, 26 Me. 30, the court said: "The defendant is in- dicted for the crime of adultery, and the question is, whether the hus- band of the woman with whom it is alleged to have been committed is a competent witness to testify to the act. Neither the husband nor wife of the party Is competent to give evidence against such party. The reason for the exclusion is founded partly on the identity of interest and partly on a principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of Justice." !l!i Commonwealth v. Millikeit. 174 Mass. 79—54 N. B. Rep. 357. Decided July 1, 1899. BniBERT! Indictment — Allegations— Construction. Where a Juror was indicted under the statute for receiving a bribe, it was unnecessary to allege that the bribe was given by a party to the action. Where the indictment follows the words of the statute it is sufll- cient. VouXI — 13 178 AMERICAN CRIMINAL REPORTS. hii - \l ",. ] i , t- u »1 , St 1,1 Charles II. Milliken was convicted of taking a bribe, in the Superior Criminal Court; Gaskill, Judge; and takes excep- tions. Exceptions overruled. /. D. McLaughlin, Second Asst. Dist Attorney, for the Com- monwealth. H. W. James, for the defendant. Morton, J. The exceptions in this case are to the overrul- ing of the motion to quash. The first, second, and fourth rea- sons contained in the motion are that the indictment does not al- lege that the bribe was taken or received from a party to the ac- tion or from one acting on behalf of such a party. It was not necessary that it should so allege. The statute under which the defendant was indicted provides that if a juror "corruptly takes anything to give his verdict," or "corruptly receives any gift or gratuity whatever from a party to a suit, cause, or proceed- ing ... he shall be pimished," etc Pub. Stats., ch. 205, § 15. There are therefore two things for either of which a juror may be indicted; namely, corruptly taking anything to give his verdict, or corniptly receiving any gift from a party to a suit, cause, or proceeding. The defendant was indicted for doing the first, and it was unnecessary to allege that the bribe was taken or received from a party to the cause or proceeding. What we have said disposes of the third reason also, which is that two distinct offenses are set forth in one count. The fifth reason is that the agreement under which the money was re- ceived is not sufficiently described. The indictment follows the words of the statute. Commonwealth v. Dyer, 128 Mass. 70. It is enough to allege of the defendant that he corruptly took money of a person to the jurors unknown, to give his verdict in favor of one of the parties to the cause. Ordinarily it would be impossible to describe the agreement under which the money was received, and the statute does not require it The statute sets forth with clearness the things which constitute the offense, and it is not necessary to include any others in the indictment. The sixth reason, that the indictment did not plainly, substan- tially, and formally set forth any offense against the laws of this Commonwealth, has not been argued. There is clearly no merit in it. Exceptions overruled. STATE V. DURNAM. 179 State v. Durnam. 73 Minn. 150—75 N. W. Rep. 1127. Decided July 1, 1898. Bribery : Challenge to panel — Challenges to jurors — Incompetency of jurors — Indictment — Evidence — Accomplice — Punishment. 1. Challenges to the panel not allowed. Loose practice thereon. 2. General challenge to jurors for "actual bias" is sufficient, espe- cially where the defendant joined issue on the challenges without objecting to their insufficiency. 3. Where the court acted as the trior on such challenges, its findings are not reviewable. 4. Objections cannot be taken to competency of jurors after sworn. The fact that a juror who had declared his intention to become a citizen, but was not a citizen of the United States, but who had not been asked as to his citizenship on his examination, sat on the trial, should not be ground for disturbing the verdict. Such disqualification does not go to the intelligence or impartiality of a juror. 5. A defendant in a criminal case may waive an objection to a juror for incompetency. 6. Defendant was indicted for asking a bribe from Richards, "upon the understanding and agreement" — statutory words — that his vote, etc., should be influenced in favor of accepting a certain bid by Haivorson, Richards & Co., held unnecessary to allege with whom the understanding and agreement was made; that where one asks for a bribe, it is net necessary that the one asked should consent to give it. It suffices that the party asking for a bribe is ready and willing to accept it. 7. The city council's proceedings, including the committee's majority and minority reports, and the bids, were competent evidence. 8. Evidence of a conversation defendant had with Haivorson on the day previous to the transaction with Richards not improper as relating to a separate offense. The several conversations were parts of the same transaction. Even if it related to a separate offense, it would have been admissible for the purpose of showing criminal intent, as attempting similar offenses. 9. Instructions that it was immaterial whether or not defendant's own vote was to be affected by the bribe, if he was to corruptly influence the action of other members of the council, he would be guilty, held not erroneous. 10. Instructions implying that the persons solicited for bribes were accomplices, properly refused. 11. Sentence of six years and six months not excessive, and not "cruel or unusual" punishment. Appeal from Hennepin County District Court; Elliott, Judge. George A. Durnam convicted of soliciting a bribe. Affirmed. l¥' ISO AMERICAN CRIMINAL REPORTS. f^ •h II. W. Chillis, Attorney-General, and James A. Peterson, County Attorney for Hennepin County, for the State. Harrison tO Noyes, for the appellant The facts appear in the opinion. Mitchell, J. The defendant was indicted under section G5 of the Penal Code (G. S. 1894, § G349) for having asked for a bribe from one Charles H. Eiehards, as a member of the firm of llalvorson, Richards & Co., "Upon the understandinj? and agreement that his, the said George II. Durnam's, official voto and action as a member of said city council (of ^linneapolis), as aforesaid, should be influenced thereby in the following man- ner, to wit, in favor of the acceptance by the city council of a certain bid theretofore duly submitted and proposed by the said llalvorson, Richards & Company to said city council for the construction of a reservoir and boulevard by the said city of Minneapolis," etc. The trial resulted in a conviction, and from an order denying his motion for a new trial the defendant appealed. 1. The first five assignments of error relate to the action of the court in reference to the defendant's challenges to the panel of petit jurors. The record shows that when the case was called for trial the following proceedings were had, viz: "Defendant's counsel: I have a challenge here to the panel, and the same challenge to the special venire called for la^t ^Monday of fifty names. The court : You do not care to argue that now? Defendant's counsel: I^o, sir. The court: Chal- lenge foimd not true. Defendant's counsel: Defendant ex- cepts." The challenges so made and filed with the clerk were on the ground that the list of petit jurors and the special venire were not selected as provided by G. S. 1894, § 5611. This is ab- solutely all that the record discloses on the subject. In his cer- tificate to the bill of exceptions the trial judge states as follows : "The challenges to the panels were made and fully argued at a former trial of a similar case, and decided by another judge of this court. When the questions were raised on this trial, it was stated that no argument would be made on the same. The challenges were made and ruled on by the court with the under- t STATE V. DURNA51 181 Son, or) standing thnt they were denied, and that a record simply was being made." Defendant's counsel do not deny the truth of any part of this statement except that which alleges that the challenges to the panels were fully argued at a former trial of a similar case, their claim being that, although made, denied by the State, and evidence introduced, the challenges were not argued at all. The course of procedure where a challenge to the panel is in- terposed is prescribed by G. S. 1804, §§ 735G-7359. When this challenge was interposed, coiinsel for the State should have excepted to it, or denied it, or first excepted, and, if that was disallowed, then denied the facts alleged in the challenge, and the court should then have proceeded to try the question of fact. According to the record, as soon as the counsel interposed the challenge, and before counsel for the State had either excepted to it or denied it, the court, on its own motion, took for granted, as indicated by his question, that counsel for the defendant, for some reason, would not care to argue the matter, to which coun- sel promptly assented. This clearly indicates that the record is incomplete, and that both court and counsel were acting upon something which had preceded, and which was understood be- tween themselves, but which does not appear in the record. The place for facts to appear is in the *'case" or bill of ex- ceptions, and not in the judge's certificate; and the general rule is that the court cannot cure a ruling which is erroneous accord- ing to the former by attempting to state additional facts or ex- planations in the latter. But in this case the statements con- tained in the certificate so dovetail in with the evidently incom- plete record, and throw so much light upon it, that, read in that light, the record is perfectly intelligible, and makes clear that the understanding of both court and counsel was that, as this challenge was made upon the same grounds as the challenge in a former similar case, and the evidence in support of it would be the same, it should be considered denied, and overruled pro forma, so that defendant might save the question in case of an appeal. Counsel's answer was certainly calculated to convey this impression. He suggests that, as the challenge had been neither excepted to nor denied by the State, there was nothing for them to argue, m 182 AMERICAN CRIMINAL REPORTS. W 1 and that it was not his duty to advise the counsel for the State or the court as to the proper procedure. But no court would have understood counsel's answer as meaning what he now claims, viz., that he did not wish to argue the question because there was nothing before the court to argue. On the contrary, it would, under the circumstances, understand counsel as mean- ing just what the court says it did, and as we have no doubt he did mean, viz., that, in view of the former rulings of the court on the question, he expected an adverse decision, but wished to save it on the record for the purpose of an appeal. A very loose and informal practice was adopted both on the trial and in making up the bill of exceptions, but we think that it is clearly apparent that the meaning of both counsel and court was as stated above. 2. There are several assignments of error relating to chal- lenges to individual jurors. The State challenged certain jurors on the groimd of "actual bias." It is urged that this is not suffi- cienth' specific; that G. S. 1894, § 7372, requires that in a chal- lenge for actual bias the cause stated in the second subdivision of section 7368 shall be alleged. "No such practice has ever ob- tained in this State, so far as we know. We are satisfied that the general understanding of the courts and bar is that a chal- lenge generally "for actual bias" is sufficient in form, and that section 7372 does not mean that the challenge shall recite the second subdivision of section 7368, but merely refers to the latter for a definition of actual bias. But it is unnecessary to pass on this question, because defend- ant made no objection to the sufficiency of the challenges, but joined issue by denying them, and then proceeded with the trial of them on the evidence. There is nothing in the point that the court erred in finding these challenges true. The decision of triors is not reviewable, and the same is true of the decision of the court when it acts in place of triors. State v. Mims, 20 3^Iinn. 183, 2 N. \V. Rep. 294, 083. 3. It is urged that the indictment is insufficient for the rea- son that it does not state with whom the "understanding and agreement" were made that defendant's official vote and action should be influenced thereby, or that any understanding and ;:: 1 STATE V. DURNAM. 183 agreement to that effect were made with any person. This con- tention is based entirely upon the use in the statute of the words "upon any agreement or understanding." It is argued that these words necessarily imply the meeting of two minds, and hence, to constitute an offense under this statute, the minds of the officer asking the bribe and of the person from whom it is asked shall meet upon the proposition that the officer will violate his official duty. If this contention is sound, it would necessarily follow that no public officer would be guilty of the offense of asking for a bribe unless he found a person who could and did corruptly agree to pay it. There is no middle ground. The inevitable logic of counsel's position is that there can be no conviction of an officer for asking a bribe unless facts can be shown which con- stitute a crime on the part of the one from whom the bribe was asked. Siich a construction would practically nullify the statute altogether, for, if the person of Avhom the bribe was solicited proved to be honest, and refused to entertain the proposition, the officer soliciting the bribe would be guilty of no offense, while, on the other hand, if he was dishonest, and agreed to pay the bribe, he would not be likely to inform on the officer, and by so doing incriminate himself. This is not the correct construction of the statute. The mean- ing to be given to the words "agreement" and "understanding" depends upon the connection in which they are used; and in construing a statute it is a very unsafe practice to adhere strictly to lexicographers' definitions of words standing alone, and sev- ered from their context. To constitute the offense under this statute of asking for a bribe, it is not necessary that the party solicited shall consent to give it. All that is necessary is that the party asking the bribe is ready and willing to enter into a corrupt agreement or understanding to accept it. People v. Squires, 99 Cal. 327, 33 Pac. Eep. 1092. See also Com. v. Murray, 135 Mass. 530. 4. This brings us to the consideration of the assignment of error relating to the conduct and qualifications of certain mem- bers of the jury which tried the case. One Armitage was called as a juror, and was examined by de- fendant's counsel as to his residence, business, and whether he )*■ 184 AMERICAN CRIMINAL REPORTS. ^--i*- had any acqviaintance or business relations with counsel for the State. Counsel, without pursuing the examination an^' further, or intor]V)sing a challenge, expressed himself as content with the juror. Counsel for the State, after inquiring briefly of tho juror as to his acquaintance or business relations with the de- fendant or the other members of the city council, also expressed hiiusclf as content, and Armitage was then sworn as a juror, without objection by either party. After verdict, and on mo- tion for a new trial, the defendant presented affidavits tending to show that Armitage was not a qualified juror, not being a citizen of the United States; also that prior to this trial, and immediately after the disagreement of the jury on a former trial of the case, he stated that he wished he had been on that jury; that he would have done all he could to convict the de- fendant; also that after the rendition of the verdict on the last trial he stated that he *Svas glad to g-et a chance to sit on the jury; that he knew defendant pretty well," — implying that he was glad to have a chance to convict him. Armitage made an affidavit, in which he positively denies having made either of these statements, in which he was corroborated by the affidavits of several persons who were present on the occasion on v.hich the statements were alleged to have been made. Upon those conflicting affidavits it was for the trial judge to determine on which side the truth was. However, it stood practically admitted that at the time of the trial Armitage was not a citizen of the United States, but had merely declared his intention of becoming such. The doctrine is as old as the couiuion law that no objection could be taken to any incompetency of a juror after he was ac- cepted and sworn. Wharton's Case, Yelv. 24. While this «loo- trine may have been somewhat modified in modern times, yet the general rule (and the better one on principle) still is: First, no objection can be taken to any incompetency in a juror (exist- ing at the time he was called) after ho is accepted and sworn, if the fact was known to the party, and he was silent ; second, and, even if not discovered until after verdict, the cause of challenge will not per se constitute ground for a new trial. In such case only the discretion of the court can be appealed to, which will consider the nature of the objection to the juror, what diligence 'Ml , m ,{:f|r STATE V. DURNAM. 186 the party exercised to ascertain the fact in due time, and the other circumstances of the case. 1 Bisiion, Cr. Proc, §§ 946, 940a; State v. Davis, 80 N. C. 412 ; Geo.yr v. State, 39 Miss. 570; Beck v. State, 20 Ohio St. 228; GiHeiqrie v. State, 8 Yorg. 507; State v. Quarrel, 2 Bay, 150; Slate v. Jackson, 27 Kan. 581 ; Chase v. People, 40 111. 352 ; State v. Vogel, 22 Wis. 449. Some of the cases seem to hold that under no circtimstances, even where the objection waa not discovered until after verdict, will the incompetency of the juror be ground for a new trial. We would not go that far. We think it is a matter addressed to the sound judicial discretion of the trial judge, who should take all the circumstances above referred to into consideration. In this case, although the court peinnitted defendant's counsel to examine the juror preliminarily, in order to determine whether he would interpose a challenge, yet counsel never made any inquiry as to the citizenship of the juror, but accepted him without interposing any challenge ; and that, too, at a time when, owing to the recent amendment of our constitution, the question of citizenship was frequently called to the attention of the courts and the bar, in order to ascertain the qualification of both grand and petit jurors. The disqualification by reason of alienage is one which does not go to either the intelligence or the impar- tiality of a proposed juror. In view of the nature of the objec- tion and the lack of diligence to ascertain the juror's compe- tency, we are clearly of opinion that the trial court committed no error in denying a new trial on the ground npw under con- sideration. There is a very clear distinction between waiving a trial by jury and waiving an objection to the competency of a juror. A defendant indicted for a felony can Avaive the latter, although it may not be competent for him to waive the former. This doc- trine does not at all infringe upon the constitutional guaranty that the right of trial by jury shall remain inviolate. See Kohl V. LclilbacTc, 160 U. S. 293, 16 Sup. Ct. 304. What has been said as to the statement alleged to have been made by the juror Armitage tending to show actual bias on his part is equally applicable to similar statements alleged to have been made by the jurors Washburn and Campbell. Defend- ant's counsel merely asked them the same general questions as II i! J 180 AMERICAN CRIMINAL REPORTS. to their residence, business and personal relations with the counsel for the State, and then accepted them without interpos- ing any challenge. The affidavits submitted by the defendant were suflficiently rebutted by counter affidavits on part of tho State to make the question one of fact for the trial court, who, under the circumstances, occupies a position somewhat anal- ogous to that of the trior before trial. We find nothing substantial in tho charges of misconduct of the jurors while deliberating on their verdict. The affidavits of jurors as to what took place in the jury room were inad- missible for the purpose of impeaching their verdict. The claim that they .were allowed to separate d\iring their deliberation was sufficiently rebutted or explained by the affidavits of the jurors themselves and of the deputy sheriff who had them in charge. 5. Xext in order are the assignments of error relating to the admission of evidence. The proceedings before the city council, including the reports of the committee, both majority and minority, and the bid of Ilalvorson, Richards & Co., were competent for the purpose of showing that the matter upon which the bribe was alleged to have been solicited, to wit, the construction of a reservoir and boulevard, was pending before the city council, and in what way or manner it came to be pending. These proceedings showed that the matter pending before the council was not merely whether a reservoir and boulevard should be constructed, but also, and perhaps mainly, whether the work should be let by contract or done by the city itself by day labor, and that Ilal- vorson, Richards & Co. was a bidder, and the lowest bidder, for the contract. The mere fact that the report of the minority of the commit- tee contained some arguments in favor of doing the work by contract, which counsel for the State might attempt to use against the defendant in an illegitimate way, would not render the evidence incompetent. It would be for the court to instruct the jury for what purposes alone they might consider it. Conceding, without deciding, that the other bids for the work were immaterial, it is impossible to conceive how the defendant could have been prejudiced by their admission. STATE V. DURNAM. 187 Tlic evitlcnco of the State wns to tlio cffc't that on "May 2, ITnlvorflon, the senior partner of the firm of Ilalvorson, Richards & Co., had a conversation with the defendant in regard to the constructi(»n of the proposed reservoir and boulevard, in ■which defendant stated to him that ''there was one way to get that work," and, on being asked what it was, replied, **If you put up $10,000, you can get it," and that after some further conver- sation on the subject Ilalvorson said to defendant that he would see his partner, to which defendant replied, "If you will, you had better meet me at the Nicollet House at eight o'clock to- night;" that Ilalvorson went to the Nicollet House that evening, and found his partner Richards there, and told him what de- fendant had said, and then introduced him to the defendant; that defendant and Richards had no conversation on the subject that night, but that the next morning Richards met defendant at the city hall, and then and there had a conversation with him, which was opened by Richards saying to him that they had cftnoluded that they could not afford to pay any money for the contract; that he did not think they could afford to pay $10,000 for the contract. This conversation continued, in the course of wliich, according to the State's evidence, defendant asked Rich- ards for a bribe, which alleged asking constituted the crime charged in the indictment. Counsel assign as error the admission of the conversation be- tween the defendant and ilalvorson on !May 2, on the ground that it tended to prove the commission of a distinct and separnte crime, to wit, asking Ilalvorson for a bribe. ATe do not see whv this evidence was not admissible under the rule which, in certain cases, permits evidence of other similar offenses for the purpose of proving criminal intent. See State v. Wilson, 72 :Minn. 522, 75 N. AV. Rep. 715. IJut it is not necessary to resort to this rule in order to sus- tain the admission of this evidence. The conversation between defendant and Ilalvorson on Mav 2, and that between defend- ant and Richards on May 3, were parts of the same transac- tion. The latter was but a continuation of the former. The former was admissible for the purpose, if no other, of explain- ing and illustrating the latter, The court carefully explained 1 J' ^y ': I Mil"lt.t il 1 ,1.1 if] t 188 AMERICAN CRIMINAL REPORTS. to the jury the purpose of the evidence, and instructed them that it could not be made the basis of a conviction of the defendant for asking a bribe from Halvorson ; that, under the indictment, he could only be convicted of asking a bribe from Richards, as charged. G. There are numerous assignments of error as to portions of the court's charge and its refusal to charge as requested. ]\[any of these are based upon the erroneous assumption that to consti- tute the crime charged there must be a meeting of minds, or a mutual understanding or agreement, between the person asking the bribe and the person of whom it is asked. This has been already fully discussed in considering the sufficiency of the in- dictment. The court charged the jury that it was immaterial whether defendant's own vote was to be affected by the bribe or not ; if he asked for the money, intending and understanding that he would take the money, and use it for the purpose of influencing the action of other members of the council, and corruptly obtain- ing the contract for these people (Halvorson, Richards & Co.), then he would be guilty of the crime charged in the indictment. The crime, as defined by the statute (G. S. 1894, § 6349), is "Asking," etc., "upon any agreement or understanding that his vote, opinion, judgment, action, decision or other official pi*o- ceeding shall be influenced thereby, or that he will do or omit any act or proceeding or in any way neglect or violate any official duty." The indictment charges that defendant asked the bribe "Upon the understanding and agreement that his . . . vote and official action . . . should be influenced thereby." We are of opinion that both the statute and the indictment are broad enough to include the case of a member of sn official body asking for money or other valuable things for the purpose of thereby corruptly bribing or influencing the votes of his col- leagues. An alderman's constituents are entitled to liis influ- ence with his colleagues in the city council as much as they are to his vote. The one is as much within the sphere of his official action as is the other. The statute never intended that a publie officer could, for a consideration, corruptly use his influence in bribing his colleagues to vote for or against a measure, and yet wl wl STATE r. DURNAAI. ISO be exempt from criminal prosecution, provided his own vote was not to bo influenced thereby. Counsel is in error in claiming that there was no evidence to which this instruction was applicable. Richards testified that defendant stated — "That, as far as he was concerned, he would be willing for us to have the contract without putting up anything, but that there were sixteen of them in the company, in the crowd, and that they had agreed that there shouldn't one of them accept money unless they all had some." The court refused to give to the jury certain requested in- structions upon the proposition that a conviction cannot be had upon the uncorroborated testimony of an accomplice. These re- quests were made upon the theory that Richards, or both Rich- ards and Halvorson, were accomplices of the defendant in the commission of the offense charged, or at least that there was evidence tending to prove that fact. If there is any evidence tending to implicate Halvorson or Richards, even morally, with the crime charged, the most that can possibly be claimed for it is tliat it tended to prove that they were inclined to entertain de- fendant's demand favorably, and would have been willing to accede to it if the sum demanded had not been so large. Even if they had fuli^ acceded to defendant's demand, and had paid or offered to pay the sum demanded, although they wouid have been guilty of an independent and separate crime, thoy would not have been, within the meaning of the law, ac- coiuplicos of the defendant in the commission of the crime of asking for r bribe. An accomplice, in legal signification, is one who co-f)perates, aids or assists another in the commission of a crime, either as principal or accessory. The general test to de- termine whether a Avitness is or is not an accomplice is, could he himself have been indicted for the offense either as principal or as jiccessory ? If ho could not, then he is not an accomplice. Com. r. Wood, 11 Gray, 85. Each of the two parties to a trans- action may be guilty of a crime, and yet, if the two crimes are separate and distinct crimes, the one is not the accomplice of the other. Thus, suppose A. asks B. for a bribe, and B. pays it. A. is gvilty of the crime of asking a bribe, and B. of the crime of giving one. But the two crimes are entirely distinct, and 190 AMERICAN CRIMINAL REPORTS. 1 |:;j Rt W''i' ' ' i r! ' ' I it ' ' neither party coiild be indicted, either as principal or accessory, for the crime committed by tlic other. Such a ease woiild not be within the statute forbidding a conviction on the uncorroborated evidence of an accomplice, although, of course, the moral de- linquency of either, if called as a witness against the other, would be a fact going to his credibility, which a jury should take into consideration. State v. Sargent, 71 Minn. 28, 73 K W. Kep. G2G. See also Ttegina v. Boyes, 1 Best & S. 311. 7. It is further claimed that the evidence is insufficient to support the verdict. We have, to the best of our ability, given the record the careful examination which the importance and gravity of the case demanded, keeping in mind that it is a crim- inal, and not a civil, action. As might be expected, the direct evidence was confined to the testimony of Ilalvorson and Rich- ards on the one side and of the defendant on the other. It would be worse than useless — in fact, misleading — to enter upon a dis- cussion of the evidence, imless it was done exhaustively; and this could not be done within any reasonable limits. Therefore we will not attempt it. Our conclusion is that it justified the verdict, which was evidently the view of the trial judge who saw and heard the witnesses on the stand. 8. The "newly discovered evidence" of Warner was merely cumulative, and tending to contradict the testimony of Ilalvor- son in some particulars, and generally was not of such a char- acter as to require the trial court, in the exercise of a sound ju- dicial discretion, to grant a new trial, even conceding that it would have justified it in doing so. 9. The maximum pr.nishmont, under the statute, for this crime is imprisonment in the State's prison for ten years. The sentence of the court wt.^ that the defendant be confined in the penitentiary for six years and six months. It is urged that this sentence is "excessive, unjust and contrary to tiie spirit and in- tent of the law." The sentence is severe, but the crime is grave, and one which tends, probably more than any other, to sap the very foundation of all civil government. It is for the legis- lature, and not for the courts, to uiiish(>d as drunk mid disurdcily, not a^ a hurglnr. Tilt' judgiiiciit irt r('vt'rs(>d, mid tlio court holow ordered to dls- iiiisis the iiidii'tiiieiit and discharge tlie defendant. Canty, J. (disHenting). I cannot concur in the foregoing opinion. This court has no right to assume that defeii1 oroiiB proBefiitor, frequently causes persons guilty of petty violations of law to be accused and convicted of grades higher than the crime committed. To this practice, the opinion of the majority of the court in the Jiiaoa Case is a Just rebuke, based on flxed rules of law, human- ity, and abstract Justice. Burglary at common law consisted in breaking into the dwelllnR, or mansion, house of another, with intent to commit a felony. Sir Ed- ward Coke defines a burglar as, "he that in the night time breakotb and entereth into a mansion house of another, with intent to kill some reasonable creature, or to commit some felony within the same, whether his felonious intent be committed or not." See 3 Inst. G3; 1 Hale, P. C. 549. Even as late as the statute 7 ft 8 George 4, c 29, s. 11, the punishment for burglary was death. Neither the common law, nor the statute, contemplated that minor Intrusions and tres- pas?i!S into even private dwellings should be classed as burglaries; but only those cases where. In the shat'.es of night, the security of the home was violated for a felonious purpose, and it might be the slum- bering family, unprepared for resistance, subjected to the raerrileas titack of the felon. The gist of the offense was not the fact of break- ing into a dwelling-house, even though done at an unseemly hour; but the breaking for a felonious purpose. It was a well-settled rule of the common law that the dwelling-house must be one occupied as such; but in some cases the term "dwelling-house" was construed to cover outhouses within its Immediate curtilage or courtyard surrounding the house. Review of the subject by Roscoe. — As to the English authorities on tills subject we adopt the following clear, concise and comprehensive revlpw from Roscoe's Criminal Evidence, p. 280: If It appear that the intent of the party, in bieaklng and entering, was merely to commit a trespass, It is no burglary; as where the prisoner enters with intent to beat some person in the house, even though killing or murder may he the consequence, yet, if the primary Intention was not to kill, it is still not burglary. 4 Hale, P. C. 561; 2 East, P. C. 509. Where a servant embezzled money intrusted to his care, ten guineas of which he deposited in his trunk, and quitted his master's service, but afterwards returned, bro'.ce and entered the house In the night, an.1 took away the ten guineas, this was adjudged no burglary, tor he did not enter to commit a felony, but a trespass only. Although it was the master's money in right, it was the servant's in possession, and the original act was no felony. Bingley's Case, Hawk. P. C, b. 1, c. 38, 8. 37, cited 2 Leach. 840, as Bingley's Case, 2 East, P. C. 510; 8. c. as Anon. Where goods had been seized as contraband by an excise officer, and his house was entered in the night, and the goods taken away, upon an indictment for entering his house with in- tent to steal his goods, the jury found that the prisoners broke and en- tered the house with intent to take the goods on behalf of the person who had smuggled them; and upon a case reserved, all the judges were of opinion that the Indictment was not supported, there being no intent to steal, however outrageous the conduct of the prisoners was in thus endeavoring to get back the goods. Knight d- Roffcy's Case, 2 East, P. C. 510. If the Indictment had been for breaking and enter- 202 AMERICAN CRIMINAL REPORTS. ing the house, with Intent feloniously to rescue goods seized, that being made felony by statute 19 Geo. 2, c. 34, the chief baron and some of the other judges held It would have been burglary. But even in that case, some evidence must be given on the part of the prosecutor to show that the goods were uncustomed. In order to throw the proof upon the prisoners that tha duty was paid;, but their being found In oil-cases, or in great quantities In an unentered place, would have been sufficient for this purpose. 2 East P. C. 510. The prisoner was in- dicted for breaking, etc., with intent to kill and destroy a gelding there being. It appeared that the prisoner, in order to prevent the horse from running a race, cut the sinews of his fore-legs, from which he died. Pratt, C. J., directed an acquittal, the Intent being not to com- mit felony by killing and destroying the horse, but a trespass only to prevent its running, and therefore it was no burglary. But the pris- oner was afterwards indicted for killing the horse, and capitally con- victed. Dobb's Case, 2 East P. C. 513. Two poachers went to the house of a game-keeper, who had taken a dog from them, and, believing him to be out of the way, broke the door and entered; being indicted for this as a burglary, it appearing that their intention was to rescue the dog, and not to commit a felony, Vaughan, B., directed an acquittal. Ation., Matth. Dig. C. L. 48. See HoUoicay's Case, 5 C. & P. 524. General doctrine regarding specific criminal intent. — When the crime does not consist simply in the act, but in the act with a particular intent, or where the attempt to commit an act with a wrongful Intent is made a crime, no conviction can be had unless the evidence shows the existence of such intent. This doctrine is well illustrated by the case of Keeton v. Commonicealth, 92 Ky. 522, 18 S. W. Rep. 359. In that case the accused was convicted on two Indictments for robbery, he having, while in an intoxicated condition, on his way home from a picnic, accosted two persons with whom he had been on friendly terms, and, presenting a pistol, compelled them to deliver to him their m'^roy and watches; but he made no effort to conceal the property, ai. ' on becoming sober caused it to be returned to the owners. The testimony as to his mental condition was excluded by the trial court on the theory that voluntary intoxication is no defense to an accusa- tion for a crime committed by such intoxicated person; but the court of appeals, reversing the conviction, says: "A distinction is plainly drawn between cases where the act done constitutes the offense and cases where there must be combined with the act done the intent of the accused in order to constitute the offense. For instance, where one kills another, the act done constitutes the offense; but when one takes the property of another, to make it larceny a felonious Intent must be shown, and, while this may be inferred from the character of the tak- ing, the defense may show that he was unconscious at the time, or too drunk to have any intent. Roberts v. People. 19 Mich. 401; People V. WaJh-er, 38 Mich. 15G; People v. Harris, 29 Cal. G78; Wood v. State, 34 Ark. 341. His drunkenness would be no defense to an indictment for an assault, because the act of presenting the pistol constitutes the offense and the question of intent would not be involved. The evidence offered should have gone to the Jury." STATE V. RIGGS. 203 In State v. Bell, 29 Iowa, 316, tie defendant on trial for burglary asked the court to give the following Instruction: "If you find from the evidence that, at the time the defendant was found in the house, he was drunlc and got there through drunkenness, without knowing where he was, and with no intent to steal or commit crime, then you should acquit." The refusal of this instruction was held to be prejudicial error, there being evidence that the defendant was grossly drunk at the time that he went into and occupied a neighbor's house. In Chrisman v. State, 54 Ark. 283, 15 S. VV. Rep. 889, in reversing a conviction of assault with intent to commit murder, the court said: "We do not think it necessary to review on this appeal the other rul- ings of the circvit court complained of by the defendant. But, as the cause must be remanded, we think it proper to say that, although vol- untary drunkenness cannot, as the jury were told by the court, ex- cuse the commission of a criminal act, yet, where a person is accused of a crime such as can be committed only by doing a particular thing with a specific intent, it may be shown that, at the time of doing the thing charged, the accused was so drunk that he could not have enter- tained the intent necessary to constitute the offense. 1 Bish. Crim. Law, § 413. Then in Wood's Case, 34 Ark. 341, it was held that 'if one at the time of taking property is so under the influence of intoxicating liquor that a felonious intent cannot be formed in his mind, he is not guilty of larceny.' " In Schwahacher v. People. 165 111. 618, 46 N. E. Rep. 809, in revers- ing a conviction for perjury, the court said: "It is undoubtedly true that at common law drunkenness was no excuse for crime; nor is it under the statute, except as therein provided. But where, as under the indictment in this case, it is necessary to prove a specific intent before a conviction can be had, it is competent to prove that the ac- cused was at the time wholly incapable of forming such intent, whether from intoxication or otherwise. The breaking and entering the house in the night time alone did not constitute the crime of burglary, but it was necessary to prove that the act was done with the specific Intent alleged in the indictment, — that is, to steal the goods and chattels therein of Mrs. Bell." In Bartholomew v. People, 104 111. 601, the court said: "At common law. where it required a particular intent in doing an act to constitute (rime, — as, for instance, larceny, where the intent to steal must accom- pany the act of taking, — it was held it may be shown in defense that the i)arty charged was intoxicated to that degree that he was incapa- l)lo of entertaining the intent to steal, and that neither he then, nor afterwards, .. lelded assention of his will." Citing 1 Bishop on Crim. Law (3d ed.), sec. 490; United States v. Routenbush, 1 Baldw. 517; Siro/i V. Slate, 4 Humph, 136; Pigman v. State, 4 Ohio, 555; Kessey v. State. 3 S. & M. 518; 1 Wharton's Crim. I^w (7th ed.), sec. 41. In the case of Croshy v. People. 137 111. 325, 27 N. E. Rep. 49, the court said: "Drunkenness was. therefore, at common law, as under our own statutes, no excuse for crime; but where the nature and es- sence of the offense is, by law, made to depend upon the state and con- dition of the mind of the accused at the time, and with reference to m ■ ,1 204 AMERICAN CRIMINAL REPORTS. \W 'Hi i ij m ' !fl i the acts done and committed, drunkenness, as a fact affecting the con- trol of the mind, Is proper for the consideration of the jury, for if the act must be committed with a specific intent to constitute the crime charged, and the defendant Is incapable of forming any Intent what- ever, the offense has not been committed." In Lyle v. State, 31 Tex. Crlm. Rep. 103, 19 S. W. Rep. 903, a con- viction for perjury in testifying that no gambling had occurred at a certain time and place was reversed. The defense was that the ac- cused at the time of the gambling was Intoxicated. In reversing the conviction the court said: "The court should have Instructed the jury that they might consider this evidence with all of the other testimony In the case for the purpose of determining whether the defendant knew the game was played, or whether at the time he made the statement he remembered having seen the game played, if In fact he did see It." In People v. Harris, 29 Cal. 678, the defendant was Indicted and con- victed for voting twice at one election. The conviction was reversed because the court excluded evidence of intoxication, such evidence being admissible to prove that at the second voting the defendant was not conscious that he had previously voted on the same day. In Lytle v. State. 34 Ohio St. 196, a conviction for testifying falsely regarding a certain assault was reversed because the trial court had excluded evidence tending to show that the defendant at the time of the assault was very drunk. In reversing the conviction the court re- marked that It was well known that some people were rendered ob- livious to their surroundings by intox'oation, and ti;at others were partially incapacitated, so that they were incapable ol seeing things in their true relation, and often conceived distorted, In^^orrect and Im- perfect ideas of what transpired around them. In Roberts v. People, 19 Mich. 401, a conviction for assault with In- tent to commit murder was reversed because the court beiaw refused to instruct the jury that Intoxi' ntion of the defendant was proper to be considered in determining whether or not he entertained an Intent to commit murder. In Wilson V. State (Tex.), 19 S. W. Rep. 255, a con^ctlon of wil- fully driving away a calf was reversed because the evidence did not show a criminal intent. The accused and his hired man were hunting catle. The accused found a cow and calf of his own and a motherless calf sucking the cow. He told the hired man to drive them all home, re- marking that If the owner came he could get It, but If not the cow might raise It and keep it from dying. The calf remained at the accused's place about ten days, no effort being made to conceal it and no claim of ownership asserted. When the owner claimed It the ac- cused told him he could come and get It, etc. In reversing the convic- tion the court said: "With the exception of the difference in their re- spective statements as to what passed In this conversation, there Is no evidence In the record inconsistent wi<:h or contradictory of the defendant's own testimony, and the question presented is whether or not the acts show a violation of the statute. Was the driving away wilfully done? Was the calf removed from his accustomed range with evil intent, and without reasonable grounds to believe the act to be I 4 STATE V. KIGUS. iiU5 lawful? We are of opinion that It was not. Thomas v. State, 14 Tex. App. 200. The judgment is reversed and the cause remanded." In the case of State v. Brown, 104 Mo. 365, 16 S. W. Rep. 406, a con- viction for robbery was reversed because the trial court failed to in- struct the jury that no conviction could be had for robbery unless the jury And from the evidence that the defendants took the money with felonious intent. In that case the defendants denied that force was used; but it was admitted that a five dollar bill was talien or jerked from the hand of the prosecuting witness, he being indebted to one of the defendants for the loan of a dollar. The court in reversing the conviction says: "Robbery is compounded of larceny and force. The defendants were not guilty of robbery unless they took the money from the prosecuting witness without an honest claim to it, or any o£ it, and with the intent to deprive him of the ownership therein." In Nelson v. State (Tex.), 26 S. W Rep. 623, a conviction for a theft was reversed, the opinion of the cour" being in part as follows: Sim KINS, J. Appellant was convictt d of theft, and his punishment assessed at two years in the peniteatiary. Appellant was indicted in three counts, charging robbery, emljezzlement, and theft of over $20. Upon trial the State dismissed as to the first two counts. The facts show that appellant was confined on the county farm for gambling; that one evening in April, 1893, appellant approached the guard, one Cummins, under the pretense of borrowing his knife, and seized him, crying out: "Come on, boys. Now is the time to get our liberty," — and, assisted by other convicts, disarmed the guard, one of the con- victs taking his gun, and appellant his pistol; and they left him lying bucked and gagged, and escaped. The gun and pistol were subsequently recovered from persons to whom the appellant ^aid they were delivered to be returned. The witness Cummins states that the appellant used great violence to him, and they took away his gun and pistol by force. The witness was considerably frightened, and believes they would have killed him if he had offered more resistance than he did. If a fraudulent intent has been proven in this case, then the crime com- mitted was robbery, and not theft; for all the distinct modes by which rol)bery may be committed are to be found herein. The property was certainly taken by assault, by violence on the person, by putting in fear of life or bodily injury. Willson's Cr. St., § 1246. But the State dismissed as to the robbery, presumably on the ground that it could not prove the fraudulent intent, but conceded that the violence used by the convicts to the guard Cummins was for the purpose of gaining their liberty, and not to obtain and appropriate his property. Appel- lant, taking the stand as a witness, testified that before leaving the county they placed the weapons in the hands of friends, to be returned to the owner. There is nothing contradicting this statement in the record, except that the person to whom the pistol was delivered sold it for a small amount, which the owner had to repay, for which sale appellant could hardly be held responsible In this case. It certainly does not appear that they appropriated the arms to their own use and benefit. In this connection, the record shows the jury requested fur- ther instructions on the question as to what length of time the prop- ■•il I'ip ■U f 206 AMERICAN CRIMINAL REPORTS. erty charged to have been stolen must be In the possession of the party taking it to constitute theft. The court answered; "The law fixes no length of time. A moment's possession is sufflcient." While the an- swer is correct, it was not sufflcient in this case. The jury should have been told that a moment's possession would be sufflcient if taken with the fraudulent intent to appropriate to his own use and benefit, but, if such intent did not exist at the time of taking, no subsequent holding would make it theft. H- |l|{ Thompson v. State. mk I H I 117 Ala. 67—23 So. Rep. 676. Decided June 6, 1896. Change of Venue: Public excitement. A change of venue should be granted where public feeling against the defendant is so strong that mob vengeance was prevented by the military, and a special session of court convened in response to popular demand for speedy punishment. Appeal from Circuit Court of Morgan County ; Hon. James J. Banks, Judge. Appellant, a negro, was accused of the rape of a white girl about twelve and one half j'ears of age. He was arrested on June 8, 1897, and tried at a term of court, called for his trial, which met July 2G, 1897. On July 27, 1897, he made applica- tion for a change of venue, which was overruled; being con- victed, he appealed. Reversed. 0. Kyle and S. T. Wert, for the appellant. 17m. C. Fitts, Atty. Gen., for the State. McClei,i.an, J. Upon a careful consideration of the evi- dence adduced on the motion for a change of venue in this case, the court is satisfied that it should have been granted. The crime charged Avas of a character to produce the greatest public indignation. The trial was had within a short time after the al- leged commission of the offense came to the knowledge of the public,' — as soon as a special term of the court, called in obedi- ence to a public demand for speedy punishment, could be con- vened and held. And the afiidavits and other evidence show that GALLAHER v. STATE. 207 the public were so greatly aroused against the defendant that it required the promptest and most vigorous action of the executive officers of the State from the governor down, and including the military, to protect the defendant from mob violence and sum- mary execution ; and, further, that this state of feeling continued do^vn to and through the trial, and must have bad such effect upon the jury as that their verdict was little else than the regis- tration of the common belief of the people that the defendant was guilty, and a mode of carrying out the public purpose to take his life. The trial was not, and could not, under the cir- cumstances then existing, have been, fair and impartial. The court erred in denying tlie change of venue moved for by de- fendant, and for that error its judgment must be reversed. Of the other exceptions reserved many are palpably without merit, and the others will probably not arise on another trial. Reversed and remanded. Gall All ER v. State. 40 Tex. Cr. App. 296—50 S. W. Rep. 388. Decided March 15, 1899. Change of Venue: Murder: Local prejudice — Prejudice of Jurors — Confession — "Sweat-box." 1. Where nineteen disinterested citizens swore that the defendant could not have a fair trial in Galveston county, because of the violent and universal prejudice against him, showing their means of Itnowledge, and that the daily papers were filled with articles and pictures of a prejudicial character, and that photographs re- lating to defendant's alleged guilt were exhibited on the streets, and that the general expression of opinion among all classes of people was that he was guilty and ought to be hanged or lynched or burned, held, that it was an abuse of discretion in the trial court to deny the motion for a change of venue, notwithstanding that the sheriff, chief of police and district attorney swore that defendant could get a fair trial, and that there was not such gen- eral prejudice against defendant. 2. Where jurors said they believed the defendant guilty from all they had heard and read, but would acquit him if he proved himself innocent, and in response to court's questions said they believed they could give him a fair trial, held, that challenge for cause should have been sustained. :) . : 111! 'r 208 AMERICAN CRIMINAL REPORTS. 3. A confesFlon obtained by persistently badgering and teasing the defendant, several persons talving turns at it, In wliat was cas- ually referred to as a "sweat-box" examination on the trial, con- sidered, and held not to be free and voluntary. Appoal from Galveston Cotinty; E. D. Gavin, JndijG. Yirgi] G.!^"' v, convicted of murder in the first degree, ap- peals. ll."V ( D. D. McDonald, XcwtonJ. Sl-lnner, and Arlliur J. Krcelch, for appollai t. lluht. A. John, .issihii.iii. Attorney-General, for the State. IIkxderson, J. Appellant was convicted of murder in the first degree, and his punishment assessed at death. The evidence for the State showed that appellant waatho son of deceased, Mrs. Kate II. Gallahor, and that at the time of the homicide he and his mother were living together in a house in Galveston, alone; that on Saturday night, August 15, 1S97, ap- pellant entered deceased's room, and cut her throat with a razor. The corpse of deceased remained in the Imilding all the next day, which was Sunday. On the following night appellant at- tempted to buni the house, and, after several unsuccessful at- tempts, at length succeeded in setting it on fire. Before the fire had made great headway, it was discovered and extinguished. The remains were found partially burned, but not consumed, and the evidence of death by violence was apparent. The motive imputed was robbery. The State's case depends on circumstan- tial evidence, in connection with the confessions of appellant. On the trial appellant relied on a plea of not guilty, and ho introduced some evidence tending to show his insanity or mental aberration at the time of the alleged homicide. Appellant also made a motion for a change of venue, and, as a disposition of this case depends greatly on the action of the court in regard to said motion for change of venue, we will summarize from the record enough to show the questions raised, and to bring in re- view the action of the court. Motion was made by appellant to change the venue of said cause on the ground **that there exists in Galveston county so great a prejudice against him that he cannot obtain a fair and impartial trial." This was sworn to by appellant, and was sup- GALLAHER r. STATE 209 :^l IDorted by the following compurgators, to wit : "William Slater, J. E. Snedeker, E. C. Green, M. L. Eggers, R. P. Sargent, L. L. Cretin, John A. Harrington, C. A. llorseley, and Newton J. Skinner. This motion was controverted by the State on the affi- davits of J. K. P. Gillaspie, district attorney; Henry Tliomas, sheriff; and W. C. Jones, chief of police of said Galveston city. Said affiants stated "that they were acquainted, or had been made acquainted, by inquiry from every available source, with said compurgators, and are cognizant of their means of knowl- edge, and all the matters stated by them, and each of them, in their said affidavits, and that their said means of knowledge is not sufficient to support and justify the statements contained in their said affidavits; that said Galveston county is large in area, a part of which is on the islan'^ of Galveston, and a largo part on the mainland, and containing a large population, en- gaged in various numbers and kinds of occupations and business, and affiants state that it is impossible from the conditions exist- ing that said compurgators could have the knowledge stated in tlieir affidavits; and further state that, from a long and intimate acquaintance, obtained from official and other sources, of the qualified jurors in Galveston county, there is no such prejudice against Virgil Gallaher as that he cannot obtain a fair and im- partial trial in said Galveston county, and that the statements so made by said compurgators were ignorantly made, and are in fact untrue." On the issue thus joined appellant introduced nineteen wit- nesses, including, besides the compurgators named above, the following additional witnesses: W. C. Williams, Henry Bee, E. G. King, Frank Corbin, Lawrence Bacigaloupi, H. Rakol, Thomas P. Duffy, F. G. Leaverenz, J. T. Morris, and F. Fround. Most of these witnesses had lived a number of years in Galveston county, some as long as thirty-two years, and the most, if not all, resided in the city of Galveston, and were well ac- quainted in said city, pursuing various occupations, — some butchers, some salesmen, contractors, merchants, saloon men, newspaper men, tailors, etc. The examination of said witnesses took a wide range, but appears to have been confined to three salient points: (1) The publication of an account of said homicide in the Galveston Daily K'ews and in the Evening Vol. XI— 14 III mi i •r ^H 210 AMERICAN CRIMINAL REPORTS. j , • I TrilMinc. Tlic circulation of these papers was sliown to be large ill said county, and to have been greatly increased during the three or four days succeeding the homicide. The normal daily circulation of the Galveston Xews was from 3,400 to 3,700, and on the day after the homicide was discovered 1,200 to 1,500 ex- tras were issued. The normal daily circulation of the Evening Tribune was about the same as the Xews, and on the IGth of August, the day of the discovery of the homicide, and for two days thereafter, it was greatly increased, the extras amounting to about 2,500 for the three days. The confessions of appellant and an account of the homicide appear to have been published in said papers. (2) It was also shown that there was exhibited on the sidewalk, in one of the most public streets of the city of Galveston, in the show case of a loading photographer, photo- graphs of the house and various scenes connected with the homi- cide. Said pictures were designated by writing, showing what they were, such as "the room where Gallaher killed his mother," etc. These pictures were on public exhibition about a week, and it was shown that a large number of people visited said place, and viewed and discussed said pictures. Said photographs were finally removed from the street at the instance of the sheriff. (3) It was also shown that other defamatory statements were circulated in regard to appellant, in connection with said mur- der, to wit, that he had outraged his mother before killing her ; also other defamatory statements as to other matters of a crim- inal character charged against him. We quote from the testimony of some of said witnesses, as presenting a fair sample of what appellant's testimony was in this regard, the record being too voluminous to quote all : William Slater testified: "That he was a sewing-machine agent, and had lived in Galveston about seventeen years. That he made an affidavit in this case. That he had formed the opinion from the animus expressed by the people at large. Dur- ing the last four days since this case has been court-room talk, I have heard remarks every day in the court room and out of the court room ; have heard remarks here in the lobby. One of the remarks was that, 'If I was on the jury, I would hang v'k* defendant.' Another remark struck me very forcibly : '1 would li 11 pi -1 GALLAHER v. STATE. 211 i like to sec that bastard hanged.' These remarks were made by men. I have heard other remarks made, the substance of which is something like this: 'Jf I had my way with him, I woukl lynch him ;' or, 'If I had my way with him, he ought to be burned ;' or, 'Jf he was only up in my county where 1 used to live, he would never have a trial at all.' They were not made upon my solicitation. They have been made on many occasions. . . . I have not heard any opinion concerning his innocence or con- corning his ability to get a fair trial. On cross-examination ho stated that he was a white man, and boarded at Annie Wost- liall's, a colored woman ; that he was a sewing-machine agent ; that his business brought him in contact with both men and women ; that he did not know the nund^er of jurors he had talked with; that he had talked with as many as ten qualified jurors, but could not name any of them." John A. Harrington testified: "That he was a lawyer, and had formerly been attorney for appeHant. That he knew a great many people in Galveston. That he had made it his busi- ness, while acting as attorney for defendant, to find out the feeling towards defendant. He stated that he had heard ex- pressions from various ])ersons highly disparaging towards ap- pellant, not only about the case itself but as to other matters. Among others, that it was reported that one of the reasons that defendant committed the deed was that he had gone to the house after having left the dive where he had been carousing, and, under the influence of excitement and evil passions en- gendered at that place, he made a criminal assault upon his mother. There were other remarks, but they were much less heinous than that. Witness stated that he had talked to as many as 100, and perhaps as many as 500, qualified jurors. That he only knew, in a general way, about the mainland and the qualified jurors there. That it was possible to get twelve qualified juroi-s in the county, if all the time was devoted to that object. That it would be easier to obtain a fair trial anywhere else. That details and statements, made through the press and otherwise, would prejudice the case, as also the photographer's pictures which were exhibited on the street. That he finally got the sheriff to go there, and direct those pictures to be taken i ^i 212 AMERICAN CRIMINAL REPORTa IV •'i 11 it 1 down. That these things were calculated to create a feeling and excitpmcnt in the conununity that was to the disadvantage of defendant." F. G. King testified: "That he had resided in Galveston about six years, and was a tailor by trade. Had hoard a great many people express their opinion with regard to tlic! prisoner's guilt or innocence. The majority of them was that he ought to be executed. That he had probably heard in the neighborh(jod of fifty express that opinion. The universal opinion of the ma- jority was that he ought to be executed." C. A. llorseley testified: That he was in the hardware busi- ness, and had resided in Galveston twenty-seven years. That he had read the Tribune and Xews abun- ishment too great for appellant. That he had made that state- ment himself. That he had made it upon appellant's own state- ment to him. That he may have repeated that to other peojile in his office ; in fact, there was another person there at the same time and heard it. lie stated that he firmly believed that ap- pellant coxild have a fair and impartial trial, and that was his opinion. Witness stated that 'Mr, ^NEorris came to him in regard to taking the pictures down, and wanted to know whether he would force him to take the pictures down. That he told him he did not think it was Avithin his authority. Sheriff Thomas testified, j.ibstantially, that the men wlio made the affidavits and testified were credible persons; but ho did not think they were sufficiently posted about the sentiment in the community to make the affidavits. He could not say whether their opportunities had been better to know what tho people thought about it than his. Tho special venire list was read over to this witness, which was composed of 150 names. lie stated that all of said venire lived in the city of Galveston, ex- cept the following: McLean lived down the island some six or seven miles. W. H. Aldredge lives about a mile outside of the OALLAUER v. STATE. 215 city limits, down tho islnml. Joe Aikens lived at Ilitrlicock, on tlic ninitilniid. C. A. Kntissoaii lives down the island. Tluit wlicn tlicy Huninionc'd tnloHinen tlioy uHually suninionod thciii from the city; m^vor had occasion to summon thorn from any- where else. Witness stated that he only expressed his opinion founded upon information when he said a fair and impartial trial could he ohtained in Galveston county. There are 1,500 to 2,000 voters outside of the city, on the mainland. (lilliispie, the district attorney, stated that he thou{;ht the de- fcndiint could get a fair and impartial trial in Galvi ston county, hikI that there was no such prejudice against him as would pre- clude that. That he hclieved the compiirgators who made tho affidavits did not possess the means of knowledge of the facts stated. That he hclieved persons had expressed themselves more freely to him on the suhject, on account of his official ])osition than otherwise. That since the commission of said oifcnse he had spent a whole term of the court in the county, and a portion of the present term, some five or six weeks in all out of six months. That he had formed his opinion during the six weeks he had spent in Galveston out of the five months since the com- mission of the offense. That he had not heard a great many jteojde express their o])inion as to appellant's guilt or innocence. Some expressed themselves adversely, and a niunber luid ex- pressed themselves uniformly that he could get a fair and ini- ])artial trial in the county. He stated that the only rumor he liad heard circulated against appellant was that he had filched money from his mother. The court, after hearing the testimony pro and con on the mo- tion for change of venue, overruled the same, and appellant re- served his hill of exceptions. In Handle v. Slate, 34 Tex. Cr. R. 43, 28 S. W. R-p. 0.53, this court laid down the doctrine that prejudice and prejudg- ment mean one and the same thing, and that, if it was shown in the county that there was such prejudgment of the case as that appellant could not obtain a fair and impartial trial, the venue should be changed. And this opinion was adhered to and f(»llowed by a majority of the court in Meyers r. State, 39 Tex. Cr. R. .500, 10 S. W. Rep. S17. The Avriter of this opinion dis- sented from the views entertained on this subject by a majority m ■i: \l i:m 216 AMERICAN CRIMINAL REPORTS. of the court, but in that connection stated ''that a case may occur of such startling atrocity as not only to create the forma- tion of an opinion in regard to the guilt or innocence of the party accused of crime, but also to engender a personal preju- dice or animosity against such person; that is, the case itself may be so horrible as to engender a personal prejudice against the person accused of perpetrating it." It occurs to us that this case certainly comes within the mollified view of the principle laid down in the Handle Case, as above indicated. The crime here alleged against appellant was of a most atrocious character; that is, that he not only murdered a loving mother, who was kind and indulgent to him, by cutting her throat with a razor, while she was asleep, for the purpose of robbery, but that he afterwards undertook to destroy all vestige of his crime by cre- mating her body. This occurred in the city of Galveston, where a great majority of the people who live in the county of Galves- ton reside. Xot only so, but it was shown that the Galv(^ston !Ncws, one of the great daily journals of the State, is published in that city; that it contained an account of the circumstances connected with the homicide, including the confession of ap- pellant; and that this account was also contained in another daily paper of large circulation published in said city, to wit, the Tribune; that the circulation of these papers during the three days following the homicide was greatly increased on ac- count of this very homicide, and the startling circumstances con- nected therewith. In addition to this, pl.otographs of the ap- pellant and his mother, with dill'erent views of the scene of the homicide, were put on exhibition in one of the principal streets of the city of Galveston, and remained there for several days, being viewed by crowds of people. The homicide, and the cir- cumstances connected therewith, were matters of conversation among all classes of society for a considerable length of time. Expressions were shown as coming from a number of pei'sons that appellant should be hanged ; that he should be executed, either by hangi to' or burning; that no fate w^as too bad for him. In connection with this, it was also made manifest that other reports of an exceedingly prejudicial character were circulated in regard to appellant, and that such reports gained credonoo and were widespread throughout the city of Galveston. Wit- GALLAHER v. STATE. 217 I nesscs from nil classes of society testified in regard thereto. Some nineteen witnesses were produced on tlie part of appel- lant, none of whom were shown to have any particular interest in him, but who testified to the sentiment of the people regard- ing the guilt of appellant. All seemed to believe him to bo guilty, and all seemed to believe that there was a great preju- dice against him, both on account of the murder and its publicity and other reports concerning appellant. Against this array of testimony the State marshaled but three witnesses, each of whom, it seems, was interested in the prosecution; one being the sheriif, another the district attorney, and the other the chief of iK)lice of the city of Galveston. It is true they did not im- ])Ugn the integrity of the compurgators testifying on the part of appellant. They only testified as to their credibility in coiv- nection with their means of information. But we submit that the voliune of testimony here offered on the part of appellant — coming, as it does, from a number of disinterested witnesses, men long residents of the city of Galveston, and pursuing vari- ous vocations — is entitled to more weight than that of only three witnesses who testified for the State. We would not be under- stood as disparaging the integrity of the State's witnesses. We only mean to say that the mass of testimony offered by appellant, coming as it does, outweighs, in our opinion, the testimony of- fered on this subject by the State. And we believe if there can be a ca>=e where prejudice can be cngxmdered on account of the crime itself, and the reports circulated in connection therewith, tliat this is such case. We believe that the court erred in not changing the venue on the showing made. It has been the uniform holding of this court that the question of a change of venue is a matter resting within the sound discre- tion of the court, and,- unless there is abuse of su?h discretion, the action of the lower court will not be revised. Judged by the matters contained in the bill of exceptions on this subject, we are constrained to the opinion that the proper discretion of the court required a change of venue in this case. If we look beyond the testimony itself and what occurred during the trial, we are strengthened in this view. The venire of 150 men, taken almost entirely from the body of the city of Galveston, was soon exhausted, resulting in the selection of but two jurors. A special rr 215 AMERICAN CRIMINAL REPORTS. ■i ^ m m list of talesmen containing 200 jurors was then summoned. Of these, it appears that 1G5 of the 200 taletmen were sum- moned from the mainland, the balance being summoned from the city of Galveston. Nearly 400 men were examined alto- gether before the jury was obtained. A number of the jurors who were summoned had formed opinions in the case, and ap- pellant was compelled to take some who had formed opinions. All this shows that appellant was very much hampered in the selection of the jury by the fact that the crime and its notoriety had been spread through the county, and that on this question a gi'eat many persons had formed opinions ; not only so, but were prejudiced against appellant on account of the atrocity of the offense and other circumstances nimored against appellant. While it is a circumstance in favor of tlie action of the court in any case that a just result has been reached, yet this, of it- self, is not a complete answer to the proposition. Our law ap- prehends that a defendant shall have a fair and impartial trial, and to this end it is provided that he shall not be tried in the county where the prejudice is so great against him as that he cannot expect such trial. Taking it for granted that prejudice is not simply prejudgment, but is prejudgment coupled with some degree of ill will, it will be seen from this record, not only that a great number of the citizens of Galveston had formed an opinion adverse to appellant, but that it went to the extent, on account of the atrocity of the crime charged against him and other circumstances of a do+'amatory character in circulation in the community in connection Avith the offense, such as to preju- dice them against him and his cause. Under the circumstances, he did not have as fair and untrammeled an opportunity to se- lect a jury as if no such prejudice existed against him; but throughout, in the selection of the jury, he encountered this prejudice, which was calculated to seriousily impair his rights in the selection of the jury; and as prejudice is often of n sinister character, and remains under cover, it is difficidt to guard against, and it may be in this case that such prejudice f(tund its way into the jury box. This is made manifest, as stated bo- fore, in the selection of the jury. We will discuss this qiu'stion, however, more fully in connection with appellant's bills to ex- GALLAHER v. STATE. 219 :J cc'ption numbered from 3 to 9, inclusive, all of Avliich "were taken to the action of the court in impaneling; the jury. The jurors OutersiJe, McHenry, Cheek, Eggert, Pennock, "Wisrodt, and Rogers stated that they had formed opinions in the case. The fiifst five were challeng'cd peremptorily, and Wis- rodt and Rogers were taken. Several of them said they shared the i)ublic opinion considering the defendant guilty, but that, if he could prove himself innocent, they would let him go free; otherwise, they would not do so; that at present they had an opinion that said defendant was guilty. Each of said jurors, after he had been examined by counsel, was then examined by the court, to which the general response was that they could give the defendant a fair trial; that they knew nothing about the case, except what they had read in the newspapers and what tbcy had heard as rumors about it; that they could discard the opinions they had on the evidence put before the jury, and would not be influenced by the opinion formed. As to the juror, Rogers, who was examined at length, the ap- }i('llant's challenges being exhausted, he was compelled to take said juror. The record presents his evidence in fiill, being ques- tions and answers. We gather therefrom that said juror had read what the newspapers said about the homicide at the time the tragedy occurred, and that he had heard a great deal about the defendant and the case, and that, from the newspaper re- jtorts and the expressions of opinion that he had heard, he tliouuht defendant guilty as a matter of course, and that he en- tertained the opinion then that he was guilty; that recently — what he had heard since the trial had been up on motion for change of venue — his opinion as to the gniilt of defendant had been strengthened, and that it would be necessary for defendant to prove himself innocent before he would acquit him; that it Would ni)t require a great deal of evidence on the part of de- fendant to change his mind in that particular. On cross-ex- amination by the State, he stated that the felt that he was in the condition of mind to go into the jury box and try the case according to the evidence adduced on the trial; that the opinion he had was not to such an extent as not to permit him being a juror; that he thought he could consider the testimony without i? , :sg h^ 220 AMERICAN CRIMINAL REPORTS. .! V weighing the opinion that he then entertained at all; that he could go into the jury box, and give defendant the benefit of the presumption of innocence, until the proof satisfied him that he was guilty. It is further manifested by affidavits in this rec- ord that this juror, Kogers, while in the jury box, was among the first to insist on capital punishment for appellant, and the affi- davit further suggests that he used against appellant matters not in testimony. While this is denied, yet it is suggestive that this juror, Rogers, was not a fair and impartial juror. The rec- ord shows that he had a fixed opinion, and, while he formed it from newspaper accounts, that these newspapers detailed all the evidence, including appellant's confession. In our opinion, the court should have sustained the challenge to this juror for cause. Suit V. State, 30 Tex. Crim. App. 310, 17 S. W. Rep. 45S ; Shannon v. State, 34 Tex. Cr. R. 5, 28 S. W. Rep. 540. Appellant, by several bills of exception, objected to the intro- duction of the confessions of appellant, — said confessions being made to Jones, chief of police, Geehan, reporter for the Galves- ton Xews, and Chubb, reporter for the Galveston Tribune, — on the ground that said confessions were made while defendant was in custody, and were not freely and voluntarily made, but were induced by coercion; and, as to the confessions made to the reporters, that, in addition, the confession to them was made long after the warning by the sheriff and chief of police, and at a time when said defendant was not mindful of the warning previously given to him. The first two bills of exception relate to confessions made to Jones, chief of police. The bills ^ct out the confessions in full, and state that said Jones was permitted to testify to same, and then proceeds to state that said testi- mony was objected to at the time it was offered upon the follow- ing grounds: "That said so-called 'confession' was not freely and voluntarily made, but was forced on defendant, who was at the time under arrest, by a course of persuasion and accusation of more than an hour's duration, and which was particii)atcd in by the chief and deputy chief of police of Galveston, a reporter, and several officers of the police and detective force of said city, which said course of treatment was calculated and intended to so intimidate and overcome said defendant as to procure from him some statement directly implicating himself with the com- GALLAHER v. STATE. 221 mission of said homicide; all of which is more fully and spe- cifically set forth in the statement of facts filed in said cause. The court overruled said objection, and admitted said testimony, to Avhich appellant excepted." The court appends the follow- ing exphmation: ''This approval is not to be taken as certilying the matters stated above as ground of objection were true in fact, but only that they were stated by counsel for defendant as grounds upon which he objected to the introduction of the evidence." Of course, this qualification of the judge would ordinarily, under the rulings of this court, eliminate this ques- tion, as the bills do not set out the facts under which the con- fession was made, but merely uige agai«nst the admission of said confession objections based on the grounds stated. These bills, however, contain a reference to the statement of facts filed in the cause, constituting the predicate for the admission of said testimony. The judge's qualification would not appear to niil- lify this reference, but only eliminate the grounds of objection stated, as not constituting a certificate of the predicate facts. If we refer to the statement of facts, we find that much testimony was elicited on the question as to whether or not the predicate was sufficiently laid for the introduction of said testimony. On this subject we summarize from the evidence of W. C. Jones as follows : **lt would be hard to say how long he was in my office before he made the confession to me. Don't know whether it was a half hour or an hour. Know it was no longer than two hours. It was a half hour to an hour. A portion of the time I was writing at my desk. During this time they were til Iking. lie did not remonstrate aboiit being questioned. He made one remark that I recollect very distinctly before they went out, and that was that he would not be bulldozed into any- thing. He referred particularly to one Dave Jordan. I do not think that Jordan brought the shirt into my office. It was either Amundsen or Murphy. One brought. in the shirt, but Dave Jordan took the shirt off the desk in the northeast corner of the room, and came towards defendant, and remarked, 'Here is the evidence of your guilt; you might just as well admit it,' or something to that effect. I did not see Jordan turn up one of the cuffs, and point to a stain on the inside of the shirt, just behind the cuff, and did not hear him then say, 'Here is tlie I mtmm ' if I I m ■ "i i •If 222 AMERICAN CRIMINAL REPORm blood of your mother upon this shirt.' They were all question- ing him at tiie same time. . . . They kept on quest ion in/r him further, and trying to get a statement from him. Wo wanted to find out the truth. That is the rule with every pris- oner, in regard to murder, that they have. They question him very close. Yoii may term it a 'sweat-box system,' if you like ; I don't so consider it. Xo; I do not think my office can be called a *sweat-box.' Defendant made the remark that ho did not want to be bulldozed when Dave Jordan came at him with this shirt. I do not recollect the exact details. I think it did not seem to intimidate him. I mean, by 'came at him,' that Jordan picked up the shirt from the table or desk where it had been laid, and had the shirt in his hand, and walked across the room to where defendant sat. In a way, I think he charged him with the murder of his mother. Chubb might also have taken the shirt in his hand at that time, and gone up to him, and said, 'You have killed the best friend you have ever had in the world.' There was a good deal that went on there that morn- ing. The officers each took a turn at him. ... I think that, immediately preceding the confession he made to me and Deputy Chief Amundsen, he was carefully and closely ques- tioned in my office for an hour or more. I think these officers questioned him very closely. I think he was questioned with all the ability at the command of those officers. I believe they made the best efforts they knew how, in their questioning of him, to make him make a true statement of the case. He was very free to talk, and insisted upon talking, biit at this time he did not admit any connection with the crime itself, because ho strenuously denied that. I do not recollect whether he denied it once or many times. He strenuously denied it all this time he was questioned by two detectives, one or two officers, my- self, and the deputy chief. The Xevvs reporter was in there part of the time. . . . After they all went out of my office, we had some few words. I do not recollect exactly the tenor of them. And defendant sat in the chair witl his head thrown back, with his eyes about half closed, I think for about five min- utes, when he remarked to me, 'I want to tell you this thing ex- actly as it happened.' I said, 'Hold on, I want some one else '^li GALLAHER v. STATK 223 present if you are going to make a confession.' He said, *I would not do it while they were in here.' I thought he had ref- erence to the manner of Jordan. . . . He made his state- ment without any questioning at all until about through. Before lie made it, I again told him that whatever he said would be used against him as evidence. He sat with his eyes half closed, and he then said to me: '^^^^at I said in the statement that I made to the reporter Chubb was not correct. It was not true, and I now will make a true statement of what occurred.' " He then made the confession which was introduced in evidence. We summarize from Dave Jordan's testimony for the de- fense as follows : "I remarked to the chief that morning that he was not the boy I had known before ; that there was something the matter with him. I thought he might be in a hypnotic state, or he was a spiritualist. I thought at the time his condition was so pronounced that he was under hypnotic or some other influence. After I got through talking to him about the shirt, I left the room. He did not request all to leave the room ex- cept the chief. I left the room because I was through with him. He had not made the confession to me, but I knew he would. That is why I was through with him. I knew that he would confess, because of my knowledg'e of men. The purpose of my whole examination was to get him to tell the facts. I knew he would make a statement. I accused him of killing his mother on Sunday morning. I pictured the case to him. I showed him the garment. I told him that was his mother's blood. I did not know whether it was or not. The purpose of making that state- ment to him was I wanted to get a statement from him. K^o one, to my knowledge, told him if he would make a statement they would protect him from violence. During this whole hour and a half no remark was made to him to the effect that he would be protected if he made a statement; nothing of the kind, in substance. I asked him to make a statement. I told him it would be better for him to relieve his conscience. I told him he would be relieved in conscience if he did. He denied the crime. He never connected himself with the act of killing. That is why I kept at him. All I wanted was to get an account of the killing itself. I had to put the questions in many differ- m 'I!'] 1 * J ^i l\ ' I a f ; f ^^u h ,\ r^ I ' *lj* # II 1 224 AMERICAN CRIMINAL REPORTS. ent ways to him. The reason, when I considered liim in that condition, that I pressed these questions upon him, was I knew he was guilty. I was satisfied that he Avas the guilty party." There is other testimony in the record bearing on this predi- cate. AH the testimony tends to show that from an hour to an hour and a half appellant was in the office of W. C. Jones, chief of police. The chief and several deputies and detectives were present and two newpaper men, and during all that time apj)ollant was closely interrogated by the parties then present. He was beset by first one and then another. For a long time he persisted in his denial, but at last yielded, and agreed to make a true confession, and requested all to go out except the chief of i^olice. The chief brought in Amundsen, a deputy, and the confession was then made. He was very much broken down by the course of his treatment by the ofHcers and detectives. They describe him as exhausted, with his head thrown back, and his eyes closed, when he made the confession ; and one of them states that he was very weak, but not quite collapsed. We do not quote from the defendant's own testimony, but his evidence is stronger than that of the State on this line, indicating that the officers harassed and badgered him, and that he was over- come by their coercion and persuasion. Our statute is very guarded in its terms. It not only requires that a proper caution be given the prisoner, but, in addition thereto, it must be shown that the confession made is a volun- tary statement of the accused. See Code Cr. Proc, art. 790. And, where a question is raised as to the free and voluntary act of a defendant in making the confession, the court will not only look to the language used at the time, but to all the surrounding circumstances, in order to determine whether or not the con- fession is the voluntary act of the accused. In Thomas v. State, 35 Tex. Crim. R. 179, 32 S. W. Rep. 772, the court used this language: *'The burden is on the prosecuting power to prove that the confession was. voluntary. A confession, especially an affirmative one, appearing to have been made with no expecta- tion of its bringing good or averting evil, is termed 'voluntary* (1 Bish. New Cr. Law, § 1223); the real qiiestion being, in every case, whether or not the confessing mind was influenced in a way to create doubt of the truth of the confession. The GALLAHER r. STATE. 225 burden being on the State, the doubt must be excluded. An in- voluntary confession, uttered to bring temporal good or avert temporal evil, even vhen the contemplated benefit is small, will be rejected. The circumstances under which the confession Avas made are of very great importance. They must be looked to in all cases, and when this is done, and there is nothing pointing to the motive prompting the confession, it will be received. Xoav, whether there is an express or implied promise to aid the sus- ]iccted person, or a threat of temporal injury, or whether the sus- l)ected person is told that it would be better for him to confess, etc., does not always solve the question. It is true that the in- ducement under which the confession was uttered is of prime importance, but not always decisive. The inducement and the surrounding circumstances decide the question. The induce- nu'iit may not be sufficient to show the motive for the confes- sion, but, when read in the light of the surrounding circum- stances attending it, may be ample proof to create doubt of the truth of the confession. The judge should closely scrutinize these circumstances in connection with the inducement, and de- cide the question, and, if nothing pointing to the motive prompting it appears, he should receive it, and over this sort of question the court has a wide discretion." And see Searcy v. Slate, 28 Tex. App. 513, 13 S. W. Rep. 782. It occurs to us that the environment here shown, in connec- tion with this confession, is, at least, suggestive that same was not the free and voluntary act of the accused, but was superin- duced by the conduct of officers who, to use their own language, "knew he was guilty," and determined to make him confess, and unquestionably employed means which we do not believe Avore in keeping with the spirit of our statute on the subject. While it is desirable to detect and punish crime, yet the safe- guards thrown around the citizen should always be observed, es- pecially by those who are in authority. We make these obser- vations in view of another trial, and, inasmuch as the admission of this character of testimony is largely within the discretion of the trial judge, we would suggest the necessity, if any con- troversy is made in a subsequent trial as to the admission of said confession on the ground that it was not freely and volun- tarily made, that the court give the jury a charge on this sub- Voi* XI — 15 ■t 4I w= 220 AMERICAN CRIMINAL REPORTS. jcct, whioli was not done in this case, though a charge on thia Buhjoct was asked, and a hill of exceptions duly reserved to its refusal. What we have said heretofore disposes of the other hills of exception relating to the testimony of Geehan and Chuhh on the suhject of confessions. As to whether or not the confessions to these witnesses were made proximate in point of time in con- nection with the warning given hy the chief of police, we think this sufficiently appears. See Barth v. State, 39 Tex. Crim. K. 38, IG S. W. Rep. 228. We do not think the testimony of Xeimeyer that Richardson, Simonton, and Ricker did not work for him in or ahout the Mascot Theater, in August, 1897, was admissihle. The matter emhraced in this testimony might concern the application ior continuance, hut was not competent on the trial. As to the letter offered by appellant in evidence as presented in bill of exceptions, we do not think there was error in the re- fusal of the court to admit the same. For the errors discussed the judgment is reversed, and the cause remanded. Davidson, P. J., absent. LUTTRELL V. StATE. 40 Tex. Grim. Rep. 651—51 S. W. Rep. 930. Decided June 7, 1899. Change of Venue: Res judicata — Estoppel — Hearsay evidence — Offer- ing to bribe witness — Impeachment, etc. 1. Records for appellate review should be condensed; uncontroverted and conceded matters to be so stated; evidence as to material matters need not be verbatim; immaterial matters may be omitted. 2. A change of venue, because of prejudice of the inhabitants, having once been granted, and the case removed to another county and there dismissed by the State because of inability to obtain evi- dence, Is not res judicata, and does not of itself entitle defendant to a change of venue on an indictment found several years after in the original county. The local prejudice In the meantime may have subsided. LUTTRELL v. STATE. 227 S. A defendant Is not estopped from making an application for a cliange of venue because at a prior term he had agreed not to do so if granted a continuance. 4. A motion for continuance should show diligence. 5. It is error to permit a witness to state what he has been told as to actions and inquiries by unknown persons. (). It is error to permit a witness to state that the defendant's coun- sel had offered to bribe him to leave the county, there being no proof that defendant authorized such conduct. 7. Evidence that a witness has been charged with and is guilty of theft may be rebutted by proof of general good reputation for truth. 8. It was error to allow the State to prove that a town marshal who was friendly to the defendant arrested one of the State's wit- nesses the day before he testified. (Several minor points, on evidence not appearing in the opin- ion, are omitted from this syllabus, but reviewed in the notes. — J. F. G.) Appeal from the District Court of Hunt County ; lion. How- ard Tcinpleton, Judge. Louis Luttrcll, being convicted of murder in the first degree, appeals. Reversed. R. L. Porter, S. D. Stinson, W. C. Jones, John Wynne, and Tom C. Thornton, for the appellant. W. W. Walling and Mann Trice, Asst. Atty. Gen., for the State. Henderson, J. Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he appeals. The case was filed at the Dallas branch of this court on Oc- tober 1, 1897, and was submitted on the 20th of April, 1898, at the Austin term. The record is written with a pen, and contains 43G pages; 215 pages thereof being the statement of facts. This record should have been condensed into not exceeding 200 pages ; 60 pages of which would have been sufficient for the statement of facts, showing every essential feature of the case to be passed on by this court. We consider it a just subject of criticism that this court has, by this method of practice, been compelled to go through much unnecessary matter, consuming time that should have been devoted to other subjects. It serves but very m m m m m lli It I lit I V'\ ft If r? IP .,'; i*.i.>^li, n short tiino j)rior to tho killiiifj;, iittriiiptod to roh tho First Xationnl Bank of (ircciivillc, nnd that dcccasod vas cither cognizant of same, or had knowh'dge of sonic fact in connection therewith that -\vonhl lead to tho identity of Lnttrell and English as tho guilty jiarties; nnd that on said account appellant nnd his co-defend- ant conspired together, and in pursuance thereof shot nnd killed deceased. Defendant entered a plea of not guilty, and relied on the weakness of the State's case, and also on tho plea of allhl. On tho trial, appellant filed a motion to change the venue of tho case on the ground of prejudice against him, nnd on the ground that there wns a secret forniidahle cond)ination against him; and in this connection ho also insisted that, tho court having for- merly changed tho venue on a previous indictment to Collin county, tho question of n change of venue was res adjiidicata, and that it was the duty of the court to recognize this, and change the venue of the case. With reference to the latter propo- sition wo have this to say: The former change of venue, made in 1S94, of an indictment nnd case then pending against ai)pel- lant in Hunt county, on the ground of prejudice then existing against him, clication for change of veniie, Avhich was denied. One of the jurors on his voir dire denied that he Avas related to the de- consod, but he was shown to be related in the fourth or fifth degree. The wife of another juror was related to the deceased. Snffold, expecting a letter, called for his mail, and was in- fdrnied by Ingram, the postmaster, that there was nothing for him; but Avhen he called the next day he was handed a letter bv some other person in charge of the office. Saffold accused tlio postmaster of not properly stamping letters on their receipt. A dis])ute followed, and Ingram approaching and striking at Saffold with his pocket-knife, Saffold Avas knocked down, and during the melee some one cried out, "Stop, Ingram, for God's siikf', sto])," and Saffold firing his pistol killed Ingram. The third instruction for the State was as follows: ""While the jury should put thenisolves in the place of defendant and judge of his acts by the facts and circumstances by Avhich he was surrounded, they should not, however, give him the benefit of ])ersonal timidity or needless fear." The court instructed the jury on behalf of the State, that "an ordinary pocket-knife is not a deadh' weapon per se." The fifth instruction for the State was as follows : "The right to use a deadly weapon in self-defense is denied to an accused person Avho Avas the originator of the difficulty, entered it armed, and brought it on intending to use his Avcapon to overcome his adversary." The defendant, being convicted of manslaughter, appeals. Ileversed. f: 1 ■'IS ,■■'•] "ii$4M 236 AMERICAN CRIMINAL REPORTS. S. II. & IF. C. MecJc and T. U. Slsson, for the appellant. Oral argument by T. U. Sisson. Wiley N. Nash, Atty. Gen., for the State. Whitfield, J., delivered the opinion of the court. Reluctant as we always are to interfere with the exercise of discretion by the lower court, we have been compelled in this case, after the most careful consideration, to hold that the application for a change of venue should have been granted. Twenty-five wit- nesses, besides the defendant, testified positively that, by reason of "prejudgment of this case, or grudge or ill-will towards the defendant," he could not obtain a fair and impartial trial in the county. Some twenty witnesses were examined by the State ; a number of them had formed opinions as to the guilt of the de- fendant which it would require evidence to remove. Most of the expressions heard by these witnesses were decidedly adverse to the defendant. Defendant was a stranger in the county. De- ceased's family connections were numerous, prominent and in- fluential, and scattered over the county, especially the eastern part of the county, where was the largest white element. One of the jurors was, by affiulty, related to the deceased in the fourth or fifth degree, and yet seems not to have known it. So intense was the feeling roiised against the defendant that mob violence threatened the jail, which had to be guarded. We will not enlarge further. Lender this showing the venue should have been changed. Jamison v. People, 145 111. 357. See cases cited in notes to 3 Am. & Eng. Enc. Law (1st ed.), 97; Johnson v. Com., 82 Ky. IIG. The third instruction for the State is correct enough as an abstract proposition of law, but, as applied to the concrete case made by the testimony, should have added at the close, "if such personal timidity or needless fears are shown by the evidence beyond a reasonable doubt." The instruction that an ordinary pocket-knife is not per se a deadly weapon, as a matter of law, is one we are not prepared to approve. What is an ordinary ]>o(*kot-knife ? The knife in this case was a four-bladed knife, about three inches long closed, with a buck-horn handle. Dr. Ward testified there were three parallel cuts on SafTold's face, apparently made "with a dull edge." It is proper to have the % SAFFOLD V. STATE. 237 jury to say, as a matter of fact, whether a weapon is a deadly wciipon, and the court properly charged the jury for the defend- ant to this effect. Indeed, the series of charges given for the (Icfcmlant in this case were ahnndantly liberal to the defendant, and were drawn with consummate skill, and, whilst pointing out these errors in the two charges named, we would not for these errors reverse the judgment. But the fifth charge for the Stiite, whilst announcing a correct abstract proposition of law, is fatally erroneous as applied to the case made by the proof. There is an entire failure to show, in a proper sense, that Saf- fuhl began the difficulty. AVe forbear to comment on the testi- mony, I'xcept as necessary in passing upon these charges. .Judgment reversed, verdict set aside, and cause remanded for a new trial. Note (by J. F. G.).— In State v. Billings, 77 Iowa, 417, 8 Am. Crlm. Rep. 329, a conviction for murder in the second degree was reversed, because of error in the court below in overruling a motion for a change of venue. The defendant sought not only a change of venue from his own county, but objected to another adjoining county. His applica- tion was supported by the affidavits of forty or fifty persons, alleging that public sentiment was against the defendant, etc., and that in some instances talk of lynching was indulged in. There was also evi- .ience that various persons had expressed their belief that there should be a change of venue; but that they declined to assign it for business and other reasons and also declined to make affidavits. About eight hundred residents of three counties made counter affidavits, the af- fiants claiming to be acquainted with the feelings and sentiments e.xisting, and that no such prejudice would exist as would prevent a fair and impartial trial; but did not controvert the fact stated In the affidavits supporting the application for change, and did not deny any of the statements as to excitement and prejudice. The court held that the counter affidavits were insufficient. The case was reversed, and the venue changed to another county, and again a verdict of murder in the second degree was rendered; but this the Supreme Court re- versed, and ordered that the defendant be discharged, because the evi- dence strongly indicated that the deceased had committed suicide. The judge writing the opinion said that such was the opinion of the judges at the previous hearing, but in that instance they simply granted the new trial that the case might be re-submitted to a jury; but as this theory was more clearly demonstrated at the second trial, the defendant should be discharged. The writer bears in mind a burglary case tried at West Union, Iowa, about thirty years ago, in which the defendant had often been accused of crime, but was generally very successful in his defenses; the. previ- ous cases making heavy costs to the county. The defendant made an m T i '.^ ' ^5 ;ti i '1 ■I' 1 j ! : ^ •fijif'- ir pi ki lit' if J; i ■. • ■: 238 AMERICAN CRIMINAL REPORTS. application for a change of venue, obtaining the signatures of a few persona to the affidavit. The prosecution sent a notary public through the town with a counter affidavit for signatures, and obtained so many that the application was denied and the defendant was convicted. In the presence of the writer, one of the well-known business men of that town when he signed and swore to the affidavit stated that he believed the defendant could obtain a fair trial; because he believed that upon a fair trial the defendant would be convicted. This illustration is given simply to show the unreliability of affidavits of this nature when the facts upon which the party grounds his belief are not stated. mi State v. Mylod. 20 R. I. 632—40 Atl. Rep. 753. Decided July 18, 1898. Christian Science: Constitutional questions not involved — Construc- tion of statute regulating the practice of medicine and surgery — Benefit of reasonable doubt as to matters of law. 1. The question as to whether or not an act of the legislature is in violation of the constitution will not be considered when the evi- dence does not show a violation of the provisions of the act. 2. While the words of a statute "are not to be restricted in meaning within the narrowest limits, neither are they to he extended be- yond their common interpretation; and if there is a reasonable doubt as to whether the acts done are within the meaning of the statute, the party accused of ltd violation is entitled to the benefit of that doubt." 3. The practice of Christian Science is not controlled by the statute relating to the practice of medicine and surgery. Walter E. Mylod, being charged by complaint with practic- ing medicine and surgery for reward, without registration and license, the matter was certified to the Supreme Court by a dis- trict court, upon a constitutional question. Charles F. Stearns, Asst. Atty. Gen., for the State. George H. Little field, for the defendant. BoswoRTii, J. The defendant was adjudged probably guilty in the district court of the Sixth judicial district upon com- plaint of Gardner T. Swarts, secretary of the State board of health. Said complaint, which was made under chapter 165, ?U,i,3ii'? STATE v. MYLOD. 239 Gen. Laws R. I., alleges that the defendant, at Providence, on tlie 20th day of Xoveinber, 1897, *Mid then and there practice medicine and surgery for reward and compensation, without lawful license, certificate, and authority, and not being then and there duly registered according to law." The defendant, upon arraignment, pleaded not guilty, and subsequently, and before judgment, raised a question of the constitutionality of said chapter 1G5, which question, in accord- ance with the provisions of chapter 250, Gen. Laws R. L, was certified and transmitted to the appellate division of the Su- preme Court for decision. Gen. Laws R. I., eh. 165, provides for the registration of ]ihysicians, and its ol)ject is to regtdate the practice of medicine and surgery. Under this chapter, authority to practice medi- cine and surgery is through a certificate issued by the State board of health, and said board, upon application, and without ers are entitled to certificates to practice medicine, provided they possess the statutory quali- fications. The statute, in conferring upon the State board of health authority to pass upon the qualification of applicants for such certificates, does not confer upon said board arbitrary ])ower. The board cannot determine which school or system of medicine, in its theories and practices, is right; it can only de- tonnine whether the applicant possesses the statutory qualifica- tion to practice in accordance with the recognized theories of a particular school or system. It would be absurd to hold that under said chapter 1G5, which provides against discrimination, the requirements necessary to entitle an applicant to a certificate were such that the mend)ers of a particular school or system could not comply with them, thus adopting a construction which would operate not as a discrimination only, but as a prohibition. On the other hand, to hold that a person who does not know or ]iretoiul to know anything al)n\it disease, or about the method of ascertaining the presei'ce or the nature of disease, or about I '> m 240 AMERICAN CRIMLNAL REPORTa f 1 ! i ft' 1 " iS r^ 1 4'i !|I the nahire, preparation, or use of drugs or remedies, and who never administers them, may obtain a certificate to practice medicine, is to hold that the operation of the statute is to de- feat the beneficial purposes for which it was enacted. The eases cited by the State do not sustain its contention. In Nelson v. Ilanimjton, 72 Wis. 591, 40 N. W. Kep. 228, the plaintiff brought suit against the defendant, who was a clairvoy- ant physician, to recover damages for alleged imskillful treat- ment. In testimony it appeared that the defendant held him- self out as a healer of disease, and accepted compensation ; that he determined the nature of the disease for which he treated the plaintiff, and the character of the remedies he administered, while in a mesmeric state or trance condition. The court held that the defendant was bound to exercise reasonable skill, and that the knowledge of the plaintiff of his methods was no de- fense to the action. In Bibber v. Simpson, 59 Me. 181, Avhich was an action brought to recover compensation for services, the opinion of the court is as follows: "The services rendered were medical in their character. True, the plaintiff does not call herself a physician, but she visits her sick patients, examines their condition, de- termines the nature of the disease, and prescribes the remedies deemed by her most appropriate. Whether the plaintiff calls herself a medical clairvoyant, or a clairvoyant physician, or a clear-seeing physician, matters little. Assuredly, such services as the plaintiff claims to have rendered purport to be, and are to be deemed, medical, and are within the clear and obvious meaning of Rev. St. 1871, eh. 13, § 3, which provides that 'no ])er!:on except a physician or siu'geon, who commenced prior to February 10, 1831, or has received a medical degree at a public medical institution in the United States, or a license from the Maine Medical Association, shall recover any com])ensation for medical or surgical services, unless ])reviou3 to such services he ha:> Grkkx v. State. 40 Fla. 474—24 So. Rep. 537. Decided October 18, 1898. Confessions: Statements by accused at preliminary examination — In- structions with forms of verdict. 1. In order to render a confession of guilt voluntary and admissible In evidence, the mind of the accused must at the time be free to i. Hi ^ i ; i i ' J- 251 AMERICAN CRIMINAL REPORTS. act, uninfluenced by fear or hope; and that the confession was BO voluntarily made must first be clearly shown before the Intro- duction of the confession in evidence. 2. Confessions should be acted on by courts and Juries with great caution. 3. On a preliminary examination before a county judge, an accused was informed by the court when arraigned that it was discre- tionary with him what he should plead; that, if he plead not guilty, It would be the duty of the court to see that there was sufficient evidence before holding him, and, if he plead guilty, he would be held; that he was not forced to say anything that would criminate himself, and wha^ he did say might be used against him. Held, that a plea of guilty, made under the circumstances stated, was properly admitted in evidence, over the objection that it was not shown to be voluntary. 4. The fact that an accused has entered a plea of not guilty to an Indictment in the circuit court does not debar the State from in- troducing in evidence a voluntary confession of the offense charged in the indictment, made by the accused in the investigat- ing court on a preliminary examination. 5. On a charge of murder, the court instructed the Jury as to the dif- ferent grades of the offense, and what constituted manslaughter; that they were the sole Judges of the evidence, and should deter- mine from all of it, after full consideration, what were the facts in the case, and render a verdict accordingly; that the accused was presumed to be innocent until the State proved his guilt be- yond a reasonable doubt, and, if they had such a doubt, they should acquit him, but, if they found him guilty, they should say 80, and determine the degree of the offense. Held, that it was not error to follow the charge given with a form of verdict in the event of a conviction, without also submitting a form of verdict in case of acquittal, no request being asked by the accused on the subject. (Syllabus by the Court.) Error to the Circuit Court for Santa Rosa County. Jonah Green, being convicted of murder, brings error, firmed. Af- Daniel Campbell, for the plaintiff in error. William B. Lamar, Atty. Gen., for the State. Mabky, J. Plaintiff in error was indicted for the murder of one Sallie Brown, and was convicted of the offense charged. On a writ of error from the judgment of the circuit court, three errors are assigned : (1) The court erred in allowing the county judge to testify as to the plea and confession made in his court GREEN V. STATE. 255 ■I by the defendant. (2) The court erred in giving in its chnrge n'form of verdict if the jury found the defendant guilty, and in not giving the form of verdict if they found him not guilty, (y) The court erred in overruling defendant's motion for a new trial. The State examined four witnesses who fully sustained the charge of murder against the accused. All four of the witnesses were present, and saw the killing, which was without just prov- ocation or excuse. Intimate relations had existed between the accused and deceased for three months before the killing. On the night of the killing, they were together in a house where the four witnesses examined by the State were, and the deceased went out of a back door, and the accused left the house through the front door. They engaged in a quarrel on the outside of the house for a few moments, and then appeared together at the front door. The accused kicked or pushed the deceased into the house, and went in himself, stopping near the fireplace. The deceased immediately cursed the accused, and said she had had another man, naming him, and was going to keep him. No demonstration of personal violence towards the accused by the deceased was shown, other than the abusive language used by her, and this was after she had been kicked or violently pushed into the house. When the deceased said she was going to keep the other man, the accused drew a pistol and discharged it five times at the deceased, three of the balls penetrating her body, and producing almost instant death. The four witnesses who testified for the State were in the house at the time, and, with slight variation, agree in their statements of what occurred. After the examination of the four v/itnesses, the State had sworn the county judge of the county before whom an examina- tion of the charge against the accused was had. lie was asked what the accused said in his court. This question was objected to, "because the State had not shown it to be a voluntary con- fession, and because it called for the defendant's plea in the pre- liminary hearing after he had already plead not guilty to the indictment." Before answering the question, the witness said that he first told the accused that it was discretionary with him what he should plead ; if he plead not guilty, it was the duty of witness to see that there were sufficient grounds to hold him ; if t «■-■ ,■ Ifl IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^tii v Vi 12.2 , , £ Itt 120 1.1 :. Photographic Sdmoes Corparation 23 WBT MAM STRHT (716)«73-4S03 ^^ ^\ ^rN m I* •'■■ g'^f; s 256 AMERICAN CRIMINAL REPORT& he plead guilty, he would be held ; that he was not forced to say anything that woiUd criminate himself, and what he did say might be used against him. The court permitted the question to be answered, and the witness stated that he read the warrant to the accused, and he pleaded guilty. lie was asked what ho killed the woman for, and he said he was mad with her. On cross-examination the witness stated that he did not think, from the apiDcarance and what he knew of the accused, that he was sufficiently intelligent to know the different grades of crime of which he might be guilty for killing a person. A motion was then made to rule out the testimony of this witness on same grounds above stated, and this motion was overruled. The ac- cused introduced no testimony, and the verdict was for murder in the first degree. The objections made to the testimony in the trial court were — First, it was not shown to be voluntary ; and, second, becaxise it called for the plea of the defendant in the examining court after he had interposed the plea of not guilty to the indictment. The general rule, recognized by our decisions, is that, to render a confession voluntary and admissible in evidence, the mind of the accused must at the time be free to act, iminfluenced by fear or hope ; and, before confessions of crime can be offered in evi- dence against an accused, it must be clearly shown that they were voluntarily made. Such confessions should be acted upon by courts and juries with great caution. Simon v. State, 5 Fla. 285 ; Mwray v. State, 25 Fla. 528, 6 So. Rep. 498 ; Coffee v. State, 25 Fla. 501, 6 So. Rep. 493. In the case last cited, it is held that, when a person charged with crime is brought before a justice of the peace or other officer for preliminary examination, it is the duty of the officer to caution the accused that any state- ment or confession he may make may be used against him, and to inform him of his rights in the premises. In the case of Regina v. Baldry, 2 Denison, C. C. 430, which was thoroughly considered, a police constable, who arrested a man on a charge of murder, informed him of the nature of the charge, and fur- ther stated to him that he need not say anything to criminate himself, and what he did say would be taken down and used aa evidence against him. Thereupon a confession of the crime was made, and it was held that the confession was rightly admitted GREEN V. STATE. 257 in evidence. The same, in effect, was ruled in the case of Eegina v. Aiiwood, 5 Cox's C. C. 322. It appears from the stattaient given that the county judge sufficiently informed the accused of his rights in the premises, and duly cautioned him that any statement or confession he should make might be used against him. This, clearly, would be so with a person capable of comprehending his rights. We do not understand, from the statement of the county judge in reference to the capacity of the accused to distinguish between the degrees of the offense of killing a person, that he was not capable of comprehending and fully realizing what was told him, and his rights. Technical knowledge is required in some cases to distinguish the degrees of offense in the taking of life, and it imputes no want of capacity to plead to the charge of murder that the accused did not know the different degrees of the offense. Our statute provides that, "when the jury find the defendant guilty under an indictment for murder, they shall ascertain by their verdict the degree of unlawful homicide of which he is guilty, but if the defendant on arraignment con- fesses his guilt, the court shall proceed to determine the degree upon an examination of the testimony, and pass sentence ac- cordingly." Under this statute, the accused can only be pun- ished for such degree of the offense charged against him as the testimony discloses ; and this, notwithstanding a full confession of guilt. Aside from the confession of the accused as given by the county judge, the testimony of four witnesses, without con- tradiction, establishes the guilt of the accused of murder in the first degree. The other ground of objection to the testimony is without any force. The authorities cited by counsel on this ground sustain the view that when an accused first pleads guilty to a charge, and afterwards, by permission of the court, is allowed to with- draw such plea, and put in the general issue, the plea of con- fession allowed to be withdrawn cannot be put in evidence on the trial. That is not the case here. The accused never asked to retract or withdraw what he stated before the county judge ; and his statement there, l)eing voluntary, could be used against him on the trial in the circuit court. It is argued in brief here that the State should not have been Vou XI -17 I! ,ii!. 258 AMERICAN CRIMINAL REPORTS. I alloweJ to prove the pica of the accused before the county judge l)y parol testimony, and the written plea should have been in- troduced. Xo such objection as this was made in the trial court, and, in addition, it nowhere appears that any record was ever made of defendant's plea in the county judge's court. The next assignment of error relates to the form of the ver- dict given by the court in case the jury should find the defend- ant guiltv. It is not claimed that the court erred in the form given to the extent it went, but the ground of exception is that, along with the form given in case of a verdict of guilty, the court should have stated a form in the event of an acquittal. Xo request was made for any additional charge or- further explana- tion as to the form of verdict. On looking at the charge of the court, we find that the judge, after stating to the jury the different grades of the offense of nuirder, and what constituted manslaughter, instructed them that they were the sole judges of the evidence, and would deter- mine for themselves, from a full consideration of the whole evi- dence, what the facts were in the case, and to render a verdict accordingly; that the defendant was presumed innocent until the State proved his guilt beyond a reasonable doubt, and, if they had a reasonable doubt of his guilt, they would find him not guilty. The court further instructed that, if the jury foimd the accused giiilty, they should say so, and determine the degree of the offense. In the event of a conviction, the form of the verdict fixing the offense was submitted. We discover no error '•hatever, in the charge given by the court as to the form of the verdict. The only remaining assignment of error is that the court im- properly overruled defendant's motion for a new trial. The only ground of this motion not already considered is that the evidtace is not sufficient to sustain the verdict. In the state- ment of facts already given, our views as to the sufficiency of the evidence to sustain the verdict are clearly foreshadowed. We entertain no doubt on this point. The testimony of the four eyewitnesses to the killing is amply sufficient to sustain the ver- dict. The judgment must be affirmed. GUIN V. STATE 259 GuiN V. State. Texas Court of Crim. App.— 50 S. W. Rep. 350. Decided March 1, 1899. Confessions: Jnaufflcient warning by sheriff — Convict not a competent witness; but his acts admissible. 1. A warning given by a sheriff to his prisoner, that anything he would say could be used for or against him, is of the nature of an in Pac. Kep. 121, when it was to aid his sister; in State V. Gmnt, 22 ^le. 171, where it was to save a brother. Jn all these cases the confessions were a. Jarvis, 17 L. T. Hep. 178; L. Rep., 1 Cr. Cas. Res. 06; 10 Cox C. C. 574, the prisoner's master said to him, "You are in the presence of two officers of the police, and I should advise you that to any question that may be put to you you will answer truthfully, so that, if you have committed a fault, you may not add to it by stating what is untrue;" whereupon the prisoner made a confession which the court held to be admissible, Wil- Ics, J., saying that the case would have been different if the master had said, "It is better for you to tell the truth." The principle is also laid down by Cave, J., in Beg. v. ThompsoH, 09 L. T. Rep. 24; (1893) 2 Q. B. 12 ; 17 Cox C. C, at p. G45, with the concurrence of the late Lord Chief Justice, that a con- fession is not admissible if it is preceded by an inducement held out by a person in authority. Seeing, then, that in the case before us there was used the very words which it has been held render a confession inadmissible, in my opinion this con- fession was not' admissible, and that it having been admitted the conviction which followed it was bad. It is to be borne in mind not only by magistrates but by prosecuting counsel and by solicitors having the charge of prosecutions, that they must sat- isfy themselves before putting a confession in evidence that the confession was not obtained under such circumstances as to be inadmissible. I observe that in this case bail was refiised for the prisoner. It cannot be too strongly impressed on the mag- istracy of the country that bail is not to be withheld as a punish- ment, but that the requirements as to bail are merely to secure the attendance of the prisoner at the trial. If Hawkins, Matiiew, Lawrence, and Weight, JJ., con- curred. Solicitor, IF. A. Watts, St. Ives, Hunts. The Crown did not appear. Notes (by J. F. G.). — The case of Regina v. Thompson, cited by the Lord Chief Justice in the above opinion, is the same as Queen v. Thompson, 9 Am. Grim. Rep. 269. The decision was announced by Lord Chief Justice Coleridge as follows: "In this case we are all agreed that the conviction cannot be supported, and my brother Cave has 278 AMERICAN CRIMINAL REPORTa Mil •written a judgment which we have all read, and icith which tie alt agree." The opinion Is one of exceptional merit, and although It ap- pears in full in a previous volume of these Reports, we do not deem it a trespass upon the reader's patience to quote from it the following: "I would add that, for my part, I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confes- sion to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the de- sire born of penitence and remorse, to supplement it with a confession, and this desire itself again vanishes as soon as he appears In a court of justice." Ttco other leading "Crown Cases Reserved" — Rex v. Jones, Russ. & Ryan, 152, d3cided in 1809, and Rex v. Upchurch, 1 Moody, C. C. 4G5, decided in 1836, are accepted as authorities. The report of each is so brief we here give them in full: Rex v. Francis Jones Larceny. — The prosecutor asked the prisoner, on finding him, for the money he, the prisoner, had taken out of the prosecutor's pack, but before the money was produced said, "he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased;" upon which the prisoner took lis. 6%d. out of his pocket and said it was all he had left of it. Held, that the confession ought not to have been received. The prisoner was tried before Mr. Justice Chambre, at the Win- chester Lent assizes, in the year 1809, upon an indictment for stealing money to the amount of II. 88., the property of John Webb, a private in the Somerset militia. A part of the evidence was as follows: The prosecutor, who, as well as others, had been in pursuit of the prisoner, found him, at last, in a room of a public house, In custody of a constable, to whom he had been delivered by a serjeant of marines, who had apprehended him. On finding him there, the prosecutor asked him for the money that he, the prisoner, had taken out of the prose- cutor's pack, upon which the prisoner took lis. GV^d. out of his pocket, and said it was all he had left of it. The serjeant (who was In the same room with the constable and the prisoner) gave the same ac- count of the conversation and of the production of the money by the prisoner; but he added that Webb, the prosecutor, before the money was produced, said "he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased." The money (lis. 6%d.) was taken charge of by the serjeant. The learned judge left the whole of this evidence for the considera- tion of the jury, and they found the prisoner guilty. In Easter term, 29th of April, 1809, the majority of the judges pres- ent, viz., Macdonald, C. B., Chambre, J., Lawrence, J., Le Blanc, J., and Heath, J., held that the evidence was not admissible, and the convic- REOINA V. ROSE 279 tion wrong. Wood, B., Grose, J., Mansfield, C. J., of C. B., contra. Lord Ellenborough dubitante. Rex v. Maria Ann UrcK''Rcn. A confession obtained from a servant througli hopes and threats held out by the wife of the master f..id the prosecutor is inad- missible. The prisoner, a girl aged thirteen, was Indicted and tried before Mr. Baron Parlte, at the Summer Assizes, 1835, at Huntingdon, for a mis- demeanor, in attempting to set flro to her master's house. On the part of the prosecution it was stated that the case could not be made out without the prisoner's confession, and the learned baron received it in evidence, reserving the question as to its admissibility for the consideration of the judges. The prisoner was convicted, but the learned baron deferred passing sentence. The prisoner was a domestic servant to the prosecutor, wno kept a beer-house. His wife lived with him, and took her share of the man- agement of the house. After the attempt to set the house on fire was discovered, the prisoner came into the room where her mistress was, in the absence of the prosecutor, and her mistress said to her, "Mary, my girl, if you are guilty, do confess; it will perhaps save your neck; you will have to go to prison; if William H." (another person sus- pected, and whom the prisoner had charged) "is found clear, the guilt will fall on you." She made no answer. The mistress then said, "Pray, tell me if you did it." The prisoner then confessed. It was contended on the part of the prisoner i that the prosecutor's wife had no authority, real or apparent, over the prisoner so as to hold out any hope which would influence the prisoner to make a false state- ment, in order that her life might be spared, and therefore that the confession was admissible, and Rex v. Hardwick, Phillips on Evidence, 105, and Rex v. Row, Russ. & Ry. 153, were cited. The learned baron reserved the point. In Hilary Term, 1836, Lord Denman, C. J., Tindal, C. J., Lord Abin- ger, C. B., Park, Llttledale, Gaselee, JJ., Parke, Bolland, Gurney, BB., Williams, J., met and considered this case, and they thought the con- fession ought not to have been received. 1^ V m 'The word "prisoner" is evidently by mistake for the word "prosecution," in the clause, "It was contended on part of the prisoner,'''' but we give it as it appears in the report.— J. F. O. 11': p. ■■, 1 t - 250 AMERICAN CRIMINAL REPORTS. SULMVAX V. StATK. 66 Ark. 506—51 S. W. Rep. 828. Decided June 3, 1899. CoNFKH,sioN8: Invaliflated by previous promise. 1. A confosBion obtained by offers of favor made by the owner of stolen property is not admissible. 2. An instruction, that the proof of the fact that the property was stolen together with the ronfesaion Introduced will Justify a ver- dict of guilty, is erroneous, In that it assumes certain facts to have been proven. Appeal from the Circuit Court of Greene County; lion. Felix G. Taylor, Judge. William Sullivan, being convicted of larceny, appeals. Re- versed. Crowley £ JInddJeslon, for the appellant. Jeff Davis, Atty. Gen., and Chas. Jacohson, for the State. Statement of facts hy the court. — At the Soptenibcr tonn, 1895, of the Greene circuit court, the appellant, William Sul- livan, was iu'lieted for grand larceny. At the spring term, 1899, the cauMO came on for trial. Appellant, waiving formal arraignment, entered his ])lea of not guilty, was tried, ccmvicted, and sentenced to one year in the penitentiary, and appealed to this court. The ovilence on the ground of contradicting the defendant as a witness could be found, he had better have gone uncontradicted than that his legal rights as a priy- oner should be so violated, and his conviction olitained by such un- lawful testimony. The object is to get the confession in evidence. It cannot be done directly, but it can be done indirectly. It cannot be used to convict, but it can be used to contradict the defendant, and In that way It Is used to convict him all the same. We cannot adopt such a principle or practice in the administration of criminal law. It is unreasonable as well as unjust. This evidence was inadmissible on the familiar ground that a witness cannot be cross-examined and contradicted in respect to matters not admissible in evidence as part of the case. Whart. Cr. Ev., sec. 484. That confession first went to the jury, and produced its effect as evidence, before it was excluded by the court, and finally goes to the jury as competent evidence by way of contradicting the defendant. It seems impossible to keep it out, however objectionable or incompetent it was 8= evidence against the accused. That it was incompetent is not an open question in the case. The court so decided in favor of the defendants. For the above errors the judgment must be reversed, and a new trial ordered. The judgment of the circuit court is reversed, and the cause remanded for a new trial. The warden of the State prison at Waupun is hereby ordered to deliver the defendants into the custody of the sheriff of the county of Ashland, to be held by him until they are discharged from his custody according tc law. The corpus delicti cannot be proved hy a confession. — This proposi- tion is sustained by sections 632-633, Wharton's Criminal Evidence, and cases there cited. One of the illustrations given by Mr, Wharton is the case of Pitts v. State, 43 Miss. 472. In that case the evidence showed that one James Magee died with symptoms which might in- dicate poisoning, congestion of the brain, or disease of the heart. The defendant confessed that he had prepared poison and sent it by an- other person to be administered to Magee. A conviction was had, but reversed because the corpus delicti was not proven by evidence, other than that of the confession. The case of State v. Dubois, 54 Iowa, 363, 6 N. W. Rep. 578, is also a very interesting case upon this subject. The Iowa statute does not permit a conviction unless the corpus delicti be established by proofs SULLIVAN r. STATE. 293 otlipr than a confession of the defendant made out of court, which is substantially the re-enacting of the common law. The defen.lant wus Indicted tor larceny, In that he found lost property and feloni- ously appropriated It to his own itse. The owner had the money and notes In his possession a short time before the loss. He went to the sheriff to secure his services In finding the property, and In the preb- • ence of the defendant made statements In regard to the losing of the property and its value. This evidence was Introduced apparently for the purpose of proving that the defendant being present and hearing the statements must be regarded as admitting them. It was also shown that the defendant admitted to various persons that he had found the property, and had even done so in one or two letters writ- ten to his brother. The Supreme Court said that the explanations given by the defendant were "e.\tremely unsatisfactory," but reversed the case because there was no positive proof of a corpus delicti, the court saying: "Our views and conclusions are based upon the most familiar principles of the law. We cannot hesitate to apply them In this case, though there Is reason to fear that, by their application la this in- stance, a guilty man escapes punishment. But however strong may be our belief of defendant's guilt, we cannot overturn the law to sustain hi^ conviction. By so doing, justice would be more gravely offended than by his escape from punishment, by the failure of the prosecu- tion to produce legal evidence that an offense had been committed." In Williams v. People, 101 111. 382, the court adhered to this doc- trine, saying: "This rule Is fully recognized by the ablest text-writers of the day and the general current of authority." Confessions ichich are vague should be refused. — This applies with special force to those made through an interpreter whose knowledge of the foreign language Is Imperfect. Serpentine v. State, 1 How. (Miss.) 256. Treatment of the prisoner while vndcr arrest. — It Is a common oc- currence, in larse cities, when a person Is arrested for some offense, where the evidence is not clear and manifest, to detain him for hours, and it may be for days. In a police station before bringing him to a magistrate. This is indulged in for the purpose of working up the case, or, in other words, obtaining a confession. Both at common law and by the statutes of many, if not all, of the States in this coun- try, it is the duty of an officer to take a prisoner to a magistrate im- mediately; and it is for the magistrate to determine what continuance, If any, shall be allowed. Sir Matthew Hale said: "When the officer or minister has made his arrest, he Is forthwith to bring the parties to the gaol, or to the justice, according to the import of the warrant. But if the time be unseasonable, as in or near the night, whereby lie cannot attend the justice, or if there he danger of a present rescue, or if the party be sick and not able at present to be brought, he may, as the case shall require, secure him in the stocks, or in case the qual- ity of the person or the indisposition so require, secure him in a house till the next day, or such time as it may be reasonable to bring him." 2 Hale, Pleas of the Crown, Hi), Section 7, division 6, of the Illinois Criminal Code, provides as fol- fi i| ^ ,^."1 ■-? Herdman v. State. 54 Neb. 626—74 N. W. Rep. 1097. Filed April 21, 1898. Contempt: Procedure — Affidavit. 1. A proceeding against a party for contempt is in the nature of a prosecution for a crime, and the rules of strict construction ap- plicable in criminal proceedings are governable therein. 2. The affidavit must state the acts of the asserted contempt with as much certainty as is required in a statement of an offense in a prosecution for a crime. 3. The statements must be as of the personal knowledge of the af- fiant. They may not be on information and belief. 4. The affidavit in such a proceeding is Jurisdictional. Error to the District Court for Douglas County ; Hon. C. R. Scott, Judge. Reversed. Gvy B. C. Read and Willmm F. Gurley, for the plaintiff in error. C. J. Smyth, Atty. Gen., and Ed. P. Smith, Deputy Atty., for the State. IIarrison^, C. J. By a petition in error a review is sought of a judgment of the district court of Douglas county wherohy the plaintiff in error was adjudged giiilty of a contempt of court and to Ire punished therefor. The affidavit filed in the district court, the basis of the proceedings there, was as follows: "William W. Cox, Plaintiff, V. Board of Fire and Police Commissioners, Frank E. Moores et al.. Defendants. State of Nebraska, ) Douglas County. ) "R. II. Olmsted, being duly sworn, deposes and says he is one of the attorneys for the plaintiff in the above entitled ac- )■ Doc. GO. No. 313. RS. HERDMAN v. STATE. 299 m 'Vi 9 l. tion, and comes now and represents to the court that the re- straining order issued herein on July IG, 1897, has been vio- lated by the defendant E. E. L. Herdman in this, to wit : That on September 29, 1897, the said Ilerdman, as a member of the board of fire and police commissioners of the city of Omaha, Xebraska, did, as affiant is informed and believes, vote 'yes' at a meeting of said board on a resolution then adopted by said board removing plaintiff herein from the police department of the city of Omaha; that thereafter, on the 1st day of October, 1897, at a special meeting of said board, the following proceed- ings were had, and the following is a copy of the journal of said board showing a record of the proceedings then and there had : " * Cm uiA, Xeb., October 1, 1897. " ' The board met pursuant to call. Present, Commissioner Gregory in the chair, and Commissioners Peabody, Bullard, aiul Ilerdman; absent. Commissioner ^loores. " ' The secretary presented a connnunication from the chief of police addressed to Hon. C. P. Scott, with the reply of his honor thereto attached, and reading as follows : " ' " Hon. C. R. Scott, Jud(je District Court, Omaha, Neb. — Dear Sir: I have the honor to inclose herewith a resolution adopted by the board of fire and police commissioners at the meeting of that body held last night. It was the sense of the board and also my personal opinion, that, in so far as the said resolution affected Chief of Detectives W. W. Cox, your atten- tion should be called to it, as the board and myself desire to bo guided by both the letter and spirit of the restraining order iimdo by your honor in the matter of W. W. Cox v. The Board of Fire and Police Conuuissioners. "• ' " I am sure that the form of my communication to your honor is strictly in accordance with legal practice in such cases ; but I simply seek to convey to your honor the meaning and intention of the board touching the matters mentioned herein, and we would be glad to be guided by such advice and instructions as you may deem consistent to give in the pi'omises. " * " Very respectfully yours, « ' " C. V. Gallaoiieh, Chief of Police." B. m 300 AMERICAN CKIMINAL REPORXa i .. "'"Reply: " ' " Chief Gallagher: Yoii are notified that the action of the board of fire and police commissioners resjiecting the dis- charge of Chief of Detectives Cox, in discharging him from the service, is in direct conflct "with the restraining order issued by me, and should be rescinded at once. Until the case is heard no such action should be taken by the board. " ' " (Signed) Cuxxixgiiam R. Scott, Judge. "'"Omaha, Sept. 30, 1S97." " ' On motion, the communications were ordered spread upon the record and placed on file, and the following resolution was passed. Commissioners Peabody, Gregory, and Bullard vot- ing in the aflirmative, Commissioner Ilerdman in the negative : " ' Resolved, That the order removing certain ofiicers and patrolmen, passed September 29th, be, and is hereby, modified in so far as it relates to one W. W. Cox, and it is ordered that as to him the said order be, and is hereby, rescinded. " ' On motion, the board then adjourned. " ' Secretary.' "Afiiant further says that hfe is informed and believes that the said R. E. L. Ilerdman is the secretary of the said board of fire 11 r ' police commissioners, and was the person who, as sec- retary, i)resented the first two aforesaid communications to the said board at its meeting held October 1, 1897. "Affiant further says that the aforesaid proceedings of the said board of October 1, 1897, have been personally examined by him and the foregoing are true copies thereof as appears in Journal F at pages 148 and 149 of the records of said board. And further affiant saith not. " R. II. Olmsted. " Subscribed and sworn to before me this 4th day of October, 1897. "(Seal.) Frank L. McCoy, " N"otary Public. " My commission expires January 22, 1899." That this was insufficient was raised during the proceedings and is presented by the petition in error and is one of the points urged in the brief filed for plaintiff in error. It is the doc- trine of this court that proceedings for constinictive contempt HERDMAN v. STATE. 301 arc in tlie nature of prosecutions for crimes, and as much cer- tainty is required in a statement of acts of which complaint is made as in the statements of offenses in prosecutions under the provisions of the Criminal Code. Ganihj v. Stale, 13 Nch. 4-15; Boyd v. Stale, 19 Xeh. 128; Johnson v. Bouton, 'J5 Neh. 903; Percival v. State, 45 Xeh. 741; llawcs v. State, 40 Xeh. 140; Cootcy v. State, 40 Xeh. 003; O'Chaiidcr v. Stale, 40 Xcb. 10. The affidavit in such a proceeding is jurisdictional. (liindij V. State, 13 Xeh. 445 ; Liidden v. State, 31 Xeh. 437 ; Ilatrthorne v. State, 45 Xeh. 871. The affidavit must state positive knowledge; if on information and belief, it is insuffi- cient. Luddcn v. State, supra; 4 Ency. Ph & Pr. 770, 780; Gandy v. State, supra; Freeman v. City of Huron (S. Dak.), CO X. W. Rep. 928; Thomas v. People (Colo.), 23 Pac. Rej). 320. Viewed in the light of these well estahlished riiles, the affidavit, the basis of the proceeding against plaintiff in error, was wholly insufficient. Some of its most important state- niciits were on information and belief. Thee is no statement of the substance, or any of the terms, of the order of which it is asserted there had been a violation, nor is there any state- nu'jit that the party to be cited for contempt in its violation had any notice of its making or existence ; in short, the affidavit was so lacking in requisite statements of substance as to be fatally (k>t"ective. It follows that the judgment must be reversed and tlie prosecution dismissed. Reversed. •,'■ Hm XouvAL, J. I concur in reversal of the judgment on the grounds that the evidence adduced on the trial is insufficient to sustain the judgment and sentence imposed by the district conrt. Notes (by J. F. G.). — While the general reasoning of the court, as to the sufficiency of an affidavit that can be made the basis of a con- tempt proceeding, is correct, the case, unless controlled by statute, is rather that of civil than criminal contempt. (See notes to Carter v. Commonwealth, in present volume, p. 318.) The affidavit, being made by an attorney, is subject to additional criticism. In Spencer v. Kennard, 12 Tex. 180, the court said: "We trust that it is not insisted that counsel should represent their clients in making affidavits. Surely this is not believed to constitute any part of the duty of counsel to their client. The ends of justice sometimes make it necessary that an attorney should give evidence for his client, 1^1 i J' 8'1 .,1 i^Y^ L> H {u iil i 302 AMERICAN CRIMINAL REPORTS. but It should always be regarded by counsel as a misfortune to be (laced in a such a position, and courts should extend no countenance tr the practice, and only tolerate It in cases of pressing necessity. i3ee also Drach v. Cmnberg, 187 111. 385; Rosa v. De Los. 45 111. 447; Frear v. Drinker, 8 Pa. St. 521. It has been held that when an attor- ney makes an affidavit even in the positive form, it Is to be presumed to have been made on Information and belief. (See the closing por- tion of the notes to Lipjwian v. People, in the present volume, p. 35G.) Affii^nvits made in the positii^e form uill be construed to have been 7). < hiformation and belief, if the context would so indicate. — This d n'_ '"8 been announced in Hart v. Grant, 8 S. D. 248, 66 N. W. Ffj .?.. «ud Finlay et al. v. De Castroverde, 22 N. Y. S. 716, in each of which c;\ses a capias in a civil case was quashed for that reason. !; t*ie latter ( ase the court said: "It i. irgei ;>■ n the part of the defendant that the motion to va- cate the order o'' an ,;t should have been granted, because many of the material allegations of the affidavit upon which the order of ar- rest was founded were made upon information and belief, and do- rived from documents which were not produced, and that the alle- gations in the affidavit are simply conclusions derived from an inspec- tion of these documents, which it is the province of the court to draw, and not o, *he affiant. Upon the other hand. It is claimed by the re- spondents that the affidavit is not upon information and belief, nearly all the essential facts being within the knowledge of the affiant, and stated positively. It is asserted that the making of the agreement, the shipping of the merchandise, the receipt thereof by the defendant, and the acknowledgment of such receipt, were all facts within the knowledge of the plaintiff who made the affidavit. Hojv the affiant, at New York, had personal knowledge of the receipt of these goods in Mexico, it is somewhat difficult to imagine. It may be that he believes they were received because he believes himself to have been informed by a letter of the defendant that he had received them, but he clearly had no personal knowledge of the fact. The only information that he claims to have had upon that point is the letter of the defendant ac- knowledging its receipt. Now, it is clear that If he was testifying upon the stand as a witness with respect to the receipt of these goods, he could not be he^ird to open his mouth without the production of the letter, or accounting for its loss. Hence, when we consider the differ- ence between the allegations of a complaint and an affidavit, the former being allegations of fact, to be supported by evidence to be subsequently given, if not admitted, and the other furnishing the evidence to the court from which it can draw its own conclusions. It is apparent that allegations of this character, without the production of the proof, have no probative force whatever." ii J I ' CARTER V. COMMONWEALTH. 808 Carter v. Commonwealth. 96 Va. 791—32 S. E. Rep. 780, 45 L. R. A. 310. Decided March 16, 1899. Contempt: Insufflcient disclaimer — Jury trial — Statute void — hiherent power of courts. 1. It Is contempt of court for a party litigant, when notified by his counsel to attend court for trial, to falsely telegraph to his coun- sel that he is seriously ill and cannot attend. 2. A mere disclaimer of wrongful intention is not sufficient, when the improper motive is manifest from the act. 3. The power to punish for contempt of court is a vital, necessary and inherent protective function of the court; and, while it may to some degree be regulated by statute, the legislature has no power to transfer from the court to a jury the right to determine the matter and to fix the penalty. Error to a judgment for contempt of court rendered April 14, 1898, by the Circuit Court of the City of Lynchburg. Af- firmed. E. W. Saunders and J. E. Edmunds, for the plaintiff in error. A. J. Montague, xYtty. Gen., for the Commonwealth. IvEiTir, P. At its November term, 1897, the circuit court of the city of Lynchburg issued a rule against Carter, plaintiff in error, to appear before it on the first day of the next term to show cause why he should not be fined and attached for con- tempt, by attempting to obtain a continiiance of the action of Grubbs against Carter by means of false telegrams. In answer to this rule, he appeared and stated that he is a resident of the county of Nottoway, and that, having received a telegram from his attorney, J. Emory Hughes, that his case was pending, and that he must come to Lynchburg on the next train, he wired in response, "Sick with tj'phoid fever, and can't come;" that this statement as to his health was false, and made without due consideration; that he had no idea of interfering with or im- peding the course of justice; that he did not make the state- ment for the purpose of obtaining a continuance, and nothing was f irther from his mind ; that no disrespect to the court was intended ; and he prays that his fault may be overlooked. ! ' ? ^ I. 304 AMERICAN CRIMINAL REPORTS. U "•) I'l .i '. I' "When the matter came up for trial, Carter asked to Lo tricil by a jury, wliicli motion tlic court overruled, and, deeming his answer insufficient, entered a judgment against him for a fine of $25 and costs, and that he be imprisoned for the term of two days in the jail of the city of J.ynchburg, and afterwards, until he pays his fine and costs: provided, that this latter period shall not exceed two months. To this judgment, Carter obtained a writ of error from one of the judges of this court, and the errors assigned by him are: First, that upon the facts as shown in the record he was not guilty of a contempt; sec- ondly, that the court erred in refusing to' have a jury impanelcil for his triah We are of opinion that, upon the facts shown, Carter was guilty of a contempt. The effort to obtain a continuance of his cause by means of a statement as to his health, which he knew to be false, tended directly to impede and obstruct the admin- istration of justice. It is true that with respect to conduct or language, where the intent with which a thing is said or done gives color and character to the act or words, a disclaimer of any purpose to be guilty of a contempt, or to destroy or impair the authority due to the court, is a good defense (Rapalje on Contempt, § 115) ; but this is true only of language or acts of doubtful import, and which may reasonably bear two construc- tions. In the case before us there could have been but one mo- tive, and that to influence the action of the court with respect to a case before it by means of a statement known and admitted to be false. We pass, therefore, to the consideration of the next error assigned. This presents a question of the utmost gravity, which has been argued with the ability which its importance demands, and has received from us our best consideration. By an act of assembly passed in 1830-31 (see Session Acts, p. 48), the legislature undertook to enumerate and to classify contempts of court, and to prescribe the manner in which they should be punished. This act appears in the Code of 1849 as sections 24 and 25, ch. 194, as follows: "Sec. 24. The courts and the judges, and justices thereof, may issue attachments for contempts, and punish them sum- marily, only in the cases following: CARTER V. COMMONWEALTH. 305 "First, misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of jus- tice. "Secondly, violence or threats of violence to a judge, justice or officer of the court, or to a juror, witness or party going to, attending, or returning from, the court, for or in respect of any act or proceeding had, or to be had, in such court. "Thirdly, misbehavior of an officer of the court, in his offi- cial character. "Fourthly, disobedience or resistance of an officer of the court, juror, witness or other person, to any lawful process, judgment, decree or order of the said court. "Sec. 25. Xo court shall, Avithout a jury, for any such con- tempt as is mentioned impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment, information or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict." This act was continued in force, without amendment, until the session of 1807-98, p. 548, when it was amended so as to read as follows: "1. Be it enacted by the general assembly of Virginia, that section three thousand seven hundred and sixty-eight of the Code of Virginia be amended and re-enacted so as to read as follows : "Sec. 3768. The courts and judges may issue attachments for contempt, and punish them summarily, only in the follow- ing cases, which are hereby declared to be direct contempts, all other contempts being indirect contempts. "First. Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice. "Second. Violence or threats of violence to a judge or of- ficer of the court or to a jiiror, witness or party going to, at- tending or returning from the court, for or in respect of any act or proceeding had or to be had in such court. "Third. Misbehavior of an officer of the court in his official character. VouXI-20 ■4 I i '.fi c 1: y m i.ii &m yarn Mi a I 3(»0 AMERICAN CRIMINAL REPORTS. "Fourtli. DisoLodicnce or resistance of an officer of the court, juror or witness to any lawful process, judgment, decree or order of tlie said court. ''When tlie court adjudges a party guilty of a direct con- tempt it sliull make an entry of record, in which shall be speci- fied the conduct constituting such contempt and shall certify the mutter (tf extenuation or defense set up by the accused, and the evidence submitted by him and the sentence of the court. "SUBSKCTION. "Proceedings in Cases of Indirect Contempt. Upon the re- turn of an officer on process, or upon an affidavit duly filed, showing any person guilty of indirect contemi>t, a writ of at- tachment or other lawful process may issue, and such person may be arrested and brought before the court, and thereupon a written accusation, setting forth succinctly and clearly the facts alleged to constitute such contempt, shall be filed, and the accused required to answer the same, by an order which shall fix the time therefor and also the time and place for hearing the matter. A copy of this order shall be served upon the accused, and upon a proper showing the court may extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. "After the answer of the accused, or if he fail or refuse to answer, the court may proceed at the time so fixed to hear and determine such accusation upon such testimony as shall be pro- duced. If the accused answer, the trial shall proceed aceoi'ding to the rules governing the trial of criminal cases, and the ac- cused shall be entitled to compulsory process for his Vv'itnesses and to be confronted with the witnesses against him. "Such trial shall be by the court, or, upon the application of the accused, a trial by a jury shall be had, as in any case of a misdemeanor. "If the jury find the accused guilty of contempt they shall fix the amount of his punishment by their verdict. "The testimony taken on the trial of any case of contempt shall be preserved on motion of the accused, and any judgment of conviction therefor may be reviewed on writ of error from the circuit court having jurisdiction, if the judgment is by a county is Mi CARTER V. COMMONWEALTH. 80< 1k4 (vnirt, or on writ of error from the supreme euurt of ai)poal:^, if the judgment is by a circuit or corporation court. In the appellate court the judgment of the trial court shall be affirmed, reversed, or modified as justice may require. If the writ of error to the judgment of a county court is refused by the circuit court having jurisdiction, application may then bo made to the court of appeals.' "2. All acts and parts of acts, so far as they conflict with this act, are, to that extent, hereby repealed." I'eing of opjnion that the defendant was guilty of contempt, we sluill not attempt any classification of it as a direct or indi- rect contempt. If it were a direct contempt, then its punisli- nicnt was Avithout doubt to be ascertained and fixed by the court, without the intervention of a jury, by the terms of the law which the plaintiff in error himself invokes. If it were a contempt not within that classification, then it is incumbent upon us to consider whether it was within the power of the legislature to deprive the court of jurisdiction to punish it .vithout the intervention of a jury. Counsel for plaintiff in error insist that the question has alreaily been decided by this court in the case of Commonwealth V. DcsJilnSj 4 Leigh, G85, and again in Wells v. Commonweallh, 21 Grat. 500. The latter ease may be disposed of by the statement that this court reversed the judgment of the circuit court upon the facts, and held that the acts proved against Wells did not constitute a contempt of court. With respect to the case of Desk'ins v. Commonwealth, it ap- pears that it arose and was decided under the constitution of ] 829-30. In the fifth article of that instrument it is provided that ''the judicial power shall be vested in a supreme court of appeals, in such superior courts as the legislature may from time to time ordain and establish, and the judges thereof, in the county courts, and in justices of the peace. The legis- lature may also vest such jurisdiction as shall be deemed neces- sary in corporation courts, and in the magistrates who may be- long to the corporate body. The jurisdiction of these tribu- nals, and of the judges thereof, shall be regulated by law." The constitution did not create the courts nor clothe them p. m ■■^i^lil n IS ( 1^ ! I f.'l' il I 808 AMERICAN CRIMINAL REPORTS. whh jurigdiction, but tlio courts tliomselves were established by the Icgishitiiro, aiul their jurisdiction was roguhitcd by law. In this respect the constitution of 1820-^0 was only less gen- eral in its terms than the first organic instrument ailnptid in 177G. The constitution of ISTil (art. VI, § 1), with respect to the judiciary departntent, i)rovi(les: "There shall be u supreuie court of appeals, district courts, and circuit courts. The ju- risdiction of these tribunals, and of the judges thereof, except so far as the same is conferred by this constitution, shall be regulated by law." Art. VJ, sec. 1, of the constitution now in force ])rt)vides: "There shall be a suprenu> court of appeals, circuit court and county courts. The jurisdiction of these trib\inals, an of the judges thereof, except so far as the same is conferred by this constitution, shall be regulated by law." In a subsequent portion of the instrument, corporation courts are also provided for the cities of the State. These courts do not derive their existence from the legislature. They are called into being by the constitution itself, the same authority which creates the legislature and the whole framework of State government. What was the nature and character of the tribuuals thus in- stituted ? Our conception of courts, and of their powers and functions, comes to us through that great system of English jurisprudence known as the "connnon law," which we have adopted and incor])orated into the body of our laws. That the English courts have exercised the power in question from the remotest period does not admit of doubt. Said Chief Justice Wilmot: "The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution ; it is a necessary incident to every court of justice, Avhether of record or not, to fine and imprison for a contempt acted in the face of the court; and the issuing of attachments by the Supreme Court of Justice in Westminster Hall for contempts out of court stands on the same immemorial usage which supports the whole fabric of the connnon law. It is as much the lex terras, and within the ex- ception of !Magna Charta, as the issuing of any other legal I)rocess whatsoever. I have examined very carefully to see if CAUTER i». COMMONWEALTH. 809 I could find out nny vo.-^tigps of its introduction, but cnn find none. It is as nncicnt as any other part of the couitnon law. There is no priority or posti'riority to bo found al)out it. It caniint, theroforo, be said to invade the common law. It acts in alliiinco and friony that of 1830-31, we cannot do better than to quote the langu.ige of the Supreme Court of Arkansas, in State v. Mor- riU, Ifl Ark., at page 390: "The legislature may regulate the exercise of, but cannot CARTER V. COMMONWEALTH. 311 I abridge, the express or necessarily implied powers granted to this court by the constitution. If it coiild, it might encroach upon both the judicial and execiitive departments, and draw to itself all the powers of goverament, and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the government of the American peo- ple. "As far as the act in question goes, in sanctioning the power of the courts to punish, as contempts, the 'acts' therein enumer- ated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded as nothing more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their c( institutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt anv matter not enumerated in the act. As such, it is entitled to great respect; but to say that it is absolutely binding upon tlie courts would be to concede that the courts have no consti- tutional and inherent pow?r to pimish any class of contempts, but that the whole subject is imder the control of the legislative department, because, if the general assembly may deprive the ciinrts of power to punish one class of contempts, it may go the whole length, and devest them of power to punish any con- toiiipt." Itoliance was placed by counsel for plaintiff in error upon a class of cases of which Ex parie Robinson, 19 Wall. 505, may be considered typical. In that case Robinson had in the most summary manner, without the opportunity of defense, been stricken from the roll of attorneys by the district court for the Western district of Arkansas. lie applied to the Supreme Court for a mandamus, which is the appropriate remedy to re- store an attorney who has been disbarred, and that court held, ^Ir. Justice Field delivoring the opinion, that: "The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of jus- tice. The moment the courts of the United States were called m 312 AMERICAN CRIMINAL REPORTS. into exiatcncG, and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831," and the court declared that there could be no question as to its application to the circuit and district courts. "These courts were created by act of Congress. Their powers and duties de- pend upon the act calling them into existence, or subsequent acts extending or limiting their jxirisdiction. The act of 1S;31 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted." Turning to the constitution of the United States, we find that it declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." This language is the equivalent of that found in our constitution prior to that of 1851, hereinbefore quoted. The inferior Fed- eral courts and their jurisdiction are the creatures of Congress, and not of the constitution. It may be remarked, also, with respect to the case of Ex parte Robinson, that the United States statute of 1831, while it care- fully enximerates the subjects for which courts may punish sum- marily for contempt, that enumeration is so comprehensive as to afford complete protection to the courts in the performance of their duties, and contains no limitation whatever upon the power to punish in the enumerated cases ; and that, while pun- ishment which courts may intlict is limited to fine and inqiris- onment, their discretion is without limit as to the amount of the fine or the duration of the imprisonment. The courts of the United States will never be embarrassed by the decision in Ex parte Robinson; for, while the power to disbar an attorney is denied in that case as a proper punishment for contempt, the jurisdiction of the courts to disbar, after citation to appear and notice of the ground of complaint against, and an opportunity for explanation and defense, is fully recognized. It were an unprofitable task to attempt to review within the limits of an opinion all the adjudged case to which our atten- tion has been called, and which, with very many others, havo been considered by us. For the benefit of those who may feel 1^ -I S^H CARTER V. COMMONWEALTH. 313 themselves moved to a further investigation of this subject, we cite, without comment, the followi'^ig cases : Slate V. Frew, 24 W. Va. 41G; Hale v. State, 45 K E. 199; In re Shortridge, 99 Cal. 52G, 34 Pac. 227 ; Storey v. People, 79 111. 45; Ilolman v. State, 105 Ind. 513, 5 X. E. Rep. 556; State V. Knight, 3 S. D. 509, 54 X. W. Rep. 412 ; State v. Gal- loway, 5 Cold. 326 ; Little v. State, 90 Ind. 338 ; Baldwin v. State, 126 Ind. 24, 25 N. E. Rep. 9>20\Aiiiold v. Com., 80 Ky. 300; Ex parte Crenshcw, 80 Mo. 447; Hughes v. People, 5 Colo. 445 ; Wyatt v. People, 17 Colo. 252, 28 Pac. Rep. 961 ; Langdon v. V/ayne, 76 Mich. 367, 43 N. W. Rep. 310; and Ex paiie Schenck, 65 !X. C. 353. In public apprehension, the legislature is deemed in a pe- culiar sense the agent and representative of the people. It is true, it constitutes the most numerous branch of the govern- ment, and the brief terms for which its members are elected, and the fact that they are directly voted for by the people, give color to and encourage this opinion; but a moment's reflection should serve to dispel it. In our system of government all power and authority are derived from the people. They have seen fit, by organic law, to distribute the powers of government among three great co-ordinate departments, — the executive, the legislative, and the judicial. The constitution of the State, which is the law to all, declares in the seventh section of the first article that "the legislative, executive, and judiciary pow- ers should be separate and distinct." This is a quotation from the Bill of Rights, — an instrument which should never be men- tioned, save with the reverence due to the great charter of our liberties. Of such importance is this principle deemed that it is repeated and constitutes a distinct article, which declares that "the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others ; nor shall any person exercise the power of more than one of them at the same time, except as hereinafter provided." WHioever, therefore, belongs to either one of those great departments is an agent and servant of a common master; and each and all represent a part of the sovereignty of the State, so long as they move within the ap- l^> :■ 4i Mm up r" I ;! K Hllill 1 i 314 AMERICAN CRIMINAL REPORTS. propriate spheres prescribed to them by the organic law. A co\irt, and the judge thereof, is as much an agent and son^ant of the people as any other officer of government, and he is bound by the duty and obligation which he owes to the Com- monwealth to cherish, defend, and transmit unimpaired to his successors the office with Avhich the Commonwealth has seen fit to honor him. A judge, therefore, in vindicating the dignity and aiithority of the court over which he presides, is discharging a solemn duty owed in his official character, and is not engaged in a personal and private controversy. Speaking upon this subject, the Supreme Court of West Vir- ginia in State v. Frew, 2-i W. Va., at page 477, uses the follow- ing language : "Having thus sho^^^a that this court has the power to punish for contempt, it must not be overlooked that this power can be justified by necessity alone, and should »arely be exercised, and never, except when the necessity is plain and unmistak- able. It is not given for the private advantage of the judges who sit in the court, but to preserve to them that respect and re- gard of which courts cannot be deprived and maintain their usefulness. It is given that the law may be administered fairly and impartially, uninterrupted by any influence which might affect the rights of the parties or bias the minds of the judges, that the court may command that respect and sanctity s^^ es- sential to make the law itself respected, and that the strea: '•■ f justice may be kept pure and uncorruptcd. . . . "The public have a profound interest in the good name and fame of their courts of justice, and especially of the courts of last resort. Everything that affects the well-being of organized society, the rights of property, and the life and liberty of the citizen is submitted to their final decision. The confidence of the public in the judiciary should not be wantonly im- paired. . . . ''"NVe know full well that respect to courts or judges cannot be compelled. 'Respect is the voluntary tribute of the people to worth, virtue, and intelligence; and, while these are found on the judgment seat, so long, and no longer, will courts re- tain the public confidence.' P>ut the people have placed the judge in a position in which he unavoidably comes in conflict i ,1 V ■? CARTER V. COMMONWEALTH. 315 with the jealousies and resentments of those upon whose interest lie has to act. His character, virtue, and intelligence, how- ever pure and unselfish, are not always a protection against the prejudices and passions of such as conceive themselves in- iurod by his legitimate and proper official acts; and, when as- sailed by such, if he may not punish them as a court, 'he will be reduced to the alternative of either submitting tamely to con- tumely and insult, or to resenting it by force, or resorting to the doubtful remedy of an action at law.' " As was said by Judge Dade in Dandridge's Case, 2 Va. Cas. 408 : "In such a state of things it would rest in the discretion of every party in court to force the judge either to shrink from his duty, or to incur the degradation of his authority, which must imavoidably result from the adoption of either of the above alternatives. To suppose that the personal character of the judge would be a s\;fficient guaranty against this is to im- aeine a state of society which would render the office of the judge wholly iinnecessary." The enumeration of subjects punishable as direct contempts in the act under consideration seems to embrace almost every cdneoivable form of that offense which can occur in the pres- ence of, or in proximity to, the court ; that is to say, under cir- cumstances likely to arouse the passion or prejudice of the judge, and disturb the equanimity essential to calm and wise judicial action. The coiirt may punish summarily not only ill! such offenses, but for disobedience or resistance to any law- ful process, judgment, decree, or order ; itd officers, jurors, and witnesses may also thus be punished ; and only the parties to the suit are entitled to a trial by jury. Thus we see that of- f(>i)f=('s of a natiire personal to the court are to be punished by the court, while those which interest suitors are punishable only by a jury. So that suitors, having obtained a judgment or decree, after long and expensive litigation, find the court ])ower]ess to secure to them its fruition and enjoyment, and, unless their antagonist chance to be a law-abiding citizen, dis- cover that their success has only begotten another controversy. Ours is a law-abiding community, and good citizens will, with- out compulsion, respect the lawful orders of their courts; but in every society there are those who obey the laws only because '-if i • ■:i 'I 'I I iipl 316 AMERICAN CRIMINAL REPORTS. there is Ixjliincl them a force they dare not resist. Is it wise or beneficent legislation which accepts the obedience of the good citizen, but is powerless to enforce the law against the recalci- trant ? Under this law, the authority of the courts would be re- duced to a mere "power of contention." We are fully aware of the delicate duty involved in holding a statute to be unconstitutional, and we fully recognize that it should never be done, except in the case of a plain deviation from the organic law. *'The courts may declare legislative enactments unconntitn- tional and void in some cases, but not because the judiciiil power is superior in degree and dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the constitution as tlie paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will; and it is only where they find that the legislature has failed to keep within its constitutional limits that they are at liberty to disre- gard its action, and, in doing so, they only do what every pri- vate citizen may do in respect to the mandates of the courts when the judges assume to act and to render judgments or de- crees without jurisdiction." Cooley, Const. Lim. (Gth ed.), p. 102. "In exercising this high authority, the judges claim no ju- dicial supremacy. They are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but becaixse the act is forbidden by the constitution, and be- cause the will of the people, which is therein declared, is para- mount to that of their representatives expressed in any law." See Lindsay v. Commissioners, 2 Bay, 38, Gl ; People v. liucker, 5 Colo. 455. Reading the constitution of the State in the light of the de- cisions of eminent courts which we have consulted, we feel war- ranted in the following conclusions : That in the courts created i)y tk'e constitution there is an in- herent power of self-defense and self-preservation; that this power may be regulated, but cannot be destroyed, or so far . ^ CARTER V. COMMONWEALTH. 317 (liminislied as to be rendered ineffectual by legislative enact- ment; that it is a power necessarily resident in, and to be ex- ercised by, the court itself, and that the vice of an act which seeks to deprive the court of this inherent power is not cured by providing for its exercise by a jury ; that, while the legis- lature has the power to regulate the jurisdiction of circuit, county, and corporation courts, it cannot destroy, while it may confino within reasonable bounds, the authority necessary to the exercise of the jurisdiction conferred. It was suggested in argument that to maintain the position that to intrust juries with the power to punish for contempts would impair the efficiency and dignity of courts disclosed a want of confidence in that time-honored institution. May it not be said in reply that to take from courts a jurisdiction which they have possessed from their foundation betrays a Avant of confidence in them wholly unwarranted by experience ? The history of this court, and indeed of all the courts of this Com- monwealth, shows the jealous care with which they have ever defended and maintained the just authority and respect due to juries as an agency in the administration of justice; but our duty, as we conceive it, requires us not to be less firm in vindi- cating the rightful authority and power of the courts. We cannot more properly conclude this opinion than by a quotation from a great English judge: "It is a rule founded on the reason of the common law that all contempts to the pro- cess of the court, to its judges, jurors, ofiicers, and ministers, when acting in the due discharge of their respective duties, wlictlier such contempts be by direct obstruction, or consequen- tially, — that is to say, whether they be by act or writing, — are punishable by the court itself, and may be abated instanter as nuisances to public justice. "There are those who object to attachments as being con- trary, in popular constitutions, to first principles. To this it may briefly be replied that they are the first principles, being founded on that which founds government and constitutes law. They are the principles of self-defense, — the vindication, not only of the authority, but of the very power of acting in coui-ts. It is in vain that the law has the right to act, if there be a power above the law which has a right to resist. The law would I I ■it ;. ill hi '!l 1 318 AMERICAN CRIMINAL REPORTS. then be but the right of anarchy and the power of contontion." Holt, Libel, ch. 9. Whatever opinion may be entertained of some of his prede- cessors, Chief Justice Holt was no servile minion of arbitrary power. He was an actor in that great revolution which ended forever in Great Britain the pernicious dogma of the divine right of kings, which first recognized the will of the people as the only rightful source of government, and established the in- dependence of the judiciary as one of the surest bulwarks of free institutions. The judgment of the circuit court is affirmed. Notes (by J. F. G.). — Procedure as to criminal contempt. — If the act or acts constituting the contempt are done in the immediate pres- ence of the court, the offense is termed direct contempt, and the court, having personal knowledge of the fact, may on his own motion proceed to administer a punishment; but if the contemptuous conduct is en- tirely, or partly, out of the presence of the court, it is termed indirect or constructive contempt, and, like all other criminal matters, the court cannot proceed in relation thereto until it is informed of the offense, which must be under oath, usually by affidavit, in which the statement of facts must be explicit and certain. If the statements in the affldavit do not show a prima facie case, with the necessary essen- tials, the proceeding cannot stand. Batchelder v. Moore, 42 Cal. 412; State V. Bweetland, 3 S. D. 503, 54 N. W. Rep. 415; McDonald v. State, 46 Ind. 298; Cooley v. State, 46 Neb. 603, 65 N. W. Rep. 799; State v. Root, 5 N. D. 487, 67 N. W. Rep. 590; Young v. Cannon, 2 Utah, 5G0; In re Spencer, 4 MacArthur, 433. If the affidavit is insufficient, giving bail does not cure the detect (State v. Gallup, 1 Kan. App. 618, 42 Pac. Rep. 406), nor does appearance and answer (Wilson v. Territory, 1 Wyo. 155). If a sufficient showing is made in the affidavit, the ac- cused is required to show cause why he should not be punished, and, In some instances, may be required to answer Interrogatories filed. If he does not answer, the statements of the accusation are taken as true; but if he answers, it must be by affidavit, in which the state- ments must be made with sufficient certainty that. If falsely made, he is liable to the penalties of perjury. If in his answer he denies all of the charges in detail, or sufficient to controvert the charge of con- tempt, he is deemed to have purged himself of the contempt, and is entitled to his discharge (Utiited States v. Dodge, 2 Gall. 313; In re Pittman, 1 Curt. (U. S.) 186; People v. Few, 2 Johns. 290; Jackson v. Smith. 5 Johns. 115; In re May, 1 Fed. Rep. 737; Burke v. State, 47 Ind. 528; State v. Earl. 41 Ind. 464; In re Walker, 82 N. C. 95; Ex parte Biggs. 64 N. C. 202; In re Moore, 63 N. C. 397; Converse v. Wood, 5 Ab. Pr. 84; Rex v. Sims, 12 Mod. 511; Saunders v. Melhuish, 6 Mod. 73; Thomas' Lessees v. Cummings, 1 Yates, 40; Porter v. Low, 16 How. H ! .;' I CARTER V. COMMONWEALTH. 3VJ Pr. 549; Matter of Strong, 5 Rogers City Hall Recorder, 8; Matter of Spootier, 5 Rogers City Hall Recorder, 109; Livingston v. Lucas, 6 Ala. 147; Welsh v. People, 30 111. App. 399; 4 Blackstone's Commentaries, 283-287); for there is no jury to determine the issue joined, and hence, the charge being criminal, the defendant's answers must be taken as conclusive in that proceeding. Procedure as to civil contempt. — Civil contempt consists in acts of commission or omission in disobedience of a writ, order, or decree of the court, detrimental to the Interests of a party litigant; the judg- ment of conviction being entered solely as a legal process to enforce the writ, order, or decree, and In no sense as a punishment for an in- dignity or insult offered to the court. This is well illustrated by an Illinois case where a circuit judge imposed a fine because of an al- leged violation of a decree of that court. The appellate court reversed the conviction upon the ground that the violation of the decree did not appear to be detrimental to the interest of a party litigant. Died- rich V. People, 37 111. App. 604. An appeal in the name of the People was taken to the Supreme Court, where a motion was made to dismiss the appeal, in that the People had no right to an appeal in a criminal matter; but the Supreme Court overruled the motion and held that, although the action was in the name of the People, It was a remedial action, for the purpose of enforcing a decree of the court; but upon hearing of the case affirmed the judgment of the appellate court upon the ground that the contempt proceeding was not "for the purpose of vindicating the power and dignity of the court," but was a chancery proceeding for the benefit of the complainants In an injunction suit, and that, as no injury had been done to the complainants, no punish- ment could be imposed upon the respondent. People v. Diedrich, 141 111. 665, 30 N. E. Rep. 1038. The Virginia statute in question. — Presumably by the act of 1897-98 it was intended to curb the powers of the court and guard the rights of the accused In contempt proceedings; but like many other ill- advised efforts at reform legislation, even were the act valid as an entirety, it would not accomplish the reform intended. Instead of curbing, it grants new power to the court, by enlarging the deflnition of direct contempt. It includes In that class acts not done in the pres- ence of the court, but "; i near as to obstruct the administration of justice;" also Interference with officers, witnesses or jurors on their way to or returning from court, and the resistance of lawful process of the court. These matters, previous to the statute, were constructive contempt, and required a specific charge, of which the accused might purge himself upon his oath; but it Is attempted by the act to give the court power to hear "the evidence submitted," and determine the mat- ter without a trial by jury. Thus an effort is made to remove safe- guards and transfer the major part of constructive contempt out of its class, and grant to the judge power to hear evidence and determine Issues of fact regarding criminal offenses not committed In his pres- ence, thereby infringing the constitutional right of trial by jury, so zealously guarded by the common-law rule applying to constructive u 320 AMERICAN CRIMINAL REPORTS. contempt. Of the few remnants left in the wreck, a trial by Jury Is offered the accused, who before the statute, if Innocent, could on his own oath acquit himself. The few excerpts given in the opinion would indicate that the stat- ute is limited to criminal contempt, and has no application to those cases where the proceeding is remedial in its nature, and, as held in some cases, evidence on both sides is submitted to the Judge. The statute was passed upon at the same term of court as to other provisions contained in it. (See next case in this volume, Trimble v. CommomLealth.) Contempt: Trimble v. Commonwealth. 96 Va. 818—32 S. E. Rep. 786. Decided March 23, 1899. Constitutional law — Disclaimer — Habeas corpus for cus- tody of child. If the provisions of an act of the legislature are so Interwoven, connected and Interdependent on each other, that disregarding one would destroy the efficiency of the others, then a provision violative of the constitution will render the entire act void; but if the provisions are separate, distinct and not Interdependent, and a part of the act complete and effective after the objection- able part is eliminated, then that part of the act is valid and may stand as the complete act. A mother having presented a petition for a writ of habeas corpus for the possession of her child, whom she had voluntarily left in the custody of another woman, and pending the hearing of the writ the child is remanded into the custody of the respond- ent, "until the further order of the court;" and the respondent having, with the sanction of the Judge, taken the child tem- porarily out of the State, in which other State a guardianship for the child .was declared; and on the return of the respondent she makes answer that, believing it was the wish of the court that the child should be placed with a private family or at a school, in order to effect this object, and acting under advice, and not intending to evade the process of the court, she permitted the guardianship proceedings to be had, held, no contempt. Error to the Corporation Court of the City of Lynchburg. A judgment holding the plaintiff in error in contempt was entered May 4, 1898. Reversed. H. M. Ford and R. D. Yancey, for the plaintiff in error. A. J. Montague, Atty. Gen., for the Commonwealth. TRIMBLE V. COMMONWEALTH. 321 fc.! Keith, P. One Susio Fox filcil her petition in the corpora- tion court for the city of Lynchburg, alleging that she is tho iridther of a female child five years of age, named Lillian May Fox; that slie had theretofore placed this child with a certain Ella Trimble to keep and care for during the petitioner's ex- pected absence from the city of Lynchburg, with the under- standing that the child would bo delivertl to her on her return. Ella Trimble refused, upon the mother's demand, to restore the child to her custody, and thereupon this petition was filed, pray- ing for a writ of habeas corpus. A rule to show cause against the writ was issued, and, upon the answer made by Ella Trim- ble, the court entered the following order : "Uj)on consideration of the within petition and answer and the evidence, the court doth remand the child Lillian May Fox to the custody of Ella Trimble until the further order of tho court. May 10, 1S97." On the 22d of ^March, 1898, the following order was entered in this proceeding: "It is ordered that the defendant, Ella Trimble, do produce the liody of Lillian May Fox in court on the first day of the next term of the said corporation court for the city of Lynch- burg, and show cause, if any she can, why the said order here- tofore made on the said 10th day of May, 1897, should not be revoked." Li compliance with this order, Ella Trimble filed her answer, in which she states the proceedings up to that time, and then goes on to say that when the case was before the court in May, 1S!)7, and the child was remanded to her custody, she under- stood it to be the wish of the court that she should either place the child in some private family, or at a school, where it would be properly cared for; that, in order to effect this object, she went with the child to Wake county, N. C, where, at the sug- gestion of her sister, Mollie Trimble, and acting under the ad- vice of counsel, a guardian, upon motion of her sister, was ap- pointed by the superior court of that county; that the child had since been placed with one W. E. Bonner, who the evi- dence shows to be a kind-hearted, honest, and industrious citi- zen. Respondent further states that, "when she took this child, it was in a sick and starving condition, when neither the law, VouXI — 21 II ;i\ w rm:f 322 AMEUICAN CRIMINAL REPORT& nor any person on its bolinlf, gave it any attention; that she lins spoilt more than a year of sleepless and anxious nights in watchiiifj; and coaxing the little spark of vitality into life;" and that the child has gradually improved under her care. The an- swer further avers that she is imnMe to comply with the man- date of the court to produce the body of the child before it ; that she no longer has the care and control of it; that she has no desire to evade the process of the court; and, in an aniondcil answer filed at a subsequent day, she specifically disclaims niiy contempt of court. The court certifies in the record that it did not consider either the relator or respondent a suitable person to have the chiltl ; that in the summer of 1897 respondent asked if it would lie wrong for her to take the child on a short visit to her sister in Kaleigh, X. C, and was informed by the judg(^ of the court that it would not be if she would not keep it away ; that, while on this visit, her sister, who is not a proper jwrson to have the child, qualified in a Xorth Carolina court as its guardian, and the child has never returned. Upon the consideration of the rule, answer, and exhibits filed with it, and the facts thus stated by the court, it was of opinion that the nnswer of Ella Trimble was insufficient, and entered an order that "she be attached until she produces the body of the said child, in the proceedings mentioned, before this court, or until the further order of the court." To this judgment, n writ of error was awarded. With respect to some of the qtiestions presented ler, ■without further comment, to the opinion of the co in the case of Carter's Case, decided at the present term, wIik h is, s<« far as applicable to the case, made a part of this opinion. We are of opinion, however, that the act of the legislature of 1897-98, which was in that case adjudged to be unconstitu- tional in some of its aspects, is a valid statute in so far as it gives this court jurisdiction upon writ of error to review this judgment. That a statute may be constitutional in part and unconsti- tutional as to some of its provisions is well settled. See Home- stead Cases, 22 Gratt. 266 ; Wise v. Rogers, 24 Gratt. 169, and Blach V. Trower, 79 Va., at page 127, where it is said: w% TRIMBLE V. COMMONWEALTH. 3-23 lor. "It is true that a statute in some of its provisions may l)o uii- odiistitutional and void, and in others valid and onforoeuhlo. !!nt when the valid part is so connected with, and dependent on, that which is void as that the parts are not distinctly sop- 11 fill (le, so that each can stand as the Avill of the legislature, the whole must fall." Jjut the converse is equally true; and, where the parts may he ao separated as that each can stand as the will of the legis- lature, the good does not perish with the bad. Wp are of opinion that the case is properly before us by vir- tue of the act of 1897-98, p. 548. " Wo gather from the record that plaintiff in error took this child, Avhich had been restored to her custody by the order of ^fay 10, 1897, to Xorth Carolina, with the assent of the cor- jioration court of Lynchburg, and with the intention of carry- ing out a connnendable purpose, sanctioned by the court, with respect to this little waif. When in North Carolina, at the suggestion of her sister and upon her motion, and acting under the advice of counsel, a court of competent jurisdiction in that State was requested to appoint, and did appoint, a guardian for this little child. That guardian seems to have made an ar- rangement with respect to the child's nurture of a beneficial character, and there is no evidence that in thus acting the re- sjiondent did so with the object of defeating the jurisdiction and authority of the corporation court of Lynchburg. She dis- claims any such purpose, and beyond the facts stated, which do nftt necessarily, or, it may be said, even naturally, bear such an interpretation, we are of opinion that the offense wherewith she was charged has not been established, and that the corpora- tion court of Lynchburg erred in the judgment rendered, which i> reversed. Reversed. :- » i ';♦ 824 AMERICAN CRIMINAL REPOPTSi State v. Klectzen. IfJl! 8 N. Dak. 286—78 N. W. Uep. 984. Decided April 26, 1899. Constitutional Law: License act — Haivkera and peddlers. 1. An act of tlie Sixth Legislative Assembly entitled "An act taxing the occupation of hawldng and peddling, and regulating the licensing of persons engaged in such occupation," construed, and held to be a measure intended to produce revenue by taxing the occupation of peddling; and held, further, that the same was also intended as a police measure to regulate such occupation. 2. Said statute nowhere states or indicates the objects or purposes of the tax, nor does it declare how the revenue to be derived there- under is to be applied. Accordingly, held, that the act is repug- nant to the provisions of section 175 of the State constitution, and therefore void. 3. Held, further, that it cannot be sustained as a measure of police regulation after the revenue features of the act are eliminated as unconstitutional. (Syllabus by the Court.) Mii Appeal from District Court of Grand Forks County; Fisk, Judg:. Simon Klectzen was accused of peddling without a license. A demurrer to tlie information being sustained, the State ap- peals. AfHrmed. Lcdi'u Goihrie, for the State. Bosard & Bosard and Templeton <0 Rex, for the respondent. 1^ »,< Wali.in, J. Upon the record in this case, the sole question which is presented for the decision of this court is whether a certain statute is a constitutional and valid enactment. Tlie statute in question was enacted at the late session of the legis- lative assembly of this State, and is entitled as follows: ''An r-tct taxing the occupation of hawking and peddling, and regu- lating the licensing of persons engaged in stich occupation." The statute contains seven sections, the several provisions of which may be summarized as follows: Section 1 forbids ped- dling in any county in this State without first obtaining a li- cense so to do from the county auditor. Section 2 requires per- STATE r. KLECTZEN. 825 sons desiring a license to peddle in any county to make a writ- ton application to the auditor of siicli county for a license, and to state "in what manner the applicant desires to travel as a peddler, whether on foot, or with one or more horses or other boasts of burden." Section 3 is as follows: "Each applicant, liofore he shall bo entitled to such license, shall pay into the counly treasury of the county where such application is made, the following sums respectively as and for the taxes due from him on account of the pursuit of the occupation of peddling, to wit: If for a license to travel on foot the sum of $25 ; if for a licence to travel and carry his goods with a single horse, or other beast carrying or drawing a burden, the sum of $100 ; if for a license to travel with a vehicle or carriage drawn hy two or more horses, or other animals, the sum of $150. Said li- cense shall authorize the holder thereof to pursue within said county the business of hawking and peddling in the manner set forth in said license for the period of one year from the date of its issue, and no longer." Section 4 requires the auditor, upon filing a written application for such license, together with the treasurer's receipt for the proper fee, to grant a license to, poildle in such county for the period of one year, and for no other or shorter period. Section 5 requires the auditor to make a certain record of the transaction. Section 6 imposes criminal penalties for peildling in any county without such li- cense, and the same penalties are prescribed for the offense of refusing, upon request, to produce such license for examina- tion. Section 7 declares that "nothing contained in this ar- ticle shall be so construed as to impair, interfere with or take away any existing rights or authority of incorporated cities, towns and villages to license and regulate peddleni »*'ithin their incorporated limits." Counsel contend that this statute is unconstitutional as a taxing measure, in this : that it violates section 17C of the State constitution, which provides thai; "laws shall be passed taxing hy uniform rule all property according to its true value in money;" and in support of this point counsel cite the case of ^Villis V. Oil Co. (Minn.), 52 N". W. Rep. G52; also, from tho same State, the case of Minces v. Shocnig, 75 N. "W. Rep. 711. In both of these cases the court was considering a provision of 320 AMERICAN CRIMINAL REPORTS. m the constitution of the State of Minnesota which is practically the same as section 176 of the constitution of North Dakota. The first case cited arose under a statute which authorized a., inspection of illuminating oils, and required that certain in- spection fees should be paid by the owner for inspecting the oil. The court upheld this statute as a police regulation, and stated that the law could not be sustained as a taxing measure, because it would run counter to the provision of the constitution of that State, "requiring taxes to be as nearly equal as may be and to be levied on a cash valuation." Const., art. 9, § 1. The fees for inspecting the oil, if regarded as a tax upon the oil, would be a tax which would not be uniform, and one also not based upon the value of the property. In the other ^linnesota case (a city ordinance requiring auctioneers to pay a license fee for the privilege of selling certain classes of goods, and in addition to pay a per cent, upon the gross sales of such goods) the court said, in effect, that the requirement to pay a per cent, on the sales was a tax upon the property sold, and was void as a tax, because it was not uniform, and was not based upon any cash valuation; biit the other feature of the ordinance was sustained. We regard neither of these cases as being in point, becau*'" the statute under consideration nowhere attempts to lay a t^ix iipon propcrt}', and from this it follows that constitution^ restric- tions upon legislation imposing taxes upon property are inap- plicable to the statute in question. In our judgment, the act under consideration, in so far as it may be called a tax law, is an occupation tax law, framed to derive revenue from the occu- pation of peddling, and hence the same is not restricted by the constitutional requirement of valuation and of uniformity. Cooley, Taxation, 570; 25 Am. & Eng. Enc. Law, p. 480, and notes 2, 3. It is our opinion that this law was enacted to effect a twofold purpose: It seems to be designed both as a revenue measure, and as a means of regulating the occupation of ped- dling; and in this double aspect the statute is referable both to the police power inherent in the State, and the authority to im- pose taxes. It is tnie that many cases can be found holding that subordinate political bodies, which have no original and in- herent i)ower of taxation, are without authority to tax an occu- pation under a charter delegating the right to regulate only; STATE r. KLECTZEN. 327 Lnt ■with the sovereign State, which possesses plenary power, unless expressly restricted by organic law, both to tax and to regulate, there is no such limitation of authority. Hence it is that laws are sometimes passed to accomplish the double pur- pose of regulation and revenue. See Kitson v. Mayor, etc., 20 Mich. 325 ; Cooley, Taxation (2d ed.), pp. 570, 597. A license measure may include a taxing measure, or it may not. If its chief purpose is clearly to regulate, and nothing else, it then falls within the police power. In such cases the exaction must not be any greater than is necessary to effect the primary object in view, viz., regulation. Mays v. City of Cincinnati, 1 Ohio St. 208. This rule is well C'tablished; but the matter of regu- lation may embrace more than a mere license fee, and include expenses which are incidental and indirect as well as those dourly growing out of the business license. See the llinnesota cases above cited. And in the case of Minces v. SJweni;/, supra, the court uses the following significant language : "The very fact tliat a license is required tends to exclude dishonest or other- wise unfit persons from conducting such sales." This is equiva- lent to holding that the exaction of a license fee is in itself a police regulation, and we think that such fee might be very efficient as a police regulation, under this statute, as tending to diminish the number of persons who Avould engage in the busi- ness of peddling and hawking within the State. It is manifest that one of the purposes of the stat\ite is to regulate the busi- ness of peddling. The act grants the privilege to exercise the calling of a peddler, upon certain conditioiiS, and withholds the ])rivilege from all who fail to ccmiply with siich conditions. In tliis as])ect, it is a measure of regulation. See 25 Am. & Eng. Eue. Law, p. 15, and note 1 ; Cooley, Taxation, p. 573. ]\[ore- over, as has been seen, there are certain clearly regulative feat- ures embraced in the act. The exaction of a license is, in our judgment, designed as a regulation, and the requirement that the ])eddler shall, on demand, produce his license, is also a reg- uli'*^ive feature; and, as has been seen, the payment of a fee, especially as in this case, where the same is considerable in amount, would certainly tend to diminish the number of those engaging in the business, and consequently tend, in a degree, to restrict and regulate the bus'iiess. mi 328 AMERICAN CRIMINAL REPORTS. Whether the statute is also designed in part as a revenue-pro- ducing measure is perhaps a question of greater difficulty, but we are inclined to hold that it was so designed. In the first ])lace, it may be said, as a matter of common knowledge, that the occupation of peddling in this State is carried on by a cln-s of transients and strangers, who usually stay in one community but a few days, and rarely, if ever, remain in any county for the period of one full year. In view of this well-known cusidin, it would seem that a license for a much shorter period than a year — say for a week or a month — would he sufficiently long to accomplish all purposes of mere police re<5ulation. This Imv, however, will permit no license to be issued for a shorter pprio(l than twelve months, and from this we think it fair to infer that the matter of revenue was a prominent consideration in passing the law. But the terms of the act lead to the same conclusion. Section 3, above set out, requires that the applicant ''shall ]iay into the county treasury of the county where such application is made the following sums respectively, as and for the taxos due from him on account of the pursuit of the occupation nf peddling." This explicit declaration hardly leaves room for doubt that the idea of revenue by taxation was prominently be- fore the lawmaker in enacting this statute. But, if any doul)t could arise on the point, a reference to the title of the act will tend to dispel such doubt. The title unmistakably shows the intention to tax as well as to regulate. We do not feel at liberty to override the express language of the law, as it would be nec- essary to do if we construed the same as a mere police regula- tion, to the exclusion of any idea of revenue. This brings us to the decisive question in the '^ase. Cotmsol for the defendant contends that this statute is enacted in viola- tion of the jirovisions of section 175 of the State constitution, which reads as follows: "No tax shall be levied except in pur- suance of law, and every law imposing a tax shall state dis- tinctly the object of the same, to which only it shall be applied."' As we have said, the act under consideration is designed in part as a tax law ; and as such, therefore, it must be construed, in so far as it is a revenue-producing measure. - An examination of the law reveals the fact that it nowhere states the object of the tax which the law exacts from the peddler. From the terms of the act, ii, cannot be ascertained how the funds to be derived STATE V. KLECTZEN. 329 from it are to be applied, or to what objects or purposes the same are to be devoted. In this we think tiio law wholly fails to conform to the requirements of the constitution. For this reason avo shall hold that it is void, and never took effect as a law. It is obvious that it cannot stand as a mere measure of police regulation, if the various sums named in it cannot be exacted of the applicant for a license. By the terms of tlie act, the license cannot issue until the tax is paid. It is true that section 3 of the statute requires the license tax to be paid into the county treasury. But this, in our opinion, falls short of in- dicating the object of the tax. All taxes, whether State, county, city, or school, are paid into the county treasury, because, under the law, the treasurer of the eoiinty is the tax collector of all classes of taxes ; but the disposition to be made of the proceeds of taxes when collected depends wholly upon the terms of the law under which each is levied and collected. In this respect the statute in question is wholly silent. The provisions of sec- tion 175 of the State constitution are clear and unambiguous, and the same are mandatory upon the legislature, and hence we arc compelled to hold that the statute is rei)ugnant to the consti- tution. The same conclusion has been reached by other courts under similar constitutional provisions. Section 175 is a literal reproduction of section 5 of article 12 of the constitution of the State of Ohio. See Pittshurg, C. & St. L. By. Co. v. Stale, 40 Ohio St. 189 (opinion, 198), 30 K E. Rep. 436. In the case cited the coiirt held that a certain statute, which, as appeared, was enacted as a revenue measure by the legislature of Ohio, and which required that the revenue derived under it should he paid into the State treasury, was unconstitutional because It omitted to declare the object or purpose of the tax. This case is exactly in point here. See, also, to the same effect, ^Vcsling- haxiscn v. People, 44 Mich. 205, G ^N". W. Eep. G41. In the case last cited the court sustained a law which declared that a tax sliould be placed in the contingent fund, as being a sutficicnt compliance with the constitution of Michigan, but the statute we are construing contains no similar provision as to the dis- ])osition of the funds to be derived under it. This statute, as has boon seen, refers to no fund. The judgment of the district court will be affirmed. All the judges concurring. 330 AMERICAN CRIMINAL REPORTa KiRBT V. United States. 174 U. S. 47—19 Sup. Ct. Rep. 574, 43 L. Ed. 890. Decided April 11, 1899. Constitutional Law: Statutes in derogation thereof — Rights of ac- cused to be confronted with witnesses — Receiving stolen property. 1. A statute providing tliat a judgment of conviction against any per- son or persons for embezzling, stealing or purloining any money or other property of the United States shall, on the trial of one accused of receiving such property, be conclusive evidence that the same has been embezzled, stolen or purloined, is violative of the clause of the constitution of the United States which declares that in all criminal prosecutions the accused shall be confronted with the witnesses against him. 2. The case against the receiver of stolen property is separate and distinct from that of the principals already tried, and it is es- sential that the fact that the property was stolen should be proved in each case, and the alleged receiver has the right to ex- amine the witnesses establishing such fact. 3. It is not necessary that the indictment should allege the owner- ship of the property stolen to have been in the United States at the time of the felonious receiving thereof, nor to allege ths name of the person or persons from whom the defendant received the same. j\Ir. Assistant AUorncy-General Boyd, for the United States. A. G. Safford, for the plaintiff in error; C. 0. Bailey and Joseph Kirhy, on his brief. Mr. Justice Harlan delivered the opinion of the court. The plaintiff in error Kirby was indicted in the district court of the United S'^ntes for the southern division of the district of South Dakota under the act of Congress of March 3, 1875, ch. 144, entitled "An act to punish certain larcenies, and the receivers of stolen goods." 18 Stat. 479. The first section provides that "any person who shall em- bezzle, steal or purloin any monf^y, property, record, voiichcr or valuable thing whatever of the moneys, goods, chattels, rwords or property of the United States shall be deemed guilty of felony, and on conviction thereof before the district or circuit court of the United States in the district wherein said offense may have been committed, or into which he shall carry or have KIRBY V. UNITED STATEa 331 in possession said property so embezzled, stolen or purloined, shall be punished tberefor by imprisonment at hard labor in the penitentiary not exceeding five years or by a fine not ex- ceeding five thousand dollars, or both, at the discretion of the court before which he shall be convicted." ])y the second section it is provided that "if any person shall receive, conceal or aid in concealing, or have, or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher or valuable thing whatever, of the moneys, goods, chattels, records or property of the United States which has theretofore been embezzled, stolen or pur- loined, such person shall, on conviction before the circuit or district court of the United States in the district wherein he mny have such property, be punished by a fine not exceeding five thousand dollars or imprisonment at hard labor in the pen- itentiary not exceeding five years, one or both, at the discretion of the court before which he shall be convicted; and such re- ceiver may be tried either before or after the conviction of the principal felon; but if the party has been convicted, then the judgment against him shall be conclusive evidence in the pros- ecution against such receiver that the property of the United States therein described has been embezzled, stolen or pur- loined." IS Stat. 479. The indictment contained three counts, but the defendant was tried only on the first. In that count it Avas stated that Thomas J. Wallace, Ed. Baxter and Frank King, on the 7th day of June, IS'JG, at ITighmore, within the jurisdiction of the court, feloniously and forcibly broke into a postofiice of the United States, and feloniously stole, took and carried away therefrom certain moneys and property of the United States, to wit : 3,750 postage stamps of the denomination of two cents and of the value of two cents each, 1,20G postage stamps of the denomination of one cent and of the value of one cent each, 1-iO postage stamps of the denomination of four cents and of the value of four cents each, 250 postage stamps of the denomina- tion of five cents and of the value of five cents each, SO postage stamps of the denomination of eight cents and of the value of eight cents each, and also United States Treasury notes, na- tiiiual bank notes, silver certificates, gold certificates, silver. 332 AMERICAN CRIMINAL HEPORTS. '* I iiiokel and copper coins of the United States as well as current money of the United States, a more particular description of Avhich the grand jury were unable to ascertain, of the value of $58.19; and that the persons above named were severally in- dicted and convicted of that oiTcnse, and had been duly sen- tenced upon such conviction. It Avas then alleged that the defendant, on the 9th day of June, 1S9G, at the city of Sioux Falls, the postage stamps "so as aforesaid feloniously stolen, taken and carried away, feloni- ously did receive and have in his possession, with intent then and there to convert the same to his own use and gain, the said Joe Kirby then and there well knowing the said postage stamps to have been theretofore feloniously stolen, taken and carried awav, contrarv to the form, force and effect of the statutes of the United States in such cases made and provided and against the peace and dignity of the United States." At the trial of Kirby the government offered in evidence a part of the record of the trial of Wallace, Baxter and King, from which it appeared that Wallace and Baxter, after sev- erally ]ileading not guilty, withdrew their respective pleas and each pleaded guilty and was sentenced to confinement in the penitentiary at hard labor for the tcnn of four years. It ap- peared from the same record that King, having pleaded nrit guilty, was found guilty and sentenced to the penitentiary at hard labor for the term of five years. The admission in evidence of the record of the conviction of Wallace, Baxter and King was objected to upon the ground that the above act of March 3, 1875, was unconstitutional so far as it made that conviction conclusive evidence in the prose- cution of the receiver that the property of the United States de- scribed in the indictment against him had been embezzled, stolen or purloined. The objection was overruled, and the rec- ord offered was admitted in evidence with exceptions to the ac- cused. After referring to the provisions of the act of ]\Iarch 3, 1875, and to the indictment against Kirby, the court, among other things, said, in its charge to the jury: "In order to make out the case of the prosecution and in order that you should be au- thorized to return a verdict of guilty in this case, you must finl)(.isition3 to bo true. In the first phice it must be found by yuu beyond a reasonable doubt that the property described iu the indictment, and which is also described in the indictment iigainst these three men (Walhice, liaxter, and King), who it is alleged have been convicted, was actually stolen from the ])(]8ti'ftice at Ilighmore, was the property of the United States iiiid iif a certain value. Second. You must find beyond a rea- siiiiable doubt that the defendant Joseph Kirby received or had in his possession a portion of that property which had been st■ I ji i il 111 hi ii ni -I 33G AMEUICAN CRIMINAL REPORTS. ■\vlio had boon imlictctl niul convicted of the offense alleged to hiivc been comniitted hy them. !Xot\vithstnndiiig the conviction of Wallaco, Eaxter and Kiiij;, it was incumbent upon the government, in order to sustain iis chnrjic against Kirby, to establish beyond reasonable doubt (1) that the property described in the indictment was in fnct stolen from the United States; (2) that the defendant receive 1 or retained it in his possession, with intent to convert it to his own use or gain; and (3) that ho received or retained it wiih knowledge that it had been stolen from the United States. Ifow did the government attempt to prove the essential fact that the property was stolen from the United States. In no other way than by the production of a record showing the cmi- victiou under a separate indictment of Wallace and IJaxtcr, resting wholly upon their respective pleas of guilty, while the judgment against King rested upon a trial and verdict of guilty. With the record of those convictions out of the present case, there waa no evidence whatever to show that the property al- leged to have been received by Kirby was stolen from the Unitctl States. We are of the opinion that the trial court erred in admitting in evidence the record of the convictions of Wallace, Baxter and King, and then in its charge saying that, in the absence of proof to the contrary, the fact that the property was stolen from the United States was sufficiently established against Kirby by the mere production of the record showing the conviction of the principal felons. Where the statute makes the conviction of the principal thief a condition precedent to the trial and punish- ment of a receiver of the stolen property, the record of the trial of the former would be evidence in the prosecution against the receiver to show that the principal felon had been convicted ; for a fact of that nature could only be established by a record. The record of the conviction of the principals could not, how- ever, be used to establish, against the alleged receiver, charged with the commission of another and substantive crime, the es- sential fact that the property alleged to have been feloniously received by him was actually stolen from the United States. Kirby was not present when Wallace and Baxter confessed their crime by pleas of guilty, nor when King was proven to be guilty KIRBY t'. UNITED STATES. 337 liv \vitno?.sort wli ) porsoiially testified before the jury. Xor was Kirliv entitled of right to pnvtieijtnto in tlie trial of the prinei- jiiil felons. If present at that trial he wonld not have heen per- mitted to examine Walhiee and JJaxter upon their pleas of jruilty, nor cross-cxatnine the witnesses introdueed against King, nnr inlitxluee witnesses to prove that they were not in fact guilty "f the offense charged against them. If he had sought to do either of those things — even upon the ground that the eon- victidU of the princij)al fcdons might be taken as establishing jirima foric a vital fact in the separate prosecution against him- self as the receiver of the property, — the court would have in- fiiniu'd him that he was not being tried and conld not be ])er- niitted in anywise to interfere with t'.ie trial of the princi]»al f'cldus. And yet the court below instructed the jury that the cniivictinn of the principal felons upon nn indictment against tliciii alone was sufKeient prima facUi to show, as against Kirby, indicted for another offense, the existence of the fact that the ])ropcrty was st is established until siifficient evidence is introduced to ovcrcitiiK! the proof which the law has created." Co/fin v. Uniled IStitlcs, 15G U. S. 432, 459. But that presumption in Kirby's case wn-; in effect held in the court below to bo of no consequence; for, as to a vital fact which the government was bound to establisli affirmatively, he was put upon the defensive almost from the outset of the trial by reason alone of what appears to have Ix'cu said in another criminal prosecution with which he was nnt connected and at which he was not entitled to be represciiti^d. Tn other words, the United States having secured the cr conviction, hut her guilt, the conviction would not have ))een any evidence of her guilt, which must have been proved by other means ; and the conviction was held wroug." In a later case, KeahJe v. Payne, 8 Ad. & Ell. r);").'), ntIO, which was an action involving a question as to the admis- sion of certain evidence, and was heard in the Queen's Bench before Lord Denman, Chief Justice, and Littledale, Patteson ^PT 3iO AMERICAN CRIMINAL REPORTS. m 1 and Willicams, Justices, Mr. Justice Pattoson, referring to Hex V. Turner, above cited, said: "On an indictment for receiving goods feloniously taken, the felony must be proved; and neitbcr a judgment against a felon, nor his admission, would l)e evi- dence against the receiver. In such a case I once admitted f'\ i deuce of a plea of guilty by the taker; and it was held that I di'i wrong." A note in Starkie on Evidence, p. 307, is to this ef- fect: "In II. V. Turner, 1 Moo. C. C. 3-1-7; L\ v. UaicUffe, 1 Lew. v.. C. l\2;Keablc v. Payne, 8 Ad. & E. 500 (35 E. C. L. R. 454), it is stated that many of the judges (jill the judges except two being assembled) were of opTflion tli!',i the record of the conviction of the ])rincipal would not be evidence of the fact, where the indictment against the accessory alleged not the conviction but the g-uilt of the princi])al. And on principle it would seem to be evidence only when the indictment alleges the conviction of the prineii)al, and simply to support that allcfja- tion." The leading American case on the question is Commomvcalih V. EJiflia, 3 Gray, 400. The indictment was for receiving stolon goods knowing them to have been stolen. The court, speaking by .Metcalf, J., said: "This indictment is against the defend- ant alone, and charges him with having received ])ropcrty stolen by J(.se})h Elisha and William Gigger, kiu)wing it to have been stolen. It is not averred, nor was it necessiirv to aver or prov (Kev. St., ch. 120, par. 24), that they had been convicted of the theft. ]>ut it was necessary to ])rove their guilt, in order to Cduvict the defendant. Was the record of their conviction im another iiulictment against them only, upon their several plca^i of gnilty to a charge of stealing the pntperty, legal evidence, againstr the defendant, that they did steal it? We think not, either on princii)le or authority. That conviction was res inter alios. The defendant was not a party to the proceedings, ami had no opjwrtunity nor right to be heard on the trial. And it is an elementary principle of justice, that \i ih ) '? I fif ft I connection and in Avhich he Avas not entitled to be represents! by counsel. As heretofore stated, the crime charged arainst AViil- lace, Baxter and King and the crime charged against Kirby AA'ere Avholly distinct — none the less so because in each case it Avas essential that the government should prove that the prop- erty described Avas actually stolen. The record of the proof of a vital fact in one prosecution could not be taken as proof in tlio other of the existence of the same fact. The difficulty Avas not met Avhen the trial court failed, as reciuired by the act of IST."), to instruct the jury that the record of the conviction of the prin- cipal felons Avas conclusive evidence of the fact that the prop- ertv had been actually stolen, but merelv said that such record made a prima facie case as to such fact. The fundamental error in the trial below Avas to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those ])ersnns had been convicted Avas a fact not necessary to be established in the case against the alleged receiver; for, under tlu; statute, he could be prosecuted even if the principal felons had not been tried or indicted. As already stated, the effect of the charge Avas to enable the goA'ernment to put the accused, although shielded by the presumjjtion of inno- cence, upon the defensive as to a vital fact involved in the charge KIRBY I'. UNITED STATES. 343 flgiiinst him by simply producing the record of the conviction of otlier parties of a wliolly different offense with which the ac- QMH'd had no connection. It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the ad- iiii«si(in of dying declarations is an exception which arises from tlio necessity of the case. This exception was well established hi'fore the adoption of the constitution, and was not intended to he abrogated. The ground upon Avhich such exception rests is tliat, from the circumstances under Avhich dying declarations lUf uuide, they are e(piivalent to the evidence of a living wit- ness ujion oath — "the condition of the party who made them being such that every motive to falselioud must be suppnsed to have been silenced, and the mind to be impelled by the most powerful consideratiims to tell the truth." Clyde Mddox v. I'uilrd States, 14G U. S. liO, 151; Cooley's Const. Lim. 318; 1 rhillips on Ev., ch. 7, par. 0. For the reasons stated, it must be held that so much of the jiliiive act of March 3, 1ST5, as declares that the judgment of cniivietiun against the principal felons shall be evidence in the ]ir(isecution against the receiver that the property of the United Srntcs allegetl to have been embezzled, stolen or purloined, is in viii];ition of the clause of the constitution of the United States (lechu'ing that in all criminal prosecutions the accused shall be c(Mifronte(l with the witnesses against him. Upon this ground the ju<\:,;;!ont nuist l)e reversed and a new trial had in accord- ance with law. ]jut as the case must go l)ack to the circuit court {"V another trial, it is proper to notice other (piestions presented l»y the assignments of error. 'llie accused contends that the indictment is defective in that it does not allege ownership by the Uniteil States of I he stolen property at the time they were alleged to have been feloniously received by him. This croperty of tlie United States when tliev were felonitmsly stolen . n the Ttir day of June, 180(5, and tlint the defendant, only two days tlierenfter, >n\ the Oth day of .rune. In'JH, "the postage stam])s aforesaid so ns aforesaid loloiiiously sttden, taken and carried away, feloniously did receive and have in his possession, with it, BU AMERICAN CRIMINAL REPORTS. Sj" JaftV* ■ ^iffii'il i/t intent tlion and there to convert tlic same to his own use or giiin, tlie said Joe Kirby then and there well knowing the said pnshiiio stamps to have been theretofore feloniously stolen, taken ami carried away." The stamps alleged to have been feloniously vo- ceived by the accused on the 0th day of June are thus allegeij i.i have been the same that were stolen from the United States two days previously. The larceny did not change the ownershj]), and it must be taken that the United Slates had not regained possession of the stamps before they were received by Kirliy and that the indictment charges that they were out of the pii>- session of the United States and stolen property when they caiiio to the hands of the accused. .Another contention by the accused is that the indictment wiis fatally defective in not stating from whom the defendant re ceived the stamps. This contention is a])parently supported liy some adjudications, as in Slate v. Ires. 13 Ired. o'-lS. l>ut upmi a careful reading of the opinion in that ca'o it will be fnuml that the judgment rests upon the grouml that the statute el" Kortli Carolina, taken from an old English statute, madt; tlip receiver of st(den goods strictly an accessory and contcMuplatcil the case of the goods being received from the person v.ho stnlc them. As already stated, the act of Congress upon which the present indictment rests makes the receiving of stolen propcil y of the United States with the intent by the receiver to convert it to his own use or gain, he knowing it to have been stolen, a distinct, substantive felony, fur which he can be tried eiiiier before or after the conviction of the ])rincipal felon, or whether the latter is tried or not. Under such a statute the person who stole the pro])erty might be pardoned, and y(!t the receiver could be indicted and convicted of the crime committed by him. ]]ishop, in his Xew Criminal Urocedure, says that while sonu; American cases have held it to be necessary in an indictnienr, against the receiver of stolen goods to state from whom he n- ceived the goods, "conuuonly, in England and in nundicrs of our States, the indictment does n(»t aver from whom the stolen g-ootls were received." Vol. 2, par. 983. Jiy at\ English stat- ute, 7 ^ 8 Geo. IV., June 21, 1S2T, ch. 2!i, jiar. rA, it was enacteil that "if any nerson shall reccdve any cdnittel, money, valuable security or other property whatsoever the stealing or KIRBY V. UNITED STATES. 315 taking wlioroof shall amount to a felony cltlier at common law 01' bv virtue of this act. such person knowing the same to have been feloniously stolen or taken, every such receiver shall bo guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony, and in the latter case, whether the principal felon shall or shall not have been previonsh' convicted, or shall or shall not be amen- able to justice," etc. Under that statute a receiver of stolen goods was indicted. It was objected that one of the counts did wA state the name of the principal, or that he was unknown. Tindall, C. J., said : "It will do. The offense created by the act of Parliament is not the receiving stolen goods from any par- licidar person, but receiving them knowing them to have been stolen. The question, therefore, will be, whether the goods are stdlen, and whether the jirisoner received them knowing them, to have been stolen. Your objection is founded on the too par- ticular form of the indictment. The statute makes the receiv- ing of goods, knowing them to have been stolen, the offense." Jlrx V. Jcrvls, C. & P. 1.50; 2 llussell on Crimes (Gth ed.), J.'](). In Slale r. Hazard, 2 li. I. 474, an indictment charging the accused with fraudulently receiving stolen goods, knowing them to have been stolen, was held to be good, although it did not set forth the name of any jterson from whom the goods were received, nor that they were receix'ed from some person or jier- sdus unknown to the grand jurors. "We therefore think that the objection that the indictment does not show from whom the accused received the stamps, nor state that the name of such per- son was unknown to the grand jurcn-s, is not well taken. If the stamps were in fact stolen "'"rom the I'nitccl States, and if they Were received by tlie accused, no matter from wlmm, with the intent to eon\ert them to his own use or gain, and knowing that tliey had been st(deu from the United States, he could be found gui.ty of the crime chargecl even if it were not shown by the evidence from whom he received the stamps. This rule cannot work injustice nor dei>rive the accused of any substantial right. If it appears at the trial to be essential, in the preparation wf liis defense, that he should know ibe name of the ])erson from wlmm the government expected to prove that he received tlie stolen property, it would be in the power of the court to require 3^6 AMERICAN CRIMINAL REPORTS. the prosecution to give a bill of particulars. Coffin v. Unilcd Slates, 156 U. S. 432, 452; Boscn v. United Stales, IGl U. S. 20, 25; Commonwealth v. Giles, 1 Gray, 4GG; Rose. Crim. Ev. (0th ed.) 178, 179, 420. The judgment is reversed, and the case is remanded ■with directions for a new trial and for further proceedings consistent with law. !Mr. Justice Brown and Mr. Justice McKenxa dissented. Mr, Justice Brewer did not participate in the decision of this case. '. 5, ii r 1! -^ ?» State v. Coucit. 54 S. C. 286—32 S. E. Rep. 408. Decided February 28, 1899. CoxsTiTUTioNAL Law: Statute providing for vague indictments. A statute declaring that an Indictment may use tlie words "divers other persons" is in contravention of the constitution, which re- quired that the accused be fully informed of the nature and cause of the accusation. Conviction in Pickens Circuit Court for selling liquor. De- fendant appeals. Mr. J. P. Carey, for appellant. Solicitor Ansel, for the State. Pope, J. The appellant was convicted of selling a quart of liquor to Xowton Gates, under an indictment cliarging liiui with the sale of spirituous liquors to "one W. S. Newell, R. L. Bryant, Robert Ilolden, G. W. Russell, and to divers other per- sons to the jnrors aforesaid nnl-mnrn." lie appeals from the sentence under said conviction upon several grounds. This court does not doom it necessary \(. pursue the questions pre- sented by the appellant except one of them, for it :'s important that this single question should be met. We hold that the con- viction of the appellant, under this indictment, was illegal, be- cause opposed to the constitution of the State. In article T, sec- I STATE V. COUCa 347 tidii 18, it is provided: "In all criminal prosecutions the ac- cused shall enjoy the right to a speedy and public trial by an ini- pnriiiil jury, a^id to he fully informed of the nature and cause of the nceusatiop." It is the office of an indictment to fully dis- close to the accused the nature and cause of the accusation. Aiiv indictment which fails to fully disclose the offense to the ncciisod is defective. In the indictment under review, in the j)ii>s('nt case, it will be observed that the name of Xewton Oatos does not appear as one of the pei*sons to whom the defendant, apiioUiint, is charged as having sold intoxicating liquors. How- ever, it is sought to justify the absence of Oates' name from the indictment by proof that the defendant, appellant, sohl him li(|U(ir, which sale, luider and by virtue of the forty-third section of the dispensary act, approved in 1S9G (22 Stat. 14S), allow- ina- an indictment to contain the words "to divers other persons to the jurors aforesaid unknoM'n," was punishable just as if the 1111 MIC of Xewton Oates had been actually set forth in the in- dictment. In the recent case of The State r. Jcffcoat, ante, p. IDTt, this court held that in an indictment where these words, "to divers other persons to the jurors aforesaid \uiknown," (H'ciii', such words might be treated as surplusage if one or more persons were called by name, and the persons so named in the indictment were on trial. This last-named case is prac- ticiilly decisive of the (piestion raised here. The forty-third section of the dispensary act of 1S90, authorizing the use of the Avnrds "divers other persons," etc., cannot be made to override the ('(institutional re(]iiireiuent that every accused must have his (itl'cnse fully set forth in the indictment or pri^sentment of the grand jury. It is the judgment of this court that the judgment of the cir- cuit court bo reversed. V ■i ;, i'; NoTKs (by J. F. G.). — A conspiracy statute in Indiana contained the following proviso: "Provided, that, in any indictment under this sec- tion, it shall not be necessary to charge the particular felony which it was the purpose of such person or persons, or the object of each (such) person or persons, or body, association or combination of per- sons to commit." In passing upon this statute the Supreme Court of that State, Landringham v. The State, 49 Ind. ISd, said: "We are very clearly of the opinion that the proviso is in conflict with the constitu- tion, and against natural right, and hence Is absolutely void. If the 348 AMERICAN CRIMINAL REPORTS. 1 '•■1'" indictment need not charge the partlonlar felony intenrlpd to ho rnm- mltted, the accused would have no means of knowing, before the trial commenced, what offense he was charged with, and consequently would have no opportunity of preparing for his defense. The question was 80 fully considered l-v this court In the case of MvLaiif/hlin r. The »S7«/f, 45 Ind. 338, that we do not deem it necessary to re-arguo or re- state it." In the McLaughlin Case, just cited, a judgment was reversed wiiU instructions to sustain the motion to quash the indictment. The in- dictment, like that In the South Carolina case, was Imsed uimn an act regarding the sale of intoxicating liquors. In reversing the ion- viction the court said: "Any person who is the keeper of any room, tavern, eatlngliouso, bazaar, restaurant, drug store, grocery, coffee-house, cellar or otlior place of public resort, is liable to be j)rosecuted under this section, and if the form used in this case is sufflclent, it need only be alleged that liquors were sold by him to divers persons. How is he to proparo for his defense against such a charge? Or, if he shall be indicted a second time, how can it be made to appear that he has already boon arraigned upon the same charge? There is no country, we piesuino, where the principles of the common law prevail, and the liberty of ili'! citizen is respected, where the State is not required, in bringing an alleged criminal into court to answer a crime, to prefer against liini, in the form of an affidavit, information, or Indictment, a specific ac- cusation of the crime charged. It is accordingly provided in the con- stitution of the State, section 13, article 1: 'In all criminal prosecu- tions tlie accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been comiiiittoii; to bo heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtain- ing witnesses in his favor.' The accused has a right to demand the nature and cause of the accusation against him, and to have a copy thereof. The accusation must l)e in writing. This Is necessarily im- plied from tlie fact that the acctised has a right to have a copy thereof. 'The nature and cause of the accusation' must be stated. The consti- tutional guaranties, which we have just quoted, are of the utmost im- portance to a person accused of crime, and a disregard of them, or any of them, even in a prosecution designed to suppress a traffic so full of evil as that of retailing intoxicating liquors, cannot be tolerated wltii any regard to the proper and safe administration of the criminal laws." The provision of a statute in Illinois reads as follows: "Every per- son who shall obtain, or attempt to obtain, from any other person or persons, any money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten years. In every indictment under the preceding section, it shall be deemed and held a suflicient (lescriptiou of the offense to charge that the accused did, on, etc., un- JOHNSTON r. UXITIID STATKS. u4'^ Inwfiilly nnd fplonloualy obtain, or attempt to obtain (as the onse may 111'), Imm A. It. (here Insert the name oS the person defrauded or at- tempted to bo defrauded), his money (or property, In case It be not money), by means and by use of the confidence game." In Morten v. Vcoplr, Al III. 4C8, the above provls-lon as to the form of an indictment was hol'l not to be in confilct witli the constitution. JoiIXSTON' V. UxiTKI) StATKS. 30 C. C. A. G12— 87 Fed. Rep. 187. Circuit Court of Appeals, Fifth Circuit. Decided April 2C, 1898. CoNSTiTirioNAL Law: Inferential pleadings — Variance — Terlflcation of an information. 1. To comply with the fundamental law of the United States, it is necessary that the verification to an information filed l)y a dis- trict attorney should show facts within the knowledge of the affiant. A statement that "there is probable cause to believe" is not sufficient. Perjury could not be based upon such verification, if false. 2. An information should state facts positively, and not by inference. 3. Variance between allegations and proof. V.YYnr to District Court of the United States, Middle District (if Alahitiiin. >'. L. Fuller, for the plaintiff in error. II'. S. liccse, for the United States. Present: Pardee and McCorinick, Circuit Judges, and Swayne, District Judge. Pardke, J. Preston T. Johnston, who prosecutes this writ of error, Avas tried, convicted, and sentenced for the violation of sec. 531)9, Kev. St. U. S., on an information as follows: "The United States versus P. T. Johnston. "Xo. 2,0.53. Information. District of the United States for the ^liddle District of Alabama. For the Xo- vemher Term, A. D. 1890. ''Before the Hon. John Bruce, District Judge.' "Be it remembered that George F. ^foore, as district attorney of the United States for the ^liddle District of Alabama, w' o ^ ^ ^ ^^y^' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ■tt lii 12.2 ^ Ufi ■20 WMu Soenoes Garporation 33 WBT MAM STMIT wiism,N.v. UStO ( 71* ) 373-4903 T ^^ |i|! :* 351) AMEitlCAN CRIMINAL REPORTS. for tlie said United States, in this behalf, prosccntes in lii.s proper person, comes here unto the district court of the rnit(>(l States for the said Middle District of Alabama, on the tenth day of Decendter, A. D. 189G, in this same term, and gives the couit here to understand and be informed that heretofore, on the fourth day of December, A. D. 189G, before the filing of this information, in the county of Montgomery, Avithin said MidiUo District of Alabama, and Avithin the jurisdiction of said court, P. T. Johnston, whose name to the district attorney is otherwise Tuiknown, did unlawfully and corruptly endeavor to obstruct tlio due administration of justice in the district court of the United States for the Middle District of Alabama, in this: That during the present term of said district court there was and still is pending on the docket of said court an indictment charging (nn\ J. E. Bailey, alias Ed. Bailey, with a violation of the internal revenue laws of the United States for unlawfully knowingly re- moving, to wit, five lumdred gallons of distilled spirits, on which the tax due the United States had not been paid, from a ware- house for distilled spirits authorized by law, without first pay- ing the tax thereon, and with removing said spirits in a manner otherwise than provided by law, to wit, by stealth and without proper notice being given to the officers of the United States; and the said Bailey was then and there under bond to appear for trial on the fourth day of December, 189G, imder the indictment charging him with said offense ; and, the said case having boon duly called for trial in said court, the said Bailey, through his counsel, sought to have the said criminal case against him con- tinued until the next term of the ^aid district court, anti, in support of his said application, filed llie following certificato, to wit : " 'State of Ai.aba:ma, Franklin County, I hereby certify that Mr. J. E. Bailey, who is now sutTering with a simple frac- ture of the tibia, will be for some time unr ble to travel, or to perform any kind of physical labor where it would be necessary to be upon his feet. " 'In witness whereof, I hereunto set my hand and seal, this K'ovomber 29th, 189G. P. T. Johnston, M. D. " 'Personally appearing, Dr. P. T. Johnston made oath that JOHNSTON V. UNITED STATES. 351 the foregoing statement by liim subscribed is in all rospects cor- rect and true. " *Jas. S. McCluskey, [Seal.] Ifotary Public. " Tiled Dec. 4, 1S9G. J. W. Dimmick, Clekk.' "And, the said district attorney gives the court to un-! said to have been committed; and it shows no knowledge, infor- mation, nor even belief on the part of the affiant as to the guilt of the party charged, beyond the bare statement that "there is probable cause to believe that the said offense has been commit- ted by P. T. Johnston." However false the affidavit may be, it would bo next to impossible to assign and prove perjury upon it. In United States v. Txircaud, 20 Fed. Rep. 621, the law with regard to the sufficiency of an affidavit upon which an informa- tion can be lawfully based is fully considered and discussed on principle and authority, and therein it is held that "the prnl)- able cause supported by oath or the affirmation prescribed by the fundamental law of the United States, sufficient to base an iii- fonnaticm upon, is the oath or the affidavits of those pej'sons who of their own knowledge depose to the facts which constitute the offense." In United States v. Polite, 35 Fed. Rep. 59, it is held that "informations must be based on affidavits which show probable cause arising from the facts within the knowledge of the i)arties making them, and that mere belief is not sufficient." Tested by these authorities, the affidavit in the present case was fatallv defective. The demurrer to the information should have been sustained. Tiie information first charges that Johnston "did unlawfully and corniptly endeavor to obstruct the due administration of justice in the district court of the United States for the Middle District of Alabama in this: [Then reciting matters and things done, by one J. E. Bailey, but nothing whatever that was done or charged to have been done by Johnston.]" Following this, and apparently as a second count in the information, Johnston is charged with furnishing a certain certificate to the said Bailey JOHNSTON V. UNITED STATES. 858 for the purpose of obstructing the due administration of justice in said district court of the United States for the Middle Dis- trict of Alabama, which he knew when he made and furnished the same was false. Only incidentally or inferentially is it cliarged that Johnston made the said certificate, and nowhere is it specifically charged that he made it and furnished it with any corrupt intent. There was no evidence in the case to show that Johnston made or furnished the specific certificate set forth in the information. It is true, there was evidence tending to show that he made and furnished to the said Bailey a certificate similar to a part of the certificate set forth in the information ; but there is a fatal variance between the certificate proved to have been made and furnished by Johnston and the one charged in the information to have been furnished by him. For these reasons, the judgment of the district court is reversed, and the case is remanded, with instructions to set aside the verdict and sentence and quash the information. Notes (by J. F. G.). — Practically the same subject came up before the Supreme Court of Kansas in State v. Oleason, 32 Kan. 345, 5 Am. Crim. Rep. 172, where the subject of consideration was an information filed and verified by the county attorney upon information and belief. The Kansas statutes provided: "When the information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief," and the court said: "If the statutes were controlling, and there was no limitation or qualification thereof, and no constitutional inhibition, it is manifest that a verification upon hearsay or belief would be sufficient;" but the court cites the consti- tutional provision that "no warrant shall issue but on proper cause supported by oath or affirmation;" and after a careful review of the authorities held that the verification was insufficient and reversed \.he Judgment of the court below. In Myers v. People, 67 111. 503, the question came before the court as to whether a certain complaint, under oath, was a sufficient basis for the filing of an information in the county court charging the de- fendant with selling liquor without license. Judge McAllister in a careful review of the matter held that the complaint in that case was sufficient, in that it stated sufficient facts, on which perjury could be assigned if the statements were false; but he concludes the opinion as foUowa; "We are of opinion that the fifth section of the county court act should be construed with reference to the sixth section of the 'Bill of Rights,' which declares that 'no warrant shall issue without probable cause supported by affidavit," etc. "If informations could be filed, upon which a warrant for arrest may VouXI — 23 Soi AMERICAN CRIMINAL REPORTS. ^nl 1 I f 111 ^8 ll P- a. .i«.- Issue without affidavit, the door would be opened to intolerable abuses; every man's liberty would be at the mercy of the caprice or malice ot the State or county attorney." Judge McAllister again announced this doctrine in People ex rel. Smith V. Brown, 6 Chi. Legal News, 392, heard in August, 1874, by him in chambers, as Judge of the Supreme Court, upon a writ of habeas corpus. The prisoner was arrested upon a warrant issued from the county court of Lake county, based upon an Information made by the State's Attorney, but not supported by affidavit. It was contended by the State's Attorney that the warrant was Issued in accordance witli sections 117 and 118 of the act of March 25, 1874, in relation to tlie jurisdiction and procedure of the county court; while the prisoner's counsel cited as authority, Myers v. People, supra. The judge incor- porated in his opinion the above paragraphs from Myers v. People, and then said: "This expression was not necessary to the decision of any point in the case further than this: There were affidavits, but it was claimed they did not show probable cause. If none at all were neces- sary, that would be an answer to that objection. However, if the re- marks could be regarded as obiter dicta, they were not the dicta merely of the judge who delivered the opinion. He was directed to make them by a majority of the court. That section of the county court act did not expressly or impliedly authorize the State's Attorney to file information ex officio without proof. But by the 117th section of the present act he is so authorized. The question is one of so much, of so vital, importance to the civil liberties of the citizen, that I have felt it my duty to look further into the question and see if the court took an erroneous view of it in what was said in Myers v. The People." After reviewing the act then in question, the court remarked that the practice was not novel, and said: "It is borrowed and substantially copied from an odious feature of the English 'aw engrafted upon those laws and tolerated through favor to the pi gatlves of the Crown, and against the better feelings of England's old-time lawyers and judges of broad and humane views. Sir Matthew Hale was no friend of this mode of prosecution." Then, after reciting authorities, the judge continues: "It will be seen by consulting that and other authors, the English law, unaffected by the vicious principles introduced by the Tudors, sanctioned a prosecu- tion by information, filed ex officio by the Attorney-General, only in great t.nergency, and then always in that high and respectable juris- diction, the King's Bench. The reason by which this procedure was supported does not, and cannot, apply in this country." The judge then again reviews English authorities and English his- tory and concludes that that portion of the act in question which at- tempts to authorize arrests to be made upon informations not supported by affidavit is unconstitutional and void. The prisoner was discharged. As this case was heard in chambers, the opinion has not found its way to the official reports, but is none the less an authority, coming as it does from one of the ablest judges of his time. VANDEVER v. STA^'K Vandever v. State. 355 1 Marvel (Del.), 209—40 Atl. Rep. 1105. Superior Court of Delaware, Newcastle County, February Term, 1894. Constitutional Law: Insufflciency of a criminal complaint. As the constitution requires that the defendant shall be fully in- formed of the offense, a criminal complaint based upon a statute which declares it a nuisance to "wilfully enter into, upon, or trespass on the ways, lands or premises of another," which omita the word "wilful," is insufficient in a matter of substance. Ilarrj Vandever, being convicted of committing a nuisance, l»riiigs error. Reversed. The complaint upon which the warrant was issued was as follows : "On this 12lh day of June, A. D. 1893, personally appeared Cliarlcs E. Barrett, of Newcastle hundred, in the county of Xowcastle and State of Delaware, who, being by me duly sworn according to law, deposes and says that a certain Harry W. Vandever, of Wilmington hundred, in said county, did at J^ew- castle hundred, aforesaid, on the 9th day of June, A. D. 1893, commit a trespass upon the ways, lands, and premises of the said Charles E. Barrett, after being forewarned, by entering thereon and assuming forcible possession thereof, and against the law, peace, and dignity of the said State." The defendant below was convicted of committing a nui- sance, in violation of ch. 190, vol. 19 of Delaware laws. The exception on which the case tunied was that the record did not show that he was charged with having "wilfully" committed the trespass. Ward, for defendant below. Bodney, for plaintiff below. Lore, C. J. The constitution requires that the defendant shall be fully informed of the offense against him; and this stat- ute under whjjh he is convicted says: "That if any person shall wilfully enter into, upon, or tres- pass upon the ways, lands, or premises of another in this State, lie shall be guilty of a nuisance." if k w i' h if' 1^ '. m f m ' iienpiini''! 350 AMERICAN CRIMINAL REPORTS. It scorns to us that the word "wilful" is a substantial element of the crime, and necessary to be set forth in terms. The only doubt which was suggested during the argument was occasioned by the terms of section 2, of chapter 97, Revised Code, which provides that : ''Justices of the peace may issue all writs, warrants and pro- crsses proper to carry into effect the powers granted to them ; and when no form is prescribed by statute, they shall frame one in conformity with the law, in substance; and. when substan- tially right, such process shall not be invalid for any defects in form." We think that the word "wilful" is not a matter of fonn. It is a matter of substnnf*e, of the essence of the crime charged, and ought to be set forth in the complaint and shown in the tran- script and in the proceedings. While this is not an indictment, and the statute would cure all mere matters of form, yet there nuist be alleged, in substance, sufficient to meet the statutory provision, and it is necessary to set forth in these proceedings every substantial matter with the same certainty which would be required in an indictment. There would be no other safe rule. We think, therefore, that this judgment ought to be reversed. Note (by J. F. G.). — Although decided In 1894, the case was not re- ported until 1898. The superior court seems to be a court of last re- sort In Delaware, and accordingly the opinion regarded as an author- ity. Two points in the opinion are worthy of especial notice: First. It is the defendant's right under the constitution to be fully informed as to the accusation; second, a complaint should be as specific as an indictment. VWM LippMAN V. People. • 175 111. 101—51 N. E. Rep. 872. Opinion filed October 24. 1898. Constitutional Law: Special legislation — Criminal complaints — Search-warrants. 1. A law may be general though it applies only to a particular class of persons, but it is essential that the classification be made so general as to bring within its limits all persons who are sub- stantially in the same situation. LIPPMAN V. PEOPLE 357 2. The words "other beverages," used In the Trade-mark Act of 1873 (Rev. Stats. 1874, p. 1084), following the words "ale, porter, lager beer, soda," and "mineral water," include only beverages of the same kind or class described by those particular antecedent terms. 3. The Trade-mark Act of 1873, for the protection of "manufacturers, bottlers and dealers in ale, porter, lager beer, soda, mineral water and other beverages, from the loss of their casks, barrels, kegs, bottles and boxes," is a special law, granting exclusive privileges in violation of the last two clauses of section 22 of article 4 of the constitution. 4. Section 6 of article 4 of the constitution, providing that no search- warrant shall issue without probable cause, supported by affi- davit, requires the afflant to state facts sufficient to satisfy the magistrate that probable cause exists for issuing the warrant. 5. An act which attempts to substitute the mere belief of the owner of property or of his agent that probable cause exists for issuing a search-warrant, for the judicial discretion of the magistrate, and which authorizes a warrant to issue without a showing of facts, but upon mere belief or suspicion of the afflaat, is unconsti- tutional. 6. A search is unreasonable, within the meaning of the constitution, the object of which is to enable an individual, who has scattered his property abroad, to search the premises of parties suspected of using such property without written consent. In order to re- gain the same, and thus collect evidence leading to prosecutions. 7. The Trade-mark Act of 1873 (Rev. Stats. 1874, p. 1084) is violative of section 22 of article 4 of the constitution, concerning special legislation, and of section 6 of article 2 of the constitution', con- cerning unreasonable searches and seizures. Writ of error to the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Zoloikoff & Zoline {John F. Gceting, of counsel), for plaint- iif in error : If two statutes are clearly repugnant to one another, the one last enacted operates as a repeal of the former. Trustees v. Chicago, 14 111. 334; Andrews v. People, 75 id. 605. Section 22 of article 4 of the constitution prohibits the pass- age by the General Assembly of local special laws by which any corporation, association or individual might be granted any special or exclusive privilege, immunity or franchise whatever. Special legislation is prohibited in all cases where the general law can be made applicable. The act of 1873, to protect manu- facturers of ale, etc., upon which this prosecution is based, was passed in violation of the said constitutional provision. A 1 358 AMERICAN CRIMINAL REPORT& I is !:M eenrch-warrant is not allowed to issue for the purpose of collect- ing evidence of an intended crime, but only after evidence of an offense committed. Cooler's Const. Lim. 299. Unreasonable searches and seizures, and laws and ordinances to that effect, are condemned in Sullivan v. Oneida, 61 111. 242. An arbitrary act of the legislature taking the property of one and giving it to another is not "due process of law." "Due process of law" means the due course of legal proceedings ac- cording to those niles and forms which have been established for the protection of private rights. Board of Education v. Bal-ewell, 122 111. 399. Class legislation cannot be successfully defended on the theory of police power of the State, because the legislature, in the exercise of the police power, cannot prescribe that which is not necessary to the health, safety or wel::are of the public and is oppressive to the private citizen. Railway Co. v. Jaclson- ville, 07 111. 37. An affidavit is a statement of facts reduced to writing with that degree of clearness and positiveness that if falsely made the affiant may be held guilty of perjury. Myers v. People, 07 111. 503; Ex parte Dimmig, 74 Cal. 104; People v. Ileffron, 53 Mich. 527 ; Ex parte Lane, 6 Fed. Rep. 34 ; Miller v. Muti- son, 34 Wis. 579; Peers v. Carter, 4 Litt. 209; People v. Becher, 20 X. Y. 354; Neal v. Gordon, GO Ga. 112. The statute now under consideration simply requires tho complainant to make the general statement "that he has reason to believe, and does believe, that any manufacturer . . . is using, in any manner," etc. (sec. 4 of act), and in that regard not only falls short of, but is in violation of, the constitutional requirement. The statute attempts to transfer the judicial dis- (y.'etion from the judicial officer to the complainant, and permits the complainant to pass upon the question of probable cause. This class of supposed affidavits is universally condemned, both in civil and criminal practice, when used to disturb a citizen in his constitutional security. People v. Ileffron, 53 Mich. 527 ; Ex parte Dimmig, 74 Cal. 104 ; Hart v. Grant, 66 N. W. Eep. 322; Ex parte Lane, 6 Fed. Rep. 34; United States v. Collins^ 79 id. 65 ; Shaw v. Ashford, 68 N. W. Rep. 281 ; Thomson v. Higginhotham, 18 Kan. 42; Atchison v. Bartholow, id. 104; LIPPMAN V. PEOPLE. 359 Chi/lln V. Bears, 57 How. Pr. 78 ; Bauh v. Loacliemis, 8 N. Y. Siipp. 520 ; Thompson v. Best, -1 id. 229. E. C. Akin, Attorney-General (D. C. Ilagle, G. A. Hill, and E. S. Cummings, of counsel), for the Peoiile: The repeal of an act by implication is never permitted if it can be avoided upon any reasonable hypothesis. Butz v. Kerr, 123 111. C59 ; County of Cook v. Gilbert, 140 id. 2G8 ; Trausch V, County of Cook, 147 id. 534. A subsequent general law will not, by implication, operate as a repeal of a special law on the same subject, though in- consistent with it. County of Cook v. Gilbert, 140 111. 208 ; Butz V. Keir, 123 id. 059; Trausch v. County of Cook, 147- id. 534. A law is general if it applies to all persons in the State simi- larly engaged. Ilawfhoiii v. PeojyJe, 109 111. 302; People v. Ilazelwood, 110 id. 319 ; Vogel v. Pekoe, 157 id. .»39 ; People V. Cohn, 149 id. 480 ; Peojile v. Cannon, 139 N. Y. 32. Section of article 2 of the constit\ition does not prohibit all searches and seizures, but only such as are unreasonable; and the plain application therefrom is, that a search-warrant may issue if it is for a reasonable search and seizure, and is based upon probable cause, supported by an affidavit particularly de- spribiug the place to be searched and the person or things to be seized. Gindrat v. People, 138 111. 103; Glennon v. Britton, 155 id. 232 ; Langdon v. People, 133 id. 382. Laws with reference to search-warrants, which provide for search for stolen property or other ai-ticles illegally kept, re- quiring that such property and the pcro in whose possession it is found shall be brought before the jusi ce, are not unco"n3titu- tional, as working deprivation of pi'operty without due process of law. Glennon v. Britton, 155 111. 232. ]\[r. Justice Cartwrigiit delivered the opinion of the court. On the affidavit of John A. Carey, agent of the Gottfried Brewing Company, a warrant was issued by a justice of the peace of Cook county, directed to all sheriffs, coroners and con- stables of this State, commanding them to search the premises of the plaintiff in error for four hundred beer bottles, and forty casks, barrels, kegs and boxes, having the marks of said com- Mi 800 AMERICAN CRIMINAL REPORTS. m i' I' iMKH); pany on them, and if tlie same or any part thereof should ho found upon such search, to bring the same before the justice, and arrest the plaintiff in error and bring him also before ilit; said justice, to bo disposed of according to law. Keturn wjis made on the warrant bv tho constable who exffcutcd'it, that lie found twenty-seven bottles marked "Gottfried lirewing Co.," and he brought the same before the court, and arrested phiintity in error and brought him also. The prosecution was institute I under an act entitled '*An act to protect mnn\ifacturers, bni- tlers and dealers in ale, porter, lager beer, soda, mineral wtiti r and other beverages, from the loss of their casks, barrels, k<'gs, bottles and boxes." (Kev. St., ch. 140, entitled "Trade-marks.") Plaintiff in error was found guilty and fined. lie appealed to the criminal court of Cook county, and at the trial there, tlio following facts were agreed upon : The Gottfried ]5rewing Com- pany is a corporation, organized for the purpose of brewiiiji; beer. It complied with the provisions of said act by filing in the office of tho Secretary of State an' of that statute was tested on the claims that it granted a moii , oly to the manufacturers of beverages by prohibiting the re- sale or gift by a purchaser of the contents of a bottle which the manufacturer refused to sell, and that it destroyed or unlaw- fiilly decreased the trade in empty bottles which is a legitimate ti'ade and entitled to the equal protection of the law. The stat- ute was held not subject to the first objection, and it was said that a buyer of the contents could sell the same in the bottle and deliver tlie bottle Avith the contents. As to the second objection, it was held that the additional care required of a dealer in buy- ing empty bottles was not an unreasonable restriction. The statute only applied where the bottle was not purchased with the contents from the person or corporation whose trade-mark LIPPMAN V. PEOPLE. 869 was on it, and in the three cases heard together the judgments in two were reversed because there had been deposits of money as security for the return of the bottles, which amounted to a conditional sale of them. The decision is not an authority on any proposition in this case. The judgment is reversed. Judgment reversed. Notes upon the Law Relating to Chiminal Complaints (by J. F. G.). Although the act in question was designed for a particular class of search-warrants, the decision in the Lippman Case is based upon the right of Ihe people to "be secure in their persons, houses, papers and effects against unreasonable searches and seizures," and is an authority of more than ordinary value, not only as to search-warrant proceed- ings, but in any case where process issues on oath, affirmation or affidavit for the seizure of a person or persons. It matters not whether such process issues from a justice of the peace upon a criminal or supposed criminal charge or from a court of record, as a writ in a civil case, the application of the doctrine must be the same. In these notes we shall treat of the subject principally as it applies to criminal complaints. While it is generally conceded that no warrant shall issue except upon a charge made under oath, the practice as to how such oath shall be made depends largely upon the provisions of the constitution or the statutes controlling the tribunal from which the \s arrant is prayed. By the fourth amendment of the United States constitution, it is pro- vided "that no warrant shall issue but upon probable cause supported by oath or affirmation," which_ requirement might be fully complied with in proceedings before a United States commissioner by simply hearing the oral testimony, unless such practice would be contrary to the practice of the State in which the commissioner at the time is sitting (U. S. R. S., sec. 1014). In this regard the constitut'on of Wis- consin is identical with the fourth amendment of the United States constitution; and it is there held that the complaint itself need not be under oath; but that the magistrate may call in witnesses and ex- amine them, and on such oral testimony base a warrant. State v. Davies, 62 Wis. 305. The corresponding provision in the Michigan constitution is the same as that of the Federal and of the Wisconsin constitutions. The Michigan statutes controlling proceedings before an examining magis- trate provide that, upon complaint being made, the magistrate shall examine the complainant and any witnesses produced by him, and if cause is shown shall issue a warrant. In construing this statute, it has been held that, although a complaint is a necessary prerequisite to authorize a magistrate to hear testimony as a basis for warrant, the complaint need not be under oath, nor reduced to writing; but that the warrant issues on, and must accord with, the oral testimony, and may be for an offense of a different grade or name. People v. Kuhler, 93 Mich. 626; People v. Evans, 72 Mich. 385; Stuart v. People, 42 Mich. Vol. XI — 24 m f>iH ¥ 370 AMERICAN CRIMINAL REPORTS. '■' 'I if u :!!!, ' % :'l^ ■ ^l |l' ,';':■? |i^ . 255; Yance v. People, 34 Mich. 286; Ttirner v. People, 33 Mich. 309. Thus a man may complain that three men assaulted and endeavored to kill him, but upon hearing of the testimony in the ex parte pro- ceeding the magistrate may issue a warrant for riot. A review of the Illinois constitutioriH, statutes and decisions. — Sec- tion 7, article 8, of the Illinois constitution of 1818, reads as follows: "That the people shall be secure in their persons, houses, papers an "The complaint and Information of George Huggins, of Knox town- ship in said county, made before James Moore, Esquire, one of the jus- tices of the peace in and for said county, on the sixth day ot" May, 1873, who, being duly sworn, upon his oath says that. In Knox town- ship, in the said county, on the 25th day of April, 1873, he had a sad- dle and theep skin stolen from his barn in said place, and that ho verily believes they are now in possession of a man, name unknown, a large size man, riding a sorrel mare with a light mane and tail, and young colt running after, when last seen; who stayed last night at Edmund Russel's, in Persifer township, this county. He therefore prays that the said unknown described man may be arrested, and dealt with according to law. "GKOnCE HCGOINS. "Subscribed and sworn to before me, this sixth day of May, 1873. "James Moore, "Justice of the Peace." The court held that the complaint was insufficient to comply with section 6 of the Bill of Rights, the court saying: "From aught that appears in this affidavit, the prisoner may have honestly come to the possession of the property claimed to have been stolen, by purchase, or by borrowing or finding it, and this may have been known to the person making the affidavit. There is nothing in the affidavit neces- sarily inconsistent with this idea. Without saying more, it is suffi- cient that, in our opinion, the affidavit was insufficient to give juris- diction for the purpose of issuing the warrant." The court further held that, as the warrant was regular upon its face, the constable, Housh, would have been protected from an action of false imprisonment; but that, as the warrant was based upon an in- sufficient affidavit, which did not give the justice jurisdiction, that he was justified in permitting the prisoner to escape. The conviction was reversed. The Schustek Case. — As a concise, comprehensive and correct ex- position of the law relating to criminal complaints, there are but tew, if any, opinions superior, if equal, to that of Judge Chetlain, rendered as presiding judge of the Criminal Court of Cook County, in discharg- ing John Schustek upon a writ of habeas corpus in September, 189G. It appears in full in the Chicago Law Journal (Weekly) of September 25, 1896, Chicago Law Journal (Monthly), October, No. 1896, People ex rel Schustek v. Pease, 29 Chicago Legal News, 33, and Detroit Daily LIPPMAN V. PEOPLE 873 Legal News of October 3, 189C. We here give the opinion com- plete: CiiKTr.AiN, J. In order to confer j.'rlsdlctlon upon a Justice of the poace, a criminal complaint must corith'n: Ist. A concise statement of facts hm'.^r oath. The facts constituting the olTense should be set out positively. It is not sufflrlent that the t'.uts be stated upon information and belief, nor that the complainant "has just and reasonable grounds to believe" that the facts constitut- ing the offense are true. The statute of this State contemplates such a definite statement of facts as could be made the basis of a prosecution for perjury, If false. 2d. It must definitely appear that a crime has been committed. 3d. And that there is probable cause for believing that the defendant Is guilty. In the case at bar, the complaining witness In effect has only stated that he "has Just and reasonable grounds to believe" that a crime has bnen committed, which amounts to nothing more than the statement of the witness on information and belief. In this case the facts consti- tuting the crime are perhaps sufficiently set out, and the complaint would be sufficient, if, in addition to such statement, the complainant had set out in detail facts upon which he based his belief sufficient to show probable cause. It should appear that the reasons for arresting the defendant are not based upon mere rumor or suspicion, and in set- ting forth such reasons facts should be set out to negati/e the idea of rumor or suspicion, and to make it appear to the court that the com- plaint is based on something besides information, or belief, or rumor, or suspicion. In my opinion the mittimus In this case is very Irregular, if not fatally defective. It recites that John Schustek was examined on a charge preferred against him upon a complaint In writing, under oath of one Imrich Podkrivacky, and that It appeared probable from the evidence of said witness, sworn and examined before the justice, that said John Schustek was guilty of said charge. The conclusion to be drawn therefrom Is that the defendant John Schustek was committed only upon his own testimony, which would be clearly Illegal. Boone V. The People, 148 111. 440. As will be observed, the mittimus recites the mere probability that a crime was committed. The mere proba- bility that a crime was committed is not sufficient ground for holding the defendant to the grand Jury, It should appear from a mittimus: 1st. That crime was committed by some one; 2d. That it was probable that the defendant was the guilty party. Probable cause refers to the guilt of the defendant and not to the com- mission of the crime Itself. For the reasons stated, the relator is discharged. Complaints on information and helief. — There are numerous author- ities in line with the Lippman Case and the Schustek Case, In holding that a complaint which simply charges that the complainant verily believes or has good reasons to believe the statements in the com- plaint Is not sufficient to give jurisdiction, and that any warrant issuing thereon is void. : 1'! f:il 874 AMERICAN CRIMINAL REPORTa 'J U 'WW In Ex parte Dimmig, 74 Cal. 164, 15 Pac. Rep. 610, it was held that a warrant lasued upon a charge of murder was void and the prlsoiirr entitled to a discharge on a writ of habeas corpus, because the com- plaint upon which It was founded was simply made on information and belief. In United States v. Collins, 79 Fed. Rep. 65, the defendant was in- dicted for obstructing Justice by refusing to produce a letter in evi- dence In a supposed criminal proceeding before a United States coin- missioner; but as the proceedings before the commisBioner were basod upon a complaint made on information and belief, the court quashod the indictment; holding that, as the commissioner had no Jurisdiction over the defendant, he had none over the witness Collins; and that Collins was not obliged to produce the letter to be used in evidence in a void proceeding. In that case there was nothing to show that the defendant in the proceedings before the commissioner had made any objection; but the Judge evidently based his opinion upon the theory that, if a proceeding is void, consent cannot confer Jurisdiction. In Ex parte Lane, 6 Fed. Rep. 34, an extradition proceeding was hold void, and the prisoner discharged because of the same defect in the complaint. In Ex parte Hart, 11 C. C. A. 165, 63 Fed. Rep. 249, the United States court of appeals announced the same doctrine in discharging a pris- oner held on an extradition warrant. This case is more extensively reviewed on pages 308, 309, 310 of vol. 10, American Criminal Reports. In treating of this subject in United States v. Sapinkoiv, 90 Fed. Rep. 654, Judge Thomas said: "Aside from the questions discussei), it is claimed that the warrant of arrest was issued without Juris- diction, because the complaint herein was not on such oath as is re- quired by the United States constitution and the Revised Statutes (sec. 1014). The warrant is issued on the complaint of one Kassel, a private citizen, and all the statements of alleged fact rest upon infor- mation and belief. No grounds of information are stated, but depo- nent's belief is stated to be based upon falsely made cigarettes (whatever that means) purporting to be his (deponent's intending) manufacture, which were not his manufacture, and wliich bore depo- nent's stamps, which cigarettes had been sold by the defendant.' How did the deponent know that the defendant sold these false cigarettes? He has just sworn to the fact on information and belief. Is he using alleged facts, which he knows only on information and belief, as a statement of the bases of his belief? It appears so to the court. With- out examining the decisions cited by the learned counsel for the de- fendant, it is evident that the complainant has not stated any grounds either for his information or belief. Did he know where defendant's place of manufacture was? Did he know or hear of the defendant doing any of the acts alleged against him? Did he see any of the cigarettes sold? Does he know or hear of any fact or circumstance in any degree connecting the defendant with any of the transactions alleged on Information and belief? If so, why did he not state when and where he derived his knowledge? As his affidavit stands, the deponent has stated on his inforniation and belief that the defendant LIPPMAN V. PEOPLE. 375 was guilty of various acta and omissions, but he falls utterly to give tho sllKhtest Bubstantlation of such Information and belief, or either." Upon this subject see also People ex (el. O'Niell v. Shields, 30 Chi. Lrgal News, 340; Ex parte Svilth, 3 McLean, 121; In re Coleman, 15 Uiiitih. 40fi; United States v. Tureaud, 20 Fed. Rep. 621; State v. Dan Goixl. 77 Tenn. 250. A complaint %vhich does not state the facts is insufficient. — The fol- lowing Is the opinion in full in State v. Fiske, 20 R. I. 416. 28 Atl. Rop. 348: Tiu.iN(iiiAST, J. The complaint in this case charges that the defend- ant "was found behaving in a noisy and disorderly and Indecent man- ner, and did assist, encourage and promote the same to be done by otluTs, to the annoyance and disturbance of a portion of the peaceable inhabitants of the town of East Greenwich, against the ordinances of the Fakl town." At the trial of the case in the court of common pleas, the defendant moved that the complaint be quashed on the ground of duplicity, and also for uncertainty in charging the offense, which mo- tion was overruled, whereupon the defendant was tried and found guilty as charged. The defendant then moved in arrest of judgment on the same ground aa above stated, which motion was also overruled, to each of which said rulings exception was duly taken. The case ia now before this court on exceptions to said rulings, and also to the ruling of the court excluding certain testimony offered by the defend- ant at said trial. We think the complaint Is insufficient on the ground of uncertainty. It fails to inform the lefendant of the particular offense for which he Is to be tried. In that the language used, while fol- lowing that of the ordinance, does not so far Individuate the offense as to give the defendant proper notice of what it really is. In Began, Pelitioner, 12 R. I. 309, this court, while holding that the word "revel" had a precise and definite meaning, yet Intimated that it might be nec- essary in connection with the other charges in the complaint, which were quite similar to those in the case now before us, to particularly set forth the circumstances connected with the disorderly and Indecent conduct set forth In the complaint. We think that to merely charge one with "behaving in a noisy, disorderly and Indecent manner," with- out any specification as to what constituted such behavior, or even that it was in a public place in said town, Is too vague and indefinite to answer the requirements of criminal pleading. State v. Smith, 17 R. I. 371, and cases cited; McJunkins v. State, 10 Ind. 140; Bell v. State, 1 Swan, 42. As we are of the opinion that the complaint Is insufficient for the reason above given, it is unnecessary to consider the other exceptions. Exceptions to the overruling of defendant's motion in arrest of judgment sustained, and judgment arrested. In State v. Murray, 41 Iowa, 580, the information (a complaint is called an information in Iowa) charged that the defendants "did wil- fully and mallciousl' assault one Bridget McCoy, contrary to the stat- utes in such cases made and provided," etc. The defendants were convicted before a justice of the peace and appealed. In the district court they demurred to the information, which demurrer was over- 376 AMERICAN CRIMINAL REPORTS. i :. t i z \ ' is- . I i' ruled; and upon trial the defendants were again convicted, and ap- pealed to the Supreme Court, where the judgment was reversed, the following being the opinion in full: MiLLEK. C. J. Section 5057 of the Revision (Code, sec. 46G2) pro- vides that an information before a justice of the peace, charging the commission of a public offense, "must contain ... a statement of the acts constituting the offense iii ordinary and concise language, and the time in and place of the commission of the offense, as ntar as may be. The information in this case fails to comply with this provision of the statute, in that the "acts constituting the offense" are not stated therein. It accuses the defendants with committing an assault, for that they committed an assault. It would not do to accuse a persoa with the crime of larceny, and merely allege that he committed lar- ceny at a time and place stated. The acts which in law constitute larceny must be alleged. So in respect to every criminal offense. It will not do to accuse a party with the commission of a crime by its technical name merely. The acts which malie up the offense must be charged. This icas so wifhoiit the statute. The judgment must be reversed. In Cranor v. State, 39 Ind. 64, a complaint for assault, charging it to be committed by "running a horse against and over Elizabeth Golden," was held insufficient in that it did not comply with the statutory defi- nition of assault, and charge that it was done in a rude, insolent, or angry manner. To the same effect, see Slusser v. State, 71 Ind. 2S0. To constitute a valid complaint for perjury, the false testimony should be set out. — Two persons were arrested upon a joint accusation of perjury, charging that they wilfully, corruptly testified falsely in a divorce proceeding to a matter material to the issues. Upon a con- tinuance of the hearing by the justice, they declined to give bail and sued out a writ of habeas corpus before Judge Balcer, then presiding in the Criminal Court of Cook County, who discharged them. The judge held, citing Housh v. People, supra, that the facts constituting the of- fense should be set out; and that, as the false testimony was not set out, there was nothing to show as to whether or not it could have been material to the issues, and that the complaint was void. The prosecuting attorney suggested the statute of amendments, but the judge replied that where there was no jurisiiction there was nothing to amend. Ex parte Czack, Chi. Law Bui., April 11, 1896. In the Warenzak Case, Chi. Law Bui., April 26, 1897, a similar ap- plication was made to Judge Chetlain; the charging part of the com- plaint being as follows: "Said complainant, being duly sworn upon his oath, says that on, to wit, the thirteenth day of April, 1897, and in the county aforesaid, Antoni Warenzek, having taken a lawful oath in a judicial proceeding before Waldemar Bauer, justice of the peace, in a matter where by law an oath was required, swore falsely in a matter material to the issues or point in question." In a short written opin- ion the court said: "The complaint does not comply with the require- ments of the Bill of Rights, section VI, and section II, division VII, of the Criminal Code, and therefore did not confer any authority upon the justice to issue his warrant for the arrest of the relator. The com- LIPPMAN V. PEOPLE. 377 plaint does not contain a concise statement of facts regarding the sup- posed offense, and does not set out the supposed false matter testified to by the relator upon which a charge of perjury was claimed to be based; accordingly the justice had no authority to issue the warrant, and all of his proceedings upon the coraplaini were without jurisdic- tion and void. Ex parte Czack, Chi. Law Bui., April 11, 1896; Moore V. Watts, Breese, 18; Housh v. The People, 75 111. 487; Ex parte Dim- mig, 74 Cal. 164." A printed form made to fit all cases alike, tvith blanks for dates and names, is not a good criminal complaint. — The following is the opin- ion, in part, in Sarah Way's Case, 41 Mich. 299 (also reported as In re May, 1 N. W. Rep. 1021): Campbell, C. J. Sarah Way was hrought before us on return to a habeas corpus, as confined in the Detroit house of correction on a con- viction of vagrancy, set out as committed "in violation of section 1, chapter 78; title 8, pages 175 and 176 of Revised Ordinances of said city, contrary to the ordinances of said city in such case made and provided." It appears from the commitment that she had been arrested and con- fined in the station-house before any complaint; that a complaint was then made by Charles E. Reynolds, a policeman, which contain? no specific facts, but swears positively, and therefore on his re jyonsibil- ity for the oath, that on the 15th day of May, 1879, and for one month preceding, she was unlawfully and wilfully guilty of vagrancy, for that, she being an able-bodied person, had been during that period, in said city, lodging, loitering and rambling about from place to place, neglecting all lawful calling and employment, and not having any home or visible u-^ans of support, and not giving a good account of herself. The remarkable character of such a complaint is only explained by the fact that it is entirely a printed form, except as to names and dates. It certainly is not such a document as ought to be presented under the constitutioi.al provision requiring that no warrant shall issue without probable cause. Such comprehensive and wholesale swearing to a whole catalogue of conditions, some of which cannot pos- sibly have been known to the complainant, and none of which are spe- cific, and the habitual use of such documents, evident from the printed forms of complaint and commitment, are not calculated to recommend the proceedings to favorable consideration. (The remainder of the opinion was on other subjects, among them the rule as to arrests with- out warrants, holding that it does not apply to vagrancy.) The re- lator was discharged. Where a complaint is under oath, the complainant must be a com- petent witness. — Except in matters of personal violence, or in an ap- plication for a peace warrant, neither husband nor wife can be a com- plainant against the other. Long's Case, 32 Chi. Legal News, 58; Taulman v. State, 37 Ind. 353; State v. Berlin, 42 Mo. 572; Mountz et al. V. The Jailer, 1 Grant (Pa.), 218. The statement of facts in a criminal complaint should be as full and clear as required in an indictment. — It is generally contended that an Indictment should be more specific than is required for a criminal 37S AMERICAN CRIMINAL REPORTS. 1* Ml i ij {> 1 ^ A ^ I: if i ^^1 ■*1 complaint; but while this may be true as to formal matters, the state- ment of facts in a criminal complaint should show clearly a cause for action. An indictment is the report, or presentation by the grand jury, based upon oral testimony heard by the grand jury; but a criminal complaint, at least where an affidavit is required, is the evidence upon which the warrant issues. In People v. Brady. 56 N. Y. 182 (190), the New York court of appeals held that the statement of facts in a com- plaint should be as full, at least, as in an indictment. See also Van- dever v. State, present volume, p. 355. Can a criminal complaint be amended? — As to whether a defective complaint can be amended, and if so, to what extent, and under what circumstances, is a subject on which the courts do not agree. The logical inference is that, if a cause for arrest is not shown, the entire proceeding is void; and if void, there is no charge to amend. In Tor- rey li Glenn v. People, 17 111. 105, a conviction was reversed, without remanding, because the complaint lacked in one essential element, the court saying that "the accusation did not amount to an offense against the public law, and no sufficient charge was made by amend- ment;" but it does not appear that the subject of amendment had been discussed in the argument. In Truitt v. People, 88 111. 518, it was held that complaints could be amended, because common-law in- formations could be amended; the court evidently not taking into con- sideration the fact that there is a wide distinction between common- law informations, made by an officer of the Crown, and criminal coni- plainls; the information being of the nature of a pleading, while a complaint is a synopsis of evidence made upon oath of an individual. In Maynard v. People, 135 111. 416, it was sought to reverse a convic- tion of perjury upon the ground that the false testimony was given in bastardy case, based upon a defective complaint; the court held that, although the warrant should not have issued, because of a defect in the complaint, yet that which was omitted was inferred from cer- tain language in the complaint, and that, as the action was a civil ac- tion, the same could have been amended, and accordingly was not void. The court, however, said: "That which is absolutely void is not amend- able, but that which is voidable, merely, can be amended." The above decisions should be received with great caution; for, if they arc not overruled, the doctrines announced are certainly modified by the de- cision in Lippman v. People (supra); and we may draw this conclu- sion: that in any case where a writ of habeas corpus should be sus- tained for want of jurisdiction, that the proceeding under the com- plaint is void, and that the complaint cannot be amended. Where a complaint charges the essential element of the offense, such as larceny of property, without describing the property, it may be proper to amend the complaint by giving such description, simply as a matter of good pleading, or furnishing of a bill of particulars; for that only makes specific that which is already alleged. The popular notion that a strict compliance with the constitutional guaranties of personal security encourages the commission of crime and the escape of criminals is imtenable. Many of those criminals whose conduct is the most detrimental to society have no more desire LIPPMAN V. PEOPLE. 879 to flee from justice than an approving public I\as to prosecute; while the unpopular criminal, who commits robbery, burglary or murder,. where the offense is recent, may on reasonable suspicion be appre- hended without the issuance of a warrant. 4 Blackstone, 295; Shanley V. Wells, 71 111. 78. Other interesting cases upon this subject are: State v. Whittaker, 85 N. C. 5G6; Armstrong v. Van De Vanter, 21 Wash. 682, 59 Pac. Rep. 510; People v. Novak, 24 N. Y. St. Rep. 274; In re Harris, 32 Fed. Rep. 5S3; People v. Cramer, 47 N. Y. S. 1039, 27 App. Div. 189; State v. Dale. 3 Wis. 795; Fink v. Milwatikee, 17 Wis. 26; Jansen v. State, 60 Wis. 577; People v. Heffron, 53 Mich. 527; State v. Smith, 21 Neb. 552, 32 N. W. Rep. 594; Thrash v. Bennett, 57 Ala. 156; Ex parte Morgan, 20 Fed. Rep. 298; Town of Whiting v. Doob, 152 Ind. 157; City of Holilen V. Bimrod, 60 Kan. 861, 61 Kan. 13, 18 Pac. Rep. 558; Haw- thorne V. State, 6 Tex. App. 562; Commonwealth v. Clement, 8 Pa. Dist. Rep. 705; Ackerman v. City of Lima, 8 Ohio S. & C P. Dec. 430; ^tat>; V. Carter, 39 Me. 262; State v. Spencer, 38 Me. 30. The doctrine as applied to sear ch-icar rants. — The description of the property should be as definite as that of property in a conveyance. To describe the property as "the houses and buildings of Henry Ide" is insufficient. Humes v. Tabor, 1 R. I. 464. So also is the descrip- tion. "The premises of Aaron Hyatt in said Milton and other sus- pected places, houses, stores or barns in said Milton." Gramon v. Ramond. 1 Conn. 40. So also, "The premises of John Doe, alias, in the town of B., or in the neighborhood thereof, in the county of S." Ash- Icy V. Peters, 25 Wis. 621. Unless the warrant shows the preliminary proceedings, the examination cf three witnesses, etc.. It is ill, and no presumption is indulged in favor of the justice. State v. Staples, 37 Me. 228. The affidavit must be positive in its form, and a statement on belief as to the place of concealment is insufficient. White v. Wager, 83 111. App. 592. While great strictness is required in the de- scription of property alleged to be stolen, less partlculLrity is required for the seizure of gambling implements, where a general description is sufficient. The .tame doctrine applied to civil cases. — It was held by the Su- preme Court of Michigan that an affidavit on information and belief was insufficient to sustain a capias for the arrest of the defendant (Shaw V. Ashford. 68 N. W. Rep. 281); and by the Supreme Court of South Dakota, that such affidavit was bad even though made in the positive form, if from the facts stated it would appear to have been made upon information. Hart v. Orant. 8 S. D. 248. 66 N. W. Rep. 322. Where, in the early history of Illinois, the statutes provided for an in- sufficient affidavit, even after a practice of thirty years the Supreme Court held that the defendant could be discharged upon habeas corpus {l-:.r parte SmUh, 16 111. 347), and that the sheriff was not liable if of his own volition he released the prisoner {Tattle v. Wilson, 24 111. B.^3), which was his duty to do if the defect appeared on the face of the capias (Gordon v. Frizzcll, 20 111. 291); and that if the prisoner gave bail, the bond was void. Stafford v. Low, 20 111. 152. In Town- send V. Burns, 2 Cromp. & J. 468, Baron Vaughan said: "Affidavits to n 380 AMERICAN CRIMINAL REPORTS. ^hold to ball must be clear and distinct, and must aver whatever is necessary to show plaintiff's right of action." In treating of the same subject, in Taylor v. Forbes, 11 East, 315, Lord Ellenborough said: "The strictness required in these affidavits is not only to guard de- fendants against perjury, but also against any misconception of the law by those who make the affidavits. And the leaning of my mind is always to great strictness of construction where one party is to be deprived of his liberty by the act of another." If an affidavit required in a civil case is made by an attorney, the presumption is that it was made on information and belief, unless the contrary appears. Crotcns v. Vail, 51 Hun. 204. It is not sufficient for an attorney, when making an affidavit for a client, to state that he is well acquainted with the facts, but he must show how he is so ac- quainted. Carter v. Rathhone, 1 Hill, 204; Cribben v. Schillenger, 30 Hun, 248; Cowles v. Harding, 79 N. C. 577; Wodien v. Hunt, 4 Iowa, .355. See, also. Bank of Pittsburg v. Murphy, 18 N. Y. Supp. 575; Von Egan v. Hcrold, 19 N. Y. S. 456; Talbert v. Strom, 21 N. Y. S. 71!). The attorney should show why he makes the affidavit instead of his client. Griel v. Backius, 114 Pa. St. 187. An agent should set forth his source of knowledge. Hamilton v. Steamboat Ironton, 19 Mo. 523. I. State v. Quintini. 76 Miss. 498—25 So. Rep. 365. Decided March 27, 1899. Criminal Complaints: Abbreviations — Information and belief. 1. In a criminal complaint the name of the month should be written In full, but if only an ordinary abbreviation is used, it can be amended. 2. A criminal complaint can be made on information and belief. Appeal from Circuit Court of Hancock County; Hon. Thacl- doas A. Wood, Judge. This was an appeal taken by the State from the judgment of the court below in qtiasliing the complaint. Wiley N. Nash, Attorney-General, for State. No appearance for appellee. Terual, J. Augustine Quintini was tried and convicted be- fore Edwin P. Laizer, a justice of the peace of Hancock county, of an assault and battery upon Henry Bosette, and fined five STATE r. QUIXTINL 881 dollars, from -whicli conviction he appealed to the circuit court (if said county, -where, on motion of the said Quintini, the affi- davit was quashed, and the defendant discharged. The affidavit is in these words: "TiiK State of Mississippi,") Hancock County. ) "Before me, Edwin Laizer, a justice of the peace for the fifth district of said county and State, Alhert J. Carver, con- stalile, on information and belief, makes oath that Augustine Quintini did, on the 11th day of Aug., 1S98, in the fifth dis- trict of Ilan^ ': county. Miss., within the limits of said, jus- tice of the peace jurisdiction, and within the limits of the city of r>ay St. Louis, assault and beat Henry Bosette, against the peace and dignity of the State of Mississippi. "Albert J. Carver, Constable. "Subscribed and sworn to before me this 12th day of Aug., IS 08. "Edwin P. Laizer, J. P. The grounds of the action of the learned circuit court are not given in the judgment, and we are left to conjecture their nature. The abbreviations of the names of the month of August and of the State of Mississippi are objectionable, but if the motion was sustained on that ground, the State should have been given leave to amend the affidavit. The affidavit expresses the charge of the crime in the words of the best authors, and concludes as required by the constitu- te u, and we find no objection to it on that account. The brief of the attorney-general says that he is informed by tlic district attorney that the affidavit Avas quashed because it was not made on the personal knowledge of the affiant. The common law was ever jealous of the personal rights of the subject, and its principles in this respect are embodied in section 23 of the constitution, which secures all persons from arrest unless on probable cause supported by oath or affirma- tion. In reference to prosecutions before justices of the peace, sec- lion 27 of the constitution provides that the proceedings in such oases shall be regnilated by law, and section 2121, Code 1892, leads, that "on affidavit of the commission of a crime of which m ,h^ 4. w 382 AMERICAN CRIMINAL REPORTS. !!i W v\ he has jurisdiction lodged with a justice of the peace he AmW try and dispose of the ease according to hiw." By the general principles of the common law every accusa- tion of a crime against an accused person must bo charged, di- rectly and positively stating the nature and cause of the accusa- tion, and our Bill of Rights does not impair these common-law jiririeiples. But neither the constitution nor section 2421, Code ]SJ)2, reqxiires the affidavit to be sworn to by one having per- sonal knowledge of the facts stated in it, nor do wo see any rea- son for supplying such omission on the part of the legislature. The improbabilities of finding a person who knows all the facta of any crime, and who, if knowing them, would be willing to charge them in such language as imports undoubted guilt, ]>os- sibly induced the legislature not to recjuire personal knowlediio in the affiant; and that the legislature did not intend tlu! atii- davit to be made on personal knowledge is evidenced by the re- peated attempts of that body to have misdemeanors i>rosecutod before justices of the peace instead of before the circuit courts, as by the act which authorized grand juries to refer misde- meanors presented to them to the proper justice of the peace of the county for trial. A person may be arrested only on probable cause, but prob- able cause in law is a charge of crime made on oath, without re- gard to the fact Avhether the oath is made on personal knowl- edge or upon information and belief merely. By common law certain officers made information without oath, and such un- sworn information was probable cause by that law. Here Car- ver was a constable, a sworn officer of the law, and his affidavit, made upon information and belief, charging Quintini with a crime, was probable cause, and constituted a valid charge against Quintini for his arrest and trial State v. Davie, G2 Wis. 305 ; Clark's Crim. Pro., sec. 230; Bujham v. State, 59 Miss. 52!J; Coulter V. State, 75 Miss, 356. AVe are of the opinion that the circuit court erred in quash- ing the affidavit in this cause and in discharging the accused. Note (by H. C. G.). — The fallacy of the foregoing opinion Is appar- ent upon very slight inspection. Probably the case was well argued below, but in the Supreme Court it was an ex parte hearing. The excuse that a constable could make a complaint upon mere belief, be- STATE V. QUINTINL 3S3 cause ' ./y common law certain officers made Information without oath, etc.," doubtless refers to the old exceptional English practice, by which the attorney-general was allowed to file information not under oath, es officio, as the representative of the king, in cases of great enter- fjency peculiarly and directly affecting the royal prerogatives, in the court of the King's Bench: this special privilege being conceded to the Crown because the slightest delay, by following the regular procedure, might be attended by fatal conseiiuences to its prerogatives. (See notes to Johnson v. United States, supra, and 4 Blackstone, ch. 23, p. 308.) This special privilege of monarchy has no place or force in this country; and certainly it could not be concluded that because, imder such circumstances, the attorney-general of England was al- lowed such a dangerous privilege, therefore a constable in this country could make a valid complaint upon mere opinion and belief, especially so when it does not appear that constables or other officers in England availed themselves of this royal precedent. Furthermore, the complaint does not charge an offense; for, while the constable swears to his belief that an assault was made (not an actual assault), he does not aver his belief that it was an utilawful assault. The authorities and notes on pages 349-380 should effectually dispose of doubts on this question; but we may casually remark that through some erratic lapse of tongue, reason or judicial imagina- tion, this usually lucid and able court stultifies itself, as well as over- rides the weight of sound judicial authority on this branch of crim- inal pleading. True, it opines that the nature and cause of every ac- cusation must be directly and positively stated. Then, lapsing into a mythical mood, It assumes that this sounding mandate can be com- plied with by an informant possessing no personal knowledge of what he charges. It matters not whether the soleirn affiant knew that an offense had in fact been committed. It may have been that a distress- ingly dramatic dream, instigated by mince pie and too liberal potations, or an over-sensitive condition of a brain harassed by visions of snakes or other hypnotic influences, or simply an old woman's tale, — that any or all of these, spiced with a little malice, constituted tue inspiring source of his direct and positive belief. Apparently, in the judgment of the learned court, it was immaterial whether this imposing belief was founded on fact or Action, provided it was direct and positive. The learned court might have added weight to its elucidations by re- minding the unsuggestive reader, that the persons possessing the most conscientious, direct and positive impressions and beliefs concerning the shortcomings of their neighbors, are found in lunatic asylums. H P '■iM 8S4 AMERICAN CRIMINAL REPORm I! ■: '^ Barfield v. State. 39 Tex. Crlm. Rep. 342—45 S. W. Rep. 1015. Decided May 25, 1898. Criminal Complaints: Insufficiency, A criminal complaint Is Insufficient which omits the vrord "did" in charging the acts committed. Appeal from the County Court of Crocket County; Hon. Ch.irlcs E. Davidson, Judge. F. II. Barfield, being convicted, and fined twenty-five dol- lars for carrying a pistol, appeals. Eeversed. IF. IF. WnlUng and Mann Trice, Asst. Atty. Gen., for tlio State. DAVinso:!^, J. Appellant Avas convicted of carrying on and about his person a pistol, and appeals. ^Motion was made to quash the complaint because the word "did" was omitted from the charging part thereof. The omis- sion of the word "did" in charging the acts committed, in an unbroken line of decisions, has been held to invalidate the in- formation., complaint, or indictment, as the case may be. See State V. Hutchinson, 2G Tex. Ill; Edmondson, v. State, 41 Tex. 49G ; Ewin-g v. State, 1 Tex. Crim. App. 3G2 ; Moore v. State, 7 Tex. Crim. App. 42 ; ]YaR-er v. State, 9 Tex. Crim. App. 177; Jester v. State, 20 Tc\. Crim. App. 3G9. The word "did" is an essential word in complaints, informations, and in- dictments, Avhere the acts which constitute the offense are being set out or charged. Motion was made by appellant to quash the complaint on account of this omission, which was overruled by the court. This matter was again urged by a motion in arrest of judgment, and this was also overruled. The motion to quash diould have been sui^tained, and, that being overruled, the mo- tion in arrest of judgment should have been held good. It was unnecessary for this case to have been brought to this court. Had the complaint been quashed below, as it ought to have been, the county attorney could have taken another, and prose- STATE V. CRUICKSHANK. 385 ciitcd the case, without unncccpsary delay. The judgment is re- versed and the prosecution ordered dismissed. Reversed and dismissed. Hurt, Presiding Judge, absent. State v. Cruicksiiank. 71 Vt. 94—42 Atl. Rep. 983. Decided January 26, 1899. Crhiinal Complaints: Complaint charging violation of city ordinance. A complaint charging a violation of a city ordinance should set out the ordinance, because the court does not take judicial notice of it. Tlie case was instituted in the City Court of the City of Barre by complaint. A demurrer to the complaint was overruled and exceptions taken. Reversed. Richard A. Hoar, for the defendant, cited State v. Soragon, 40 Vt. 450 ; Shanfelter v. Baltimore, 80 ]\Id. 483 ; Harl-cr v. Mayor, 17 Wend. 199; Keeler v. Millidge, 4 Zab. 142; Green V. Indianapolis, 22 Ind. 192; Porter v. \YaHn(j, C9 I^. Y. 250; 1 Dill. Mun. Corp., sees. 83, 414, 415; Bishop on Stat. Crimes, sees. 404-408 ; ^\^larton's Crim. PI. & Pr. (9th ed.), 224, 225; 1 Arch. Crim. PI. & Pr. 248. G. 2\ Swasey and John W. Gordon, for the State, contended tliat although courts of general jurisdiction do not take judicial notice of city ordinances, a city court, which bears the same re- lation to them that a State court bears to the laws of the State, will, — citing State v. Leiber, 11 Iowa, 407 ; Laporte v. Good- fellow, 47 Iowa, 572; 1 Dill. Mun. Corp. (4th ed.), sec. 413; City of Salomon v, Hughes, 24 Kan. 211 ; Lanfear v. Mestier, 89 Am. Dec. 658 and note ; Acts 1894, No. 165, sec. 77. RowELL, J. This complaint lacks substance. It alleges that the respondent did ride a bicycle along and upon the sidewalk on a certain street in the city of Barre, "in violation of sections Vol. XI— 25 Sim 3S6 AMERICAN CRIMINAL REPORTS. twenty-five nnd twenty-six of clinptor thirteen of the ordiiianoos of said eity," contra formam staiuti. It should have set out the ordinances, as the court cannot take judicial notice of tliiiii. Slate V. Soragan, 40 Vt. 450. It i)roperly concluded against the form of the statute. Slulc V. Soragan. Perhaps it.shoidd also have concluded against tlio form of the ordinances. Judgment reversed, demurrer sustained, complaint adjudged insufficient, and cause remanded. Notes (by J. F. G.). — While It must be presumed that the judge ot a city court is conversant with all of the ordinances of the city in whose court he presides, such presumption cannot be indulged in of the court to which an appeal is taken; for it would be unreasonable to say that the Judge of a county court of general jurisdiction, or the judges of the Supreme Court of the State, would be conversant with all of the ordinances of the cities, towns and villages within such county or State; hence such a record should be made as would fully set out the cause of action for the information of either of such appellant tribunals. Where a civil suit is instituted by one individual against another, based on the performance or non-performance of a city ordinancp, the ordinance must be pleaded. With at least equal force would this rule apply where the action is brought to impose a penalty against an alleged wrong-doer. State v. Eastman. 60 Kan. 557—57 Pac. Rep. 109. Decided May 6, 1899. Embezzlement: Agent — Criminal intent an essential ingredient — Omis- sion of intent in the statute. Where a statute provided that if any agent shall neglect or refuse to deliver to his employer, on conditions specified, any moneys, books, etc., received by virtue of his employment, etc., he shall be punished, etc., it was error not to instruct the jury that a felonious intent was necessary to render the defendant guilty, notwithstanding the statute was silent as to the intent. Appeal from the District Court of Lyon County ; Hon. W. A. Randolph, Judge. Reversed. E. W. Cunningham and C. B. Graves, for the appellant. A. A. Godard, Atty. Gen., and 8. S. Spencer, Co. Atty., for the State. '■',-^|.J#' STATE V. EASTMA'^' 387 nnros It tlio lifiii. folate it till) i'Oll Duster, C. J. This is nn appeil ivom a ju(lf>inont of cun- viction for the failure of the appollnnt as an agent to deliver to liis ciiiploycr on demand money which came to the po9se.ssi( n of llic iiji'ent hy virtue of his agene^'. The statute under which tlio (diiviction Avas had is the last elause of scetion 05, chapter 100, (icucral Statutes of 1897 (Gen. Stat. 1889, § 2220), which rciuls as follows: "]f any agent shall neglect or refuse to deliver to his eni- ])l()\er or employers, on demand, any money, bank hills, treas- ury ni>tes, promissory notes, evidences of debt, or'other prop- city which may or shall have come into his possession by virtue tif such employment, office, or trust, after deducting his reason- iil)le or lawful fees, charges or commissions for his services, un- less the same shall have been lost by means beyond his control Ix'tVire he had opportunity to make delivery thereof to his em- ])]()yer or employers, or the employer or employers have per- mitted him to use the same, he shall upon conviction thereof be ])nnished in the manner provided in this section for unlawfully converting such money or other property to his own use." The principal claims of error arise upon the instructions of the court and upon the coiirt's refusal of defendant's request for instructions. It will be obsen'cd that the above statute does not, in its phraseology, make a criminal intent an ingredient of the offense defined. The court in its instructions omitted to charge the jury that the possession of a criminal intent by the defendant was necessary to his conviction, and on the other hand refused the defendant's request for the following instruc- tion : "An essential element in the crime charged in this case is a felonious intent, and before you can convict the defendant you must find from the evidence that he intended to convert to his own use the money of the prosecuting witness, and to cheat, wrong and defraud him." Other requests for instructions pre- ferred by the defendant applied the theory of criminal intent as an ingredient of the crime charged to the special facts of the case as developed by the evidence. These were all refused. The court erred in refusing to instruct the jury as requested. In The State v. Brown, 38 Kan. 390, 16 Pac. Kep. 259, the de- fendant was prosecuted for the offense of being drunk in a public highway. The defense made was ignorance upon the i 3&8 AMLIIICAN CRIMINAL IlEPOnTS. ])art of the defeiitliiiit of the intoxiciitiii^ fliii meter of the liquor drunk by liiin. Tlio court refused the (U-fenchiiit's offer of evi- dence to show his iguonmee of the intoxientiup; eluirneter of tlic liquor, nnd inistrueted the jury: ''The defeudnnt's ignctrance nf the intoxicnting eharaeter of the liijuor drunk by him, if lie did drink any sueh, is no excuse for any druidienne.Hs resultiii;^ therefrom, if any did so result." These rulings were held to he erroneous. The question principally discussed by the court in its decision of the case was whether ignorance or mistake of fact will excuse the commission of an act otherwise criminal. It was held that it would do so. Some of the re(piests for instruc- tions preferred by the defendant in thi3 case raise again tills identical question. This (]uestion, however, presents only a phase of the broader and m(»re general one — whether intent to do wrong is a necessary element of crime. The general rule, of course, is that a guilty intent is a necessary ingredient of crime, liishop, Stat. Crimes, §§ i;}2, 231, .'351, 302. We do not under- stand it to be disputed in this case as a g(>ncral proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There arc some cases which hold that unless nimlo so by statute a guilty intent is not necessary to the commission of offenses mala prohihila; that is, not inherently bad, only bad because prohibited. Tiie offense charged against the dcfeudiuit in this case is not bad merely because prohibited, but it is malum in se — bad in itself. It is a species of embezzlement, and is classified by the stqjute in immediate connection with the com- mon-law forms of embezzlement, and the punishment ordained for its commission is the same as the punishment for embezzle- ment proper. We feel quite clear that the principle upon which The State v. Brown, supra, was decided applies in this case, and that the court should have instructed as the defendant rc- qnested. The judgment of conviction is therefore reversed, with in- struction to grant the defendant a new trial. PKOPLE r. LAIMC^UE. ZS'J PkoPLK v. LAPIQrK. 120 Cal. 25—52 Pac. Rep. 40. Decided February 3, 1898. EMUEzzr.KMC.NT: Defemlatit'a claim of right, A broker was authorized to get a certain price for property. He sold it for more, paying the specified price to the sel!er and lieep- ing the surplus, under claim that it was his commission, and that he was entitled thereto under the contract. He was con- victed of embezzling three hundred dollars, the money of the pur- chaser. Held, that, in view of defendant's claim, he was wrongly convicted. John Lnjiiqup, conviotcd of eniltozzloinont in tlio San Fran- cisco Superior Court, appeals; Ed. A. Belcher, Judge. Re- versed. Henry E. Highlon, for appellant. W. F. Filzfjcrald, Atty. Gen., and C. N. Post, Dcpty. Atty. Gen., for respondent. The CoiTKT. The defendant has hoen convicted of the crinii' of cnd)ezzlcniont, and, taking the evidence in the record most strongly against him, it may he suhstantially summarized in a few words: Mrs. ^[esplo, owning a lodging house, and desiring to dispose of the same, autliorized the defendant, in writing, to sell it for the sum of $1,150. The defendant informed one Aden that the house could he purchased for $1,450; and Aden, desiring to purchase, gave the defendant $1,450 to pay to the owner as the purchase price. Defendant paid the owner $1,150 for the house, and retained the $300 to himself as commissions for his services. He is now charged with the embezzlement of this $300, the information alleging the money to be the prop- erty of Aden, and the defendant to bo Aden's agent. AVhat- ever might be the legal liability of defendant for this money if litigation were inaugurated for its recovery in a civil action, wo are not here to decide. Indeed, it may be admitted that de- fendant was guilty of a piece of sharp practice. Yet sharp prac- tice may not constitute eml)ezzlement, and we think there is no endjczzlement disclosed by this record. At the trial, defend- ant admitted that he had retained the money, and claimed title ■': is'' 'iff: I 'Ill 1 ; s '■ '. id i u ill. m m 'F, & ^ i M I'f' 1 .t<^ 390 AMERICAN CRIMINAL REPORTa to it. Aiul upon the authority of section 511 of the Penal Cuile we deem l»is claim of title of such a character as to create a good defense to the charge of embezzlement. That section provides; "Upon any indictment for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable." Defendant claims that bv his contract with Mrs. Mesplp he was entitled as commission for his services to any sum in excess of $1,150 that he might obtain for the property. He further claims that Aden authorized him to pay $1,450 for the property, and that under such circumstances, if he was successful in securing the property for a less sum, the difference was his profit upon the transaction. Conceding these claims to be untenable in law, still we do not think the jury was justified in saying by its verdict that defendant's claim of title was not made in good faith. The judgment and order are re- versed, and the cause remanded. Note (by H. C. G.). — It may be observed that in the above case the defendant was not a servant nor an employee of the prosecuting wit- ness, but acted rather in the capacity of a broker or independent agent, and would not be liable at common law, nor under the original stat- utes, of embezzlement, and would only become liable under special provisions of statute. See Commontcealth v. Stearns, 2 Met. 343, one of the leading cases, in which it was decided that an auctioneer was not an agent within the meaning of the statute; that he acted in an independent capacity, agreeing to sell the goods and return to tho prosecutor a stipulated price; that he had a right to mix the proceeds of the sales with the proceeds of other sales and handle as his own; that there was no conversion of the specific property of the prosecute; , he having the right to sell it; that in making sales, he might take in bills larger than the price, and return change of his own money, and might deposit the money in bank in his own name, etc. See also Com- monwealth V. Libbey, 11 Met. 64. In looking for the basis of modern adjudications, we find in the old leading case of Reg. v. Norman, 1 C. & M. 501, that the court said that embezzlement necessarily involves secrecy and concealment. That if the defendant, instead of denying the appropriation, immediately owns it, alleging a right or an excuse, no matter how unfounded it may turn out to be, the case does not constitute embezzlement. In Rex r. Hodgson, 3 C. & P. 422, defendant, who was a coach office clerk, receiving hundreds of items of money per day for passengers and parcels, and whose duty it was to enter the same in a book, and remit weekly, failed to remit three payments; but his book showed he had accurately charged them up against himself. Vaughn, B., said: "This is no embezzlement; it is only a default of payment. If the 1 \i>i'\f ' PEOPLE V. McBRIDE. 391 prisoner regularly admits the receipt of the money, the mere fact of not paying it over is not a felony. It is but a matter of account." See also note to above case, referring to Rex v. Hehh, where it ap- peared from the books of a clerk that he had received more money than he paid out, in which Garrow, B., held that this was not enough, and that it was necessary to prove that some distinct act of embezzle* nient had been committed. In Beaty v. State, 82 Ind. on page 232, the court approved of the fol- lowing instruction as correctly stating the law: "In such cases, an in- tent to feloniously approprfate the property, at the time of the ap- propriation, is essential; and if the appropriation is made upon the be- lief, honestly entertained by the accused, that he has lawful title or right to appropriate it, the act is not criminal." People v. McBeide. 120 Mich. 166—78 N. \V. Rep. 1076. Decided May 9, 1899. Emdezzlement: Admissions by a copartner — Mistake in a draft. 1. Where a firm of lawyers had a note and mortgage for collection, and one of the members was on trial for embezzling the money collected thereon, it was held that the statements of his partner relating to such transactions, made more than a year after the alleged collection was made, were not a part of the res gestw, and were inadmissible. 2. Where a draft was drawn payable to another party by mistalve, but the firm to which defendant belonged received the money, it being intended by the drawer that It should, and he ordering the drawee to pay it to that firm, held, that the draft was properly received in evidence. Exceptions before sentence from the Grand Rapids Superior Court, Eurlinganie, Judge, by James E. McBride, who was therein convicted of embezzlement. Eevcrscd. David E. Bums {John 0. Zahcl, of counsel), for the appel- lant. Horace M. Orcn, Atty. Gen., and Frank 0. Bogcrs, Prose- cuting Attorney, for the People. This is exceptions, before sentence, to review proceedings in which respondent was convicted of embezzlement. The testi- mony on the part of the People tended to sliow that in August, i =1 riJ;*« 392 AMERICAN CRIMINAL REPORTS. y^H||9|19VB IIMH iX 1 1895, the respondent and his son, Edward G. McBride, were co- partners engaged in the practice of Law at Grand Kapids ; that one Frank Lewis during that month left with respondent a note and nioi'tgage made by one Lyons, of Holland, Mich., for col- lection ; that from time to time he made inquiries aboiit the pro^•- ress which was being made, and various reasons were assigned by Edward G. McBride why the money had not been received, until in July, 1897, he learned that the money on the mortgatio had been paid in January, 1S9G, and the mortgage discharged; and that the discharge of the mortgage was not executed by hiui. The people called John A. Seymour, cashier of the Fourth Xa- tional Bank of Grand Kapids, who testified that on the 22d of January, 189G, he paid to respondent a draft drawn on his bank by the cashier of the Holland City Bank, payable to the order of the Fuller & Fuller Company, and indorsed by jMcBride & McBride; that before paying tlie draft ho called up the Holland City Bank for instructions to pay this sum to McBride & ^Mc- Bride. The cashier of tlie Holland Citv Bank Avas called, and testified that he drew the draft in question in payment of tlio money received on collection of the said note and mortgage n - ceived from ]\[cBride & McBride for collection, and by mistake made it payable to the Fuller & Fuller Company (having just previously drawn a draft in this name), and on the 22d of Jan- uary, when !Mr. Seymour called him up, he instructed him to pay the draft to McBride & McBride. The prosecution also showed a demand and refusal to pay it over to the complaining ■witness. The respondent denied having received the money en the draft, and showed that the indorsement of the firm name of McBride & INfcBride was not in the handwriting of either mem- ber of the finn, and gave evidence tending to show that the dis- charge was signed by the eomjilaining witness. Respondent also gave testimony tending to show that on the 22d of January, 189G, he was not aV)le to be at the Fourth National Bank, as he was confined to his house by illness. Grant, C. J. (after stating the facts). The first four assign- ments of error relate to the admission of statements of Edward G. McBride relative to the progress of the collection made from time to time, and the fifth relates to the admission in evidence of PEOPLE V. McBRIDE. 393 a statement by liim that the firm had received a draft, which, on due inspection, they fonnd did not belong to them. Tlie ruling on the last question was not excepted to, but the court, on making an earlier ruling, stated that all testimony of the stute- nionts of Edward G. McBridc was taken subject to excoptic^n. The character of" the testimony admitted against the objections and exceptions noted under the first four assignments may be illustrated by a question put to Albert Lewis, and the answer. The question was: "You may state what Ed. said to you in regard to this note and mortgage." The witness answorc obviate and circumvent this hiatus in the owner's or mas- . ir's t- i)ry right that the statutes of embezzlement were enacted; it w>* i. lance of legislative fiat to infuse into the master the riglit of pobse.?sion to his property, the instant it came into the posses- sion rf his servant or agent. Mi Hup -U al " .^ys, in vol. 2, p. 412 (9th ed.), referring to the English stuiute: "li", thoiofore, a man pay a servant money for his master, the case wilt be within the statute, etc.," and further on he says: "and the effect of this clause is to make the possessioii of the servant the possession of the master, whevever any property conies into his possession within the terms of this clause, so as to make him guilty of embezzlement if he converts it to his own use." Mr. Whartcr says (sec. 1027, Wharton's Cr. L., 9th ed.), "If the case Is larceny at common law, from the fact that the money was taken from the prosecutor's possession, the prosecution for embezzlement fails. It is scarcely necessary, in support of this position, to repeat the statement (from sec. 1009) that the embezzlement statutes were passed, not to touch any cases within the common-law range of lar- ceny, but to cover new cases outside of that range. Hence that which is larceny at common law, from the fact that the goods were taken from the owner's possession, is not embezzlement." In section 1009, referred to, speaking of the cases of servants taking the master's goods before they have come into the master's possession, and of trustees and bailees converting the master's goods bona fide received, he says: "Now, as neither of these cases is larceny at com- mon law, the statutes of embezzlement In no way overlap the old domain of larceny. They were passed solely and exclusively to pro- vide for cases which larceny at common law did not include. Hence nothing that is larceny at common laio is larceny under the embezzle- ment statutes; and nothing that is larceny under the embezzlement statutes is larceny at common law. It is important to keep this in mind, as from missing this point some confusion in construing the embezzlement statutes has been produced." In Kibs V. People, 81 111. 599 (COl), 2 Am. Crlm. Rep. 114, the Su- preme Court of Illinois approved of the doctrine laid down in the fore- going section of Mr. Wharton, and made a literal quotation therefrom. In fact this distinction is inherent in the subject and is generally recognized. In Am. & Eng. Ency. 981 (2d ed.), it is said that "Em- bezzlement is generally regarded as a separate and distinct crime, and i« so treated. Though there are decisions in some States to the con- trary, it is held under most of the statutes that the two crimes do not overlap, but are separate and distinct, and that if the offense is one it PEOPLE V. McBRIDE. 597 cannot be the other;" and in a note it is further laid down that "the weight of authority is clearly in favor of regarding embezzlement as a separate and distinct offense, and that this is undoubtedly the correct law in America," citing numerous authorities. It is because these distinctions are fundamental and inherent that it becomes necessary for the pleader in drawing the Indictment, in adtlition to the charges of common larceny, where he uses them, to also aver the essential facts constituting the embezzlement, viz: (1) that the defendant stood in some fiduciary relation to another, such V.S servant, agent, clerk, treasurer, etc.; (2) that by virtue of such re- lation he received for and on behalf of his employer, or principal, moneys or other specified thing of value; (3) and that he unlawfully (onveited the same, or a portion thereof, to his own use. Tlie using of the statutory words, that the defendant is "deemed guilty of larceny," or of "having stolen" the same, or that he "did steal" the property in question, etc., does not and should not do away with the necessity of pleading those essential facts of the offense. Otherwise the liberty of the citizen would depend upon a purely legal fiction. To simply charge that the defendant feloniously, etc., took, carried away, and stole the property of another, where the real facts were that, in the course of his employment as an employee or agent, he laufuUy collected certain moneys for his employer, and then, after a reasonable time in which to turn them over, or after demand upon him, he unlawfully kept and appropriated them, would constitute as baseless, and yet a far more pernicious and deadly fiction, than the antiquated ghostly spectre that haunts a declaration in trover, at whose venerable dictation the Intelligent but reverential pleader meekly com- plains, that the plaintiff casually lost the chattels, and that the defend- ant found them. Instead of alleging the real facts of detention and con- version. In Commonwealth v. Simpson, 9 Met. 138, It was held that while the statute provided that the embezzler should be deemed to have com- mitted larceny, yet embezzlement was distinct in its character from simple larceny; that a charge of simple larceny would not be sustained by proof of an embezzlement; that the Indictment should allege suffi- cient matter to apprise the defendant that the charge was for embezzle- ment in its distinctive character. Public officers — Public money — Legal authority; property must have a legal status in order to be the subject of embezzlement. — A statute punishing the embezzlement of public moneys by public officers applies only to officers having legal authority to receive and dispose of them. A statute of Nebraska provided for certain fees to be paid to the auditor of the State by insurance companies. Subsequently the con- stitution was amended fixing salaries for executive officers, and pro- hibiting them from receiving any fees, all fees to be paid Into the treasury. The auditor was indicted for embezzling moneys of the State of Ne- braska, to wit: certain fees from Insurance companies, coming into his hands by virtue of his office as auditor. It was held that the constitu- I }ii ;' * i . i i; ! I 398 AMERICAN CRIMINAL REPORTS, tional amendment abrogated those parts of the statutes In oonflict with it, and that, In view of that amendment, the auditor did not recoive any fees In the discharge of his duty nor by authority of law; thai if he did receive any It was wholly outside of his official duty; that such fees were not received for the State; that the State did not and coiiifl not have any Interest in them; and that as far as embezzlement was concerned, he did not and could not thus have embezzlfed the property of the State. That the court was asked to liberally construe the statute so as to effectuate its purposes, according to Its spirit; but that meant to Impair the meaning and spirit of the constitution, which was the fundamental law. Moore v. State, 53 Neb. 831 (1898), 74 N. W. Rep. 319. A de facto officer may he guilty of embezzlement. — The treasurer of Nebraska was convicted of embezzling the State's funds, and one of the errors assigned was that his bond was not approved until six days after the statutory limitation, and therefore should not have been re- ceived in evidence, as he was not de jure the treasurer. It was held that the prosecution was not for the purpose of settling his right to the office, nor the validity of his a(ts; no person had ever raised any contest or question as to his right to exercise the functions of tlie office, so that that question was not directly in Issue requiring a decis- ion. That Inasmuch as he had exercised all of the functions of the office for the full term without objection, it was not good policy to allow him, after the expiration of the term, when there was no ques- tion to be settled, to come in and impeach the legality of his occupancy of the office, when charged with malfeasance In office. That he was any way a de facto treasurer, and whether an officer de jure or de facto, he was bound to honestly perform the duties of the office he as- sumed. Bartley v. State, 53 Neb. 310, 73 N. W. Rep. 744 (1898). Public officers, etc. — There must be a duty imposed and charged, and a felonious violation of that duty. A county tax collector was con- victed of embezzling $371. An instruction was, that if defendant wil- fully omltteu +0 pay over the same, etc., he was guilty. In a well con- sidered opinion this was held to be error, not only because it was based on the wrong section of the statute, but also erroneous in princi- ple. The court reasoned that there must be a duty, which should be charged; there must be somebody to pay over to; and there must be a wilful, fraudulent and felonious neglect and refusal to pay over. The mere omission to pay over the money was not In Itself a crime, for the defendant might retain It as due him for commissions, or on other bona fide claim. It was the wrongful and felonious conversion that constituted the crime. People v. Westlake, 124 Cal. 452 (1899), 57 Pao. Rep. 465. Radical error incurable. — The court held that while the rule is that a defective Instruction may be cured by reading It In connection with other instructions that are correct, so as to make the whole harmon- ize, this does not apply to an instruction that Is plainly erroneous In making a plain statement of an incorrect principle of law. Id. Incompetent evidence. — The successor of the defendant said his at- tention had been called to a certain license book, at settlement, and PEOPLE V. McBRIDE. 309 was asked If he had discovered anything unusual about the book, over objections. The court held that, while the answers were not clear, the evidence was improperly admitted, because it did not appear at what time such settlement was had, nor that the book had ever been in the possession of the defendant, nor where it had been kept, nor that it was in the same condition as when the witness received it; that it might have been in the hands of a dozen different persons after its purported leaving the defendant's hands. Id. Losing saw logs received as taxes is not embezzlement of taxes. — A township treasurer was Indicted for embezzling $700 of taxes, which he was charged to have received. He offered to show that he had taken a large number of saw logs in lieu of taxes, and receipted the taxes aa paid, but that the boom which held the logs went out, and the logs floated away; and he, becoming financially embarrassed, was unable to reimburse the township. This evidence was rejected. The Supreme Court said that it should have been admitted. The statute provided that it was only necessary to make a prima facie case — that the officer, having received money by virtue of his office, failed or refused to pay it, over. The court, however, said that a prima facie case may be re- butted. The defendant was charged with a felony, and should have been allowed to explain his conduct. But could not the defendant show that the taxes were not in fact ever received? The saw logs were not taxes. He had no right to receive them. Receiving them did not discharge the taxes, which were still due; he could not bind the State by receiving them, and however culpable his acts may have been, under the statute, and under the state of facts proposed to have been shown, he was not guilty of having embezzled the taxes charged against him. Taxes can be paid only in money. To take notes or property for taxes, might endanger the existence of the government. People V. Seeley, 117 Mich. 2(53. 75 N. W. Rep. 609 (1898). The assignment of an unmatured obligation is not the embezzlement of money. — The Supreme Court of Connecticut, In State v. Hanley, 70 Conn. 265, 39 Atl. Rep. 148 (1898), passed upon the question of whether the assignment of an order before maturity is embezzlement of the money called for In the order. Defendant Hanley kept a saloon. Episcopo was interpreter and pur- chasing agent for Italian laborers, and owed Hanley ?167 for goods and wares received from the saloon. Abbott Bros, owed Episcopo $230, and Episcopo drew an order on Abbott Bros, for the $230, which they accepted on December 6th, payable December ISth. Episcopo im- mediately turned this order over to Hanley to collect, and, after pay- ing himself the $167, to pay two of his creditors $24, and the balance return to him. Hanley, in his turn, assigned the order to Lowe, an attorney whom he owed, and at maturity Lowe collected the money from Abbott Bros. Hanley was charged with embezzling, as the agent of Episcopo, the sum of $63, being the difference between the amount of the order and the sum which Episcopo owed him. Defendant denied that there was an agreement of agency, and that he was an agent within the meaning of the statute, and claimed also that Episcopo had been paid the balance coming to him; but the ques- }%Wl < 1 ■ ! 'l !! m "n f 1 fi'. 400 AMERICAN CRIMINAL REPORTS. M ' 1m m I tion on which the conviction was reversed was, whether the defendant "did receive and take into his possession" and fraudulently appropriate the money of Episcopo. The court held that until that order became due, Episcopo owned no money in the hands of Abbott Bros, or of the defendant. At the time defendant assigned the order to Lowe, Epis- copo had no money in the hands of Abbott Bros., and consequently de- fendant could not have appropriated his money. Defendant was charged with embezzling |63 in money, whereas this order was a ehoso in action, from which money might be realized in the future. The court said: "The apparent cause of the error lies in the assumption that before the accepted order was due, Episcopo owned 'moneys,' within the meaning of the statute, in the hands of Abbott Brothers; and that these moneys, while in the hands of Abbott Brothers, were in the possession of agent Hanley, and were the subject of embezzle- ment by him as 'moneys' under the statute." It might be added, in illustration of the principle of this case, that the "acceptance" did not purport that the acceptors had the money of the drawer or of any other person, or a dollar of their own, in posses- sion at that time, but that they expected to have money on the day of maturity from some source, — It might be from legacy, bequest or gift, — with which to pay the order. See State v. Johnson, 77 Minn. 267, reported in this volume. Admissihilitp of evidence of contracts and transactions beticeen the defendant agent and his employer was rather clearly discussed in the case of T,.:^er v. State, 117 Ala. 42, 23 So. Rep. 149 (1898). Defend- ant was Indicted for embezzling $210 from the Singer Mfg. Co. He claimed that if credits were allowed him for old machines and other items, including office rent, he would not be Indebted to the company; and offered to prove by the company's agent that he refused to renew the written contract between them unless the company would pay hiu office rent, which the agent promised should be done; also to prove similar promises to pay for repairs of wagons. The exclusion of this evidence was held to be error. Also, it was held to be incompetent for an agent of the company to testify from a written statement of a purported settlement of accounts he had with defendant when such statement was not made In the pres- ence of defendant, or at the time of settlement, but subsequently, from notes. But it was competent for the defendant to show to the com- pany's agent, while testifying, a prior favorable written report to the company, and to ask him if he did not write the report. In its opinion the court said: The court erred in refusing to allow defendant to prove by the wit- ness Walls (who represented the Singer Manufacturing Company in making with defendant the two written contracts of employment) that when the second contract was executed he (witness) stated to defend- ant that the company would pay defendant's office rent, as it had done theretofore, and that defendant refused to sign the second con- tract until he made that promise. The proceeding, of course, was not for the enforcement of the contract between the Singer Company and defendant. It was a public prosecution of a charge of embezzlement PEOPLE V. McBRIDE 401 made against the defendant by the grand jury, wherein the Intent of the defendant, If he appropriated the monoys of his principal, as charged, was the most vital conBideration. If the appropriation vt&n not with the intent to defraud the employer, but was honestly nindo, to pay the office rent, in reliance upon the agent's statement sought to be proven, as the defendant claimed to have been the case as to a part of the funds received by him, it would be manifestly unjust to deny the defendant the right to malortunity to return to the country from which he had been PEOPLE V. WEIR 407 taken. Or, rather, whether the fact of his going to Canada jicnding the Sta+e proceedings deprived him of the immunity he possessed by reason of his extradition, so that he. could not claim it though the jurisdiction of the State courts had not been exhausted ; he had come back to Michigan ; and he had had no opportunity to return to Canada after final discharge from the State prosecution. We are of opinion that, under the circumstances, Cosgrove retained the right to have the offense for which he was extradited disposed of and then to depart in peace; and that this arrest was in abuse of the high process under which he was originally brought into the United States, and cannot be sustained. Final order reversed and cause remanded with a direction to discharge petitioner. People v. Weir. 120 Cal. 279—52 Pac. Rep. 656. Decided March 15, 1898. False Pretenses: Obtaining money from fiancee. Where a man obtained money from a young woman to whom ne was engaged to be married upon specific false statements as to alleged facts, held, that the direct and moving cause that induced her to give her money was the false representations, and not the exist- ence of the engagement to marry; that the latter only put her In a frame of mind to give credence to the former. Appeal from the San Francisco Superior Court; Hon. Will- iam T. Wallace, Judge. Affirmed. Fermi, Wilson tC Terry, for appellant, ir. F. Fitzgerald, Atty. Gen,, and Charles 11. Jaclson, for respondent. Garoutte, J. The appellant has been convicted of the crime of obtaining money imder false pretenses. The facts may be substantially stated in a few words. Appellant was engaged to be married to a young woman. He stated to her that he had the opportunity of securing en^ployment Avith the real estate firm of ]Jovee, Toy & Co., and that as a cou'lition precedent to such employment it was necessary for him to deposit with such firm one thousand dollars in money as security. lie further stated 408 AMERICAN CRIMINAL REPORTa i! iL m that he nodded two hundred dollars to make up that amount, and aflkod her to advance it to him. She did so. His declara- tion as to the employment were false, and likewise his declara- tions as to the need of the one thousand dollars. After obtaiii- inff possession of the money the young woman no longer enjoyp(l liis society, for she never saw him any more. The forogninrf facts are a brief summary of the evidence in the part of tlio prosecution; at least it may he said that the jury, under the evi- dence introduced, was justified in declaring the existence nf such a state of facts. And this state of facts is ample to sup- port the verdict. It is contended upon the part of the defendant that tlip woman loaned him the money because of the engagement exist- ing between them, and not by reason of his reprcscntati di- rect moving cause was the false representations. The engaiiv- uient sim))ly acted as a leaven in placing her mind in that plastic condition in which it would most readily absorb the false reinc- sentations made by defendant. Defendant also stated to tlui prosecuting witness that, if she would advance the two huntlrcl dollars, "they then could be married right away." It is now in- sisted that such statement was the superinducing cause which actuated the girl's mind in parting with the money. Again, we deem this a technicality of small dimensions, and the sngucs- tions already made meet the contention. Under any circum- stances these questions were matters of fact for the jury to de- cide. We have examined the other matters discussed by coun- sel, and have arrived at the conclusion that there is no merit in the appeal. Judgment and order affirmed. Van Flkkt, J., and IIakrison, J., concurred. Hearing in bank denied. B « STATE V. RENICK. 409 State v. Renick. 33 Oreg. 584—56 Pac. Rep. 275. Decided February 28, 1898. Fal.se Pretenses: Cheating by a false token — Distinctions. 1. A man is not a false token; nor does he render liimself one by as- suming a fictitious name. 2, A woman giving money to a man under promise of marriage, who assumes a fictitious name and claims to be single while be has a wife living, does not part with her money by means of a false token. Appeal from Multnomah County (Circuit Court). George Kenick, indicted for obtaining money by means of a false token, etc., demurred. Demurrer sustained, and the State iippeals on a question of law. Iluling below affirmed. C. M. Idleman, Atty. Gen., Chas. F. Lord and E. E. Sewall, for the State. Stott, Boise & Stout, for the respondent (Oral argument by (/. C. Stout.) WoLVERTON, C. J. The indictment in this case charges, in Ptibstance, that the defendant, George Renick, did on the tenth day of Xovembor, 1890, in Multnomah county, Oregon, Avil- fully and feloniously, with intent to defraud, by means of a t'iM'tain false token, to wit, himself, the said George Renick, falsely and fraudulently present himself, the said George Ren- ick, and represent and pretend to one Carrie Meyer, an unmar- ried woman, that he, the said George Renick, was one Charles Smith, that he was unmarried, and competent and in a position to lawfully contract marriage with her, whereas, in truth and in fact, the said George Renick was not Charles Smith, and was not then unmarried, but had a lawful wife then living ; by means of which false token, fraudulent pretense, and false representa- tions, coupled with a promise to marry her, the said Carrie ]\royer, he, the said George Renick, did then and there obtain of Carrie Meyers divers gold coins, of the value of $190. A de- murrer to this indictment was sustained, and the State appeals. It is claimed that the money was obtained by false pretenses, % 4 ml ill: f.VgJK mi I 410 AMERICAN CRIMINAL REPORTa \f-^?> tbrougli and by the use of a false token, and that the use by de- fendant of himself as such false token was sufficient in law to constitute the offense. This presents the only question to be do- terinined. There was a species of cheat or fraud at common law wliicli was effectuated through the \ise of deceitful or illegal synihnls or tokens, such as were calculated to affect the public at hirjix", and against which common prudence could not have guardi'd. It was not sufficient upon which to found the offense if a iiiore privy token was employed, — a counterfeit letter in another i)('v- son's name, or a private check upon a bank in which the drawer had no funds (Lara's Case, 2 Leach, 647, 652), and the like, — not having the semblance of public authenticity or purport! ii{^ to be of public consequence, such as spurious money of the realm or bank notes circulating throughout the community as a me- dium of exchange. But by St. 33 lien. VIII., ch. 1, the obtain- ing goods by means of false privy tokens, counterfeit letters, etc., is expressly made an indictable offense, and this, ^Ir. Bishop says, has now become common law with us. 1 Bisliop, Cr. Law, § 571. But as it regards privy tokens at least, tliis statute has always been considered as creating a new offense. People V. Slonc, 9 Wend. 18. Another species of cheat or fraud at common law Avas accomplished through the false personation of another. 2 Russell, Crimes, 10, 11. Perhaps the commonly accepted definition of a "common-law cheat" is that "it is a fraud wrought by some false symbol or token, of a nature against which common prudence cannot guard, to the injury of one in any pecuniary interest." 1 Bishop, Gr. Law, § 571; 2 Wharton, Cr. Law, § 1116; 5 Am. & Eng. Enc. Law (2d ed.), 1025. But Russell, in his work on Crimes, gives it a wider sig- nification, and defines it as "tlie fraudulent obtaining the prop- erty of another by any deceitful and illegal practice or token (short of felony) which affects or may affect the public." 2 Russell, Crimes, 613. See, also, 1 Bouvier, Law Diet. p. 317. Under this definition, the cheat up^d not necessarily be accom- plished through the use of a symbol or token, and cases are cited by the learned author, in connection with the definition, whieli would seem to support his enlarged concejjtion of it. Some eases are cited by Bishop, as Hex v. Jones, 1 Leach, 174, wherein STATE V. RENICK. 411 an apprentice got himself enlisted as a soldier, and thus obtained a bounty, by professing that there was no impediment; and Jicx V. Hanson, Sayer, 229, wherein a woman was indicted for getting board and lodging by falsely affirming herself to be siiii-le and of the name of Fuller, Avhen she was married and of the name of Hanson. And it is supposed by the author that the bf)V in the one case and the woman in the other were tokens, and ihorofore that those cases were disposed of upon that ground (piilv. But, t\'hen they are looked into, it does not appear that tlic decisions were based upon that theory. Indeed, they are so iiieiigcrly reported that it is difficult to determine what was the c])eeific ground of their disposal. The broader definition of Kussell and Bouvier of a "cheat" at common law would un- doubtedly include the offense, as it was in either instance a de- ceitful practice. In the case of the boy, it was a wilful mis- re])resentation touching his age and apprenticeship; and of the Wdiiian, a wrongful personation of another. Tliere is an old case of Beg. v. Macmiy, G !Mod. 301, wherein it was charged that Macarty, one of the defendants, falsely represented himself to be a broker, and Fordenborough, the other of such defendants falsely pretended to be a merchant, of London, and as such traded in Portugal wines, and that, through such pretensions and representations, they induced one Chown to barter a quantity of hats for a quantity of a spurious and un- wholesome wine, represented to be good and wholesome Portiigal w inc. In deciding the case iipon exce])tions to the indictment, Holt, C. J., says: "The crime is not the selling one thing for {uiotlier, but here is a false token, the one pretending to be a broker and the other a merchant, and a combination to cheat," Ucx V. Hovers, Sayer, 200, is another old case wherein the dc- fciuhint was indicted for falsely assximing to be a merchant, and l)ro(lucing divers coimterfeit commissions purporting to be from ►Spain, and thereby induced another person to extend him credit. T'pon a rule to show cause why judgment should not be arrested, Ryder, C. J., said: "The present case is much stronger than tliat of Reg. v. Macarty, inasmuch as the defendant, besides pre- tending to be a merchant, did produce several paper writings, which he affirmed to be letters containing commissions to him as merchant." Mr. Russell pertinently remarks, of the first of u-i i\ 412 AMERICAN CRIMINAL REPORTS. :' li.. ■■''■'I'l these cases, that the true groimcl of the judgment was that it wan a case of conspiracy, and this was another species of cheat at common law ; and of the second, that the cheat was effected hy means of a forgery, which was in itself a suhstantive offoiisc, indictable at common law. The forgery, if successful, was in- dictable as a common-law cheat. The broader definition alluded to would include these offenses also, without going to the extent of holding that the defendants themselves were tokens. But, whatever may be the nile and definition touching tlio common-law cheat, the statutes of England early began to dis- tinguish between the different species of cheat, and to carve out a distinct offense for obtaining money or property by falsely •personating another. Such an offense has been widely adopted in the American States, and o\ir own statute has made the act punishable. Hill's Ann. Laws, § 1776. The statute has also made it an offense for any person to obtain, or attempt to ob- tain, with intent to defraud, any money or property whatever, by any false pretense, or by any privy or false token. Hill's Ann. Laws, § 1777. The evidentiary matter necessary to sup- poi't a charge under the latter section must consist of a false token or writing accompanying the pretense. Hill's Ann. Laws, § 1372. Construing the two sections together, the crime known to our statute is much the same as that constituted by 33 Hon. VIII., which extended the common-law cheat so as to include one accomplished through the use of a false privy token or coun- terfeit letter. The two offenses are defined, however, and inatie separate and distinct, by statute, so that there need be no longer a question, as under the common law, as to whether, in the false personation of another, the person engaging in the deceit is himself a false token. It is made a crime to so act, and a case coming fairly within the statute, it is thought, could no*- be prosecuted under the section for obtaining money under false pretenses. The case at bar, however, is probably not a false per- sonation, by reason of the fact that the defendant did not as- sume to represent a real personage, but only made use of a fic- titious name, having no application to any one. But it is contended that he is guilty of a false pretense by the use of himself as a token. If that were so, he must be re- garded as a privy token, as his personation was not calculated, STATE V. RENICK. 413 nor was it his purpose, to deceive or impose upon the public in general ; the fraud being an imposition upon an individual only, and not extending to the injury of the public, in the sense of a public cheat. In the Jones Case, 1 Leach, 174, the personation was of a class capable of enlistment in the public service, and the act operated as a fraud in the procurement of public moneys. So, in liex v. Hanson., Sayer, 229, the woman obtained general credit by pretending to be unmarried, thus affecting the public. ]\Ir. Whaiion puts a case: "If a pretender (e. g., Perkin War- licck or the Tichborne claimant) palm himself off on a com- iHunity as another person, and, under the guise of his assumed cliaractcr, obtain credit from the public at large, he is indictable as a cheat, assuming that he imposes upon persons who have no notice that his claims are disputed, and also addresses his im- j)osture to the public at large. The offense is aimed at the pub- lic generally, and is, supposing there is no notice to put the others on their guard, aimed as much at the careful as the care- less. Hence it is a cheat at common law." *'But suppose," says the learned author, a little further on, "the pretender goes sim- jily to an individual, and with that individual uses his pretended character as a basis for getting money, while there is nothing about the pretender's appearance or general reputation to sus- tain such character. In such case, there being no latency, since there is a direct subject tendered to the prosecutor on which to make inquiry, and the fraud being pointed at a single indi- vidual, it is not a cheat at common laAV." 2 Wharton, Cr. Law, ^ 1124. Thus it characterized the distinguishing feature be- tween a token of public import and a privy token or symbol, and the effect of their use in the consummation of the common-law cheat, and it serves as an admirable aid in determining the nature of the supposed token used in the consummation of the offense charged. If, therefore, in the case at bar, the supposed token is a token at all, it should be termed a privy token. But is the defendant himself even so much as a privy token ? AVithin St. 33 Hen. VIIL, such a token was taken to denote "a false mark or sign, forged object, counterfeit letter, ke}' ring, etc., used to deceive persons, and thereby fraudulently get pos- session of property." Black, Law Diet. See, also, note to Commonwealth v. Speer, 2 Va. Cas. 67. Mere words. are neither ■■■ill ■ I 1 !,r 111) »;. F , i I .1 *> I 414 AMERICAN CRIMINAL REPORTS. symbols nor tokens. ITcnco it has boon held tlint one who i.l). tains a credit by falsely representing himself to be in tnidc, and keeping a grocery, nttera a mere falsehood. Comnumircdllh V. Warren, 6 Mass. 72. So, if one falsely pretends to auDtlur that he has been sent by a third person for ^Kiney, and obtains it (licg. V. Grantham, 11 Mod. 222) ; or, in selling a horso he knows to be blind, wilfully represents him to be sound (Shtfp V. Dchjon, 1 Bay, 353) ; or if he knowingly disposes of wrouiilit gold under the sterling alloy for gold of standard weight {Her, V. Bou'cr, 1 Cowp. 323). In these and like cases the defendant but utters a naked falsehood, unconfirmed by symbol or token, and was not within St. 33 Hen. VIII. In the case of Cuinmon- n'calth V. Wairen, supra, the defendant represented his name to be William Waterman, and that he lived in Salem; and tlio court said respecting it that, **if a man will give credit to tlic false^ affirmation of another, and thereby suffer himself to \h\ cheated, he may pursue a civil remedy for the injury, but he cannot prosecute by indictment." Kow, were the representations which the defendant made to the prosecutrix more than wicked falsehoods, under our statute i or may it be affirmed that his presence when uttering the fal-^c- hoods was the exhibition of a false privy token, which imbu-cd her to part with her money and assisted him in consummating the fraud ? It was a matter susceptible of proof and demonstia- tion, upon inquiry, for she was not bound to take his word touch- ing his assertions that he was an unmarried man or that his name was Smith. His physical presence had no tendency to es- tablish the one fact or the other, and was therefore not an ag'Mir, in the sense of a token or symI)ol, in consummating the doc(>]i- tion and accomplishing the fraud. He may have been both a liar, and the symbol of a liar, but he himself, considered as a token, did not colitribute, by reason of his personal ajipearancc, to the deception. By the statutes of England and many States of the Union, the element of a false token or symbol is elim- inated, and the law is broadly east that whoever, by any false pretense, obtains money, etc., with intent to defraud, shall be guilty of the offense. The case of Reg. v. Jennison, 9 Cox, Cr. Cas. 158, is cited, wherein it appears that the defendant was in- dicted for having obtained money from an unmarried woman STATE V. RENICK. 415 on tlio fnlao representation that he was a single ninn, that ho wftiihl furnish a house with the money, and wouM tlien marry licr, and it was held that the false representation that he was not a married man was sufficient to support a conviction for false pretenses. But the authority is nt)t in point, as the ile- ci-sion was made under the enlarged English statutes, and the question of a token did not enter into the controversy, ruder our statute, the pretense must be accompanied with a false token, and the question presented here is whether defendant was hiia- sclf a false privy token. We think he was not. He did not at- tempt to dissimilate anything in existence. There are no per- sonal or physical characteristics known to social science whereby an unmarried man may be distinguished from one that is mai'- ried. So that if a man presents his physical self to another ])orson, and says nothing of his marital state, no one can say whether he at that instant is married or single, from the inspec- tion alone. Testimony must be produced dehors tJie person from which to determine the fact. If he says that his name is Charles Smith, a fictitious character, and that he was immarried, when he had a wife living, this is a mere descriptio po-sonce, and an inspection of the person will neither corroborate nor detract fi'om the statement. If he be denominated a ''token," and that token is false, it is only made so by the lie he has uttered ; his ])hysical existence does not help to establish it. In other words, ho has not assimilated anything of real existence whereby the unwary have been deceived. He did utter a wicked falsehood, and this is a false pretense, but the false token is wanting, and therefore the indictment does not charge a crime. It is neces- sai-y to specify the false token in the indictment (2 Wharton, Cr. Law, § 1129), and this the State has not done. The judg- ment of the court below will therefore be affinned. i t, Note (by H. C. G.). — The distinction between the foregoing cases of Weir and Renick seems to be that, while in the former the question was simply one of straight false pretenses as to alleged existing facts, viz., that the defendant had secured a responsible position and needed the money to enter upon its duties, and thus the sooner marry the prosecuting witness, which was false, she relying upon such state- ments, in the latter case it was a question of a false token, it being charged that the prosecutrix was deceived by a false token and that the defendant himself teas the false token. The idea of the prosecu- 410 AMERICAN CRIMINAL REPORTS. tlon was that, by giving himself a flctltious name, ho 1)oranie a ficti- tious and epurlouB individual — a boyua man, like a bogus coin or bogus instrument. This was a delusion, because his identity waa not thereby changed; he still retained the same personality, and waa nevertheless the identical, genuine Mi. Kcnick that the prosecutrix knew and treated with, and would have recogni/.ed, though he had a hundred aliases. In prosecuting him she did not intend to prosoc uto a flctltious personage, nor a flctltious name, but the actual person she knew. If she was deceived by coming into contact with delendant personally, it was by the actual, real Renick, and not by a false sym- bol, token, image or shadow of him. The theory of the prosecution was antagonistic to its aims, for how could Judgment be executed upon a bogus, counterfeit or mythical Renick? ■^ I 'h % " Wi^ 1 f State v. Wiitdbke. 124 N. C. 796—32 S. E. Rep. 318. False PnETEN.sEs: Future contingencies. False pretenses, to be criminal, must be based on existing facts. A pledge to pay for goods bought, out of the proceeds of a check ex- pected to be drawn in favor of the purchaser in the future, does not come within the statute. J. B. Whidbee, indicted for false pretenses in the Daio County Superior Court; Hoke, Judge. Indictment quasliod, from which ruling the State solicitor appealed. KuHni? .nl" firmed. Faircloth, C. J. The defendant stands indicted fo htnin- ing goods under a false pretense. On July 12, 1897, the de- fendant certified in writing that he had received of Fuk-lior "Twenty-four dollars in merchandise, the amount of my check for the quarter ending October 30, 1897, which check I hereby ])ledge in payment of same." He failed to apply said chock or the proceeds thereof according to agreement. The defendant moved to quash the indictment on the ground that it stated no indictable offense, which motion was allowed, and the State so- licitor appealed. ' There was no error. The offense charged does not fall within the meaning of the Code, section 1027. The fact that the de- fendant did not have, and could not have, the check for the quar- THORPE r. STATE. •H7 tcr Ix'gi ruling August Ist to Octobor 3()tli, was pliiiii nn the faco of the writing, nnd was, or ought to have been, known to tho prosopiitor; and, whatever the motive was, it was not a fraiuhi- lent representation. Suppose the (h't"en(huit had cert i lied on July 12th that he would represent the firm of A. & Co. of New York during the same quarter; there would be no false stah'- nient of an e.xisting fact, and the prosecutor would se-" and know it. Affirmed. TiroRPK V. State. 40 Tex. Crim. Rep. 346—50 S. W. Rep. 383. Decided March 27, 1899. False Pretenses and Swindlixo: Mlscondt'ct of Jurors: Non-reliance on the false pretenses, 1. On every charge of swindling, it must be alleged and proved that the compiainant was induced to part with his money by the false pretenses; otherwise no offense is shown. 2. Where the complainant let defendant have money and took his check, telling him at the time that he did not believe he had a cent in the bank, but that he would give him $5 to catch him and prosecute him, held, that the complainant did not rely upon the representations, and that no offense was shown. 3. It is ground for reversal that Jurors, during their deliberations, discussed the failure of defendant to testify and explain the charge against him; and especially so in this case, where they coilvicted the defendant against the evidence of the prosecuting witness that he did not rely upon defendant's statements. Appeal by R. H. Thorpe from a conviction for swindling, in I ho Grayson County Court; Hon. J. D. Woods, Judge. Ke- versed. Md.ry & Vowell, for appellant. lioht. A. John, Asst. Atty.-Gen., for the State. liKOOKs, J. Appellant was convicted of swindling of prop- erty under the value of $50, and his punishment assessed at con- finement in the county jail for ten days, and a fine of $5, and he appeals. VouXI — 27 '» i K 11 ll '■4 II I ill If* r,u I H its: i ; if Mi U 418 AMERICAN CRIMINAL REPORTS. iS'HI Appellant's first two grounds of his motion for new trial are: (1) iJocause the court erred in failing to give his special charge to the ctfect that the evidence was not sufficient to sustain the charge, and instructing the jury to find defendant not guilty; (2) because the evidence is wholly insufficient to sustain the verdict of the jury. K. L. McAfee testified for the State, in substance: ''About February 4, 1899, in Grayson county, defendant came to me, and asked nie to lend him $5. He then owed me $5 ; and I said to him, 'You owe me $5 already.' lie said, 'Let me have $5 more, and I will give jou a check for $10.' I said to him, 'I think you are a shoit horse, and I don't believe you have a cent in the bank.' Defendant said: 'Mr. McAfee, you ought not to talk to me that way. If I did not have the money I would not say so.' I then said: 'Well, all right; if you tell me you have the money in bank, I will let you have $5, if you will give mo a check for $10.' I gave him the $5, and said, 'ISTow, Thorpe, I have given you this $5, but I don't believe you have a cent in the hank, but I will give you that much to catch you, and, if you haven't this money in the bank, I will catch you and prose- cute you.' I wrote the check, and defendant signed it, and I gave hiu. the $5." The only other evidence introduced was that of the witness F. A. Batsell, who testified that he was the teller of the Merchants' & Planters' National Bank, on whom appel- lant drew the check, and that, at the time appellant gave tlie check to ^McAfee, he did not have then, and has never had, any money on deposit in said bank. The court, in his charge to the jury, very clearly and suc- cinctly' lays down the necessary things to constitute swindling: "(1) The intent to defraud; (2) an actual act of fraud com- mitted; (3) false pretenses; and (4) the fraud must be com- mitted or accomplished by means of the false pretenses made use of for the purpose, — that is, they must be the cause which induced the owner to part with his property. An essential ele- n^n of the offense of swindling is that the party injured must have relied upon, believed as true, and been deceived by, the fraudulent representations or devices of the party accused." Applying this definition to the facts above stated, candor forces us to say that the evidence does not make out a case of swin- e: ge he i7 > 10 hit ^;) THORPE V. STATE. 419 dling, since the evidence fails wholly to show that the prose- cuting witness believed or relied upon the statements of a]ipol- lunt that he had money in the Merchants' k Planters' Xational Bank, and the prosecuting Avitnoss explicitly told appellant that he did not believe he had a cent in the bank; that he (witness) would give appellant $5 to catch him, and, if appellant had no money in the bank, witness would catch him and prosecute him. If the prosecuting witness had relied upon the statements of appellant that he had money in the bank, we cannot see why he pjiould have made the threat against appellant indicated by the evidence; and when he expressly states that he did not believe appellant, and did not believe that appellant had the money, surely this statement precludes the idea that the prosecuting witness was induced to part with his money by the false repre- sentations of the appellant. The indictment must allege, in every case of swindling, and the evidence must show, that the injured party w^as induced to part with his property by means of the false pretenses; otherwise, it is not swindling. AVe do not think the evidence supports the conviction. See Buclcahw V. State, 11 Tex. Crim. App. 352 ; Mailiena v. State, 15 Tex. Crim. App. 473 ; Moore v. State, 20 Tex. Crim. App. 233 ; Blum V. State, id. 578. Appellant's third ground of his motion for new trial com- plains of the misconduct of the jury in discussing the defend- ant's failure to testify. In support of this contention, appel- lant attached to his motion several affidavits. That of Henry Strong, one of the jurors, is, in substance, as follows: "That while the jury was deliberating and discussing the case, before they had reached a verdict, the fact that defendant did not tes- tify was mentioned and discussed by several members of the jury. Affiant cannot give the names of the jurors who so men- tioned the matter, but says the following, in substance, was stated by one or more members of the jury, to wit: That de- fendant had the privilege of testifying in his own behalf, and, if he had any explanation of the transaction in which he gave the check, he ought to have taken the witness stand and testified. To this some other juror replied that his counsel was too sharp for that. And this affiant then said that it was not proper for the jury to discuss the failure of defendant to testify, and that 'kt Mil a 'i ?l I't-P' 420 AMERICAN CRIMINAL REPORTS. it would invalidate the verdict. To which one of the jurors re- plied that he did not believe it, and, after this occurred, the fact of defendant's failure to testify was further mentioned and dis- cussed." The affidavit of W. A. Jaines is also attached, in sul- stance: "That after the jury had considered the case for awhile, and failed to agree on a verdict, some members of the jury saitl, in substance, that defendant had the privilege of testifying in his own behalf, if he had desired to explain about giving the check; that, when this matter v;as menlioned, some of the other members of the jury said that the jury had no right to discuss defendant's failure to testify, whereupon some other members of the jury took the position that the jvu'v did have the right to discuss defendant's faihire to testify." The State filed the attl- davit of W. C. Eads, W. A. James,*^ G. W. Burke, J. F. Smith, Henry Strong, and G. W. Stubblefield, for the purpose of con- troverting the affidavits file(l by a]>pellant, in eifect as follows: "The question of whether the jury had a right to discuss the defendant's failure to testify was mentioned and discussed by W. C. Eads and TIenry Strong. Mr. Eads took the position that the iurv had a right to discuss the fact of defendant not testifv- ing, and ^Ir. Strong taking the position that the jui'y had no such right. This is about all that was said, except some one of the jury remarked that defendant could have told somethiug. The substance of the statement was that he had the privilege of telling that, if he wanted to. Before, however, there was a word mentioned about the jury having the right to discuss the matter, the jury had taken a vote on the question of defendant's guilt, and the jury stood five for conviction and one for ac- quittal ; the one standing for acquittal being Henry Strong, who said that the jury had no right to discuss the qiiestion of de- fendant's failure to testify. The discussion of this matter, nor anvthing mentioned in connection with defendant's failure to testify, nor anything said in reference to the jury having the right to discuss the question of defendant's failure to testify, liad any influence upon our ver,50!).S8, or more than $1,000, hadn't they i A. Yes, sir. Q. llow had they reduced that '^ A. Well, hy remittance. They had made more remittances, but they were drawing out at the same time. Q. Well, now you paid all of their checks, — you honored and paid all of the checks drawn on your bank by the Lord !^Iilling Company from June 10, 1898, to July 1, 181)8, didn't you ? A. Yes, sir. Q. And you also honored and paid all of the checks drawn on you and i)resented at your bank be- tween July 1, 1898, and July 2;}, 1898, didn't you, inclusive? A. Yes, sir." The defendant Johnson, on July 20, 1898, in the usual course of the business of the corporation, drew its check for $150 on the Jiank of Waterville, payable to J. S. Morton & Co., who cashed the check, and the money was \ised in the business of the corporation. This check was pi'csented to the bank for payment July 25, 1898, and payment refused, and on July 28, 1S98, the bank commenced suit against the corporation and at- tached its property. This was the first refusal of the bank to pay the checks of the corporation, and there was no previous communication between them as to the overdraft, except that the cashier sent to the corporation its usual monthly statement on July 1, which showed that the $5,000 note had not been cred- ited on the account, and that there was an overdraft. Two days subsequent to the making of this check the bank cashed eleven checks of the corporation, aggregating $730, and on the third day thereafter it paid a further check of the corporation amounting to $170, and two days after the making of such check the corporation deposited $008 on account with the bank, and between June 10, the time of the making of the note, and July 25, the corporation paid into the bank on its overdraft or note some $1,000. There was only slight, if any, evidence that the corporation was insolvent in fact at the time the check was made. So much for the evidence on the part of the State. The case was dismissed as to Lord, on motion of the prosecu- tion, at the close of the evidence for the State. Both Lord and 11^ E*ir 426 AMERICAN CRIMINAL REPORTS, the defendant testified that their understanding was that the $5,000 note paid the overdraft, and that it was given for some $400 more than the overdraft, so that they would have enougli to their credit to pay their chocks until they made further de- posits ; that the cashier first wrote a note for the exact amount of the overdraft, but, on the suggestion of the defendant and for the purpose stated, the cashier prepared a new note for $5,000, which was executed on behalf of the corporation. This evidence as to changing the amount of the note and the reason therefor was not contradicted by the cashier, nor did he offer any explanation why the change was made, or why the note was finally made for $400 more than the overdraft, if it was taken simply as collateral thereto. The defendant also testified that, at the time he made the check and received the money thei'con for the corporatif)n, he believed that he had a right to do so, and that the corporation had funds in the bank to meet it. It is not clear on the face of the record that the prepondoranco of evidence, on the question Avhcther the note was given to ad- just the overdraft, is not in favor of the defendant. But, assum- ing, as we must, for the purpose of this appeal, that the cashier's testimony on this question is entirely correct, and that there was an overdraft at all times after the note was given, still tho undisputed evidence is Avell-nigh conclusive that the defend- ant had good reason to believe, and did honestly believe, at tho time he made the check in question, that he was entitled to draw it, and that he had no intention of defrauding any one by tho cheek or otherwise. "We are in full sympathy with the suggestions of the attorney- general that business interests must not be jeopardized with im- punity by dead beats and kiters drawing and circulating worth- less checks, but such is not this case. The evidence so abso- lutely fails to shoAV that the defendant made the check and re- ceived the money thereon, Avith intent to defraud, that we should be false to our duty if we failed to set the verdict of guilty aside. It is clear from the course of business between the bank and the corporation that the latter was impliedly authorized to make overdrafts, and that the authority was not revoked until after the check in question was made. The most that can bo claimed from the evidence is that the corporation was to draw STATE V. JOHNSON ET AI* 427 no more checks on the bank, unless the over(lra:'t was reduced. Til is condition Avas complied with, and the bank continued without objection to pay the checks of the corporation after the giving of the note, as it had done before. Two days after the chock in question was made and negotiated, the bank paid eleven checks of the corporation aggregating $730, and throe days thereafter another for $17G ; and the corporation, two days after the check was drawn, deposited with the bank an amount four times greater than the amoimt of the check. These facts are radically ineonsist'^nt with the claim that the defend- ant intended to defraud J. S. [Morton & Co. or any one else when he negotiated the check of the corporation for its use and bonofit. The verdict is clearly unsupported by the evidence, and it is set aside, and a new trial granted. Notes (by H. C. G.). — The pretenses miist he not only false, but fraudulent. — In Rex v. WiUiams, 7 C. & P. 354, Coleridge, J., in sum- ming up said: "Although, prima facie, every one must be taken to have intended the natural consequences of his own act, yet if, in this case, you are satisfied that the prisoner did not intend to defraud Peter Williams, 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 him not guilty. It is not sufficient that the prisoner knowingly slatt'd that which was false, and thereby obtained the malt; you must be satisfied that the prisoner at the time Intended to defraud Peter Williams." Not guilty. In People V. Thomas, 3 Hill (N. Y.). 1G9, Jones gave to Thomas his note due one day after date. Several weeks later Thomas called on Jones for payment, telling him that the note had been burned or lost, which was untrue, and Jones paid the note. Subsequently it was claimed Thomas sold the note. It was held that the pretense was not felonious; that there was no intent at the time to defraud Jones, who merely did his duty in paying the note, and that it was no crime to cheat a man into his duty; that the subsequent transfer of the note after maturity was immaterial, if a fact, and could not injure Jones, if he took the proper precautions. In lie Cameron, 44 Kan. 64, Mrs. Cameron recovered possession of an organ she had sold, and on which there were due payments, under which the organ might be taken, by making several false statements. The court said: "It is not an indictable offense, under the statute, for one to obtain by false statements payment of a debt already due, or personal property to the possession of which he is entitled, because no injury is done." One of the leading cases on this head is People v. Getchell, 6 Mich. 496. Defendant was agent of the prosecutor in running a store, for which prosecutor wois to furnish not exceeding |4,000 at any one time. u i r; I a » 'i 1 428 AMERICAN CRIMINAL REPORTS. and, after paying the prosecutor rent and linuidatinR debts, defend- ant was to have one-half the net proceeds. That amount of capital was never furnished, and defendant was charged with gelling prosie- cutor to indorse a duplicate note for |150 by faise pretenses. A short time after prosecutor toolt possession of the store. The court below would not allow prosecutor to be questioned as to whether he had ac- knowledged himself to be a partner with defendant, or whether h.; had paid debts of the store, or as to statements defendant made tu him regarding the condition of the business, and refused to allow the v.'rlt- ten contract between them, which fully set forth their mutual obliga- tions, to be read in evidence. The court hold all of this to be error; that the gist of the offense was not merely the false statements, but the Intent to defraud, which should have been shown; and that the evidence offered might have disclosed that no fraud was designed, but that defendant was rather seeking to make prosecutor live up to his agreements in meeting the obligations of the business. Failure to perform contract or return money. — A statute to protect employers provided that any person entering into a written contract with his employer with intent to defraud him, and then with like in- tent, and without just cause, refuses to perform the services or return the money, etc., should be punished as for larceny. The defendant agreed to work for the prosecutor for one year at ?9 per month, re- ceiving $20 in advance, and at the end of seven months quit work. It was held that, as the object of the statute was to protect the employer for advances made, he could have done all that the statute contem- plated; that he could have retained from the monthly payments sufB- cient money to have Indemnified himself for the $20; and that the de- fendant was not guilty of defrauding him. Mcintosh v. State, 117 Ala. 128, 23 So. Rep. 608 (1898). ' Drawing a check on a bank scarce of funds not a crime. — Prosecutor testified that, in return for a loan of $20 by a check, the defendart gave him a check on another bank, which was not paid, but did not remember whether defendant told him that he had funds in the bank, and could not say that he cashed the check on such representation, but cashed It because he believed it to be good. From defendant's statements about having cattle at the depot, he inferred that he was a cattle man and that his check was good. The court held that the evidence did not justify a verdict. That drawing a check on a bank that did not have funds to meet it was not a crime, but that there muse be some false representation in fact, some deceitful means and methods resorted to, as that "the party has money In the bank, or that the check will necessarily be cashed, or something of this kind." Blackwell v. State, 51 S. W. Rep. 919 (Tex. Ct. Or. App., 1899). Defective indictments. — Allegations that one of the defendants would indorse certain notes, and assign and transfer them, are not in har- mony with other allegations that the notes were assigned and trans- ferred; the latter terms do not include, and are not synonymous with, indorsement ; the latter might be done without the former. State v. Nine, 105 Iowa, 131, 74 N. W. Rep. 945 (1898). An Indictment was held fatally defective because it failed "to clearly 11 defend- capital PI'OHP- A short below had ac- her he to him V.Tit- obliga- error; Is. but lat the 'I, but to his STATE 1-. JOHNSON ET AL. 420 and specifically allege that the party who parte;! with his goods, or gave the credit, relied upon the representations, and but for said state- ments would not hci/e extended credit or parted with his goods, or similar allegations." Bryant v. Vommonwcalth, 20 Ky. Law R. 790, 47 S. W. Rep. 578. Slate V. Fraker. 148 Mo. 143, 49 S. AV. Rep. 1017 (1899), presents some Interesting points. Fraker was Indicted for an attempt to cheat a life Insurance company by fraudulent practices, It being charged that he obtained a policy and made a '.vlll in one county, and that he fal?oly pretended that he was drowned In another, and that his exec- utor innocently obtained a judgment against the Insurance company in another county. It was held that enough should be alleged to clearly show a completed offense in some one county, and so, definitely set forth the acts. Defendant's pretending to fall Into the Missouri river in one county would not constitute an offense in another county; and the Indictment did not specify to ichom the false representation of pre- tending to fall in the river was made; nor was it alleged that he in- tended that such pretense of drowning should be used to obtain money, etc. Neither was it charged that he instigated the executor to probate his will and collect the Insurance, but it teas alleged that the executor proceeded in good faith. The representations that procured the judg- ment against the insurance company were made by the executor, and not by the defendant, and he would not be held responsible for them, unless it was clearly charged and shown that he Instigated them. Indictment — Insufflcient description. — Some highly appropriate and forceful views are expressed by the Supreme Court of New Jersey in the contemporaneous case of State v. Appleby, 63 N. J. 526, 42 Atl. 847 (1899), on criminal pleading. Indictment for false pretenses. "A large amount of dry and fancy goods of the value of 2,700 dollars," without more, does not describe and designate the property with cer- tainty. It does not inform the accused of the nature and cause of ac- cusation against him, so that he may prepare to meet the charge. It does not clearly identify the offense as the same which the grand jury investigated; neither he, nor the court, could determine that question from such a description. To assume that the defendant would know, outside of the Indictment, the particulars of the charge against him. and that a slight suggestion of a single circumstance would call to his mind the whole affair, is to assume that he is guilty, whereas the pre- sumption of the law is that he is innocent, and perhaps ignorant of the transaction, and therefore compelled to seek in the indictment the information necessary to apprise him of the charge and enable him to properly meet it. Defendant's failure to pay for the goods; prosecutor taking a mort- gage on the goods; and what defendant did with, and said about, the goods obtained, a year after. — On these questions the Supreme Court of Alabama made the following pertinent observations in Meek v. State, 117 Ala. 116, 23 So. Rep. 155 (1898): "We are of opinion the court erred In permitting the State to prove that defendant had never paid for the goods he obtainea. If the of- fense charged was committed at all, it was committed at the time the »!>■ ff i '^^^t <\\ AmM M ( ^ ' iii iiii! 430 AMERICAN CRIMINAL REPORTS. goods were obtained. If they were obtained by means of the fnlso pretense alleged, wltli the Intent at the time to defraud, tho offonHe was complete, and, though the defendant may have afterwards re- pented, and paid for the goods, even on the very day due, he was none the less guilty by reason thereof; and eo convcrso. If, when he obtalnod the goods, he had no intent to defraud, or had not made the alleged false pretense which induced the party to part with the goods, ho was not guilty at all, whether he afterwards paid for them or not, and without regard to whether he afterwards formed a fraudulent intent not to pay for them. (Carlisle v. State, 77 Ala. 71.) "The court permitted the State to prove by the witness Collins that he took a mortgage from defendant at tho time he sold him the goods, to secure the debt. The defendant objected to the proof as being ir- relevant and immaterial, and because the mortgage was not produced, and his objection was overruled, and he excepted. We think the de- fendant is not in a position to allege error in this ruling, for the rea- son that the evidence was beneficial to him, and prejudicial to the State. It furnished evidence to the Jury from which they might have inferred that the sellers were induced to sell their goods in reliance upon the mortgage security, rather than upon the representations al- leged in the Indictment. Unless by some action or ruling, which doen not appear to have occurred, this evidence was perverted to other than its legitimate bearings, we cannot conceive bow it is possible for the defendant to have been otherwise than benefited by its Introduction. ,It would clearly have been admissible evidence for him if he had of- fered it himself as a means of showing an inducement to part with tiie goods, other than that charged. We must hold, however, that tech- nically the State had no right to introduce the mortgage, nor evidence of its contents. It did not tend to prove any allegation of the indict- ment. Nor was it competent for the State to prove the declaration of the defendant at the time of the transaction that he owned the articles of property, though, properly viewed by the Jury, it was likewise bene- ficial to the defendant as going to show that the ownership of the property was the inducement to the firm to sell the goods. "The testimony of the several witnesses as to the efforts to gather up the mortgaged property, and what defendant said and did as to what had become of the property, the next year after the goods were obtained, shed no light upon the inquiry whether he (defendant), with Intent to defraud, falsely represented, perhaps a year before, that 'he lived in Geneva county, Alabama, and was preparing to make a crop In Geneva county for the year 1893,' and by means of such false pre- tense obtained goods, etc." Where the seller retains title to the goods, false pretenses do not apply. — Defendant bought a harvester, giving a note to the sellers in which it was stipulated that the title or possession would not pass from the sellers until the note was fully paid, and that the sellers could, at any time that they felt insecure, take possession of the har- vester, etc. It was held that he was not guilty of obtaining property by false pretenses, since the sellers did not part with the title to the m ill BUHDEN V. STATE. 431 m fnlso offpiise irds rp- as nono litalimd aIleKe:i ho WHH ot, and Intent jtroperty and could resume posflesslon of It at any time; the defendant not even acquiring an unqualified right to the posBeHHlon. State v. AnileraoH, 47 Iowa, 142. Reported la 2 American Criminal Reports, p. 100. Burden v. State. 120 Ala. 388—25 So. Rep. 190. Decided February 11, 1899. Forgery: Indictment — Innocuous tcriting. 1. A writing purporting to give the value of an article, without more, is not the subject of forgery. 2. A writing that does not disclose on its face the necessary elements to injure or defraud cannot become the subject of forgery unless extrinsic facts are alleged, clearly showing such elements, and their connection with the writing. Willie Burden, convicted of forgery in the City Court of Selnia, Hon. John W. Mabry, Judge, appeals. Reversed. Charles G. Brown, Atty. Gen., for the State. Mallory, McLcod & Mallory, for the appellant. The opinion explains the facts. McClellan, C. J. It may be that a writing in the follow- ing words, viz.: "Mr. Holmes, Selma, Ala. — Dear Sir: The value of this chain^s $10.00 (ten)," — is the subject of forgery, under certain circumstances extrinsic to the paper itself. Even this we do not decide, however. But it is most clear that on its face this writing, by whomsoever signed or purporting to be signed, does not create, discharge, increase, or diminish a money liability, or transfer or incumber property, or release or impair an existing claim to or lien upon property ; and if extrinsic facts exist, which, taken in connection with the paper, impart to it a capacity to injure or defraud, they should have been averred in the indictment. Xo such facts are alleged in this indictment, and therefore neither of its counts charges any offense. Rem- hert V. State, 53 Ala. 467; Dixon v. State, 81 Ala. 61, 1 So. Rep. 69; Williams v. State, 90 Ala. 649, 8 So. Rep. 825. The f t f 'I ■■ ;i 432 AMERICAN CRIMINAL REl'ORTS. construction jnit upon tlio words, "or iinv iustruiniMit or writ- ing', being or jmrporf ing to l»e tlic act of nnotlicr," in section 4720 of tli(! Code, would lead to tl'is: that if a man signed tlio name of another to a stalenu'ut diat the earth is rountl, or that tlic moon is made of green ('li(>es(>, or other like entirely innocu- ous assertion, h_v means uf which there is no j)ossiI)ility of any j)erson heing injured or defrauded, ho would he guilty of for- gery. The statute is not open to such interpretation, wo think; and W(( reiterate, with respect to the present form of the provis- ion, what has heeii many tim(>s decdared hy this court: A writ- ing, to he the sid)ject of forgery, must, either upon its face, or hy reason of attendant circumstances, have, upon the assump- tion of its genuineness, a capacity to injure or defraud. The' trial court erred in overruling the dennirrer to the indictment. F'('(l instruinont, and his imnishnicnt assessed at eontiiic nient in the penitentiary for a term of two years, and he ap- pealn. The indietnient eharged Jasper Crawford Avitli ])assin<;, as trne, the followiiiiij forged instrnnient in writing, pnrporting to he the act of another, to wit, the aet of E. P. Eraser, wliieh said false inslninient is to the tenor following: "Mareh the .'ilst, 'itS. y\Y. W. 1*. Williams and Urother — Sir: You will please; let Jasper Craford hav too par of shoes, one pond of to llaker. ] SigiiedJ K. P. Eraser." ^lotion in arrest of judgment w;is iilctl hy appellant on the ground that the indietment did not allinuaf ively show that the said instrmnent alleged to have Imhmi forged ami |)assed was sneh an instrument as, if true, wouhl jiave ereate(l, increased, diminished, discharged, or defeated any pee\iiiiary obligation, etc., and did not, of itself, contain sullicient words as to he complete, without other allegations in the indictment showing such extrinsic matters, and explamitory allegations and innuendoes, as is necessary to make the same sulHcient in law to charge this deftmdant with forgery or pass- ing the sanu! as true. Said indictment should have shown that "W. r. Williams and Jiroth,--," or "W. \\ Williams," men- tioned therein, was a nuM'chant, and had s\u'h goods to sell as were menti(tne(l in said instrument (if such was the ease), an 1 ?s. - 1 J t--J. $Ji^ rflftt 1 y\ *i 4ao AMERICAN CRIMINAL REPORTS. cnniK'ction urged that the doctrine annnnnccd l)y this court in Jiuu.sh V. Stale, 34 Xob. 325, 51 X. W. Rep. 755, and Morcarly V. Slate, 4i; Xcb. 052, 05 X. W. Rep. 784, tliat lo state the in- tent to (k'fraud generally will suffice, is radically wr(»ng, and should be overruled. The deei.sions to which reference is made do not state or ])ublish a rule other than is plainly and clearly, without ambiguity, expressed by the legislature in section 417 of the Criminal Code, wherein it is prescribed in niie(piivocal terms, and with no necessity or room for construction, that: "It shall be sutKcient in any indictment where it shall be neces- sary to allege an intent to defraud, to allege that the party ac- cused did the act with intent to defraud, without alleging an intent to defraud any particular person or body corporate.'' With this in view, we must adhere to the decisions which havo been herein nnide the subject of attack. Tha evidence tended to i)rove that on July 2, ISOS, the plaint- iff in error sold the ticket upon the sale of which the charge in the information was ])redicated lo a "ticket broker" in Omaha. It pur[(orted to be th(> return p(»rtion of an excursidu ticket from Chicago to Council Rluffs and return. There was also evidence that on the same; day the plaintitf in error, in the same city, made (piitc; a numlwr of other sales to different ticket brokers of similar tickets, diifering probably only in the number. Each ticket had a specific nundier. They all ap])eared t(» havo been issuetl by one road. The nicejition of this evidence of the sales other than the one of the ticket declared upon in the informa- tion was assigned for error, and the assignment is now urged. 'J'he general rule is that the evidence of the commission or at- tempt to comnnt a crime similar to the oni; charged is inad- missible. Morgan v. Slate, 50 Xeb. 0!)0, 7 X. W. Rep. 01; Ben/holf V. Slate, 25 Xeb. 213, 41 X. W. Rep. 130; Davis v. Slate, 54 Xeb. 177, 74 X. W. Rep, 590. ]5ut an exception has been (piite uniforndy nuide in trials of some charges, of which is th<' one in the case at bar, where it is necessary to show tho intent or guilty knowledge of the accused. The evidence in this case of these similar acts was not to show that the party charged had conmiitte(l (tther similar distinct crimes, but to bear ujion the (jnestion of his knowledge ef the cpndity f»f his act, and tho intent with which he did it. The acts of sales of tickets by tho >m-t in ^rear/i/ tlie iii- f, and inndo early, n 417 ivnenl tlint: noces- fy jio- tg ill! il-iltC.'' 1 llilVO DAVIS V. STATE. 437 plaintiff in error wore all of one date, of similar tickets, in all j)articular3 so nearly identical as to bo almost connected, an-l -were clearly within the reason of the exception to the general rnle. The pnrpose of, and the effect to be given to, the evidence of the other similar acts slionld have been ontlined and enforced by an instruction. Knights v. State, 56 Neb. 225, 78 !X. AV. Kep. 508. For a statement in regard to the exceptions to the general rnle, sec Roscoc's Criminal Evidence (7th ed.), 92. In its support there is cited K nights v. State, suprn; State v. Eai/- vwnd, 53 K J. Law, 2G0, 21 Atl. Rep. 328; CommonwraUh r. McCarthy, 119 Mass, 354; rievson v. People, 79 X. Y. 424; 1 Rice, Evidence, 453. The count of the complaint of the charge of which the plaint- iff in error was adjudged c^.iilty was in part as follows: "And the said Howard H. Raldridge, county attorney, as aforesaid, upon his oath, and by the authority aforesaid, further gives the court to understaiul and be informed that the said George Davis, on the said 2d day of .luly, in the year aforesaid, in the county of Douglas and State of Xebraska aforesaid, then and there being in said county, and then and there having in his custody and possession a certain false, forged, counterfeited, and falsely printed ticket, ]>urporting to have been issued by the Chicago & Xorthwestern Railroad Company, of the purport, value, aneared on the one ui)on which the complaint was foimdod, the date in the stamp to be that of the issue; that I m ' •! ii 438 AMERICAN CRIMINAL REPORTS. the impress of the stamp appears is evidential of the act of issu- ing the ticket. Whether the impress of the stamp on the back of the ticket herein immediately in question was spurious or genuine was a subject of specific inquiry during the trial, Avas a material fact in the establishment of the charge in the informa- tion ; so much so that it may be said that it was elemental of the accusation, and, if so, it should have been of the description in. the information of the alleged forged and uttered instrument; and, as it was omitted therefrom, the information was not of tho crime of which proof was received, and there was a variance. J! node V. Staie, 5 Xeb. 174; llaslip v. State, 10 Neb. 5'J]. There are other assignments of error, but we deem their discus- sion at this time unnecessary. For the error indicated, tho jutlgment must be reversed and the cause remanded, llcversetl and reuumded. ...t.T WoMiJLE V. State. 39 Tex. Grim. Rep. 24—44 S. W. Rep. 827. Decided March 8, 1898. Forgery: Explanatory averments, when necessary — Evidence. 1. "Where the indictment sets out the alleged forged instrviment as follows: "May 22, 1897, Mr. Brin, Pies let John Womble hame ine thing that he wornt — J. O. Thompson," without any explana- tory averments, held, that the indictment was fatally defective. 2. Evidence that the defendant was generally reputed to be a fool is not competent to prove insanity. Appeal from tho Kaufman County District Court; lion. James E. Dillard, Judge. John Wouible, convicted and sentenced to two years' impris- onment in the ])onitentiavv for attempting to pass a forged in- strument, appealed. Itcverscd. J. D. Cunningham, for the appellant. Mann 'Trice, Asst. Atty. Gen., for the State. V 1 'Henderson, J. Appellant Avas convicted of attempting to pass as true an alleged forged instniment in writing, and his WOMBLE V. STATE. 489 issu- back >iis or was a oriria- of the 1011 iu nont; of the aneo. ISCUS- , tlio crsc'tl puiiLliinciit assessed at confiiienicnt in the penitentiary for a term of two years, and he prosecutes this appeah ^Motion was made to quash the indictment in the court l)elow, on the ground: "First, because it charges no offense against the statute; second, the same is insufficient, because it does not al- lege that said false instrument would have incurred, diminished, discharged, or defeated any pecuniary obligation, or in any iiiaiincr have affected any property whatever; third, the same is insufficient because vague and uncertain, and there are no ex- planatory words showing the meaning of the words used iu the indictment, so as to make sense of the same." The motion was overruled, and appellant reserved his bill of exceptions. The cliarging part of the indictment is as follows: That defendant "did wilfully, knowingly, and fraudulently attempt to pass as true to II. D. Kirsch a forged instrument in writing, to the tenor following: 'May 22nd — 181)7. Mr. Drln, Pies let Joliu Womble hanie iiie thing that he wornt. J. O. Thompson,' — which said instrument in writing the said John AVoinble then and there knew to be forged, and did then and there so attempt to pass the same as true, with intent to injure and defraud." The contention here is that the instrument, on its face, without ex])huiatory averments by way of innuendo, does not import on its face such an obligation as is the subject of forgery. Wo think the objection well taken. Certainly, the use of the worliirl\-s V. Shite, 2b Tex. C'lini. App. 170, though the in- strnnii lit in tlwt case was in plainer terms than that ui)oii which the forgery was predicated in this case, llowrvcr. the rule here enunciated is in accord with lioUlns v. Slate, 22 Tex. Criin. App. niS. In that case, however, there were innuendo aver- ments. This Is apparent from the o]>iiiion, though the indict- inent is not set out. Sec also Kiiu/ r. State, 27 Tex. Crini. App. r)»)7: Siwms v. State, 32 1\'\. Crim. Kep. 277; Daad i\ State, 31 Tex. Crim. IJep. 400; Stiaiiiwn v. State, 109 Ind. 407, 10 m H i ') uo AMERICAN CRIMINAL REPORTS. X. E. Rep. 87 ; Baijuinrjcr r. State, 77 Ala. 0" ; Ilcnnj v. Slate, 35 Ohio St. 128 ; State v. Wheeler, 19 Minn. 98 (Gil. 70). The court dirder signed "Ilusscy" as being the one found in the possession of the defendant. The testimony of Elliott and ^[cAUister re- late alone to the order passed signed C. C. Ilussey, without the word "money" in it, and on which ^McAllister had written, "J*aid to ]|enrv Taekert." Neither one of these witnesses knew what order was found on defendant's person. I'lie Avilness Keys never identified the order found on de- fendant's person. Two orders were in evidence. He was asked, "Look at that paper and see what it is," and answered, "That is the order." What paper? What order? Which one of the two? How can this court tell from such a transcript which one of the two orders was meant ? It was very easy to have had the witness identify the order found on defendant's person, as the one signed "Ilussey," iu such a Avay as would make the record show the identity. Un- less we are to assume, without proof in the record, that the order signed "Ilussey" was the one found in defendant's pos- session, we cannot aflirm this judgment. Judgment reversed, verdict set aside and cause remanded. i«5< ]>t. ■'■Si ti' J 4 f M'W If '« n ■jt § \ V Vj ■ ; 1 \i '■"■ » t'^-j[ 'Xf ^.■K |w is hIT'mIi SliW yljfli M i i ' I * '! ;^ Hi 442 AMERICAN CUIMINAL REPORTS. People v. Biud. 124 Cal. 32—56 Pac. Rep. 639. Decided March 15, 1899. FoRCF.nv: Other forgeries — Opinions of tcitnesses — Burden of proof — Incompetent evidence — Finding of check photographs — Hostility of prosecuting tcitness. 1. Upon the trial of a defendant charged with the forgery of a check, where there Is a conflict of evidence as to the genuineness of the check, the prosecution assumes the burden of proof to connect the defendant with other forgeries to show guilty knowledge; and evidence of other forgeries of checks Is not admissible where there Is no evidence tending to connect the defendant therewith other than the suspicion arising from the fact that de- fendant was the confidential clerk of the prosecuting witness, who did not testify to a knowledge of the defendant's handwrit- ing, and based his opinion that the defendant wrote the checks upon the fact that he did not recollect drawing them, and thought the money had not been used In his business. 2. Evidence that a blank check to which the name of the prosecuting witness appeared to be signed was torn up by him and thrown In the waste basket long after the defendant was arrested, and that it was afterward found in a square desk said to be occupied by the defendant, without further evidence connecting the defendant with the blank or the desk, is Incompetent, and Its admission is erroneous. 3. It is matter within the discretion of the cpurt to require the prose- cuting witness to point out upon enlarged photographs the differ- ence between his signatures alleged to have been forged and thoso admitted to be genuine. 4. A witness may be permitted to state the grounds of an opinion to which he has testified; and such statement Is not objectionable as being necessarily argumentative. 5. The defendant should be permitted to prove that the prosecuting witness had endeavored to persuade one of the sureties on his ball bond to withdraw, as tending to show a degree of hostility and persecuting spirit on the part of the witness, which, in the opinion of the jury, might affect the. value of his evidence. The fact that It already appeared that the prosecuting witness was hostile could not supply the place of such proffered testimony. Appeal from a judgniont of the Superior Court of Los An- geles County and from an order denying a new trial ; Hon. ]J. X. Smith, Judge. The facts are stated in the opinion of the court. PEOPLE V. BIRD. 443 C. W. Pcnillelon, Edwin A. Mcscvvo, and J. L. Copcland, fir the appellant. II'. F. Fitzgerald, Atty. Gen., and Charles II. Jackson, Dep. Atty. Gen,, for the respondent. Tkmi'i.e, J, Defendant appeals from a ju(lp:inent upon a verdict convicting him of forgery, and from a refusal of a new trial. Defendant was emi)loyeil as clerk by G. J. Griffith, and U prosecuted for forging his employer's name to a check on tho First ^'ational l>ank of Los Angeles for two hundred dollars, witli intent to defraud Griffith and the hank. • It was j)roved that defendant presented the check to the bank and obtained the money thereon, and Griffith testified that he, tlie witness, did not draw the check and had not authorized de- fendant to do so; and further, that the money drawn was not u-^ed by him, Griffith, or for his benefit. On tho other hand, (inive, the bank teller who paid the check, and Mr. llannnond, tlie assistant cashier of the bank, both testilied that in their opinion the check was genuine. There being, then, a conflict as to whether the check was genu- ine or not, the prosecution introduced a nmnber of checks, drawn in the name of Griffith on the same bank, which he swore were forgerieSj and had been paid, to his damage in the sum of about twelve hundred and fifty dollars. There was no evi- (1< lice whatever tending to connect l>ird with these forgeries — if they were such. A suspicion may have been suggested that as iJird had drawn the money upon one check, alleged to have been forged, he probably was guilty of the other forgeries, and had been svstematicallv coinmittini'' such forgeries. As he was the cniifideutial clerk of the prosecuting witness, suspiciim would more naturally attach to him. If ])roof had been forthcoming to show the connectit)n of de- fendant with these other checks which were said to have been forged, still such coincidence is not admissible to prove the cor- pus dclicli, but only after that has been established to show guilty intent. And tho prosecution assumed tho same burden of i)roof as to each of the checks introduced to show guilty knowledge as in regard to the check for which he is being tried. People V. M'hilcman, 114 Cal. ^38. W' ^ I m i' a IMAGE EVALUATION TEST TARGET (MT-3) \5^ <; 1.0 1.1 ■tt lU 12.2 ii£ 12.0 -^ Hiotogra[to Sciences Carporation 23 WBT MAM STMIT WHSm.N.V. 14SM (716)t72-4S03 V 4i4 AMERICAN CRIMINAL REPORTS. As to some of these checks, Griffith testified that he believed the signature to be Bird's signature — meaning, perhaps, that he believed that Bird signed his, the witness,' name. He does not say that he knew Bird's handwriting, or why he believed that Bird wrote it. Indeed, there is much to show that his opinion resulted simply from the fact that he did not recollect drawing the check, and diought the money had not been used in his busi- ness. There can be no doubt that the evidence was improperly admitted. Griffith was allowed to testify that he had been handed a blank cheek to which his name appeared to have been signed, which blank he immediately tore up and threw into the waste basket. Upon objection being mado, the district attorney stated that he would follow it by testimony showing where it was found. This occurrence was long after defendant had been ar- rested, and it was not proposed to show that Griffith's name liad been signed to the blank by Bird, or that Bird Lad ever ^een it, otherwise than by showing where it was found. After- ward one Hoyle was sworn and testified, under objection, that he examined the contents of a square-top desk "said" to be the desk occupied by Bird, and found among them the blank check in question. When he found it, or in whose custody the de.*k liad been, or whether others occupied it as well as Bird — if it can bo assumed that Bird did occupy it — was not shown. There was no other testimony connecting Bird with the blank, or with the desk. The evidence was clearly incompetent. There are some other alleged errors, but of less consequence than those already alluded to, and which do not call for ex- tended notice. I think it was a matter within the discretion of the court Avhether Griffith should have been required to j)oint out upon the enlarged photographs the difference between the signatures alleged to have been forged and those admitted to bo genuine. The court also properly excluded evidence as to what ITannnond said to Griffith as to one of the checks, but I think that Gibson should have been permitted to state the grounds of an opinion that it was argiimentative ; also that the defense should have been permitted to prove that Griffith — the prose- cuting witness — had endeavored to persuade one of the siiretios on defendant's bail bond to withdraw. The fact that it already PEOPLE V. BIRD. 445 :iiig appeared that Griffith was hostile did not supply the place of the proffered testimony. If tnie, such evidence would tend to es- tablish a persecuting spirit, and a degree of hostility which, in the opinion of the jui^', might affect the value of his evidence. The judgment and order are reversed and a new trial or- dered. IIexsiiaw, J., and !^^cFAT{I.A^'D, J., concurred. Notes (by H. C. G.). — Altering a deed. — A very important opinion on this question is to be found in Johnson v. State, 40 Tex. Crim. Rep. C05, 51 S. W. Rep. 382 (1899). Defendant and one T. joined in execut- ing a deed of the Johnson homestead to S., and T. inserted, as one of the conditions, that S. should convey certain premises to him (T.), it seeming that T. was guarantor for defendant on some debt. When de- fendant and the notary took the deed to Mrs. Johnson, she refused to sign it until after the said condition was eliminated, and defendant erased it. It seems the title was in Mrs. J. It was held that if the title was in Mrs. J., then there could be no valid deed until after her execution of it. That consideration was not, however, material, for the premises being the homestead, there could be no conveyance with- out her execution and privy acknowledgment, and the erasure having been made before she executed the deed, there was no alteration of a deed, and no forgery. The fact that defendant and T. had already signed and acknowledged the deed cut no figure, because their acts only became valid and binding upon her executing the deed, and her execution could not relate back and restore the erased condition, so as to make it the subject of forgery. A nudum pactum instrument cannot be the subject of forgery. — In People V. Parker, 114 Mich. 442, 72 N. W. Rep. 250 (1897), the defend- ant was charged with uttering, etc., a forged, etc., written order, prom- issory note, writing, etc., as follows: "Canvass of 1896. 428. Name, Stewart-Hartshorn Co. hereby agree to pay, on publication, $05.00 (slxty-flve dollars) for the insertion of 1 page and 1 display heading. Stewart-Hartshorn Co., name of firm, . . . 520 W. Ave. Business, Shade-rollers," — with intent, etc. The court said; "We think it is well settled that to constitute forgery at the common law the forged in- strument must be one which, if genuine, would bind another, and that it must appear from the indictment that such is its legal character, either from the recitals or description of the instrument itself, or, if that does not show it to be so, then by averment of matter aliunde which will show it to be of that character." The court also pointed out that this instrument was not among those designated by law as the subject of forgery; that it did not show an obligation on any one to pay — no consideration as a basis for the payment — silent as to what was to be inserted, what the company was to pay for, and, in short, that it was a nudum pactum, unenforceable at law, and unlnjurious. Repugnant averments. — The indictment charged that the defendant "defaced, altered, forged and counterfeited a certain written receipt. 446 AMERICAN CRIMINAL REPORXa etc." This was held to be repugnant, because, while a counterfeited writing is wholly false, an altered one implies that the original was genuine before it was altered. State v. Bracken, 152 Ind. 565, 53 N. E. Rep. 838 (1899). Repugnant and variant. — The charging clause was that defendant forged an indorsement on a treasury warrant purporting to be the act of "Wm. M. Cooke, Jr.," the warrant being payable to the order of Wm. M. Cook, per W. M. Cook, Jr., and then set out the false indorse- ment as "Wm. Cook, per Wm. M. Cook, Jr.," etc. These clauses were held to be repugnant and variant, because according to the latter alle- gations Wm. Cook was the principal and the party to be bound, Wm. M. Cook, Jr., only acting for him, while in the former the forgery was charged as that of Wm. M. Cooke, Jr. Thulemeyer v. State, 38 Tex. Crim. Rep. 349, 43 S. W. Rep. 83. Uncertain and defective was an indictment that charged the forging of the name of Mrs. Austin, to wit. Sue E. Austin, to an order for fifty cents — witness fees — the order set out purporting to have been signed simply by a "Mrs. Anrtin." State v., Chinn, 142 Mo. 507, 44 S. W. Rep. 245 (1898). Variance. — It was charged that J. N. Webb made a false instrument signed J. N. Webb, J. R. R., and S. B. D. The instrument produced in evidence purported to be signed by S. E. D., J. R. R. and N. Webb. Held, that there was a fatal variance. Webb v. State, 39 Tex. Crim. Rep. 534, 47 S. W. Rep. 356 (1898). Not reptignant. — But where there was a discrepancy between the tenor of the forged instrument as set forth and the indorsement thereon, it was held that there was no repugnance, because the grava- men of the charge was the false maMng of the instrument itself, and not of the indorsement, and the latter need not have been set out. Leslie v. State (Tex.), 47 S. W. Rep. 367. Forging a receipt on a money order is not forging the order. — The indictment charged defendant A. P. Pierce with having forged a United States postal money order, and also that he obtained the money thereon by falsely receipting in the name of R. H. Pierce, the payee. The court held that forging a receipt attached to the order was wholly different from forging the order itself; to establish the latter, it should be shown that he impersonated the postmaster; that the indictment was defective, and that there was a variance between it and the evi- dence, which was that he signed the receipt. Pierce v. State, 38 Tex. Crim. Rep. 604, 44 S. W. Rep. 292 (1898). Tinctured with ambiguity. — The forgery as set out — "Mr. Thomp- son, dear sir, if you please let the negro have some cind of a buggy he is alwrit — . . . — you neants to be afraid of him — . . . — a pair of harness too if you have one — . . . — let hime hove it." Signed "A. J. Hurley" (on the reverse side) . The indictment contained a number of averments explanatory of the latent and patent ambiguities, among which was one stating that Mr. T. was E. E. T., a member of Thompson Bros. Still the indictment was held defective, for it did not appear who composed the firm of Thompson Bros., but worst of all, it did not appear what negro was charged with the offense, and it DUNN V. PEOPLE. 447 ndant lie act ler of dorse- were alle- Wm. was Tex. would not do to assume that It was the defendant. Colter v. State, 40 Tex. Crlm. Rep. 165, 49 S. W. Rep. 379 (1899). Handwriting immaterial. — Defendant was convicted of passing a forged instrument. He had asked for a continuance, among other things, to procure witnesses as to his handwriting. The court held that he was not prejudiced on that score, since the State's case was made out even though the forgery was not in his handwriting. Les- lie's Case, second note, ante. Improper cross-examination. — It was permitted to cross-examine the defendant, on trial for forgery, as to whether he got money from the Loan & T. Co. on the forged check, he not having testified on that sub- ject on his direct examination. This evidence, it was held, was a part of the prosecution's case, and it had no right to make the defendant supply its deficiencies. People v. Dole, 122 Cal. 486, 55 Pac. Rep. 581. Evidence of passing under assumed names, and of having been ar- rested for drunkenness, was held to have been inexcusably admitted against the defendant on trial for forgery. Whatever may be the rule as to cross-examining the defendant as to his prior conviction for fel- ony, it cannot be allowed that such disparaging evidence may be given in chief. The defendant cannot be required to defend against any- thing but the specific charge against him. People v. Arlington, 123 Cal. 356, 55 Pac. Rep. 1003 (1899). Dunn v. People. 172 111. 582—50 N. E. Rep. 137. Decided April 21, 1898. Homicide: Several dying declarations — Impeachment of same — Same not to be taken into jury room — Judge acting as examiner of tvit- nesses — Exclusion of evidence — Remarks by the court — Instruc- tions. 1. Where a dying declaration is reduced to writing and signed by the declarant, the writing is the best evidence of such declaration; but the fact that a dying declaration has been reduced to writing does not preclude evidence of oral dying declarations made at other times. 2. In criminal prosecutions the People are not restricted to proof of a single dying declaration, but such declarations. If otherwise admissible, may be proved as made from time to time. 3. Section 55 of the Practice Act (Rev. Stats. 1874, p. 781), which provides that papers read In evidence, other than depositions, may be taken by the jury upon retirement, is applicable to civil cases only. 4. The mode of procedure in criminal prosecutions is governed by division 13 of the Criminal Code, section 8 of which provides Si 'wr 448 AMERICAN CRIMINAL REPORTS. that trials for criminal offenses shall be conducted as at common law, except as otherwise provided by the Code. 5. Following the common-law rule, the jury, in criminal cases, may, upon retirement, take such books and papers which have been produced in evidence as the trial Judge, In the exercise of sound discretion, shall direct. 6. Permitting the Jury, upon retirement, to take a written dying dec- laration against the defendarl is an abuse of the trial court's discretion, where the defendant's evidence was oral only, and contradictory of the declaration, which constituted the principal evidence agaiiist him, and where the declaration contained pas- sages in brackets which the court has ruled as inadmissible, though the Jury were orally directed not to consider them. 7. A dying declaration against a defendant indicted for furnishing a drug to the deceased to produce an abortion may be impeached by contradictory statements, made by the deceased either before or after the abortion, even though such contradictory statements were not made in extremis. 8. Though within the power of the trial Judge, in criminal cases, to propound pertinent and properly framed Questions to a witness, yet the examination of witnesses is the more appropriate func- tion of counsel, and instances are rare and the conditions excep- tional which will Justify the trial judge in conducting an ex- tended examination of a witness, and a sound discretion will seldom deem such course advisable. 9. The action of the trial court in propounding questions to witnesses will not be reviewed on appeal, nor, the record consulted to de- termine whether such questions were leading or suggestive, where the objections by counsel fail to specify the grounds thereof, being merely general in character. 10. Instructions which take from the jury t*'e controverted question whether the accused furnished a certa. drug to the deceased which produced an abortion resulting in her death, as charged by her dying declaration, and which invite them to find the ac- cused guilty although they believe some other person committed the crime, provided they believe the accused advised or encour- aged it, are prejudicial, where there is no evidence of the latter condition of affairs. "Wri c of error to the Circuit Court of Pike County ; the Hon. Jefferson Orr, Judge, presiding. Reversed. W. E. Williams and W. H. Crow, for plaintiff in error. WUliam Mumford and Edwin Johnston, for the People. BoGGs, J. At the Xovemher term, 1896, of the Pike circuit court, an indictment was returned by the grand jury charging the plaintiff in error with the murder of one Alice Grimes. At the April term, 1897, of the said circuit court, the cause was DUNV V. PEOPLE. 449 tried, and the plaintiff in error adjudged to be guilty of the charge alleged in the indictment, and his punishment fixed at confinement in the penitentiary for a term of fourteen years. This is a writ of error brought to reverse the judgment of con- viction. The theory of the prosecution was that the said Alice Grimes became pregnant with child, and that the plaintiff in error, with intent to produce a criminal abortion, supplied her with and induced her to take repeated large doses of calomel; that the effect of the administration of the said drug caused a mis- carriage ; and that said Alice Grimes died as the result thereof. Tlie death of said Alice Grimes was fully proven. The evidence that calomel was furnished by the plaintiff in error to her con- sisted wholly of her dying declarations, nor was there any proof that he advised or counseled her to use calomel, other than such declarations. The proof as to her pregnancy and that an abor- tion was produced was her dying statements, together with proof of circumstances which the People insist are corrobora- tive upon the point The circiiit court ruled that the deceased was in such condi- tion, physically ^nd mentally, for a period of seven days prior to her death, that statements made by her were admissible in evidence as dying declarations. Witnesses were produced and allowed to testify to declarations made by her in their presence on four different days, and proof was also made that statements made by her on still another day were reduced to writing and signed by her, and this written statement was produced and read in evidence to the jury. The plaintiff in error objected to the admission of the oral dying declarations on the ground that where such declarations have been repeated at different times, and at one of which times such statements were reduced to writing, only the written statement is admissible in evidence. The court overn.led the objection, and the plaintiff in error ex- cepted, and now urges the ruling of the court as error. The rule, as we understand it to be, is, if the dying statements are reduced lo writing and signed by the declarant, the writing is the best evidence of the statemeiit made at that time, and must be produced or its absence accounted for, but thac the fact that a declaration has been reduced to writing will not preclude evi- VoL. XI — 29 450 AMERICAN CRIMINAL REPORTa i ! i dcnco of unwritten declarations made on other occasions. Whar" ton on Crina. Evidence, sec. 295 ; Bishop on Crira. Pros., sec. 1213; lloehhoimer on Crimes, sec. 184; McClain on Crim. Law, sec. 429, and authorities cited in note g. Nor is the contention of the plaintiff in error tenable that the People arc restricted to proof of the declarations made on one occasion only. Such statements, if otherwise admissible, may bo proven as made from time to time. When the jury retired to consider of their verdict, the court, over the objections of the plaintiff in error, permitted the jury to take the written dying declarations into the jury room for their consideration, and this action of the court is urged as error. Sec- tion 55 of the practice act (Rev. Stat. 1874, p. 781), which pro- vides that papers read in cvIoLiice, other than depositions, may be taken by the jury upon their retirement, is applicable only to civil cases. The mode of procedure to be observed in the trial of criminal cases is governed by the provisions of division 13 of the Criminal Code (Rev. Stat., p. 409). The eighth section of the division (1 Starr & Curtis' Stat. 1896, par. 012, p. 1400) provides that all trials for criminal offenses shall be conducted according to the course of the common law, except when the Criminal Code points out a different mode. Nothing in the said division of the Criminal Code purports to direct what shall be taken by the jury from the bar of the court. The common- law rule in criminal cases was that the jury, when they retired to deliberate on their verdict, should take with them such books and papers which had been produced in evidence as the judge presiding should direct. 1 Bishop on Crim. Proc. (3d ed.), sec. 9S2a; Ilochheimer on Crimes, sec. 250. ^^^lether a writing in- troduced in evidence in a criminal case should be delivered to the jury to be consulted by them in the jury room, rests in the sound discretion and judgment of the court, and it is therefore not error to permit a jury to take a written statement, unless the reviewing court can say that such course was prejudicial to the defendant, and ought not, in the exercise of sound dis- cretion and judgment, have been pursued. The written state- ment in question assimilated so nearly to a deposition that all of the reasons which have by text-writers and coiirts been ad- vanced in support of the view that depositions should not bo sec. DUNN V. PEOPLE. 451 taken by a jury in their retirement may well bo iavokorl as rea- sons why this statement should not have been allowed to go into the jury room. In llaivson v. Curtiss, 19 111. 45G (which was decided prior to the enactment of the section of the practice act which ex- cludes depositions from the jury when in tl^sir retirement), !Mr. Justice Brecso, after forcibly stating the injustice of allowing Avritten testimony to be taken into the jury room, declared that the practice of permitting depositions to be taken out by the jury, cither with or without the direction of the court, was wn ng in practice and shoiild be abolished. This remark of the coui't applies Avith greater force to dying declarations than to dejiositions, regularly and lawfully taken; because, when a dep- osition is taken, ample opportunity is given the adverse party to appear and cross-examine the witness, and thereby expose any errors, bring out suppressed facts which would weaken or qualify the statement, test the truthfulness, recollection, and fairness of the witness, and aid to determine as to the truth of his statements, while no such opportunity is permitted when a dying declaration is reduced to writing. In tlie case at bar, dying declarations of the deceased, made on four occasions other than when the written statement was signed, were repro- duced by witnesses for the State before the jury. The written statement was read in their hearing. They heard no evidence on the part of the plaintiff in error except such as was testified to by witnesses in their presence, and the testimony so produced in behalf of the plaintiff in error was in direct conflict with ma- terial portions of the dying declarations. To deliver the written statement to the jury so they might have it constantly before them during their deliberations, to operate on their sympathies as well as their memory, tended to give a manifest advantage to the People over the plaintiff in error, whose proof was but oral. Ko reason is suggested, nor is any perceived, why the one party should have thus been given an advantage over the other. The circuit court ruled that certain portions of the written statement were not admissible in evidence and not competent for the jury to consider, and ordered these portions to be marked, and orally announced the jury should not consider such marked phrases. It appears from the record these in- Inii |i i 452 AMERICAN CRIMINAL REPORTS. coinpctont phrnscs or words were ninrkoil by being inclosed with brackets. A siniilnr conrsc was pnrsued with reference to dep- ositions which the conrt permitted the jury to take with them in their retirement in the case of llau'S07i v. Curtiss, supra, and in tJie course of the criticism upon such practice this court saiil (pfljj;e 481) : "The jury may or may not have disre/j;ar(U'd tlie marked portions. This cannot be known certainly, as there is no jironf to the point, but it is certainly apparent that they had no other instructions. They were not told, in exi)ress terms, to disregard them. Even had they been thus told, such is our na- ture that by the very command not to regard them curiosity would be aroused to know what they were ; what secret it is the court designs to hide from them ; what tree of knowledge of good and evil, the fruit of Avhich is forbidden to us, and, liko their first parents in God's own garden ])lanted for them, they would phick and eat. It is hunum nature, and mountains of in- structions could not crush it out. Keading and ])ondering these rejected portions, and reasoning with one another why th(>y phould have been excluded, their minds would naturally be im- jiressed by them, and they unconsciously form conclusions from the rejected evidence. Few know the secret and insidious man- ner by wiiich impressions are made on the mind, or how slight the operating cause may be." We think that a sound discrim- inating discretion was not exercised in the matter of ])ormi(ting the written statement to be taken by the jury whon they retired to consider, M'cigh, and determine the testimony. The case as relied u]ion by the People, the proof thereof being the dying declarations aforesaid, was that the plaintiif in error, late in the afternoon on the 2d day of Jiily, 189(5, gave to the iu in nd in snid 1 the I'o is y had IS, to r na- ositv s tlio f,C of like tlioy of in- tlioso thoy ini- fl'OUl nian- ?]if?lit crim- (tin_i( tired villngo on the 20th day of the same month, and hiss counsel pro- pounded to him certain questions for the purpose of hrinji;ing out statements and dechirations which ho alleged the deceaseil made to him during said conversations contradictory to ma- terial portions of the alleged dying declarations. The court ruled such declarations were not admissible in evidence, and in so ruling made, in the hearing and presence of the jury, the fol- lowing remarks: "That is not only objcctionalde, but it oujilit not to be repeated before tlie jury. Such evidence won't dn. If conversations conceived in the fertile mind of a defendant can bo admitted when the woman is dead and cannot refute it, it would render convictions in this class of cases impossible." Counsel for plaintiff in error objected and excei)ted to the ruling and remarks of the court. It is well settled that dying declarations may be impeached by proof of contradictory state- ments on material ])oints, though such contradictory statements were not made in extremis. Bishop on Crim. Proc, sec. 120'J; Wharton on Crim. Evidence, sec. 298 ; McClain on Crim. Law, sec. 431 ; Ilochheimer on Crimes, ]S4. After the evidence for the plaintiff in error (the defendant below) had been submitted and the rebuttal evidence for the People introduced, the court announced that the plaintiff in error might be recalled and allowed to testify as to the state- ments of the said deceased in front of the barber shop on the 11th day of July, and that conversation was testified to, but the court again refused to allow the plaintiff in error to introduce testimony as to the statements of the deceased in the store on the 20th day of July. When the question as to the admissibility of the alleged .state- ments of the deceased to the pla ;.Liff on the 20th day of July Avas before the court, but after the court had made the renuirk thereinbefore set out, it was ordered that the jury be with- drawn, and the plaintiff in error, in the absence of the jury, detailed to the court the conversation which he alleged occurred between himself and the said deceased in his store while other parties, namely, Asa Gheen and Mrs. Pinkcrton, were in the store. As to that the plaintiff in error testified as follows : "The court: What did you say she said to you on the 20th of July ? i 45^ AMERICAN CRIMINAL REPORTa "A. She cnmo up to the store, nnJ she said, *I am us imlc- l)cmlcnt now as you are.' I said, *1 thought you was always as independent as I was.' She said, *I miscarried this morning.' I said, 'Yes; I expect you did.' She said, 'I did.' I said, 'I guess you didn't, did you?' She said, 'Yes; I did.' I said, 'Alice, I know better than that; I know you wouldn't he out here in this mud and wet and rain if you had done anytliing of that kind.' She said, 'Well, I did.' I said, 'My Lordl girl, ain't you got more sense than that?' She said, 'Ohl it won't hurt me.' I said, 'It will.' Then she wanted to know if I wouldn't take her home after lodge. I said, 'No ; I wouldn't go that night for five dollars, the kind of a night it was.' She said, 'Yo\i would if ^Iauut we believe the learneil jiKlj^'e should have proceeded further than merely to give the statute in the al>8tract form, and should have applied the law embodied in such statute to the facts of this case, and instructed the jury pointedly that, if they believed the wcai)on used was not likely to produce death, the jury could not presume that death was desinueil ; and that, before they could convict appellant of either murder or manslaughter, they must believe, from the manner in which said weapon was used, it was evidently intended by np])ellant to take the life of deceased. Shaw v. State, 34 Tex. Crip.i. Hep. 435, 31 S. W. Rep. 301; Iloncywcll v. State, ante, p. 193. Wo furthermore believe that the court's charge on manslaughter shouUl have been directly addressed to the facts proved. The statute makes an assault inflicting pain or bloodshed adequate cause. The evidence here showed that deceased did assault a])- pellant by shoving and kicking him out of the saloon. The court charged generally that anything which was adequate cause to produce anger, etc., was adequate cause; but the salient fact in this case suggesting adequate cause, was the assault of deceased on a]q>ellant, and the court should have predicated a charge of manslaughter on the facts proved on this subject. Fcir the errors discussed, the judgment ia reversed, and the cause remanded. I I ! Davidson, P. J., absent. *^ Sjf l! State v. Prude. 76 Miss. 543—24 So. Rep. 871. Decided January 23, 1899. Homicide: Construction of statute — Unborn child. 1. At common law an unborn child was not a subject of homicide. 2. An indictment, to come within the provisions of section 1157 of the Code of 1892, should show that the means used were such as are by that section declared unlawful. 3. Section 1157 of the Code of 1892 does not apply to an act done by the mother of an unborn child. STATE V. PRUDE. 4GT Appeal from tlio Circuit Court of Pontotoc County; Hun. Eurfone O. Sykca, Judge. Emnm Prude was indictf^d, and, a domurror to tlie indict- niont having been sustained, tie State appeals. AlfiniUMl. ((^opv of section IIT)? of Cr'.'ic of 1892:) Every jHTson who shall administer to any v.Muian pregnant with a quick child any medicine, drug, or substance wliatever, or shall use or em- plov anv instrument or other means, with intent ihcrcliv to dc- stroy such child, and shall theroI)y destroy it, shall be guilty of manslaughter, unless the same shall have been necessary to pre- s('r\e the life of the mother or shall have been advised by a phy- sician to be necessary for such purpose. Wiley N. Nash, Atty. Gen., for the State. Ko appearance for the appellee. Tkrkat,, J. The appellee was indicted for that she '*did fe- loniously kill and slay an unborn quick child of said Emma Prude," etc. The defendant demurred to the indictnient. The court sustained the demurrer and the State appeals. Tliis is not a good indictment at common law, for, by the conunon law, "An infant in the mother's womb, not being in rcium nalura, is not considered as a person who can be killed within the description of murder, and, therefore, if a woman, being quick or great with child, take any potion to cause an abortion, or if another give her any such potion, or if a person strike her, Avhereby the child within her is killed, it is not nmr- der or manslaughter." 3 Russell on Crimes (International ed.), 6; Wharton on Ilom. (2d ed.), sec. 303; Wharton's Am. Crim. Law (Gtli cd.), sec. 942; McClain on Crim. Law, sec. 294; Ahams v. Foshce, GG Am. Dec. 91, note. The indictment, obviously, is not drawn under § 1157, Code of 1892, because the administration of some medicine, drug or substance, or the use of some instrument, with intent to destroy the unborn quick child, is not alleged therein, and because the taking of any substance or the use of any instrument by the pregnant woman herself with intent to destroy the child in her womb is not conveyed by said section. Bishop on Stat. Cr. (2d ed.), sees. 747, 749. Affirmed. II 4CS AMERICAN CRIMINAL REPORTS. 'Ml II P ! ' i 1 i I i t II I Common wKAi.Tir v. Farhkix. 187 Pa. St. 408—41 Atl. Rep. 382. Deiided October 17, 1898. HoMirtDE; Expert evidence — Former attempt and threats — Instruc- tluna — Private detective's interest — Weight of the evidence. 1. Expert witnesses are those possessing knowledge, skill or experi- ence needed to Inform and guide the court and Jury in the par- ticular case; and the question being investigated should be one requiring the aid of such evidence. 2. Exi)ert evidence not necessary to identify stitches in an old pocket- book as having been made by the same person who stitched up another old pocketbook. 3. An undertaker's assistant not competent as an expert witness as to when rigor mortis may have set in, especially when it did not oppear that his attention had been specially directed in that line of observation. 4. Erroneous instruction, attaching too much Importance to the evi- dence of an alleged accomplice 1:> a prior attempt to rob deceased, and to threats; and, although the jury was advised not to be unduly prejudiced thereby, yet the tenor of the Instruction was that such facts raised a probability of guilt. 6. Instruction erroneous, in apparently assuming the identity of the old pocketbook found six months after, from having been mended with a common brand of thread with which a pocketbook of the deceased was alleged to have been mended; which evidence, in the opinion of the court, was tinged with an air of both improbabil- ity and suspicion. 6. The defendant had the right to cross-examine a detective-witnesa of a detective agency as to the amounts and conditions of re- muneration his ogency was to receive from the county employing it, — whether it was working for a fixed price or a conditional one dependent upon conviction, and the like, — as having a bearing upon the interest, feeling, and credibility of the detectives in the matter, and it was error not to allow such cross-examination. Jainos Farrell, convicted of murder in tlio first degree, in court of O. & T. Blair county, appeals. Reversed. JR. A. Henderson, for the appellant. ^YiUiam S. Hammond, District Attorney, for the Common- wealth. Williams, J. The indictment in this case charges three persons with the crime of murder in the first degree, in the kill- ing of one Henry Bonnecke. They are the defendant Frank COMMONWEALTH r. FAKUHLL. 4t;'j Wilson, niul Willinm Dnrnn. Wilson anecially directed to this question, and he frankly stated that he was not an expert upon the particular subject. The sixteenth assignment of error raises another question of the admissibility of evidence. The Commonwealth made a written offer to prove by one Joseph Peddicord "that in 1804 the defendant, with Frank Wilson, William Doran, and the witness, had entered into a combination to rob Bon.iecke; that in February, 1895, the de- fendant and the witness assaulted Bonnecke in his own house, and attempted to rob him, and that the same evening the de- fendant proposed to witness to renew the attack upon Bonnecke, and effect the robbery ; that the uitnt^s declined, and thereupon the defendant swore that he would get Bonnecke's money, if ho had to kill the old man to do so." This offer was limited to no particular purpose, but was made with the idea that it was evi- dence for the purpose of establishing the guilt of the defendant. It was objected to, and both its competency and the admissi- l>ility of the Avitncss were denied. It must be remembered that Bonnecke was killed between the night of the 4th of April, 1805, and the morning of Sunday, the 7th. The defendant could not have reached Altoona earlier than about nine o'clock COMMONV^EALTH v. FARRELL. 471 on Saturday evening, the Gtli of April. It cannot bo said to bo clear that he was there at all on that night. Our question, there- fore, is, do the facts embodied in this offer tnnd to show that the defendant did participate on the night of the Gth of April in the robboi-y and murder of Bonneckc ? A threat to rob would have been admissible to show knowledge or motive on the part of the defendant, but tliere is no legal prcsumptidu that such a threat will be executed, such as relieves the CommonweaUh from the duty to prove tiie fact it alleges, viz. the participation of the defendant in the robbery and killing alleged. The court, however, not only admitted the offer as tending to prove the actual presence at the murder of the defendant, but dnnv the attention of the jury to it as evidence bearing upon this sub- ject. The learned judge said in his charge: "The Conimon- wealth offered evidence which it is alleged points to the guih of James Farrell, the defendant, and proves that he is the nuir- derer, or one of the murderers, of llcnrv Bonueeke. Threats made by Farrell after his unsuccessful attempt t< rob Bonneckc on February 21, 1895, as testified to by Joseph Peddicord, arc relied on by the CommonAvealth as part of such proof. In this connection, however, I would caution you not to attach undue importanco to the fact that Farrell did attack Bonneckc on Feb- ruary 21, 1895. Such fact was properly admissible as part of the res (jestm, or siirrounding circumstances of Peddicord's tos- tiniDny, and as a cii'cunistanco which might point to the proba- bility of Far^'ell's renewing the attempt ; but you must not allow it to unduly prejudice you against the defendant." This was an instruction to the jury that the evidence of the att('inj)tc(l robbery, and the threat to renew it. had been properly nn-eivod, an(]uip]ia as one of those which the murdered man owned and had in his possession at the time of his death. But suppose this be conceded; it by no means follows that the defendant either took it from the nnirdered man, or placed it where it was f back for another trial, we do not pass upon the weight of the evidence in the case. 1. Tbe next ground of error assigned is that the court erred in charging tlie jury the law in relation to voluntary manslaugh- ter. AVe are of the opinion that, under the facts in this case, there was no evidence which authorized a cbarge on the laAv of voluntary manslaughter. "\Vc do not wish to be understood as saying that, if the circumstances were different, that is to say, if there was any proof, or a legitimate inference from the fac: 5 in evidence, that the plaintiff in error slew the deceased as the result of passion founded on sufficient provocation, found in the trespass of the deceased on the property of the accused, the of- fense of which he would be guilty would not be that of volun- tarv nianslauffhter. Everv honucide committed as the resuH of passion is by no means to be chisscd as voluntary manslaugh- ter. A homicide, Avhen done in the absence of malice, and as Hi'" ■ \% I' I J. -■! I I i 1 wm III 1 1 r li! ' ll|j/Br m-^ 476 AMERICAN CRIMINAL REPORTS. tlic result f'f n suddou heat of passion engendered by a provoca- tion sufficient in law to justify the passion, is graded below tho crime of murder, because the killing is then partially excused on account of tho justly-aroused passion. Xor is it always nec- essary, in order to grade the offense as voluntary manslaughter, that there should be an assault upon the person killing, to jus- tify the excitement of passion which induced the homicide. Golden V. State, 25 Ga. 5132; Stokes v. State, 18 Ga. 17. Our Penal Code, § 05, declares that in all eases of voluntary man- slaughter there nuist be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent cir- cumstances to justify the excitement of passion. Assuming, as wo must, under tho evidence, that the deceased was a tres- jiasser on the property of the accused at the time of the homi- cide, under the theory of the State ho was a mere trespasser, without intending to injure the jjcrson or property. Under gen- eral criminal law, neither insulting nor abusive words or gest- ures, nor trespass, nor breach of contract, of themselves, amount to sufficient provocation for an act of resentment likely to en- danger life. A mere tresj>ass on projierty, less than that, to pro- tect which, our Code makes it justifiable homicide to kill tho tresjjasser, may be resisted by any reasonable or necessary force, short of taking or endangering life. Clark's Criminal Law, 145. Jf, in the course of a struggle to prevent such a trespass, by the use of reasonable and necessary force, which the owner is en- titled to us',>, a struggle and combat ensue, then, whether tlia slayer is justified, or guilty of murder or voluntary manslaugh- ter, is to be determined by other rules, not necessary here to be discussed. According to the evidence, there was no attempt to remove the trespasser; but the theory of the State is that tho accused, with malice, or actuated by the spirit of revenge, deliberately shot tho deceased while standing in the yard of the latter, when there was no necessity for him to do so to protect his habitation or family, and no circumstances at tho time to justify a passion which caused him to shoot the de- ceased. The theory of the defendant was that he shot and killed the deceased to jirevent him from entering his house, which he says the deceased was attempting to do, to commit an assault on SMITH V. STATE. 477 the person of his wife. The issue is a clearly-dofinecl one. If tl.^ theory of the defcncUint he supported by the facts, he was not guilty of nny offense, hut was entirely justified. If the theory of the State he correct, then the crime was murder. Under the evidence, there seemed to have been a deliberate shooting on the part of the defendant, not as the result of pas- sion, not in a stniggle; nf)r was there any mutual combat, nor any evidence of an attempt by the slayer to remove the tres- passer from his premises otherwise than by deliberately shooting him doAvn. The evidence in this case is remarkable, not for what the witnesses who went to the house of the accused with the de- ceased say as to the facts of the homicide, but as to what they do not say; and, although three of them were present at the time on the premises of the accused, no clear account is ren- igliod by the jury, in connection with other circumstances, to deter- mine guilt, and is, of itself, no such circumstance as anthurizc,^ the jury to presume guilt. 3. Another ground of the motion for new trial is that tlie court erred in charging the jui'y the provisions of section 73 of the Penal Code, in relation to the homicide of a person where tlie killing must be done in order to save the life of the slayer. It must be apparent that the law of this section of the Coilo is wholly inapplicable to a case of this character. The provisions of this section apply only to eases of mutual combat, where one jierson endeavors, in good faith, to decline any further struggle. To such a person it is only justifiable to slay his adversary after a bona fide effort to avoid all further difficulty. Powell v. Stale. 101 Ga. 9, 29 S. E. Rep. 309. The slayer is protected only in cases in which the provisions of the section apply, when the killing was done as an absolute necessity to save his own lif(>, and only in cases Avhen it appears that the person killed was the assailant, or that the slayer had, in ,n:ood faith, endeavored to decline anv further struggle before he inflicted the mortal woinid. There was no evidence of any mutual cond)at between the deceased and the accused preceding this homicide. On the contrary, the accused Avas in his house, and the deceased on his premises, without the house. There was no evidence of quar- reling between them, nor of any attempt at flight; and the rules which determine the guilt or innocence of the defendant are not to be found in these provisions of law. 4. An exception is taken to the charge of the court which in- structed the jury as follows: "If persons assemble before an- other's house, and actually advance on him, and render it nec- essary for his protection, or make such demonstrations as to excite the fears of a reasonable man that it was their intention to commit a felony on him or some member of his family, he f» > I '1 ' 'A a f ; f ] '1 y,^-' «. I i 4S0 AMERICAN CRIMINAL REPORTS. "would 1)0 justificcl in shooting tliciii ; Iml, if tlicy merely threiiteii to conunit violence, he is not jnstitialilo in shouting until ho luis Avurned thorn v^r."' Wc do not think this is a fair i>roseiitntion of the provisions of our law which afford protection to one who resists an invasion of the house in which ho dwells. Section 70 of the Ponal Code declares that it is justiiialdo homicide for ono to kill a person who, in connection with another or others, nuini- fostly intends and endeavors, in a riotous and tumultuous man- ner, to enter the habitation of another ft»r the i)urposc of as- saulting or oiTering ])ersonal violence to any person dwelling or being therein. It was held in the case of Ihtihjins v. Siafc, 2 (la. 1T;5, that this provision of the Ponal Code does not npply to a single individual, but contemplates the joint action of two or more persons, and that under this section the killing is jus- tifiable when the assailant designed entering the habitation for the purpose of assaulting, or of offering any personal violence to, one of the inmates. So that this case establishes two propo- sitions, — that under this provision of the Code it is justifiable homicide for one to kill another who, in company with some per- son or with otlier pei'sons, intends and endeavors, in a riotous and tumultuous manner, to enter his habitation for the purpf)So of assaulting or offering personal vif . S. Taylor, for the Commonwealth. IIazelrioo, C. J. Appellant was indicted and convicted of the murder of Ilenty Coots in Leslie county, and from the ver- dict and the judgment sentencing him to the penitentiary for life has appealed to this court. It appears that the accused had been confined in the Leslie county jail some months prior to the homicide on a felony charge, — obtaining a gun under false pretenses, it appears, — and had escaped jail. K^o warrant issued for his rearrest, so far as appears from any competent evidence ; but a deputy con- stable and the deceased, with othera, appear to have undertaken his rearrest, and had been looking for the accused in the neigh- borhood where he had been living for several weeks before the night of the killing. On the night of the killing, accused was at the house of two women, where he seems to have frequented, and was unaware of the proximity of the officer or his posse, as he was sitting by the fireside with a child in his lap, but with his gun in easy reach. Suddenly Turner, Coots, and some four others charged upon the house, guns and pistols in hand, and broke open the door, without warning or notice, and with their PENNINGTON v. COMMONWEALTH. 483 giiiis prpflcntccl. Two shots wore fired nlinost si. ultniiooiisly, niid Coots fell mortally wounded. One of the shots was lii-od by nccuaed, nnd the other by sotno one of the attneking party. The accused escaped, but was shortly afterwards arrtstod in ]Vrry county. Turner had been an officer only n short while, having been appointed deputy constable by an order of the county court, as is now permitted by the statute; but there is no evidence conducing to show that the accused know he was such a deputy. He did know, however, that Turner and Coota had l)een looking for him, and it is probable ho knew that tho attack was made by them or others for the purpose of accom- plishing his arrest. The question of such knowledge on his part was substantially submitted to tho jury in the instructions, al- though in an involved and indirect way; but, if ho (we?) as- sume that ho had such knowledge, still there is no instruction whatever limiting the force, or defining the manner in which tho arrest might lawfully be made. Tho court instructed the jury that the officer and his force might break the door and use all necessary force to make tho arrest, but there was no instruc- tion that tho attacking party were to give notice of their inten- tion in making this sudden assault on the house, or that they were to use no more force than was necessary to make the ar- rest. In view of the manner of this attempted arrest, made in the nighttime, and without warning or notice, this limitation of the force to bo used should have been defined in the instnic- tions. On the trial the following extract of the cross-examination of appellant is taken from the bill of evidence, to all of which evi- dence appellant objected : **Q. Were you indicted for anything since then ? A. Yes, sir. Q. What was it ? A. I was charged with killing a hog. Q. Wore yoii convicted on that charge? A. Yes, sir. Q. Well, go on. Were you indicted for anything else ? A. I was indicted hero for taking a gim under false pre- tenses. Q. Were you indicted for anything in any other county ? A. I was indicted once at Salyersville, Ky., for carry- ing concealed a pistol. I was tried and fined. Q. Were you ever convicted and sent to the penitentiary in any other State? A. No, sir." Then follow a number of questions as to whether the accused had ever been indicted in the counties of Knott, n; I m B'7. in cn Wm.y J f \ ' III i 1 L i i Hi i nn 4S4 AMERICAN CRIMINAL REPORTS. Pike, Martin, Breathitt, Perry, and Bell ; the witness answering in the negative to each question. Our statute provides (sec. 597, Civil Code) that a witness may not be impeached by "evidence of particular A\1'ongful acts, except that it may be shown by the examination of a Avitness or record of a judgment that he has been convicted of felony." It follows that the evidence quoted was incompetent, and from its nature it was presumably prejudicial. Such have been the re- peated ruling of this and other courts. Baler v. Commoii- weallh, 20 Ky. Law Eep. 1778 ; Martin v. Commonivcalth, 93 Ky. 193, 19 S. W. Rep. 580; Leslie v. Commonwealth, 19 Ky. Law Rep. 102; Saylor v. Commonivcalth, 17 Ky. Law Rep. 103; Robertson's Kentucky Criminal Law and Procedure, vol. 2, sec. 979 ; Commander v. State, CO Ala. 1 ; Pincl-ard v. State, 13 Tex. App. 478. The witness was also compelled to give, over his objections, the minute details of how he escaped from the jail of the county some months before the killing, and how, after his escape, he had by force taken a gun from the possession of the wife of one Wilson Baker, in Perry county. Thei'c is other objectionable evidence of the same character, but the foregoing will serve to prevent its introduction on any future trial. For the reasons given, the judgment is reversed, with directions to award the accused a new trial, and for pro- ceedings consistent with this opinion. People v. Cakbone. 156 N. Y. 413—51 N. E. Rep. 23. Decided June 24, 1898. Homicide: Two separate convictions of different persons for the same offense — Dying declaration — Inconclusive evidence. 1. Where the evidence against the appellant did not preclude a rea- sonable doubt, and where, subsequent to his conviction, another person was convicted under another indictment for the same homicide, the court of appeals will, under its power conferred by section 528 of the Code of Criminal Procedure, in a capital case, review the evidence and order a new trial. 2. The evidence is analyzed and held not to be conclusive. PEOPLE V. CARBONE. 4S5 Appeal by Angolo Carbonc from a judgment of tlie Supreme Court at a trial term in Xew York county, convicting him of murder in the first degree. Reversed. Ilal Bell and Ambrose H. Purdy, for the appellant. James D. McClelland and Charles E. Le Bwrhlcr, for re- spondent. Per Curiam. The defendant was charged in the indictment with the crime of murder in the first degree, committed upon one ^Natele Brogno, in the evening of September 12, 1897, in the city of Xew York. Upon his arraignment he pleaded not guilty. A trial being had, he was found guilty, as charged in the indictment, upon the verdict of a jurj'. The evidence ad- duced by the People showed that, upon the evening in ques- tion, the defendant was first seen pursuing the deceased upon Leonard street, in the direction of Center street. lie was seen to strike at the deceased with his fist, and the latter fell to the ground upon his face. The defendant then jumped upon his back with his feet, and, bending down, again struck him several times with his clenched hand. Several police officers came up, and the defendant was seized. The deceased, being raised from the ground, was seen to have been stabbed in the abdomen, and to have been cut upon one of his wi'ists. He died within a very few minutes after the occurrence. Prior to his death, upon being asked, in the presence of the defendant, if he was the man who stabbed him, the deceased answered, "Yes." When further asked what the defendant had stabbed him for, ho had already become unconscious, and was unable to answer. The defend- ant was searched, but no weapon was found upon him. Some time aftenvards, however, a small penknife, with an open blade, \ . s found at or near the spot where the deceased had fallen. After the deceased had stated that it was the defendant who had ?tabl)ed him, the latter Avas asked why he had done so, and he replied, denying the stabbing, and denying that he had any knife. The examination of the body of the deceased, made by the ambulance surgeon and by the coroner's physician, who made the autopsy, showed the existence of two incised wounds, one upon the forearm, and the other in the abdomen, the latter •i. 486 AMERICAN CRIMINAL REPORTS. of which was the cause of the death. On the part of the defense^ a nephew of the defendant, a boy twelve years of age, testified tlir.t, upon the evening in question, he saw his uncle fighting •with the deceased, and using his fists ; that the latter ran away ; and that, while he was so running, one Alexander Ciarmello canie up with a knife in his hand, appearing to be a stiletto of six or seven inches in length, and, while the deceased was look- ing back over his shoulder, struck at him twice with the weapon. The witness said that Ciarmello then put the weapon in his pocket, and walked away, and that the deceased, afteir running some 200 or 300 feet further, with the defendant in pursuit, fell down. The coroner's physician, upon being recalled on behalf of the defense, testified, upon being shown the knife which was picked up at or near the place where the deceased fell, that it was absolutely impossible for it to have caused the wound in tho abdomen; that it was too short. The district attorney states in bis brief, and it was admitted by him in open court, with com- mendable fairness, to be the fact, that, since the trial and con- viction of the defendant, Alexander Ciarmello was indicted and arrested for the killing of the deceased, and has been tried and convicted of murder in the second degree i.pon the charge, and has been sentenced to imprisonment for life. We are satisfied that this is a case whore justice requires a new trial, and that we should exercise the power conferred upon us for that purpose by section 528 of the Code of Criminal Pro- cedure. While the peculiar situation which is presented moves us to exercise this power, we also think that the case of the Peo- ple cannot be said to have demonstrated the fact of the killing of the deceased by the defendant beyond a reasonable doubt. That fact and the fact of the death of the person alleged to have been killed are essential to be established by the People upon such an issue, — the latter by direct proof, and the former be- yond a reasonable doubt. Penal Code, § 181. None of the witnesses for the People saw a knife or any weapon in the hands of the defendant, and none was found as the result of a search iipon his person ; while the small knife which was found upon the spot could not possibly have inflicted the wound, according to the testimony of the People's witness, the coroner's physician, who performed the autopsy. There was nothing in the evidence PEOPLE V. COREY. 487 adduced on behalf of the prosecution, showing what had oc- curred prior to the moment when the deceased was seen running in Leonard street, pursued by the defendant; and Avhile, from the statement of the deceased and the other circumstances, an inference was possible that he had come to his death by a wound intentionally inflicted by the defendant, yet the evidence is not of such a nature as to preclude us from holding that it wa's lack- ing in conclusiveness. Therefore, under the circumstances, and in view of the admission of the district attorney, we think that the case is one for the exercise of our power to order a new trial, and that it is required in the interest of justice. The judgment of conviction should be reversed, and a new trial ordered. All concur, except O'Erien, J., absent. Judgment reversed, etc, m People v. Cokey. 157 N. Y. 332—51 N. E. Rep. 1024. Decided November 22, 1898. Homicide: Judicial Misconduct: Mistaken as to evidence — Misstating evidence to jury — Dying declarations — Evidence — Reviewing er- rors without exceptions — Instructions. 1. Evidence considered, and while not conclusive as to murder in the first degree, still the verdict was not unwarranted. 2. It is not the prerogative of the judge to tell the jury what evidence a witness gave on a former trial. 3. Where a witness for the People was making damaging admissions as to her testimony on a former trial, which tended to discredit her, it was error for the trial judge to interfere and stop defend- ant's counsel, and ask the witness how she "understood it," and, turning to the jury, ask them if they heard her say certain things; and further to interfere a second time and say that he took the position that she did so testify on the former trial, and that the minutes so show, etc., and that he would not spend any more time to hunt up that testimony; whereas the judge was mistaken, and neither the minutes nor any other evidence sup- ported his statements. This action of the judge was character- ized as "an. unintentional but actual perversion of the witness' testimony under circumstances calculated to help the People and hurt the defendant." >i a ■ I^M ™fl 4S8 AMERICAN CRIMINAL REPORTS. 4. The constitutional provision that the accused be confronted with the witnesses against him refers to living ivitnesses, and not to dying declaratlbns. 6. It is error to charge the jury that the lacli of hope in dying declar- ants is always sufficient to cause them to speak the truth. There is no such presumption of law, and experience does not demon- strate its correctness. 6. It being in evidence that a principal witness for the State de- clared that he was going to swear tlie defendant to hell, etc., de- fendant's counsel requested an instruction that the jury might consider such declarations in weighing witness' testimony. The court refused this, saying that he had called the attention of the jury to every fact they had a right to consider, whereas he had not Instructed on this particular feature of the evidence. The court's statement was held to be misleading and prejudicial; and further, the jury should have been instructed on this phase of the evidence. 7. Under the provisions of the Code of Criminal Procedure, the court will, in capital cases, consider all material errors, though no ex- ceptions were saved. Appeal by Michael Corey, alias Michael Kelly, from a judg- ment of conviction of murder in the first degree at a trial term of the Supreme Court, in ^ladison county; and also from an order of said court in which his motion for new trial was de- nied. The defendant appealed from a previous conviction before the same justice, which was reversed for errors which did not develop at the second trial. (148 X. Y. 47 G.) Albert 0. Bvujrjs and John E. Smith, for appellant. M. II. Klley, for the respondent. < Vann, J. The defeudant was indicted for the murder of James George, an Indian, on the 27th of September, 18!>4, at the house of Orson Webb, in the town of Eaton, ]^[adison county. This house was a shanty, twelve or thirteen feet l)y si.xtecn, rudely built of boards nailed to four posts set in the ground, and covered with the same material. It had no cellar or founda- tion, and the rough plank tloor had numerous apertures. There was but a single room, with no partitions, but one door, which was on the south side, and near the southwest corner, and but one window, which was on the west side. The' structure was situated in the woods, remote from a highway, and was reached PEOPLE V. COREY. 489 'g- by a path leading through a pasture. At the time of the affray an okl stove stood opposite the door, and in the northwest corner vas a cupboard made of rough boards. On the south si(k^ of the room, and about four feet east of the door, was a slielf, near which was a butcherknife belonging to James George, thrust in a crack; and on the shelf was a common pockctknifo, Avith two blades, which belonged to one of Webb's chiklren, A table, some chairs, and two or throe old beds resting on the floor, with- out bedsteads, completed the furniture. The beds consisted of straw ticks covered with soiled and ragged bedclothing, and the room and all things in it, including the people, were described by a physician as extremely filthy. In this I'oom Orson Webb, Sarah, his wife, his two daughters, Susan and Libbie, aged re- spectively sixteen and eighteen, and four younger ehildi'cn, be- sides James George and the defendant (ten human beings in all), lived and slept. These persons, with Cora Bennett, a niece of Mrs. Webb, were present when the crime in question is al- leged to have been committed. The defendant was attached to Susan Webb, and had some feeling towards George on accoimt of his attentions to her. Each had recently made threats against the other on her ac- count, although they had slept together, and had worked to- gether in peace that fall. The threats made by George, although loss frequent, were not less significant than those made by the defendant; for, but three or four days before the tragedy, he said that, if the defendant did not keep away from his girl (Susie Webb), he would cut his heart out with the knife that he held in his hand at the time. About three hours before the affray the defendant accepted the invitation of George to eat supper with him, and the two men ate and talked together as friends. During the afternoon Webb and the defendant had been engaged in erecting a woodshed in the form of a lean-to, and banking up the shanty for winter. They had a jug of beer, which Avas consumed by them, with the help of Cora Bennett and Susan and Libbie Webb. After supper, Susan suggested that they have something more to drink, and gave her father a dollar to go and get it. lie went nearly two miles and back, and returned about ei£,ht o'clock in the evening with another jug of beer, containing a gallon, and two pints of whisky. During his 490 AMERICAN CRIMINAL REPORTa absence, Susan obtained from the pocket of George's coatj upon his, suggestion, a pint of alcohol, which, after being diluted with wat?r, was drunk by George, the defendant, and the girls. Half of the beer and whisky procured by Webb was drunk by the same persons, aided by Mrs. Webb. While every person in the room except Webb and the younger children was more or less intoxi- cated, the defendant and George drank the most, and the latter 'vf..' ^^ ' 'nost affected. The party alternated in drinking beer and , ?!.;' dancing during the interval to the music of W^ebb's violii;; jic 1.W0 men being in their shirt sleeves. When "Webb returned with the beer and whisky, Libbie was already asleep on one c " the '■ 1 on the floor, and, as no explanation of the fact was given, it li:- n it difficult to infer why she was overcome by sloep at that early hour. Xo partners were taken nor sets formed for the dance, which was described as a jig or skirt dance, and was performed by ''jumping about and dancing around." After thus drinking and dancing for an hour or more, the orgies culminated in the transaction Avhich is the subject of this appeal. Shortly after nine o'clock Cora Bennett and Susan were sitting or lying on a bed on the south side of the room, and George was sitting beside them. The defendant was sitting in a chair on the west side of the room, south of the window, and Webb and his wife sat north of him. A lamp on the table fur- nished the only light. Webb testified that the defendant said to George, "Why can't you get up and sit in a chair, and not be sitting there on the floor?" and that George replied, "I am doing no hurt here," but finally got up and began to dance with the little girl, Mary. After dancing a short time he crossed over to the west side of the room, where the defendant was sitting, had some words with him, went to the shelf, and stood there with Susan, when the defendant, who was still seated, asked him, "What are you doing there, talking to that girl ?" George replied, "Ain't I a right to talk to this little girl ?" wherfeupon the defendant said, "Xo," jumped towards George, and stnick at him ; but George pushed him off, and the defenclant "dodged down to get under his arm," which was raised, and struck him six or seven times in the side. Mrs. Tyebb swore that during the evening the defendant told her that he did not like the Indian, and that he would have PEOPLE V. COREY. 491 trouble with him ; that later, after the two men had had some words, the defendant jumped up and struck at George, who "guarded his blow off and knocked him back up against the door, and he came back again ; and I did not see what he had in his hand, but he made a motion seven or eight times at his side." Susan Webb stated that, when the defendant spoke to George about sitting on the bed with the girls, George started to get up, but, apprehending trouble, she took hold of his arm, told him to sit down and not have any fuss, whereupon he became quiet. Shortly after that, George went over to the other side of the room, and then came back to the shelf, Avhile the defend- ant remained on the west side. The two men had some words, when the defendant arose from his chair and jumped towards George, who knocked him back against the door, Avhoreupon she saw the defendant make motions towards George as if stabbing him. No other eye-witness of the affray was sworn, and the faihire to call Cora Bennett was not accounted for, except by the suggestion of the defendant's coimsel, that she was confined in a penal institution. The butcherknife was not disturbed, and no one saw either of the men take the other knife from the shelf; but it was seen there just before George passed from the west side of the room to the shelf, and was not seen afterwards. The defendant was not seen by the shelf, after the knife was last seen upon it, imtil he jumped towards George and was* knocked against the door. The evidence tended to show that the defendant's shirt and trousers were badly torn on the oc- casion. The next morning one of his eyes Avas somewhat swol- len, and there was a cut over it from a quarter to a half an inch in length. Xo one saw the knife in the defendant's hands at any time, but after he had made repeated motions towards George, as if stabbing him, George sank to the floor; and the defendant kicked at him, and went out of doors. "Webb, upon discovering that George had been stabbed, followed the defend- ant out and asked, "AVliat did you do with the knife that you cut Jim with ?" and the defendant replied, *I threw it back into the bushes. I only stabbed him with the little blade. It is only a flesh wound. He will get over it." He also said, according to Webb's statement, "AVhen I fight with a man I calculate to whip that man, if I have to kill him." Webb returned to the house. ill 492 AMERICAN CRIMLNAL REPORTS. and, upon examining George, found eight wounds, apparently made witli the bhide of a knife, upon the left side of his body. Six days later George died. The defendant, upon leaving the house, went to an adjoining farm, where he had worked, and stayed all night. The next day, when asked by an acquaintance where he got the cut ove; the eye, he replied that he got into a fight at Webb's the night before, anvill ; and that is why I cut Jim Avith that knife. I meant to kill him, and will, if he ever comes nionkeyina: around again while I am there." Not long after, on being arrested, he asked if George was dead yet, and was told, "Xo," when he replied, ''Well, if he ain't, he ought to be." Eight incised Avounds, such as could have been made by the large or the small blade of an ordinary pocketknife, were found on the body of George, only one of which was fatal, and that not necessarily so. The wound of deepest penetration was less than two inches in depth, so that either the small blade or slight force must have been used in making the wounds. Death re- sulted from blood poisoning caused by the formation of pus in the pleural cavity, whioh was not withdrawn, owing to the un- sanitary condition of things in the Webb house, and the danger of operating without antiseptic precautions. Gcuge was a PEOPLE V. COREY. 403 iviiig the etrong, healthy, ■woll-dcvolopod man, soiiiowliat given to quarrel- ing, especially Avlien under the influence of liquor. Six wit- nesses, acquaintern rijjrht there in that quarrel, — in that fight? A. I think most of it was torn in that way. Q. Did you see this man George after lie had struck Corey? Did you see where he grabbed him, — whether by the sleeves or by the bosom ? (Objected to. Objec- tion sustained.)" But the witness answered: "I didn't notice. Q. Did you observe? A. Xo, sir. (Objected to as in('oui[)e- tent and immaterial. Objection sustained.) Q. Did you ob- serve whether he grabbed him or not? A. No, sir; I didn't. Q. You didn't observe? A. Xo, sir. . . . Q. You didn't observe just whether j\Ir. Corey grappled onto a hold of this man, — you didn't observe, did you ? A. Xo, sir. . . . Q. Y^'ou say you didn't observe whether he grabbed him or not ? (Objected to.) A. Xo, sir; I didn't." The court then re- marked to counsel, "If you are simply talking loud to drown it. fihe certainly said that he didn't grab him at all," and, turning to the witness, asked, "How do you understand it ?" and she an- swered, "He asked if I knew whether he grabbed or not." The court then, turning to the jury, asked, "Did you hear her say that he didn't grab him at all ? Did you hear that, any of you ?" and a juror answered, "I heard that." Upon being further cross-examined, the witness testified that she saw George strike defendant and knock him back against the door, or against the west side of the house, and subsequently she was asked : "Xow, did somebody suggest to you that you keep back this idea that George struck Corey, and that before the former trial, — that you not tell of that ? A. Xo ; I think I told it here, didn't I ? Q. Didn't some one tell you that you could keep that back? That is the fact about it, isn't it, Mrs. Webb? A. I believe there was a person said I wasn't obliged to swear to that, unless I had a mind to, if it wasn't called for. Q. That was before you were sworn the other time, was it ? A. When I was down to the house. Q. Did you keep it back on the former trial ? A. I don't know whether I swore to it at that time or not. I am swearing to it now. Q. Don't you know that you kept it back the other time, and didn't tell it ? Don't you know you did ? A. Yes. Q. You did it on that advice ? A. He said, if it L # ; ( 490 AMERICAN CRIMINAL REPORTS. llii! wasn't call(' you say, Mr. Jiriggs, that she kept it back entirely? I luiderstiind that the minutes show, and my recollection would be, that she did swear that George struck him." Shortly afterwards the court again interposed and said : "The court has taken the posi- tion that she did sweav to it ujKm the other trial. 1 think she is mistaken about it ; I think she is mistaken about her swearing to it; I am not going to spend any time to hunt up that testi- mony; it is my recollection of it, and it is about enougli of i ftir just this time." Except as stated, it did not appear, either by the minutes or in any other way, that the witness so testified upon the first trial. Thus, upon two occasions the learned justice presiding inad- vertently stated his own recollection as to a material fact, and was mistaken both times. On the first occasion the judge f*^at(jd that the witness had sworn one wav, when she had in fact sworn auother. Whether George grabbed the defendant after knock- ing him against the door just before the stabbing took place was important upon the question of deliberation, as it tended to show a struggle and a fight. There is a marked diiTcrenco between stating that George did not grab the defendant at all, and that the witness did not see whether he grabbed him or not; for the former, if the witness was to be believed, took the element of a fight out of the case, to a great extent. The witness had repeat- edly testified that she did not notice whether George gi'abbcd the defendant or not, and she did not at any time testify that George did not grab him at all, yet the justice, with all the Aveight of his hi;,a character and impartial position, declared that her testimony was that "he didn't grab him at all." Upon appealing to the jury for confirmation, one of them stated, in substance, that he heard the witness testify that George did not grab tlie defendant at all. According to the record before us, both court and juror were mistaken, and it is not probable that any one of the other eleven jurors, under the circumstances, PEOPLE V. COREY. 407 MouUl think tlint the cvidciioo of the witness wns other thtin as the court nud the twelfth juror ha''> tlio case in hand. In other words, he allowed the jury to find that in this particular instance the deceased did not speak the truth, notwithstanding the circumstances surrounding him had always been found sufficient to influence other persons so situ- ated to speak the truth. This was equivalent to saying that, if they should find this dying declaration untrue, it would be the first instance on record, yet they might so find if they saw fit. AVe think that the main proposition laid down by the court upon the subject, even when considered with what preceded and followed it, was erroneous and tended to injure the defendant. Evidence was given in behalf of the defendant tending to show that Orson Webb, during his attendance as a witness for the People, had stated that he was going to swear the defendant to hell; that a bystander said, "That is a pretty hard saying for the main witness in the case for the People;" and that Webb replied, "I am going to do it, any way." Webb, in a guarded manner, denied this. The coiirt was asked to charge the j\iry that they had the right to take this declaration into account in passing xipon the weight of Wel)b's evidence ; but the court re- plied, "I have called their attention to every fact that they have a right to take into consideration, whatever he said on the subject connected with the trial." In fact, the court had not in fuy way called the attention of the jury to the subject of the threat made by Webb. He had, however, directed their attention to the evidence tending to impeach and sustain the character of Webb, and, among other things, had said to them: "Xow, of course, it is true that, while it is not always safe, still it is true that there are men who will engage in the commission of petty crimes, and yet you may rely upon their testimony, when that testimony is disconnected with any crime of wliich they ai'e guilty or with which they are charged; and you have the right to take into consideration all the evidence which was given by the witness Stimson, who swears that this man's credit is such that he is fairly entitled to consideration. You have a right to take into consideration tliat when he was arrested for taking cucumbers from some place, where it is claimed that he had had the man arrested for selling liquor to a minor, when he went before the magistrate he confessed his guilt, and that he was convicted. Xow, is such a man as that liable to tell the truth ? f> ';'''i! M !i '^ !3r ii \: I 502 AMERICAN CRIMINAL REPORTa Do you believe what he says ? Gentlemen, yoii have a right to take into consideration the evidence of the balance of the Webb family as to this transaction there at the house, and see whether they corroborate the testimony which he has given. If he is fully corroborated, you have the right to take that into consid- eration for the purpose of seeing whether he is worthy of be- lief. Gentlemen, you have the right, and it is your duty, to take into consideration the character and standing and intelli- gonce and respectability of all the witnesses in the case, from the highest to the lowest." While the court thus submitted to the jury the credibility of Webb in a general way, he did not mention the threat, which was of great importance, because it indicated a strong bias against the defendant. In response to the request made, he did not decline to charge ftirther upon the subject than he had already charged, but virtually stated that he had called the attention of the jury to every fact that they had a right to take into consideration as affecting Webb's credibility. This, we think, was error, because the jury clearly had a right to take the threat into account, and should have been permitted to do so. It is true that none of these errors was challenged by an ex- ception, but, under the humane statute governing ouv j)<)\vers in capital cases, an exception does not stand between life and death. We are authorized to order a new trial when we are sat- isfied that the verdict was. against the weight of evidence or against law, or that justice requires a new trial, even if no ex- ception was taken in the court below. Code Cr. Pro., § 52S ; PeopJe V. Barberi, 149 X. Y. 250, 278, 43 X. E. Rep. 0;]5 ; People V. Leonard, 143 X. Y. 300, 307, 38 X. E. Rep. 372. While we are required to give judgment without regard to tech- nical errors or defects which do not affect the substantial rights of the parties, we cannot say in this case that tlie errors were technical, or that the defects did not affect a substantial right of the defendant. Id., § 542. The great power intrusted to us of reversing without an exception should be cautiously exer- cised, but it was given to be used, and it should be used, when- ever we are satisfied from the record that justice requires a new trial. In the interest of the People, as well as the defendant, it should be exercised when the question of fact as to gni\t, or the Jii PEOPLE V. COREY. 503 degree of giiilt, is close, and there is a reasonable probability that the error affected the result. A multitude of rulings, made without much chance for reflection, during a protracted and closely-contested trial, is apt to result, and perhaps of necessity must result, in some errors of law ; but, when the percentage is so small that another trial would not be apt to reduce it, a new trial should not be ordered, unless upon the facts. When, how- ever, the errors, even if not excepted to, are so grave and numer- ous as to satisfy the court that the defendant has not had a fair trial, under all the circumstances, the verdict should be set aside. Without further discussion, Ave close our review in the words of Judge JMaktin, used in rendering judgment on the former appeal in this action: ''After carefully examining and considering the evidence, the rulings, and the charge contained in the record before us, we have become satisfied that justice requires us to grant the defendant a new trial in this action. In reaching this conclusion, we have not been wholly controlled by any one of the questions discussed, but upon a consideration of them all we have been led irresistibly to the conclusion that in the furtherance of justice a new trial should bo granted." The judgment should be reversed and a new trial ordered. IP n ■Vnr IIaigiit, J. (dissenting). There is really no dispute about the main and controlling facts in this case. Whatever conflict exists pertains to minor details, which could not and ought not to change the result. Suppose George did catch hold of the de- fendant's shirt and tear it while receiving the stabs which caused his death, under the evidence, it could have occurred at no otlicr time. I fail to see how this fact, if such it be, tends to relieve the defendant, or to show an absence on his part of motive and deliberation. IFis declarations before the act and his written statements afterwards show quite conclusively what his motive and intentions were. If this case was involved in any doubt, I should heartily join with rnv associates in the exercise of a discretion to award a new trial. But, viewing the case as one in which the essential and controlling facts are without dispute, I think we should disregard the technical errors and defects pointed out and affirm the judgment. i^ X 504 AMERICAN CRIMINAL REPORTS. ;!^'L= ■f ^ m Vann, J., reads for reversal of judgment and granting now trial; Pakker, C. J., and O'Buien, Bartlett, and Maktix, JJ., concur; Haigiit, J., reads for affirmance of judgment, and Gray, J., votes for affirmance. Judgment reversed, and new trial granted. Note (by H. C. G.)- — Inferential indorsement of witnesses hy the judge. — In the current homicide case of State v. Staley, 45 W. Va. 792 (1899), 32 S. E. Rep. 198, physicians had testified, on behalf of the de- fendant, as to the treatment of the wounds of the deceased, being in opposition to the evidence of Dr. Burgess and others who had operated upon the deceased. Subsequently, the court, in discussing a question of evidence in the hearing of the jury, referred to Dr. Burgess by way of illustration, and spoke of him as a man of unquestioned Integrity. These remarks were excepted to, as tending to disparage the testimony of the defendant's witnesses. In its opinion the Supreme Court said: "The courts have ever been exceedingly careful of the province of the jury In the trial of cases. In McDowell v. Crawford, 11 Grat. 40.5, Judge Moncure quotes approvingly 1 Rob. Prac. 338-344, where the cases are collected, and says: 'They evince a jealous care to watch over and protect the legitimate powers of the jury. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the doctrine that, when the evidence is parol, any opinion as to the weight, effect, or sufficiency of the evidence sub- mitted to the jury, any assumption of a fact as proven, or even an intimation that written evidence states matters which it does not state, will be an invasion of the province of the jury.' Jiidge Green, in State V. Hurst, 11 W. Va. 54, referring to those cases cited by Judge Mon- cure, says they were all civil cases, and that 'there is and ought to be a distinction between the trial of civil and criminal cases in many im- portant particulars,' and continues: 'If the province of the jury In a criminal case may be allowed to be invaded, the liberty and lives of the citir-ens would not be safe. In times of peril, when commotions in the State exist, untrammeled jury trials are the greatest safeguard of the citizens. If, in a civil case, it is error, for which the verdict should be set aside and the judgment revoked, for the court to make a remark, in the presence of the jury, calculated to mislead them, or calculated to cause them to give more or less weight to any testimony before them, for much stronger reasons would it be error to make the same remark in the trial of a criminal case.' This subject is dis- cussed at some length by Judge Dent, In Neill v. Produce Co., 38 W. Va. 228, 18 S. E. Rep. 563, and the cases there cited. The remarks made by the judge in this case, it is true, were by way of illustration; but unfortunately, for the purpose of the illustration, he named one of the State's witnesses who had been exau.'ned in the case, and referred to him as one 'whose integrity is not to be questioned.' Suppose that he were placed by a party upon the witness stand to testify as to matters coming within his professional conduct or employment (just as the PEOPLE V. COREY. 505 nm] witness referred to had testified In this case), and, having so testified, the opposite party were to bring here two or three witnesses from an- other county, — say, from Huntington, — who are entire strangers to the people of Wayne county, and who, upon the witness stand, were to testify to their having heard the said State's witness make statements directly contradicting those made by him upon the witness stand, etc. While the judge did not mention the names of the supposed witnesses from Huntington, yet it was a fact that defendant had two witnesses from Huntington, summoned there and placed them upon the stand to testify in the case as experts touching the matter of the evidence given by the witness Burgess. What was necessarily the tendency of the remarks on the minds of the jury but to make an impression thereon highly favorable to the testimony of the State's witness, who was so referred to by the court as of unquestioned Integrity, and, conse- quently, his testimony was entitled to the greatest weight, while the other witnesses were mentioned as entire strangers, brought from an- other county, whom the people of Wayne county did not linow? The tendency of the remark would be to weaken their testimony In the estimation of the jury, to the prejudice of defendant. Whether it af- fected their verdict or not we cannot tell. Taking the whole record together, I am inclined to the opinion that none of the errors com- plained of really affected the minds of the jury prejudicially to the rights of the defendant; yet they may have done so, and, without such errors, it is possible the jury might have returned a verdict more favorable to him. For the reasons herein stated, the verdict will be set aside, the judgment revoked, and the case remanded for a new trial to be had therein." In Feinl)erg v. People, 174 111., on p. 617 (1898), during an alterca- tion about the cross-examination of a police oflflcer, between the court and defendant's counsel, the latter remarked: "I object to the ruling of the court, and take exception. Your honor will remember that in the entire testimony of these witnesses on behalf of the State, there is no testimony whatsoever tending to show guilt against . . . Felnberg, except that of motorman Frellgh, and I can show by this officer that this identification was procured by illegal means." The court: "Do you mean to say, sir, that there is no evidence here to show the guilt of the defendant? I say there Is evidence." This was held to be serious error; that it came very near being a declaration by the court, in the presence of the jury, that the defend- ant was guilty. In Marzen v. People, 173 111., on p. 56 (1898), which was a homicide trial, the effort was to get a witness to identify an oil can as the de- fendant's. Finally the court said to the witness: "What is your best judgment about that — what is the best guess you can make about whose can it was?" Mr. Elliot: "I beg pardon, your honor; I shall object to making any guesses." The court: "Perhaps you are right, too. I would like to have him give us his best judgment about that." . . . Ans. "I can only give that. I know that can had a bend on top." The court: "7 believe that is the same can." Ans. "Yes, sir; I believe It Is. the way it looks on the top and the crack is In it, and n I 1,1 '¥} .1 -'i Bill -'3 506 AMERICAN CRIMINAL REPORTS. if It leaks down at the bottom then I believe it is." Objection, and motion to strike out. The court: "I will let it stand. It may be im- proper." The Supreme Court said that the remark (or question) of the judge was calculated to unduly influence the jury in the matter of determining a question of fact." The court observed that the wit- ness did not express an opinion that the can was the same, until after the pointed suggestion of the court, and that an Ignorant man like the witness would doubtless understand from the judge's suggestive ex- amination that he was expected to identify the can. The court might have added that a weak and very doubtful witness, under the novel, exciting and trying ordeal of such an examination, might thus be urged and fortified to make an opinion positive which would otherwise have been doubtful. He might feel that if the judge, with his superior knowledge, experience and authority, considered the evidence of iden- tity sufiicient, that he could do the same. It was objected that no exceptions were saved in the trial court as to this remark. The court, however, said that the whole of the evi- dence of the witness was objected to, and that the remark of the judge was but a part of an improper examination. However, on principle it would seem that it should not be necessary to take exceptions in order to have such remarks of the court reviewed on appeal, for the reasons (1) that the judge has gone outside of his legitimate sphere of duty in making them; (2) that the exception can in no way undo the prejudicial effect of such remarks and conduct; (3) that defendant's counsel should not be held to the disagreeable duty of unnecessary personal wrangle with the judge on his personal digressions. CociiRAx V. People. 175 111. 28—51 N. E. Rep. 845. Opinion filed October 24, 1898. Indictme.nt: When language of statute is insu/ftcient — Uncorroborated testimony of accomplices. 1. Uncorroborated testimony of accomplices is insufficient to sustain a conviction. 2. An indictment under section 3 of division 1 of the Criminal Code (Rev. Stat. 1874, p. 352), for procuring an abortion by means of an instrument the name of which is unknown to the grand jurors, must particularly describe the manner in which such in- strument was used. 3. Section 6 of division 11 of the Criminal Code, which makes an in- dictment technically sufficient which charges the offense in the language of the statute, does not apply where the statute so fails to describe the offense that the use of the statutory language will not apprise defendant of the real offense with which he is charged. Mauruder, J., dissenting. COCHRAN V. PEOPLE. 507 "Writ of error to the Circuit Court of Cumberland County ; the Hon. Frank K. Dunn, Judge, presiding. At the August term, 1897, of the circuit court of Cumberland county, the grand jury returned an indictment of two counts against the plaintiff in error, charging him with the crime of producing an abortion. At the foUoAving February term, 189S, lie appeared before the court and entered a motion to quash the in ^l s i<4 f» ' I i :■ K I, ;fl : ^ ' 608 AMERICAN CRIMINAL REPORTS. the result of which was that ho drove with the girl to a certain place (IcsigiiateJ by the doctor, some three miles northwest of the village, where the defendant mot them and took the girl from the buggy to a fallen tree-top, a short distance from where the witness remained with the buggy; that he saw the girl lying on her back, the doctor being down at hor feet, and that ho saw him take out of his valise some bright instrument; that shortly afterwards they came back to the buggy, where he paid the doctor $20 and then took the girl back to Casey, in Clark county, and from there to hor home. lie does no't state the distance l)o- tweon Hazel Dell and Ilutton township, Coles county, whore Stella Roberts lived, but it must be from fifteen to twenty miles. He does not say he saw any use whatever made of the instru- ment, or that the girl manifested any indication of pain or other symptom of having been operated upon, but, on the contrary, says she never complained to him, and when he reached hor grandparent's house, about nine o'clock that night, she made no complaint, — or words to that effect. The defendant testified, in his own behalf, that he resided in Hazel Dell, where he had lived twenty-five years, and was a practicing physician at that place. lie denied in the most emphatic terms that he knew or had ever seen Stella Roberts^ or produced, in any way or manner, an abortion upon her, or attempted to do so, or that he had ever seen the prosecuting wit- jiess, Wickham, prior to his indictment. The evidence of Wick- ham is contradicted as to the time he and Stella Roberts were at the defendant's house on the 18th of November, several wit- nesses testifying to facts tending to show that at that hour the doctor was not at his house, but some distance in the country, visiting patients. There was some evidence that defendant had theretofore sustained a good reputation in the neighborhood and vicinity in which he lived, but that subject was not gone into very fully. Stella Roberts died at her grandparent's house, in Coles county, about November 23, from the effects of an abortion. Iler attending physician. Dr. Franklin, testified that the abor- tion was produced by taking medicine, though this statement was based simply upon what the patient told him, and his smelling upon her breath the odor of turpentine, camphor and COCHRAN r. PEOPLE a cortniii ■til west of the girl 0111 wlicro girl lying at he siiw nt sliortly paid tlio k countv, stance l)c- J, where ity mile-*. 10 instni- or other contrary, ched h(>r he made ^sided in d was a ho most Roberts^ her, or ing wit- if Wick- •ts were ral wit- lour tliG ionntrv, ant had )orliood 3t gono Coles ortion. e abor- tement tid his 5r and 5oa oil of tansy, all of which, ho testified, arc abortives. There was other testimony offered upon the trial which tended to corrobo- rate the defendant and contradict the prosecuting witness. Among the grounds urged for a new trial was that of newly di./fi 1! 1 < If! il |!|l! 510 AMERICAN CRIMINAL REPORTS. flciith of tlio mother results therefrom, the person proeiirhift' or enusing the nhortion or miscnrriago shall be guilty of murder." In our opinion, the iudietment is wholly insutKcient, uudiT the foregoing statute, to sustain the convietion, and the oourt erred in refusing to quash it, unu "ilso in refusing to sustain the defendant's motion in arrest of judgment. IJoth counts at- tempt to charge that the offense was conmiitted with an instru- ment. The first; count says, "did . . . administer and use on one Stella Roberts ... a certain instrument." The sec- ond count avers, "did . . . use on and administer to one Stella Koberts," etc. Ko attempt whatever is made, in either count, to state how or in what numner the instrument was usimI "or administered." Whether it was done "by forcing, thrust- ing, and inserting said instrument into the private parts," as was alleged in the indictments in Baker v. People, lO.'i 111. 4.">2, and Scott v. People, 141 111. 10.5, 30 X. E. Rop. .329, or in some other manner, is wludly left to inference. If the evidence^ produced on the trial on this subject proves anything, it tends to show that some instrument was used by thrusting, etc., in ihc private parts of Stella Roberts; but no one will seriously con- tend that, imder the allegations of the indictment, the use of an instrument with the intention of producing an abortion, in any other manner, would not have been equally admissible. The only attempt to justify this departure from well-under- stood rules of criminal pleading is the contention tliat, bei' g a statutory offense, the indictment is sufficient as clinv - in the terms and language of the statute, or so pla .lat the nature of the offense might l)e easily understood i the jurv; relying upon section 6 of division 11 of the Crimiiiiil C Ip. It is true that under this section of the statute it is generally sufficient to state a statutory offense in the terms and language of the statute; but there are well-understood exceptions to the rule. Where the language of the statute describes the act or acts constituting the offense, no more is necessary than to state the offense in that language, as Avhere the offense is having in possession instruments used in counterfeiting coin. In an in- dictment for that offense it was held sufficient to allege that the defendant had in his possession, knowingly and without lawful excuse, certain instruments and tools used in counterfeiting the ipui'inft' or nuirdcr." 'lit, under tlio oourt iisfnin tho !o\ints nt- nn instni- r and uso The so(^- cr to ono in eitlior WHS used [?, thnist- •arts," ns 111. 4r,-2, JO, or in evidcnco it tonds c, in llic iisly con- e use of rtion, in hie. 11-undor- hei- g ii ' in lilt the 10 jnrv : 1 C dp. ^noraiiv mguago 3 to tho act or to state ving in an in- hat tho lawful ing the COCHRAN r. PEOPLE. 611 coin current in this State, hcing in conformity to the dcfinitinu of the crime in the Criminal Code. There the act c^mstitutina; the offense was having in possession, etc., no matter l»y \\\\:\t nieiins possessicm Avas ohtaiiuMl. AnV'. ;> I ill If liii Ilii! lili 512 AMERICAN CRIMINAL REPORTS. creating a new offense docs not describe the act or acts constitut- ing such offense. In that case the pleader is bound to set them forth specifically. This elementary rule is laid down in all standard works on criminal law, and is fully recognized by this court. 1 Wharton on Crim. Law, sees. 164-372; Kibs v. Peo- ple, 81 111. 599." And in "Wharton on Criminal Pleading and Practice (sec. 220), it is said: ''On the principles of common- law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has no- tice, from the mere adoption of the statutory term, what the offense he is to be tried for really is, but in no other case is it suflicient to follow the words of the statute. It is no more al- lowable, under a statutory charge, to put the defendant on trial without a specification of the offense, than it would be under a common-law charge." In West V. People, 137 111. 189, 27 N. E. Rep. 34, and 34 ^N". E. Rep. 254, will be found a citation of authorities to the effect that the constitutional provision (section 9 of article 2), providing that in all criminal prosecutions the accused shall have the right "to demand the nature and cause of the accusa- tion" against him, is for the purpose of sec ring to him such specific designation of the offense laid to his charge as will en- able him to prepare fully for his defense, and plead the judg- »■ lent in bar of a subsequent prosecution for the same offense. The manner in which the offense defined in section 3 of di- vision 1 of the Criminal Code may be committed is "by means of any instrument, medicine, drug or other means." The act of using an instrument is in no way described. The language, "by means" of any instrument, is broad enough to include any and every means by which an instrument could be used for the purpose of causing an abortion. It is therefore clear that, in order to make a good indictment against one for the commis- sion of a crime bv means of an instrument, as is said in John- son V. People, supra, the "pleader is bound to set forth the acts pecifically ;" that is, state with reasonable certainty the man- ner in which the act was committed. Furthermore, it is not true that this indictment charges the offense in the terms and language of the statute, as will be readily seen by comparing COCHRAN V. PEOPLE. 513 the statements therein made with section 3, supm. Just Avhat is meant by "administering" an instrument to a person it is difficult to understand ; and, as we have said, the general state- ment that an instrument was used upon a person gives no indi- cation of the manner in which it was used. A jury might con- jecture or imagine from the allegations the nature of the offcnj^o with Avhich the defendant is charged, hut it cannot he said that it is so plainly alleged that it could be easily understood either by him or the jury. In our opinion, to sustain this indictment would be to sulv stantially lay down the rule that any indictment is sufficient which amounts to an accusation of the commission of a crime. It is not intended to announce any rule which will render nugatory the provision of section 6 of division 11 of the Crim- inal Code, wisely intended to simplify criminal pleading and dispense with many technical and useless averments heretofore required in indictments; but we are not prepared to hold thnt a defendant indicted, under a statute of this kind, for a most serious offense, is not fairly entitled to notice, by statements in the indictment, as to the act or acts with which he is charged in tlie commission of the offense. We have carefully sought for some precedent or a^ithority which could fairly be said to sus- tain this indictment, and have been wholly unable to find one. We are not willing to establish the precedent by this decision, and accordingly hold that the indictment, and each count there- of, is fatally defective. The judgment of the circuit court will be • oversed, and the cause will be remanded. Reversed and re- manded. Mr. Justice Maoeudee dissenting. Notes. — Indictments fou Statutory Offenses (by J. F. G.). — Illinois Cases: There are two Irreconcilable lines of decisions in Illinois upon this subject; the conflict being as to the construction of section 408 of the Criminal Code, which reads as follows: "Every Indictment or ac- cusation of the grand jury shall be deemed sufficiently technical and correct which states tha offense in the terms and language of the statute creating the offense, or so plainly that the nature of the of- fense may be easily understood l)y the jury." In several of the cases the court has followed the letter of the statute; while in better con- sidered cases the rule announced in Cochran v. People has been fol- lowed. Vou XI — 83 (t '» ,P^' \ \ ■ :f fH I 'h. i": I n 1:i..:ii 514 AMERICAN CRIMINAL REPORTS. In Cochran v. People the court quotes with approval the following from Johnson v. People: "It sometimes happens, however, that the language of a statute creating a new offense does not describe the act or acts const'tuting such offense. In that case the pleader is bound to set them forth specifically. This elementary rule Is laid down in all standard works on criminal law, and is fully recognized by this court." While following the correct doctrine, the court makes an ineffectual effort to reconcile it with the decisions in Morton v. People, 47 111. 468, and Maxwell v. People, 158 111. 248. 41 N. E. Rep. 995, by suggesting that the indictments in those cases were sustained either on the prop- osition that there was an express statute governing the form of the indictment, "or upon the theory that the term 'confidence game' has a well-understood meaning, the use of which in an indictment sufll- ciently apprises the accused of what he is called upon to defend." This theory is refuted by the opinion in the Maxwell Case, where tho court, referring to the phrase "commonly called the confidence game," says: "These words imply that the statute was intended to embrace any other means, instrument or device, besides the use of false or bogus checks, which comes within the meaning of what is commonly called the confidence game." In the Morton Case the court sau*- "Now, as these devices are as various as the mind of man is suggestive, it would be impossible for the legislature to define them, and equally so to specify them in an indictment; therefore the legislature has de- clared that an indictment for this offense shall be sufficient 4f the alle- gation is contained in it that the accused did, at a certain time and place, unlawfully and feloniously obtain or attempt to obtain the money or property of another by means and by use of the confidence game, leaving to be made out by the proof the nature and kind of the devices to which resort was had." Following this language, the court proceeds on the theory that pleading a statutory offense in the language of the statute is sufficient, citing Miller v. People, 2 Scam. 233, and Kennedy v. People, 17 111. 158. The Morton Case is certainly overruled on the last proposition, and should be on the proposition that a statute can nullify an express provision of the constitution, giving to the accused the right "to demand the nature and cause of the accusation against him." (State v. Couch, and notes, in present volume. ) In Prichard v. People, 149 III. 50. 36 N. E. Rep. 103, the court held that the above-cited section did not abrogate the commo'-'aw rule of pleading, as applied to indictments, and held that: "It is an ele- mentary rule of pleading, both civil and criminal, that allegations of fact in pleadings should be direct and positive, and not merely argu- mentative and inferential;" and that "whether the description of the offense is so plain that its nature can easily be understood by the Jury must depend upon whether it is described with at least a reasonable degree of certainty, using the term 'certainty' in its common-law sense." In McNair v. People, 89 111. 441, the indictment under consideration contained three counts. In the first count it was charged that the defendant "unlawfully caused to be printed a certain obscene and In- COCHRAN V. PEOPLE. 615 decent pamphlet, with Intent to give the same away." In the second count It was charged that he "unlawfully did have in his possession, with intent to give away, a certain otracene and indecent pamphlet, purporting to be evidence tal\ ' i J '" 'Li T: •: }iU •fi \ i !| 510 AMERICAN CRIMINAL REPORTS. The doctrine as announced hy the Supreme Court of the United States.— In United States v. Carll, 105 U. S. 611, 4 Am. Crlm. Rep. 246. the court said: "In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves, fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the of- fense intended to be punished; and the fact that the statute in ques- tion, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent." See also Pettibone v. United States, 148 U. S. 197; United States v. Hess, 124 U. S. 483; United States v. Britton, 108 U. S. 199; United States v. Hirsch, 100 U. S. 33; United States v. Simmons, 9G U. S. 3G0; United States V. Crxiikshank, 92 U. S. 542. Decisions in various States. — In State v. Gabriel, 88 Mo. G31, on page 642, the court says: "The rule is that, where the indictment is based upon a statute creating the offense, an offense unknown to the common law, the indictment must set forth all the constituent facts and circumstances necessary to bring the accused perfectly within the statutory provisions;" citing People v. Allen, 5 Denio, 76; 1 Arch. Crim. Pr. & PI. 282, note 1; Hall v. State, Z Cold. 125; Bishop on Stat. Crimes, sees. 418, 421, 422. In Massachusetts an act was entitled: "An act more effectually to protect the sepulchres of the dead, and to legalize the study of anat- omy in certain cases." The act contained the following: "That if any person, not being authorized by the board of health, etc., shall knowingly or wilfully dig up, remove, or convey away, or aid and as- sist in digging up, removing, or conveying away, any human body, or the remains thereof," such person shall be adjudged guilty of felony. In Commonwealth v. Slack, 19 Pick. 304, the indictment charged that the defendants "did unlawfully, feloniously, knowingly and wilfully remove and convey away from the said town of Westhampton a cer- tain human body, to wit, the body of Ibrook Miller, who had deceased at said Westhampton previous to the said removing and conveying away aforesaid, they, the said William Slack and Joseph Kingsley, not being authorized by the board of health or overseers oi the poor or the selectmen of said town of Westhampton." In holding this in- dictment bad the court said: "The literal construction of this clause of the statute would seem to prohibit the removal of any dead body for any purpose whatever, but such a construction would render a person criminal for removing a dead body for the purpose of inter- ment, without obtaining a license therefor from the overseers of the poor or selectmen, which it Is impossible to suppose could have been the intention of the legislature." In accordance with this conclusion the court said: "The indictment, therefore, should have set out pre- cisely all the facts and circumstances which render the defendant guilty of the offense charged." In Brown v. State, 76 Ind. 85, the indictment under consideration was for malicious trespass, and charged that the defendant did "then COCHRAN r. PEOPLK 517 and there unlawfully, maliciously and mischievously injure, end cause to be injured, a certain window, window blind and sowing machine, all the property of Nathaniel W. Phipps, by then and *here wrongfully, maliciouaiy and mischievously throwing a stone, and stones, at and against and through the said window and window blind, and at and against said sewing machine, to the damage of the said Nathaniel Phipps in the sum of nine dollars and forty cents." The indictment was held insufficient in that nothing at all was alleged as to the in- jury, "whether defaced, brolien or destroyed." The court ba^ed its de- ci9Ton upon the fact that "che accused ought to be confronted with a statement of the kind and character of the injury, for the measure of punishment depends upon the extent and character of the injury done to the property." The indictment should have shown, for example, "that the window was broken, or that the sewing machine was broken or defaced." In iState v. Costello, 62 Conn. 128, 25 Atl. Rep. 477, the complaint under consideration charged that the accused "did wilfully injure a public building and house of worship situated," etc. The court said: "It has been stated in many cases that in an information for a stat- utory offense it is sufficient to allege it in the words of the statute. But such statement is never intended to be a relaxation of the general rule as above given, because in all cases the offense must be set forth with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged. Ordinal ily it is sufficient to charge a statutory offense in the words of the statute. But when the words of a statute by their generality may embrace cases falling within its literal terms which are not within its meaning and spirit, or where from the nature of the offense the words used of the statute do not clearly and definitely apprise the accused of the offense charged against him, then greater particularity must be used." In applying this doctrine the court suggested tlu.t the injury alleged might be done in almost an indefinite number of ways, such ''s cutting the back of a pew with a knife, or picking the lock of the door, or blowing up the building with dynamite, or any method causing injury between these extremes. The judgment of the court below was reversed. As to indictments for malicious mischief, see also Lightfoot v. State, reported in the present volume. For an extended review of this subject, Sullivan v. State, 67 Miss. 346, 7 So. Rep. 275, 12 Crim. Law Mag. 498, is a valuable authority. In that case John L. Sullivan was charged with engaging in a prize fight with Jake Kilrain, the indictment charging tliat it was done by a previous arrangement, and for a large sum of money, and that he did "unlawfully engage in a prize fight with the said Jake Kilrain, to wit, did then and there enter a ring commonly called a prize ring, beat, strike and bruise the said Jake Kilrain," etc. The court said; "The statute neither defines the offense of prize fighting nor declares what act shall be a violation of the provision. The specific offense was unknown to the common law, the participants in such case he.ng only punishable for affray, riot, or assault and battery, according to the circumstances." The court held that as the term "prize fight" * , MM km J 5 51S AMERICAN CRIMINAL REPORTS. refers to a public exhibition, and that as "the evil sought to be pro- tected against by the statute is the debasing and brutalizing practice of fighting in public places, or places to which the public or some part of it is admitted as spectators," that "it is not sufficient to indict by the use of the statutory words only, but the facts which, if proved, show him to be guilty of a statutory offense must be charged." Upon this subject see also Packard's Case, 4 Oreg. 189; Perham's Case, 4 Oreg. 188; State v. Hill, 79 N. C. 657; State v. Philbrtck, 31 Me. 435; Commonwealth v. Cook, 13 B. Mon. (Ky.) 149; Jewell v. Terri- tory, 4 Okl. 53; Commonwealth v. Hunt, 4 Met. Ill; State v. Parker, 43 N. H. 83; State v. Reach, 40 Vt. 113, and the subject "Indictments" in the index of 10 American Criminal Reports, where reference is made to numerous authorities in that and the nine previous volumes. See also Appleby v. State, 63 N. J. 526 (1899), 42 Atl. Rep. 847, a strong opinion, a note of which is to be found in this volume, ante, among notes under the head of "False Pretenses." Merritt v. State. 1 "■] ! 89 Tex. Crim. Rep. 70—45 S. W. Rep. 21. Decided March 16, 1898. Insanity: Delusions: Homicide: Evidence — Wife as a witness — Ex- traneous matters — Defective instructions. 1. Certain evidence, not important, held to be part of the res gestw. 2. Where, on cross-examination by the defense, it was sought to show that a witness was one who sought with others to get up a mob to mob defendant, it was not error to allow him to state on re- examination that he was opposed to mob law. 3. Evidence of a justice of a peace, that seven or eight years before the homicide the defendant's wife made complaint before him that defendant had assaulted her, was incompetent and prejudi- cial. 4. Where defendant's wife was introduced as a witness for certain purposes, it was error to allow the prosecution to cross-examine her as to matters not germane to her examination in chief. It was not allowable thus to draw out matters prejudicial to the defendant, or to lay a foundation to impeach her evidence. 6. It was error to allow a deputy sheriff to give his opinion that de- fendant was sane, based upon hearing him testify previously in another case. 6. It was allowable for a neighbor of defendant, under the "peculiar circumstances" of the case, to testify on cross-examination that he had never heard of defendant's insanity until after the hom- icide. 7. Where it was shown by a number of witnesses that for several years defendant had told many persons, in an intensely excited m MERRITT V. STATE. ;ia mood, that a mob was after him to kill him, it was error not to permit such witnesses to testify that defendant said that Brown, the deceased, was at the head of the mob. This action of the trial court kept from the Jury the most vital part of the evidence, concerning his fear and delusions as to a mob, and tended to greatly depreciate in importance the evidence admitted. 8. A witness who had been defendant's family physician for ten years, but who had only seen him once or twice in six years, was competent as an expert, although the value of his opinion might be tested by a fuller examination. 9. It is settled that a delusion is a form of insanity. One may be afflicted with "monomania" — insane on one topic, but sane on all other topics. It is not necessary that this delusion be confined to a delusive belief of a fact which, if true, would afford a justi- fication; but if the mind of the person was so impaired by the delusion as not to be able to discern the right or wrong of the particular act, and he was induced to commit the act by the de- lusion, such act is not criminal. 10. The evidence tended to show that defendant was overwhelmed by an insane delusion that Brown, the deceased, was the leader of a mob that was seeking his life, and as a consequence thereof he killed Brown, and the instructions should have fully covered the evidence and correctly applied the law, which was not done. The jury should have been instructed that, if they believed that defendant killed Brown while possessed of such insane delusion, believing at the time that by taking Brown's life he was preserv- ing his own, he should be acquitted. Ii« M J. W. Merritt, convicted of murder in the second degree, in tlie Parker District Court, Hon. J. W. Patterson, Judge, ap- peals. Reversed. F. L. Hutchison and Henry W. Kuteman, for the appellant. Mann Trice, Asst. Atty. Gen., 77. B. Hood, Co. Atty., Albert Stevenson and Nat. P. Jaclson, for the State. IIkxNderson, J. Appcll.int was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years ; hence this appeal. In appellant's first bill of exceptions he complains that the court acted improperly in admitting the testimony of T. F. Har- rison, to the effect that, just before the killing, Joe Brown was over with him on the platform at Millsap, and went from there over to the blacksmith shop, and, in connection with his going, stated that he said he was going from there cither to get some ;'5! !:;!!! ii 1 1 620 AMERICAN CRIMINAL REPORTS. ^vatcr or draw some water, witness was not certain wliicli. The objection urged to this testimony was that the statement was made in tlie absence of the defendant. In our opinion what he said at the time of going over to the shop was a part of the res gesiw of that act, and was admissible. But, if it be conoodod that it was not, we fail to see how its admission conld injure the appellant. There is no i)i"etense anywhere in the record that deceased was pursuing Merritt or seeking an encounter with him. Xor is there any pretense that he went over to saitl shop for any other than an innocent purpose. We also believe that it was admissible to show on the re- examination of the witness Harrison by the State that he was opposed to mob law, and had always used his influence to pre- vent mobs. This was in rebuttal of the attempt to show by this witness, on his cross-examination by the defendant, that he was one of a party who had undertaken to get up a mob to mob the defendant. We fail to see how it was admissible to prove by the witness McCall that defendant's wife, seven or eight years before tlie homicide, had made conqdaint before him as a justice of the peace, in Avhich she charged her husband with making an as- sault on her. There was nothing in the case that rendered this testimony admissible, and it was of a character to prejudice ap- pellant's case before the jury. Under the peculiar circumstances of this case, in our opinion it was admissible to prove, en cross-examination by tlie State of the witness J. R. Hollified, ''that he had never heard of defend- ant being insane until after the homicide." There was a great deal of testimonv introduced bv the defendant tending to show that appellant was insane, and that this insanity was of Imig standing. The witness Hollified was a near neighbor of the appellant, and it was competent to show by him that he had never heard of the defenellant concerning the mob in pursuit of his life would he to him, if he Avas not permitted to show who composed that mob. The very essence of appellant's delusion was that the mob was led on by the deceased, if he, indeed, was not the entire mob, and that under such belief he slew him ; yet we have seen from the bills of exception above stated that appellant was denied this proof. In our opinion, this was material error on the part of the court. Appellant, by his bill of exceptions !N'o. 14, shows that he in- troduced his Avife and proved certain facts by her. The bill further shows that on cross-examination the Stote was per- mitted to show other and different facts, not germane or per- ii': ,'' bf'i wili'i.s Ml n ' ^ ; WfM. ! 1 ^W' ? b2i AMERICAN CRIMINAL REPORTS. tinont to those clicitod on direct cxaiiiinntion. Some of those facts elicited on cross-exaniiimtion were of n damaging char- acter, and calcuhited to greatly prejudice appellant before tlio jury. This was independent testimony, and the use of the wife as a witness against the husband, which was not admissiUle. See Jones v. State, :58 T(>x. Crim. Kep. 87, 40 S. W. Hep. 807; Clahies v. State, 38 Tex. Crim. Kep. 202, 42 S. W. Rep. ;}8.->, and authorities cited. Yor was it permissible to hiy the predi- cate by the wife of appellant as to matters about which she could not be croas-examined, in order to impeach her. Wo believe that it was competent to impeach the witness White by showing that he had been -indicted for forgery. By bill of exceptions Xo. 21 appellant objected to the tes- timony of Dr. Withers as an expert us to the sanity of appel- lant. The bill shows that Dr. Withers had been the family phy- sician of defendant up to the year 1891, a period of ten years; that he had only seen appellant since that time once or twice, and then only casually. On this general statement he was per- mitted to give his opinion as to the sanity of appellant. Wo take it that the bill sufficiently shows an acquaintance and knowledge on the part of the witness to testify on that subject, but by a fuller examination of the witness on this subject the difficulty will no doubt be obviated. We do not believe that it was competent for the deputy sheriff, McConnell, to testify that he heard the defendant tes- tify in a certain case tri(.'d a few weeks before, and in that caso he testified like a sane man. No exception was resen'cd to the charge of the court on in- sanity, but, in view of another trial, we would observe that the charge of the court on this subject may be well enough as far as it goes, but it does not apply the law to the facts of the case. We think that the court should give the jury a charge on in- sanity as applicable to the facts proved. In this case appel- lant's proof tended to show that he was ovenvhelmed at the time of the homicide with an insane delusion that deceased was the lender of a mob that was seeking his life. If he was insane on that subject, and if, under that delusion, he was incapable of distinguishing between right and Avrong of the particular act he was doing, and he believed that in slaying Brown he was 10 of tlioso gi'ife' flinr- hotorc tlio )f tlip wifo i deputy Jant tes- :liat caso "t on I'n- that thp IS far as lie caso. 5 on in- ! appel- at the sod was insane capable dar act he was FLANAGAN v. STATE. o'2o jji-cscrving his own life from the iiiol), then he was not crim- inally rt'sponsiblo, and the jury should bo instructdl, if they helieve the homicide occurred under such circumstances, to ac- (juit hiin. The judgment is reversed and the cause remanded. Flaxacjax v. Statr. 103 Ga. 619—30 S. E. Rep. 550. Decided March 22, 1898. Dem'sioxat. Insanity: PAnAxoiA: Homicu)e: Irresistible insane im- pulse — Practice on special issues of insanity — sound common-law discretion of the court on suggestions of insanity — Evidence — Iti- atructiona. 1. No person Indicted for crime can, under sections 951 and 953 of the Penal Code, as matter of right, demand more than one trial upon a special plea of Insanity at the time of trial. If, after such a plea has been found against the person, the trial in chief has been postponed, It would be a matter within the sound discretion of the judge whether or not another preliminary Investigation upon the question of Insanity at the trial should be had, and, if so, to what extent and in what manner the same should be con- ducted. 2. An exception to the general and well-settled rule that one Is crim- inally responsible who had sufficient reason to distinguish between right and wrong, as to a particular act committed by him, exists in a case where It appears that, though the accused had such knowledge, his will. In consequence of some delusion brought about by mental disease, was overmastered, so that there was no criminal Intent as to the act In question, and when It also ap- pears that this Identical act was connected with the peculiar de- lusion under which the accused was laboring. 3. Under the evidence Introduced in the trial of the present case. It was erroneous not to give in charge to the jury the written re- quest embodying the principle above announced, the same not being covered in the court's general charge to the jury. 4. Where the defense relied upon in a trial for murder was irrespon- sibility arising from Insanity at the time of the homicide, any evidence tending to show the real mental condition of the accused at the time Is relevant, and his acts both before and after the homicide may be proved as tending to throw light upon the ques- tion thus put in issue. Accordingly, it was not erroneous to allow the State to introduce in evidence an affidavit sworn to and sub- scribed by the accused himself, at a previous term, for the pur- H j'H' • , if,. , :' ' ■ 1 ■ ; ? ■ If m:y i '.ft m lected to t.-y the issue raised by this plea. After hearing the evidence, the argument of counsel, and the charge of the court, they returned a verdict finding that E. Flanagan was sane at that time. The case was then called for trial upon the merits, and the accused moved for a continuance, which was granted. More than two months thereafter, the case was again called for trial. Through his counsel the accused again filed a special plea of insanity, alleging that he was then insane, and could not, under the above sections of the Code, be forced to trial upon the merits until this second special plea was tried and determined. The State's counsel filed what they called a "special answer" to this second plea, wherein they set up the former trial upon a similar plea, and averred that the quesiion of insanity at the time of trial was res adjudicafa. Counsel for the accused de- murred to this answer. The demurrer was overruled by tlio court, and the accused excepted. The trial then proceeded upon the merits. Flanagan was ccmvicted of murder, and his motion for a new trial was overruled. The judgment overruling this motion was excepted to, and ])rought here for review. FLANAGAN v. STATE. 52T e and effect mination of ises no sufll- le charge of ly presented to its relat- as no mate- regoing cov- irose at the Ion. J. S. ictr. Gen., offense of he filed a ne, Untlor vy was s*j- iaring the the court, IS sane at lie merits, 3 granted, called for lecial pica ?ould not, upon the terniinoecause a jury had, at a previous term of court, declared him then sane. His statutory rights under the Code sections above cited would have becTi ex- hausted, but resort coiild still be had to his common-law reme- dies. Under the common law, when a suggestion of insanity was nuide upon arraignment, the judge always investigated the case, and determined for himself whether the accused had suffi- cient mental capacity to go to trial. We think, thereforc, that even after a jury had passed upon the plea of insanity at the time of trial, and had determined it against the accused, where it is suggested to the judge that since the time of such finding the mind of the accused had materially changed and that I'e is now in such a mental condition as that he should not be put upon trial, the judge should nuike the proper investigation to as- certain the truth of the suggestion. He may do this in any right and proper manner, — by impaneling another jury if he deem it best to do so, by considering the affidavits of experts, by a personal examination and inspection, or otherwise. In 1 Bishop's N^ew Criminal Law, in the footnote to section 3T(t, an account is given of the trial of Freeman, who was tried and ciiuvicted of murder. It appears from this account that Fren- nian upon arraignment had filed a plea similar to the special ])lea in the present case, and that it was found against him by the jury. Afterwards he was tried upon the merits of the case, and convicted. The Supreme Court granted a new trial. ^\v. Bishop says: "Thereupon the judge of the higher court, who FLANAGxVN v. STATE 529 Avas to preside at the new trial, visited the prisoner in jail, and, in consequence of what there appeared of his mental condition, refused to proceed with the trial." The man, he states, subse- quently died in prison, indubitably insane. Under the Code sections above set out, we think that the accused has no statutory right to more than one jury trial upon the issue of insanity at the time of the trial ; but, under his couunon-law rights, he can at all trials suggest to the trial judge his incapacity, by reason of mental weakness, to go to trial, and appeal to the discretion of the judge, just as may be done by a party to a civil action or by a person accused of crime when he is, by physical weakness or sickness, incapacitated for trial. If a person accused of crime is too ill to undergo trial at the time it is called, he niiiy ni)j)eal to the court for a postponement or continuance. The court in such a case can investigate the illness for himself by an insj)ection of the accused, or, as is frequently done, by taking the opinions of experts upon the subject, and may grant or re- fuse the request in his discretion. 2, 3. On the trial upon the merits, counsel for Flanagan claimed that, although he conunitted the homicide, he was not guilty of any crime, because, by reason of a delusion under which he was laboring at the time of the killing, he was unable to form in his mind an intent to conmiit a crime. They claimed that he was laboring under a form of mental distress known as "paranoia" or delusional insanity; that a person afflicted with such mental disease has a delusion or delusions which dominate, but do not destroy, the mental capacity; and that, although the accused was sane as to other subjects, on that of the delusion and its direct consequencer be was an insane man. They further contended that the delusion of this case was one known as the delusion of persecution, and that Flanagan, believing that he was being imjustly persecuted by persons, and that he was en- deavoring to escayie from his persecutors, and finding his escape cut off, and that there was nothing else to do but to slay his ]M»rsecutors, proceeded to do so. They claimed that if all of these contentions were true and the accused acted under these delusions, he was not responsible for the killing. There was evidence sufficient to sustain the theory of delusion, an; Commonwealth r. Mosler, 4 Pa. St. 204; Stale v. Windsor, 5 JIarr. (Del.) 512; People v. Klein, 1 Edni. Sel Cas. 35; Coylee v. Commonwealth, 100 Pa. St. 573; S. C, 45 Am. Re]). 31)7. The eharjje of tlie court on this subject, as given, eliminated entirely the principle above discussed. It required the jury to find, not only that the will was overpowered, but reason de- throned, before they could aecpiit the accused on the ground of delusional insanity. According to the Roberts Case and the authorities cited above, a man may know and may reason that the act about to be committed is wrong, and yet, if the will be overnnistered by reason of mental discnse, and he has so far lost the power to choose between the right and ihe wrong, and to avoid doing the act in (piestion, as that free agency is at the time destroved, and the act done is so connected with the delusion ])roduced by such mental disease in the relation of cause and ef- fect as to have been the result of it solely, he is not criminally responsible. The charge of the trial judge is directly in con- flict with the Jioljerls (^ase, ami the authorities h(>re cited, and a different test is retjuired in cases of this kind. The exception to the right and wrong test announced in the lialierls Case by Judge Xisbet was not given in charge to the jury, and they therefore did not pass upon the question made in that excep- tion, — that, if a man has reason sufHcient to oii(', >0 X. II. Witulsur, Cas. ;;.-); Am. Hop. liiiiiiiatod e I'urv to L\'ison (1(>- :roim(l of and the a son that le will bo o far lost j:, and to tlio timo delusion e ami of- •iniinally / in con- itod, and exception Case by ind thoy it 0X00 p- botwoon iiMiiltod, i sea so of 1 1 intont n nndor FLANAGAN v. STATE. 688 Avhi-ch tho mind is laboring. The trial judge shouhl have given this exception in oharge, and required the jury to find, as mat- ter of fact, nn(!"r the evidence, whether the will of the accused Avas so overpowered by reason of a delusir)n produced by mental disease that he could not resist, although he might have known that iho act itself was wrong, and also to determine whetluir or not the act committed was connected with the delusion, and ])rodueed solely by it. We think the court erred in refusing to give the written request to charge to the jury, and also that ho erred in charging, as he did, on the subject of delusions. For these reasons only, we reverse the case, and order a new trial. If the accused was, under the law, responsible for his acts, he is gniilty of a horrible murder. If he was not so responsible, he is entitiod to an acquittal. Whether he be guilty or innocent, ho has not, in our opinion, had a fair and impartial trial under the constitution and laws of his State; and, so believing, wo are, under our oaths, compelled to grant him a new trial. 4. When, after tho trial of tho issue raised by the special ])lea of insanity, the ease was called for trial uptm its merits, tho accused moved for a Oimtinuance upon the ground of tho illness of his leading counsel. In a written affidavit made in support of this motion, ho alleges the emiiloymont of his leading cnuiisol, that he relied solely upon him, that ho had 7un-or con- sulted with junior counsel, etc. The continuance was granted. At the trial u])i>n the merits, at a suoceoding term, counsel for the State offered the affidavit in evidence, and it was admitted ov(M' the objection of counsel for the accused. It was not error to iidmit this affidavit in evidence. Wo think it is now well scttlci] that, in testing the state of mind at a given period, evi- dence may 1k' admitted as to tlie state of mind both before and aft(>r that time 1 Dish. Xew ('rim. Lav. jJ 385. And, to as- «H>rtain the state of n\ind as to a particular subject, we may look ic e\ ideiice i^i its condition as lo other subject-. ThirJ. The ])ro- bativi" forci> of the ovidtMice is, of course, a iinestinu for tho jury. The affidavit admitted may illustrate tho state of mind of the accus(>d at tho time of the connnission of the homicide, or it may not. Speaking for myself, knowing, as I do. how ibese affidavits for contiiuianees luv j^roparod by counsel. I should give such an alHdavit Utile attention in a trial like this were I 111'. u3-l AMERICAN CRIMINAL REPORTS. : I ■i; I'l i' i i •1 1 ■ -1 i , ! 1 on the jury. It was matlc five months after the time of the homicide, and docs not relate directly to the subject on which the accused is claimed to bo insane. Still, as it may have been of some value to the jury, it was admissible, and the trial judge did not err in overriiling the objections made to its introduction. 5. There are other questions made in the record, but, with the exception referred to in the third headnote, there is no material error in any of those which we deem it necessary to consider. As to whether the court erred in not granting a change of venue is not passed upon, for the same conditions and circumstances may not exist at the next trial. Xor do we rule upon the re- fusal of the court to allow the recall of one of the medical ex- perts to the stand, for the accused will have an opportimity, at the next trial, to elicit his opinion. It is claimed that the judge refused to allow the accused to complete his statement to the jury, and that one of the jurors was prejudiced against the ac- cused, but these questions are not at all likely to arise at another trial, and we therefore do not rule upon them. The charge uf the court, save as to the matter of delusional insanity, wiis full and fair, and the exceptions to it relating to matters other tluin as ruled in the third headnote are not meritorious. There was no material error in admitting or rejecting evidence. Judg- ment reversed. All the justices concurring, except Lewis, J., disqualified. Flanaqait v. State. 106 Ga. 109—32 S. E. Rep. 80. Decided December 13, 1898. Insanity: Hypothetical Questions: Expert Evidence: trial — Prejudice of juror — Illness of counsel. Homicide 1. It was, in a trial for murder in which the sole defense was that the accused was insane at the time of the homicide. Improper and illegal to allow the following question to he propounded to an expert witness, the answer thereto being in the negative: "State whether, in your opinion, from your examination of [the accusedl, from all that you know of him, have observed of him, or heard of him, he was laboring, at the time this crime was com- mitted, under any overmastering delusion." "^p FLANAGAN v. STATE. 535 2. A new trial Is granted In the present case, not only because of the error indicated, but also because the record discloses grave rea- sons for fearing that one of the jurors was not impartial, and also because It appears that the leading counsel for the accused was so HI before the trial concluded that he was not in proper pbysical condition to give to the case that degree of care and at- teniJon which its importance required. 8. The numerous grounds of the motion for a new trial not referred to In the preceding notes do not present any question which is essential to decide at this time. (Syllabus by the Court.) 4. An expert witness should not be allowed to give opinions based on undisclosed information, hearsay, or upon the results of his own unexplained observations. 6. It is imperative that the jury be apprised of the facts, circum- stances and conditions upon which the expert founds his opin- ions, and the questions should clearly refer to such means of knowledge; otherwise the jury, not knowing upon what condi- tions such opinions are founded, cannot intelligently determine to what weight, If any, they are entitled. (Pars. 4 and 5 by the Editors.) Error to the Do Kalb County Superior Court; Hon. J. S. Candler, Judge. Glenn & Rouutrce and G. C. Spence, for the plaintiff in error. J. il/. Tenell, Atty. Gen., and 17. T. Kimsey, Solctr. Gen., for the State. SnmoNS, C. J. Flanagan was indicted for murder, and di^- fended on the ground of insanity. The jury returned a verdict of guilty, but a new trial was granted. Flaiuigan v. Stale, 10;{ Ga. 619, 30 S. E. Rep. .550. Upon his second trial, the accused was again convicted, without recommendation. Ilis motion for a new trial was overruled, and he excepted. 1. The following question was propounded by the State's counsel to one of the expert witnesses introduced by the State : "State whether, in your opinion, from your examination of [the defendant], from nil that you know of him, have observed of him, or heard of him, he was laboring, at the time this crime was committed, under an overmastering delusion." To this question the witness was allowed, over the objection of the de- fendant's counsel, to give a negative answer, the o])joetions made to the question being that it was "not in proper shape," was "not a proper question for the witness to fonn an opinion on," m- .'< > m . . « ' i: u 53G AMERICAN CRIMINAL REPORTS. and was "not n proper liypothotical question." To this rnliii<^ exception was taken. An expert on insanity, ns was the witness of wjjose evidence coinphiint is here nunle, may give an oj)ini(in hnsed njjon iiis own examination of a person, npon his ohsei'va- tion of that person, or upon any state of faets, supportcMl liy some evich'nce in the case, whicli he assumes as true. Tlie jury slioulil he informed whether he hases his o])inion on his own hnowl(>d^o or ui)on a hypothetical state of facts, and sliould know what ])ortion of the eviih'iice lie has assume(l to l)e true in fonning Ids o])inion. Jn the present case, tlie witness gave an opinion which may have been based, in whoh' or in part, \i[)nn what he had heard of the defendant ; and we think it should not, have been re"eive(h Siipi)ose anotlier expert witness had testi- fied that, from what he luid heard, the liomicide was committal under an overmastenn n (h'h h d tl usion ; now could tlie jury liave pos- sibly derived any assi>tance from this evidence'^ Tlu; two ex- ])erts might have testified thus contradict(U'ily, and yet been eacii correct, because of their having heard very different things of the defendant, and tlu^ iurv would have been imable to form aiiv conclusion as to the truth of the facts upon which either opiiiinii Avas based. "It has lu'ver been held that a medical expert has the right to give in evidence an opinion based on information Avliich he has derived from ])rivate conversations with thinl par- ties." ]iogers, Expert 'I'est., >? 40; Louisrillc, clc. ////. ('a. r. IShln's, lOS ill. 017, O-'U). ''KxjH'rt opinions are admissible if based ui)on a state of facts which the evidence on behalf of either Itarty tends to establish; but the jury should know upon what facts the opinion is foundcMl, f(»r its pertinence depends u])on whether the jury find the facts on which it rests. . . . An opinion, based mainly u])on representations out of court, can be no more com])etent testimony than the representations. If the jury are not informed what the re))resentations were, they do not know u]»oii what hypothesis of facts the o])i)iion rests, if they are iufornu>d, they are still left with no evidence of the existence of the facts, exci^jit luisworu declarations of a third jx'rson out of court, which vro not ]>roof in courts oi' law." W'cllicrhec'n Ex'rs V. Wdherhee's Heirs, 38 Vt. 4.54. See, also, Jleald r. Thiii'j, 4.') Me. l]U-2; Jhiiil r. :<((tle, \) Tex. (^rim. Apj). 1(50; rolk V. Slale. ;50 Ark. 124; Ihird v. lUnlroad Co., 41) Iowa, FLANAGAN v. STATE 537 Ills rnliiii)ro]ier to ask an expert what is his oi)inion upon the case on trial, he may be asked his opinion upon a similar case hypothetically stated." Clioicc r. Stale , .Tl (Ja. 4(!S. In tlu^ ])r('sent ca.-e, the expert witness testified as to his opinion, l)Minion is based ujxm what he may sup- pose he knows about the case, upon facts, it may be, altogether irrelevant and unknown to the jury, it would be impossible for them to ])ass upon the truth of the facts upon which the opinion may he based, or to aj^ply the opinion of the exjx'rt to the facts. Xeither court nor jury can know the facts upon which the opin- ion rests. It is obvious that, where the expert delivers his opin- ion from what he sup])oses he knows about the case, he must as- sume and exercise both the functions of the court and the jury, — he determines that what he knows is both relevant and true. The relevancy of the facts iiuist be determined by tho 4 U (||ipj;'i' •t.:^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 L£|2j8 |Z5 Itt fM 12.2 t*^ «2.0 ■mtu - 6" -^ Photographic Sdeooes Corporation •1!.^ \ s V as WBT MAM STRH? WIISTH,N.Y. USM (7U)«72-4S03 6^ 5r 1 \ •4- 538 AMERICAN CRIMINAL REPORTS. court, tlieir truth by the jury. The witness cannot pass upon such questions." See, also, Louisville, etc. R. Co. v. Falvey, 104 Ind. 409, 3 K E. Rep. 389, 4 N. E. Rep. 908 ; Van Deusen V. Newcomer, 40 Mich. 90, 119, 120. In addition to these objections, the qiiestion was "not in px'oper shape," and was certainly ''not a proper hypothetical question." Where the question at issue is one of opinion merely, as that of sanity or insanity, a witness who has "knowledge of the facts and their surroundings may give his opinion by show- ing the reason for it, whether he be an expert or not." Killian V. Augusta & K. R. Co., 78 Ga. 749, 3 S. E. Rep. 621 ; Civil Code, § 5285. When, however, an expert is asked to give an opinion on facts not coming within his own knowledge, the ques- tion should be hypothetical. South Bell Tel. Co. v. Jordan, 87 Ga. 69, 13 S. E. Rep. 202. "A scientific expert who has ob- served none of the facts for himself should give his opinion on a hypothetical case similar to that before the jury, and not on the actual case, as if he were a juror instead of a witness." Griggs v. State, 59 Ga. 738; Choice v. State, supra. In the present case the question was not hypothetical, and yet was so framed as to allow the witness to give an opinion on facts un- kno\\'n to him, but testified to or stated by others. K'ot only was his opinion asked directly as to the case, but it was asked as to the controlling, and, indeed, the only, issue in the case. The defense relied upon was that of delusional insanity, and it was contended that at the time of committing the homicide the accused was acting under such a delusion, brought about by mental disease, — that his will was overmastered. The testi- mony of this expert that the accused was not "laboring, at the time this crime was committed, under any overmastering delu- sion," was, therefore, tantamount to the expression of an opinion that the accused was guilty of niurder. "Questions should be 80 framed as not to call on the witness for a critical review of the testimony given by the other witnesses, compelling the ex- pert to draw inferences or conclusions of fact from the testi- mony, or to pass on the credibility of the witnesses, the general rule being that an expert should not be asked a question in such a manner as to cover the very question to be submitted to the jury. As expressed in one of the opinions, 'a cpiestion should FLANAGAN v. STATE. 539 not be so framed as to permit the witness to roam through the evidence for himself, and gather the facts as he may consider them to be proved, ind then state bis conchisions concerning tlicm.' " Rogers, Exp. Test., § 26, and cases cited. And in Staie V. Felier, 25 Iowa, 67, 74, the following question was said to be improper, for the reason that it "practically [put] the medical witness in the place of the jury:" "From the facts and circumstances stated by previous witnesses, and from those testi- fied to by still other witnesses, relating to the homicide, and from defendant's conduct on the trial, is it your opinion that the defendant was sane or insane when he committed the act ?" See Rogers, Exp. Test., snpi-a. For the reasons above given, we think the evidence was mani- festly inadmissible, and that the court erred in overruling the objection made to the question. Nor can the error be treated as one of little importance. There was evidence in the case which would have supported a finding that the will of the accused, in consequence of a delusion brought about by mental disease, was overmastered, so that there was no criminal intent as to the act in question, and that this act was connected with the peculiar delusion under which the accused was laboring. Where such evidence was before the jury, who can say whether their finding to the contrary was or was not brought about by this illegal evi- dence ? This coiirt cannot do so. This testimony was given by the principal expert witness for the State, and went directly to the very subject which the jury had to decide, and we can- not say that their finding may not have been used upon such tes- timony, or that it may not have sen-ed to remove from their minds a reasonable doubt which would otherwise have existed tlicio as to the sanity of the accused. 2. We think we have demonstrated that it was reversible error to allow the question and answer of the expert witness alluded to above. That error was in itself sufficient to require the grant of a new trial, but there were other errors complained of which, taken in connection with that heretofore discussed, makes us the more certain that the ends of justice require a new trial. It was established, almost beyond dispute, that one of the jurors was incompetent to serve upon the trial. There was positive proof that, a day or two before the trial, he expressed an opinion i* :/i .1^; 4M n: rfr' 540 AMERICAN CRIMINAL REPORTS. that the accused was sane at the time of the commission of the homicide, and should be hung. The juror made no denial of this, except to swear that another used the expression, and that he agreed to it in an unthinking way. If we could consider, in addition to the aiKdavit of the person to whom the juror ex- pressed his opinion, the affidavit which contains a written ad- mission of the juror, the latter's incompetence would be estab- lished; but the general trend of the decisions of this court is that admissions of a juror, made after the trial, cannot be used to impeach his verdict, although in the case of Martin v. Sfatr, 25 Ga. 494, a new trial was granted solely upon the admissions of a juror. Furthermore, it appears from the record that on the trial ^Fr. Rountree was the leading counsel for the defense; that, after two spc^eches had been made on Wednesday, ^Mr. Rountree was taken ill v/ith a severe attack of cholei'a morbus, and the court adjourned from time to time until Friday afternoon. At that time ^Ir. Rountree appeared, having previously filed an affidavit by his physician that he was j^hysically unable to conduct the case, and stated in his place in court that he had l)een sick since Wednesdav with this attack of cholera morbus, that he was un- able to proceed with the ai-gimient, and that he, having tasted no food in fifty-six hours, could not in his then condition do his client justice. The refusal, under these circumstances, to grant a mistrial is assigned as error. The trial judge, in apjiroving this ground of the motion for new trial, says, in substance, that in a private conversation he had announced to ^Ir. Rountree a willingness to take another recess; that Mr. Rountree did not so understand the court ; that the announcement was not made from the bench ; that in his opinion ^Ir. Rountree was able to make his argument to the jury; and that he ordered the trial to l>roceed. The motion for mistrial was made in open court, and in open court the judge overruled it. What was said in private conversation, off of the bench, was not binding u])on the judge or counsel, for it was not such a ruling as could be excepted to and assijiiied as error in this court. Grant v. State, 97 Ga. 789, 25 S. E. Rep. 399. There was an affidavit of :Mr. Roun- troc's condition, and his statement in his place that he was un- able to make the concluding argument for his client. The judge, |1| FLANAGAN v. STATE. 541 it seems, thought that he know the comlition of Mr. Rountree better than did the latter or his physician. AMien an attorney makes a statement in his place, it is considered as binding as thongh he were under oath. This attorney, therefore, stated in a manner equivalent to an oath that he was too ill, on account of a sudden attack of cholera morbus, and the consequent weak- ness and debility, to proceed with the trial. It does seem to us that an attorney who had been thus alHicted, who had been Avith- out food from Wednesday night until Friday afternoon at four o'clock, was physically incompetent to discharge properly the duties of his otKce on the trial of a murder case. The consti- tution and laws of this State guaranty to every person charged with an offense against its laws a fair and impartial trial and the benefit of counsel. Whether or not the accused was guilty of murder, whether or not he had capacity to form a criminal intent, his guilt nmst be ascertained in a fair and lawful man- ner. As was said by Warner, C. J., in the case of Moncrief v. Slide, 59 Ga. 470, 472, "The defendant may or may not be guilty of the offense with which he is charged; but, if he is guilty, that is no reason why the court should be less carefu^ to see that he is tried and convicted in accordance with the laws of the State, inasnnich as the penalty is the loss of life." Be- lieving that this has not been done in the present case, we can- not, as judicial officers, affirm the conviction, but must, in the performance of our duty, revei*se the judgment of the trial court, and direct that the accused be again put upon trial. 3. The motion for new trial contained many grounds with Avhich we do not here deal. Some of these the trial judge did not verify as made, but qualified and explained in approving them. As they now stand, it is not necessary to mention them here. Xone of them will be at all likely to arise upon another trial of this case, and a decision of them would not be help- ful. Judgment reversed. All the justices concurring, except ' Lewis, J., disqualified. Notes (by H. C. G.).— (By referring to pages 601-606, 10 American Criminal Reports, the reader will find quite an extensive collection of citations and authorities on "Insanity.") Burden of proof on insanity issues — Presumptions of sanity and in- sanity — Their application to general and temporary insanity — Utile as 3I i! ■.ill 'If ^1 : mf ■ i !| ;; 644 AMERICAN CRIMINAL REPORTS. nature and quality of the act he was doing, or, if he did know it, that he did not Imow he was wrong.' The rule thus announced has been since 1843 the unquestioned law in England; and it is now the gen- erally accepted doctrine of the American courts. It was recognized by this court in Wright v. People, 4 Neb. 407, and has been since fre- quently approved. Haine v. State, 11 Neb. 537, 10 N. W. Rep. 452; Hart V. State, 14 Neb. 572, 16 N. W. Rep. 905; Thurman v. State, 32 Neb. 224. 49 N. W. Rep. 338. In Hawe v. State, it was said: 'And, where an in- dividual lacks the mental capacity to distinguish right from wrong in reference to the particular act complained of, the law will not hold him responsible." The case of Franres Green, 64 Ark. 523, 43 S. W. Rep. 73 (Jan. 8, 1898), possessed an element of novelty, in that she was an eighteen- year-old colored girl — a teacher in the Sunday school — who was con- victed of murder, the defense being insanity. She was engaged to be married, and was ericeinte by her fiancee. On learning that he was about to marry another woman, she did not eat or sleep for three days, walked almost continually, and said that she was worried to death. Then deceased, with the woman he had just married, walked past her home, and she, taking up a gun, ran after and shot him. After this, her mind seemed to be relieved; she sang and laughed and talked unconcernedly about the affair, and seemed to think that she had done right. Several questions arose. (1) The court excluded the evidence of the sheriff in her be'ialf, as to her demeanor in jail. This was error, because, while in general the subsequent conduct of a defendant is not admissible, yet, in in- sanity cases, such evidence is admissible when it goes to show a con- tinuing state of mental disorder. (2) The court excluded evidence of inherited Insanity — aberration of Eiind of mother, grandmother, grand-aunt, etc. This was error. (3) The defense propounded to an expert a hypothetical question embracing the facts of the case, and the demeanor and actions of the defendant, and also the condition that if her ancestors showed a taint of insanity, whether or not, in his opinion, the shooting was an act of insanity. The witness was not permitted to answer, — and this was error. (Cited 1 Whart. & S. Med. Juris., sec. 376; 2 BIsh. Cr. Proc. (3d ed.), sec. 685; 54 Ark. 588; 117 Mass. 143, et ah) (4) A physician of five years' practice, who "had studied mental diseases so far as ordinary cases were concerned," etc., but never had any experience in their treatment, was excluaed as not being an ex- pert; held, that his qualifications were doubtful. (5) Another physician of twenty-one years' practice who "knew some- thing about insanity," had studied nervous diseases, and treated them to some extent, "as every physician of twenty years' practice would have to do," who was excluded, was held to be competent. (Among the authorities cited were Rogers, Ex. Test. (2d ed.) 45; 53 Mich. 63; 48 N. H. 304; 50 N. H. 452; 36 Kan. 1; 38 Kan. 550; 62 Ark. 74.) On the question of "knowing right from wrong" the court admitted that it was true that a person may have such knowledge and yet not be responsible for his act, but that the following conditions must also now it, that )d has been )w the gen- cognized by since fre- 452; Hart 32 Neb. 224, 'here an in- n wrong in 11 not hold 73 (Jan. 8, n eighteen- o was con- raged to be tiat he was > for three worried to ed, walked shot him. lughed and k that she her beialf, in general yet, in in- how a con- «rratlon of rror. il question Ions of the I'ed a taint vas an act d this was . Cr. Proc. ed mental never had Ing an ex- mew some- ed them to rould have .mong the ch. 63; 48 ) : admitted id yet not must also y PEOPLE V. SHELDON. 54: exist, viz.: Such person must have been so afflicted with a disease of the mind as thereby to have so far lost the power to choose between the right and the wrong, as that his free agency was destroyed, — and at the same time the alleged crime must have been so connected with such mental disease, in relation of cause and effect, as to have been the product of it solely, — without the aid of any other cause. Re- versed. PrOPLE V. SlIKLDON. 156 N. Y. 268—50 N. E. Rep. 840. Decided June 7, 1898. Jury, CoEnciON of: Homicide trial — Sfetting verdict aside. 1. No Juror should be induced to agree to a verdict from fear of cen- sure upon, his intelligence or integrity. Jurors should not be subjected to privations and hardships that will test their physi- cal strength and endurance, and that might induce them to acquiesce in a verdict from physical exhaustion and a desire to avoid further punishment. 2. It is not the prerogative of the judge by commands, insinuations and profuse and repeated argumentation on the necessities of justice, public policy, economy, pride of opinion, etc., to seek to overcome the opinions and judgment of jurors for the purpose of bringing about a verdict. 3. The jury was out eighty-four hours without beds or cots, forty hours of that time confined in a small room. Several tinies they informed the court that they could not agree, but were each time sent back with the admonition that they could agree and that they must agree, if possible; the court reminding them that the trial had lasted nearly seven weeks, and was expensive, and in- sisting that they completely recanvass the case from the begin- ning, telling them that he could not hear of a disagreement, — that that would almost amount to a confession of incompetency, etc. Held, that this was a virtual coercion of the jury, and that the verdict should be set aside. Appeal from a conviction of murder in the first degree, of the Supreme Court, in Cayuga county. The defendant, Frank L. Sheldon, was, on the 9th day of Oc- tober, 1896, indicted by the grand jury of Cayuga county for the crime of murder in the first degree, charged with the killing Vol. XI -35 ;nn> 'Ht I ( m rift' J ? i i .' : u Si. '0 11. I^'l;. !;i!i«iii •«rr ':i 6iQ AMERICAN CRIMINAL REPORTS. of his wife, Eva M. Sheldon. On the 12th day of October, 181)G, he was arraigned on said indictment, and pleaded not guilty. On the 25th day of January, 1897, at a trial term of the Supreme Court held in and for the said county, the indict- ment was moved for trial. The trial lasted for seven weeks, ending on the 15th day of March. A great number of witnesses (119 in all) were examined. The evidence against the accused was largely circumstantial. The defense insisted that the deceased came to her death by suicide, and considerable evidence pointing in that direction was given during the progress of the trial. It was generally supposed at first that the deceased had taken her own life, as, when the body was discovered in a closet of the house occupied by her and the prisoner, a pistol was lying beside it, and not for some time after the burial was the defendant accused of the crime of which he was subsequently convicted. In fact there were two disintennents of thi3 body, considerable time elapsing between them, before the idea of murder became i^rev- alent and the prisoner charged with the crime. On March 11th the case was finally submitted to the jury, who immediately retired to deliberate upon their verdict. Three times, at their request, the jury were broiight into court for in- structions. After being out all of one night and the greater part of one day, they announced that they had not agreed upon a verdict. The judge ordered the jury to be sent out again for further deliberation. They returned into court the second time, after having been out two nights, all of one day, and part of the second day, and reported, in a writing signed by the fore- man, that they were unable to agree upon a verdict, and that it was impossible for them to do so. The jury were again sent back to the jury room by the court, after receiving certain in- structions, and remained there until 3:20 o'clock of that day (it being Saturday), when they were sent for by the court, who, after giving them further instructions and directing certain pro- visions to be made for their convenience and comfort, ordered them to be taken back for further deliberation. They remained out, from that time, two nights and one day, until Monday morning, when they returned into court, and announced a ver- dict of guilty as charged in the indictment. The jury were out M^ >v PEOPLE r. SHELDON. Si- October, 3aded not 1 terax of lie inJict- en weeks, xamined. nstantial. death bv direction generally ti life, as, occupied , and not ecu sod of In fact able time Eime i^rev- the jury, it. Three irt for in- le greater :eed upon 3ut again ho second and part the fore- id that it gain sent 3rtain in- that day urt, who, •tain pro- , ordered remained Monday S(\ a ver- were out Altogether four nights and about four days. During all this time they had been provided with no sleeping accommodations whatever, confined for two nights and almost two days in tlie narrow quarters of a jury room, and the rest of the time in the court room, which had been set aside for that purpose. What followed each time, as the jury returned into court, will fully appear by the following synopsis taken from the record. Jury went out Thursday, March 11, 1897, at 8:30 p. m. 11:30 a. m., Friday, jury came into court, and asked two qnos- tiond as to the evidence, which were answered by the court from the minutes of stenographer, folios 11,202 to 11,240, without objection. 3 :25 p. m. jury again came into court and announced they had not agreed upon a verdict. By the court: "Well, gentlemen, you must make an effort to agree. This case has in- volved immense labor. A great deal of time, as you know, has boon given to it, and, from all the evidence that has been pro- duced, it would seem that the case is susceptible of a conclusion. The only way of reaching a conclusion is through the verdict of the jury. There is no reason why these twelve men are not as capable of imderstanding this case and coming to a conclusion as any other twelve that could be gotten together. It is a case ■of too much importance, that has entailed too much labor, to permit a jury to separate without the utmost effort to agree. Differences that exist amongst you as to the evidence must be further investigated. Any questions of law the court will be glad to explain to you. It is for the interests of all concerned and public justice that there should be a decision of this case so that the questions in it shall be put at rest. / cannot hear of a disagreement of this jury. Yj'' ■ must retire, gentlemen." The jury again retired at 3 :30 p. m., and at 5 :30 p. r' sent a com- munication to the court asking for further information. In- structions were given, and questions of jury answered by read- ing from stenographer's minutes, folios 11,245 to 11,281, with- out objection. Jury then retired. Saturday morning, March 13, 1897, the jury came into court by the order of Justice Dunwell, at 12 :45 p. m., and presented a written communication to the court, Mr. Drummond having previously waived his presence in court, which read as follows: "Jvidge Dunwell — Dear Sir: The probability or even possibility of this jury ever agreeing is M' 5' 'ii ; . f itlr t f >j li ■ ;i'! \- h i ,'l i ?^' II 5^S AMERICAN CRIMINAL REPORTa impossible in my opinion. George J. lloklon, Foreman." By the court: "The order will be tliat you be conducted to youv hotel, and that you bo brought back for further deliberation. The counsel for the defendant is not here, end later 1 will have something further to say to you with reference to your present communication. 1 have made my own arrangements so as to bo back at your call both for to-day and for some time in the future, so that the case may bo fully diap(»sed of if there is a ijosajbility of it, and I will have something further to say on this subject later in the day, when the defendant's counsel can be present." At 3:20 p. m. the jury again returned to the court, and were addressed by the court as follows: "Gentlemen, I have been giving consideration to the note that you ad m \.''' ■ft ■*.' Ir.r >k:m\ li II '■^' 'j.-i ' "vfc ii =!! u ij^ p 1 i 550 AMERICAN CRIMINAL REPORTS. . . . The court also entered an order that the jury should bo conducted to their meals at the usual hours, to-morrow, Sunday, and including Monday morning. Defondant'o counsel objected and excepted to the remarks and instructions given to the jury, at 3 :20 p. ra., on March 13, 1897, and to each and every part thereof. Defendant particularly and specifically objects and excepts to folios 11,305 to and including folio 11,317, and also asks that the written communication of the jury to the court be made a p:.ft of the record. ^Monday morning, Mai'ch 15, 1897, at 7 :30, the jury sent word to Justice Duuwell that they were ready to report, and they were accordingly brought into court at 8:30 a. m., the roll called by the clerk, and the question put: 'Gentlemen of the jury, have you agreed upon a verdict V By Foreman Ilolden : 'We have. Wo find the prisoner guilty as charged in the indictment.' By the court: 'You say you find the prisoner guilty, as charged in the indict- ment, of murder in the first degree?' By Foreman Ilolden: 'We do.' The jury Avere thereupon polled, and e".ch answered, 'Guilty.' . . . Defendant's coimsel moved arrest of judg- ment under section 487 of the Code of Criminal Procedure, and also on each and every groxmd, as provided by the Code of Crim- inal Procedure in reference to an arrest of judgment. Defoiul- ant's coimsel also moved for a new trial in the case, \indor sec- tion 485 of the Code of Criminal Procedure, and upon each and every ground stated in section 485, and especially subdivisions 4, 5, and G of that section. Both motions were denied, and ex- ceptions taken by defendant." liohert L. Drummond, for the appellant. George W. NelUs, for the People. Parker, C. J. The question before this court is not how long may a court keep a jury togedier, for that is a matter resting in the sound discretion of the trial court. Nor is the question whether a jury should be compelled to stay together more than one night Avithout a bed, or at least a cot, to lie on, for that, too, is a matter resting in discretion. It seems a wiser exercise of that discretion, however, to provide sleeping accommodations for the jury after the first night, at least This can be readily done in most hotels, without interferenco with the requirement to 1 PEOPLE V. SHELDON. 551 should bo ', Sunday, I objected tlie jury, every part )jects and ,317, and iry to tbo ng, March invell that y brouglit :, and the reed upon ) find the the court: the indict- i llohlen: answered, t of judg- khire, and Q of Crim- Defond- imdor scc- i each and bdivisions 1, and ex- how long resting in question lore than that, too, cercise of ^tions for [lily done eraent to keep the jury together. But, while these questions are not be- fore the court, +he facts which suggest them are, and, together with other facts, they command an answer to the query, nuiy there be coer^iion of a jury in a capital case ? If this question be answered in the negative, there follows the further inquiry, was there coercion in this case ? By the ancient conmion law, jurors Avere kept together as pris- oners of the court until they had agreed upon their verdict. Thompson & Merriam on Juries, § 310. It was regarded not only proper, but requisite, that they should be coerced to an agreement upon a verdict. Proffatt, Jury Trial, § 475. "A jury, swjrn and out in a case of life or member, cannot be dis- charged by the court or any other, but they ought to give a verdict." Coke Litt. 227b. Blackstone, Com., p. 375, says: "The jury, after the proofs are summed up, imloss the case bo very clear, withdraw from the bar to consider their verdict ; and, in order to avoid intemperance and causeless delay, are to bo kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. . And it ha., been held that, if the jurors do not agree in their verdict before the judges are about to leave the town, the jun foi' this aid it has ce of some To what nner ? ] t agrooment I never ho eir uiuler- led to an figrcenient stands out f of none, I'elvo men the same •s into an m by the defendant and, and, •onsont of jury dis- rior cases formerly lid: "The IS of Inm- '(1 not on •ength of ivith eon- mity and :>(! under 1)1 ic opin- ^ jury in d bv the t was in- jgree be- PEOPLE r. SHELDON. 553 fore the last moment the court would sit, they were discharged. The question arose whether defendant could be again put upon his trial on the indictment. ]n writing the opinion of the court, Spencer, C. J., said: "In the case of People v. Clcoit all the au- thorities then extant upon the power of the court to discharge a jury in criminal cases, and the consequences of such discharge, were very ably and elaborately examined by Mr, Justice Kent, and it would be an unpardonable waste of time to enter upon a re-examination of them." The chief judge quotes largely from Justice Kent's opinion, and says : "The learned judge inveighs, with force and eloquence, against the monstrous doctrine of com- pelling a jury to unanimity by the pains of hunger and fatigue, so that a verdict is not founded on temperate discussion, but on strength of body. Although the case of People v. Olcoft was a case of misdemeanor, the reasoning is, in my judgment, entirely applicable to cases of felony; and, although the opinion was confined to the case under consideration, a penisal of it will show that it embraces every possible case of a trial for crimes." Other comparatively early criminal cases in which the s"'"e question was presented and passed on were People v. Wni'd, 1 Wheeler, Cr. Cases, 409 ; Grant v. People, 4 Parker's Crim. E. 527; People v. Green, 13 Wend. 55; Uniled States v. Perez, 9 Wheat. 579. In Green v. Telfair, 11 IIow. Pr. 200, a motion was made to set aside a verdict on affidavits. The judge said to the jury, in substance: This case has excited considerable feeling; the natiire of jury trials implies concessions and compromise; no juror should control result, or othenvise the verdict would be that of one man, not that of twelve; that for five years he had discharged but one jury that had failed to agree, and he should si'iul them out again, and hoped they would agree. One of the jurors said he supposed (it being Saturday afternoon) their duties would be at an end, and they Avoidd he discharged at twelve o'clock, to M-hich the judge replied that this was not so ; that he was authorized to receive the verdict on Sunday, and, besides, it was his intention to go to Albany by the next train, and, if they did not agree before he left, he would return on ^Monday and receive their verdict. Jury retired, remained ab- sent about half an hour, returned into court, and rendered a ver- III f " n .'Jsl '>}:, i Wi 554 AMERICAN CRIMINAL REPORTS. diet for plaintiff. Mr. Justice Harris, before whom the motion was made to set aside the verdict on the ground of coercion, said in the course of Jiis opinion : "An attempt to influence the jury by referring to the time they are to be kept together, or the in- convenience to which they are to be subjected, in case they are so pertinacious as to adhere to their individual opinions, and thus continue to disagree, cannot be justified. A judge has no right to threaten or intimidate a jury in order to affect their deliberations. I think he has no right to even allude to his own purposes as to the length of time they are to be kept together. There should be nothing in his intercourse with the jury hav- ing the least appearance of duress or coercion. . . . That, should they continue to disagree, they are not to be exposed to unreasonable inconvenience, nor to receive the animadversion of the court." In Slater v. Mead, 53 How. Pr. 59, the judge said to the jury: "You miist agree upon a verdict. I cannot discharge you until you agree upon a verdict." The jury retired, and soon re- turned and rendered their verdict of no caiise of action. Ver- dict was set aside on motion at special term, the opinion citing with approval the remarks of Mr. Justice Harris in Green v. Telfair, supra. In Ingersoll v. Town of Lansing, 51 Hun, 103, 5 N". Y. Supp. 288, the court made no provision for discharging the jury in the absence of the presiding justice from the county, unless they agreed, which compelled them to bring in a verdict or re- main in confinement for four days without aid, protection, or even the presence of the court. On appeal, this was held to con- stitute coercion, and therefore that the trial court erred in re- fusing to set aside the verdict. In the course of the opinion, which was written by Mr. Justice Follett, the opinion in Green V. Telfair is cited with approval, and also Pierce v. Pierce, 38 Mich. 412. In the latter case the jury retired on Tuesday p. m. Wednesday p. m. officer informed the judge that they could not agree. Thereupon the judge directed the officer to inform them : "The judge does not believe it yet ; and you might say to them that it is essential that they agree to-night, as I am going, and I won't be back until day after to-morrow, and thoy might not get discharged until I come back, as Judge Coolidge is going to the motion rcion, said !e the jury or the iu- e they are lions, and Ige has no ffect their to his own together. jury hav- That, exposed to ladversion nd to the hargc you d soon rc- on. Ver- ion citing Green v. Y. Supp. e jury in ty, unless lict or re- Dotion, or Id to con- "od in re- opinion, in Green 'ierce, 38 lay p. m. Jould not •m them : ' to them )ing, and light not going to PEOPLE V. SHELDON. 555 be here." The verdict was returned within an hour. It was held that the verdict should be regarded as coerced, the court saying: "Every attempt to drive men into an agreement which they would not have reached freely is a penersion of justice. The one may be right as well as the eleven, and if right may be able to persuade them. . . . And it is very possible, at least^ that a message of this kind given would be regarded by the out- standing juror as a somewhat strong intimation of the judge's opinion of the plainness of the case and the impropriety of hold- ing out" In Physioc v. Shea, 75 Ga. 4C6, a new trial was granted, where a verdict was rendered shortly after the judge told the jury (which had been out all night) that they could have break- fast at their own expense, they having had no supper. Tn Chesapeahe, 0. & S. W. B. R. Co. v. Barlow, 86 Tenn. 587, 8 S. W. Rep. 147, the jury reported inability to ap-ec. The trial judge said: ''This is too common, and you ought to agree;" that he would not discharge them, but should keep them togother for the remaining three Aveeks of the term unless they agreed. They agreed next ihiy. The verdict was set aside. In Slate v. Byhec, 17 Kan. 402, the court said to the jury that they ought, by compromise and surrender of individual opinion, to agree, and that failure to do so would be an imputa- tion on court and juiy. In an opinion written by Judge Brewer the court presented its reasons for reversing the judgment, in part, that while the court might call the attention of the jury to many matters that rendered an agreement desirable, such as time already taken, improbability of securing additional testi- mony, the general public benefit in a speedy close of a litigation, the question of expense to parties and the public, yet no jnrni' should be influenced to a verdict by fear that failure to do so would be regarded by the public as reflecting upon either his in- telligence or his integrity. ''Personal considerations should" never be permitted to influence his conclusion, and the thought of them should never be presented to him as a motive of action." That was a criminal case, and it may be said, in passing, that the language used by the trial judge to the jury is very much like that used on one occasion by the judge in the case at bar. The intelligence of the jury was not more sharply reflected 'llli II- i!/ I'r If: -< If' ' i" f!" 1 f 1 mi I^V l^ . .j/r ii 1. ;. c II m HHii, 'MrTW' ^^ i ^ ^^' Ml '■ mi m\ " I 1^ i' '■ i.V a > 1-%''.. l! I 55C AMERICAN CRIMINAL REPORTS. upon in that case than in this, for the trial justice said: "This case has occupied nearly seven weeks, and to say now, at tho end of all that time, — at the end of all this labor and expense, — that the qiiestion is no better off than it was when started, is al- most to confess incompetently *"■ ^^'^ matter." In Hancock v. Elam, 3 IJaxt. (Tenn.) 33, tho judge ordered the jury locked up until they should agree, not allowing them to have dinner. Held error. Speannan v. Wilson, 4-t Ga. 473, held: "The court erred in overruling the motion for a new trial, upon the ground that, after the jury was brought in and answered they had not and were not likely to agree, he stated to them that i they did not briug in a verdict very soon he would make arrangements to carry them to Greensboro. This question was decided in 31 Ga. 025." In 10 Am. & Eng. Enc. Law, 522, the nile is said to be that "language on the part of the court, the obvious tendency of which is to coerce an agreement on the part of the jury, affords grounds for a new trial. To insist too strenuously upon the necessity of an agreement may have such effect" Teire Haute tf? Ind. R. 11. Co. v. Jachson, 81 Ind. 10, 24, was an appeal from a decision overruling a motion for a new trial. Judgment was reversed, and a new trial granted, upon the groimd of coercion. After tho jury had retired and been out nine hours, the trial court, without consent of the apt)!'' r, "caused the jury to be informed through the bailiff ha', i;.,, .'■' ■-. in charge that, if they did not agree upon a verdict, thf irt would keep them until Saturday night, a period of four uays, to which action of the court the defendant at the proper time, as soon as her attorneys learned of such action, objected and ex- cepted." "The action of the court cannot be justified. It con- stitutedj as it must have been intended it should, a kind of coer- cion upon the jury, which was inronsistent with their proper independence. ... A plain error was committed. Its plain tendency was to influence the jury." Betry v. People, 1 X. Y. Cr. R. 43, 47, reported in memoran- dum (77 1^. Y. 588), is not at all in conflict with the trend of all recent authority upon this question. In that case the jury, PEOPLE V. SHELDON. 557 lid: "This )w, at the jxpcnso, — rted, is al- ^e ordered ving them t erred in )und that, d not and ^y did not ements to led in 31 to be that idency of y, affords upon tho 1. 10, 24, for a new ted, upon and been Rpl?!-'' :i-. '•ill', ». ' * i thf irt our uavs, per time, d and ex- . It con- d of coer- ir proper Its plain nemoran- trend of the jury, after being charged, retired for deliberation, and upon return- ing \a) tlio court asked for further instructions, and then an- nounced their inability to agree upon a verdict. The recorder, addressing the jury, said: "1 would discharge you, but under my sense of duty 1 cannot. After a few days tlie case has been j)resented to you, thoroughly argued and tried. Witnesses were examined and cross-examined. I don't care what you find, guilty or not guilty ; it is perfectly immaterial to me. Hut 1 say it is my duty, if you can lot agree, that I shall lock you up for the night. That is a most ungrateful thing to do to any jury. As 1 ttdd you on Friday night, I didn't want you detained from your families, and I do not now. If you cannot agree, I shall order an officer to take you in charge. I will give you fifteen minutes, and see if you can arrive at a conclusion." But for the expression of the trial judge, "I shall lock you up for the night," his remarks would have presented no ground for criti- cism. This court was of the opinion that the trial judge did not intend to coerce the jury ; that he sought merely to convey the idea that they would have to remain over night at the court. This court said in its per mrinm opinion: "The alleged threat to lock up jurors if they failed to agree was, we think, only in- tended as a statement that the jury would have to remain over night, as the court would adjourn. }\^othing like a threat of imprisonment or punishment could have l)een intended." The decision of the court, therefore, was that there had been no at- tempt at coercion, the language com|)lained of iiot being sus- ceptible of a constniction that would give it that effect with the jury, and not that a judgment would be allowed to stand either ■where the trial court had attempted to coerce the jury, or the language used by him was of such a character that it probably had that effect. Phmix Ins. Co. v. Moor], 81 Ala. 3;}5, and Taylor v. Jones, 2 Head (Tenn.), 5G5, are in line with cases cited. Reference has now been made to nearly all the cases which I have been able to find, of comparatively recent date, and they establish that the old rule permitting coercion of a jury in order to secure a verdict has been swept away ; that, under our pres- ent method, the independence of a juror is respected. An at- M ■Al] .; liH;: m i iji 1= Ui I f Hi' 1 9k i n i fi t 4!m ll tss 1 1 f^ B I ill If; 558 AMERICAN CRIMINAL REPORTS. tempt to drive the members of a jury into an ngrocmont is be- yond the power of tbe court, and an obvious eifort to effect audi a result demands a new trial. In this case we can well understand the anxiety of the learned judge, Avlio presided at the trial, to have it ended by a verdict of a juiy. The trial had lasted nearly seven weeks ; it had been a severe strain upon the jury to be kept together all that time; the expense had been exceedingly great for so small a county; and to have all this inconvenience, labor, and expense borne for noth- ing seemed a most unfortunate result, and one to be avoided if possible. But in the attempt to avoid it the learned judge, as we think, after a very careful consideration of the subject, fell into error, and, as a result, very likely coerced some members of the jury into an agreement with their fellow members against their own personal convictions. Some of the grounds upon which this conclusion rests will now be given. At 8:30 p. m. of the 11th day of March, 1897, the jury re- tired to consider a case, the trial of which had consumed nonrly seven weeks, during all of which time they had been kept to- gether. All of that night and imtil 11 :30 a. m. of the next day the jury were presumably engaged in discussing the evidence, but at the hour last named they came into court and asked two questions about evidence. The information asked for was fur- nished by reading a portion of the stenographer's minutes. At 3:25 p. m. of the same day the jury came into court and an- nounced that they had not agreed upon a verdict. The court then addressed the jury upon the importance of a decision of the question submitted to them, concluding as follows: "It is for the interests of all concerned and public jiistice that there should be a decision of this case, so that the question shall be put at rest. I cannot hear of a disagreement of this jury. You must retire, gentlemen." The jury at once retired, and two hours later asked for further instructions, which were fur- nished by reading from the stenographer's minutes. The next day, at 12 :45 p. m., the jury presented to the court a written communication, which read as follows: "The probability or even possibility of this jury ever agi'ceing is impossible, in my opin- ion. [Signed] Geo. J. Ilolden, Foreman." For forty hours, PEOPLE V. SHELDON. ir>o nont is 1)0- elfcct sudi :lic Icnrnod , verdict of Imd been a t time ; the >unty; and e for notli- avoided if I judge, as abject, fell nenibcrs of 3r3 against rests will 16 jury re- ned nearly 'n kept to- e next day ! evidence, asked two r was fur- nutes. At ft and an- The court lecision of ws: "It is that there n shall be ury. You , and two were fur- The next a written ity or even I my opin- rty hours, covering two entire nights, th'5 jury had been engaged in tlw; consideration of the testimony in a small room, and now for the first time reported their deliberate judgment to be that an agreement was impossible. The court responded to this coni- inunication as follows : "The order will be that you l)e conducted to your hotel, and that you be brought back for further delibera- tion. ... I have made my own arrangements so as to be back at your call, both for to-day and for some lime in the future, oo that this case may be fully disposed of, if there is a jtossibility for it. . . ." Language more apt to convey to a jury that the hardships of the past forty hours were to be con- tinued for a considerable time in the future cannot easily be imagined. On their return the court addressed them at length, saying, among other things: "I don't know that you fully ap- ])reciate the gravity and importance to this comnmnity and to the State that a decision should be reached in this matter, an(i2 AMERICAN CRIMINAL RP:P0RTS. ought to rotiirn, and that In hla opinion the evidence to support ench foncluslon was so plain and sntlsiaitory that honost and Intelligent juroiB, who had heaid the U'Htiniony, ought not to disagree as to Us \vol;j;ht uud effect; and wo think the jury understood, or at least may have uiHJprstood, from these unguarded remarks, that In the opinion of the judgo the df'fondant was guilty, and that such should be the verdiot. When, upon the trial of a defendant, the evidence is clearly insutllcient to justify a verdict of guilty, It is the duty of the judge to so inform the jury, and to adviae a verdict of acquittal. This power is sometimes exercised by courts, and is one so frequently Involu'd in the trial of criminal cases that its existence may be regarded as a matter of common knowledge upon the part of jurors of ordinary in- telligence and experience; and this fact is not to be lost sight of in considering the impression likely to have been made upon the jury by the charge of the judge In this case, To any one knowing that It Is the duty of the court to advise an acquittal if the evidence is such that, in the opinion of the judge, twelve honest men would have no rlglit to convict him, the remarks of the judge in this case could not fail to create the impression that he thought the jury ought to convict upon the evidence before them. But it is not necessary that we Bho\ild lie able to say that the jury must have so understood the charge. Unless it appears that it could not have been so understood, we cannot say that the charge was without prejudice to the defendant. The court has no right, except when advising an acquittal, to give any expression of its opinion as to the weight of evidence, or to tell the jury that the evidence is so clear that they, as honest men, ought not to disagree, which is in elfect the same as telling them that there Is no conflict in the evidence, and that, as honest men, they can render but one ver- dict. In a subsequent part of the charge the learned judge did inform the jury that they were the sole judges of all questions of fact, and of the credibility of the witnesses, and that the court had no right to trench upon their province in this respect; but the error already no- ticed in the previous part of the charge was not cured by this suljse- quent statement. The fact still remained impressed upon the minds of the jurors that it was the opinion of the judge that there ought to be no disagreement, and that the testimony would justify but one ver- dict. Judgment reversed, and cause remanded for a new trial. McFarland and Fitzgerald, JJ., concurred. Kklly v. State. SiMKiss, J. Appellant was convicted of seduction, and his punish- ment assessed at two years in the penitentiary. 1. . . . 2. We think that the remarks of the court were, under the circum- stances of this case, calculated to injure appellant. It is shown by the bill of exceptions that after being out nineteen hours the jury were brought into court, and, in answer to questions, answered that they "had not disagreed as to the law," whereupon the court remarked -that "it seems strange you would fall to agree, when there is so little conflict in the evidence. If It was a long, complicated case, with con- b-r| M STEWARD V. PEOPLE 503 flicting teBtlmony, the court could readily Bee a cause for fnlhim to agree," etc. In his comment on the bill of exceptions, the court says; "The court never intimated to the jury regarding any fact toHtlflcd to in the cause, and never told the Jury that they must render a verdict, hut urged them to consider the evidence, apply It to the law, and ren- der a verdict accordingly." It Is true the court never Intimated Its opinion regarding any one fact In the case, but the trouble Is Its re- marks tended to sweep away the defense In bulk. The only conflicting testimony was that establishing the defense of a want of chnstlly, and non-promise of marriage, which the court states to the Jury in very little. That, perhaps, was true, but the court was forbidden to say it. Code Crlm. Proc, art. 729. It certainly seems to have quickly unhung the jury. It is the safer and fairer plan, when the court ascertains that the jury are hung on a question of fact, to send them back with- out remark. The judgment is reversed, and cause remanded. Steward v. People. M '.< his punlsh- 173 111. 4C4— 50 N. E. Rep. 1056. Decided June 18, 1898. Larceny: Elements of — No consent in larceny. 1. Where the owner of property voluntarily parts with its possession there can be no larceny, as that crime always Involves the tak- ing and conversion of property without the owner's consent. 2. Inducing the owner of a draft to part with the title thereto by fraudulent and unfair representations is not larceny where the owner intended to part with such title, though at the time of pro- testing his unbelief in such representations, and though he after- wards demanded the return of his draft. Error to the Criminal Court of Cook County; Hon. A. N. Waterman, Judge, presiding. Eeversed. AiTiold Tnpp, for plaintiff in error. Edward C. Ahin, Attorney-General (Charles 8. Deneen, State's Attorney; Harry Olsen, Assistant; C. A. Hill and B.D. Monroe, of counsel), for the People. IIr. Justice Caijtwrtgiit delivered the opinion of the court. Plaintiff in error was convicted in the criminal court of Cook county of the larceny of a draft for $50 from Herman Klep- :l: p ¥ , f i ' i i ! fifPeBHi^' •I K^^W I BH^B^ ii i^HHr '' f: i1h i 1- 5G4 AMERICAN CRIMINAL REPORTS Etein, and was sentenced to imprisomucnt in the penitentiary. Defendant was a doctor, occupying an office in the Lakeside Building, in Chicago. Herman Klepstoin resided near Gro- ton, South Dakota. He came to Chicago December 29, 1897, with a car load of stock, arriving at the Union Stock Yards at four o'clock in the morning. He delivered his stock, and then fell in with Timothy Englehard, who was in the habit of bring- ing patients to defendant, and receiving some compensation for doing so. Englehard took Klepstoin to a store, and persuaded him to be measured for a suit of clothes, and then treated him to a glass of beer, after which they went down town on a street car. On the way Englehard asked Klepstoin what was the mat- ter with him, and said that he looked sick, to which Klepstoin replied that he was not sick. When thoy got down town, JMigle- hard assisted in getting Klepstein's pass extended, and said that he had to go to defendant's office to get some medicine for his baby. He persinidcd Klepstein to go into the office, and spoko to defendant about medicine for his baby, and then introduced Klepstein, and said that he looked sick, — that his eyes looked bad. The evidence for the People upon which defendant was convicted was substantially as follows: After the introduction, defendant told Kle])stein that he looked sick, and he replied that he was not sick. Defendant said that he was a professor, and could tell when people were sick, but could not tell what was the matter until he made an examination. He and Englehard told Klepstein to pull off his overcoat, and Klepstein threw his shoulders back, and they took it off. They then told him to take off his other coat and vest, and ])ull down his suspenders, and he did so. Englehard then went out of that room, and defend- ant pulled Klepstein's shirt up ar(»und his neck. Klepstein laid down on the examination chair and defendant made a jdiys- ical examination, and told him that he had heart disease, brain trouble, and piles. After the examination, Klepstein got up, and put on his clothes, and was going away, but defendant said that he coiild not go until this was settled for; that the treat- ment had already begim, and would have to be settled for. De- fendant then called Englehard back into the office, and said that he and Kle])stein had decided on everything but tho amount; that he wanted $150 to treat him, one-half in cash, and STEWARD V. PEOPLE. mitentiary. e Lakeside near Gro- f 20, 1897, k Yards at and tlioji it of bring- nsation fur persuaded reated him on a strei't as the nuit- i Klepstein •wn, Kiigle- id said that ine for his and spoko introd'.'u'ed ?jos looked Midant was itroduction, •eplied tliat fessor, and I what was Eiigleliard I threw liis urn to take nders, and nd (h'fcnd- I)stein laid le a phys- ('ase, brain in got np, ndant said the treat- I for. 1)0- nnd said X but tlio I cash, and 503 that he would take a note for the rest. Klepstein said that that was more money than he had ; that he only had a little money, — a $50 draft. Defendant asked to see the draft, and Klepstein took it out. Defendant looked at it, and said that was all rijiiit. and asked him to indorse it, which he did. Defendant took the draft, and filled out a note for $150, payable in sixty days, and indorsed the amount of the draft, $50, as a payment on it. Klepstein signed the note, and defendant took it and the draft. Defendant then wrote a prescription, and they all went down to a drug store, where defendant handed the prescription to a clerk to be filled for Klepstein. The prescription was filled, and the package was handed to Klepstein, who paid the charge of $-3.75 for it. Defendant went out, and Klepstein complained to Engle- hard, saying that he was not sick, and did not need the medi- cine. Englehard said that he was sorry that he thought as he did, and proposed to go back to the doctor's office, and see if they could get the draft back. They went to the ':race, and Klep- stein said that he was not sick, and would give defendant $25 if he would give the note and draft back. The defendant was goingout to lunch, and said he had no time, and the parties all took lunch together at a restaurant. Defendilnt left the restau- rant first, and after he left Englehard proposed to go back to defendant's office, and see if they could not get the draft back. They went back again, but defendant refused to give back the draft. The next day Klepstein went again with a friend, and asked for the note and draft, and offered to give defendant $25 if he would return them. lie refused, but gave him the note back, tearing off the signature, and keeping the draft. Klep- stein was examined ten days later by another physician, who did not find him afflicted with the diseases defendant claimed ex- isted. A thorough examinaticm developed nothing of any con- sequence in the way of disease, but, on the whole, the man was in good condition and health. Defendant testified that the con- tract was entered into voluntarily. The evidence as to the char- acter of defendant and his re])utation for honesty and fair deal- ing as well as veracity was conflicting. A clerk in the drug store testified that Klepstein told him about the arrangement for treatment with the doctor, but said that he Avas afraid the doctor would not cure him, and that his wife would not be if- Ml El * '' I : A €. m 506 AMERICAN CRIMINAL REPORTS. pleased when he got home. Klepstein admitted that at the time of the examination ho told defendant that ho would deposit $200 if he wonld make him as strong and healthy as he was when he was seventeen years old, but defendant said that he could not do that. The crime of larceny always includes the taking and con- version of property without consent of the owner. It involves a trespass, and there can be no larceny where there is a consent to the taking of the property with the intention that the pos- session and title sholl pass. Where the owner voluntarily parts wuth the possession and title, the crime of larceny is not com- mitted. If defendant, by fraudulent and unfair statements and representations, induced Klepstein to voluntarily part with the possession and title of the draft, intending to transfer such possession and title to him, there could be no larceny, no matter what else it might be. Welsh v. People, 17 111. 339 ; Sfinsou r. People, 43 id. 397 ; Johnson v. People, 113 id. 99. There is no doubt that such was the fact, and that Klepstein meant to part Avith the draft absolutely, and to transfer the title to defendant. The only claim made on behalf of the People is that the draft was obtained by force and duress. But the evidence does not sustain this claim. Klepstein indorsed the draft after the examination, and after his clothes were on, and his supposed friend, Englehard, had come back into the office. There was no physical force whatever, and no show of any. Klepstein tes- tified that he was scared, but it is plain that he had no reference to duress, physical force, or threats of violence. The methods employed were disreputable, and Klepstein Avas overpersuaded and induced to do what he would not have otherwise done, but it was not from any restraint or apprehension of violence. They told him that he was sick, and, although he said that he was not, yet he aided in taking off his overcoat, and took off his other clothing himself, and voluntarily submitted to the examina- tion. After the prescription was written, he accomi)anied de- fendant to the drug store, where the prescription was fille liiV :t -j^r^ I irr ^if kl ■■•* it 572 AMERICAN CRIMINAL REPORTS. was doing, or to have control of liis will, and that he was in- capable of forming or executing an intent to commit any crime whatsoever, by reason of his condition at that time from intoxi- cation, and from his general condition from the effects of previ- ous intoxication." This offer was rejected by the court, upon objection -of the State's attornoy, made on the ground thnt, ''under the laws of this State, intoxication is no excuse for the commission of a crime, under section G81.5, Rev. Codes." It appears elsewhere in the record that defendant's intoxicated condition had extended over a period of not more than six days. It was plainly a case of voluntary intoxication, and not insanity resulting from long-continued and excessive indulgence in in- toxicatiilg liquors, which is a condition always distinguishable from voluntary intoxication. The court's refusal to receive this testimony is assigned as error. The manner of the offer of testi- mony by the defendant is treated by counsel for the State as sufficient, and it will be so considered, without expressing an opinion upon that point. We feel that we should also disregard the language of the offer, so far as it appears to restrict it to the one purpose of showing incapacity to form an intent, and treat it, as counsel for the State has done, both in his oral argu- ment and brief, as presenting for our determination the broa(h'r question whether, in a larceny case, the defendant has a right to offer evidence to show his intoxicated condition at the time of the commission of the acts, as bearing upon the existence of the element of intent. If such evidence is admissible for that pur- pose, to aid in establishing a defense to the crime charged, it should not have been excluded because counsel, in his offer, in- advertently indicated as its purpose a result Avhich may lie in excess of the legal effect of the evidence proposed to be intro- duced. The legislature of this State has by express enactment de- clared when and for what purpose the intoxicated condition of one on trial for the commission of a crime may be interposed as a defense, and considered by the jury. Section OS 1.5, Rov. Codes, reads as follows: "Xo act committed by a person Avhile in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particidar purpose, motive or intent 1 ^mm STATE V. KOERNEIl. 5T3 ; he was in- t any crime from intoxi- ets of prcvi- eoiirt, updii round tlmt, cuse for tlie Codos." It intoxicated EJn six days, lot insanity ■enee in in- ingnisliahlo receive this Ter of testi- le State as dressing an disreoard 'Strict it to intent, and i oral arpii- ;he broader 3 a riijlit to he time of }nce of the r that pur- ?harf?od, it s offer, in- may lio in ) be intro- ■tment de- ndition of ?rpoao(l as 515, Rpv. 'son while 5 criminal whenever or intent is a necessary element to constitute any particular species or de- gree of crime, the jury nuiy take into consideration the fact that the accused was intoxicated at the time, in determining the pur- ])ose, motive cr intent with which he coimnitted the act." The first portion of the section just quoted, which in etl'eet declares that acts which are criminal when done by a sober person are just as criminal when done by one in a state of voluntary intox- ication, is merely the adoption by the legislature of the uniform doctrine of the courts that voluntary intoxication is never u justification or excuse for the commission of a crime. It is evi- dent, then, that if the defendant did in fact commit the crime with which he was charged, his intoxicated condition would n<»t avail, either to justify or excuse him. This his counsel very properly concedes. But it is urged that the crime was not com- mitted, that the larceny was not com])lete without the intent, and that the testimony offered should have bi-en received, and submitted to the jury, to be weighed by thein in determining whether or not the necessary intent existed. The statute does not make evidence of intoxication generally admissible and for all purposes. The language used plainly indicates that the leg- islature had in mind distinct classes of crimes, and intended to limit the admission of such evidence thereto, and for the purpose expressed, namely, to those crimes wdiose species or degree de- pend upon the existence of a particular jmrpose, motive, or in- tent as an essential element thereof, and for the purpose of de- termining the intent with which the acts were conmiitted. The admissibility of the evidence of defendant's intoxication in this case depends, then, entirely \ipon whether larceny comes within this classification. Homicide plainly does. In such a case evi- dence of intoxication is admitted, never to excuse tlie homicide, but to assist the jury in finding the presence or absence of the particular intent Mhich marks the particular degree. Likewise in burglary it is admissible, not to justify the acts of breaking and entering, but to throw light upon the additional element, the intent to commit some other crime, which is the particular element necessary to constitute this species of crime. In neither case, nor in any case within the classification made by the stat- ute, is the evidence either admitted or considered for the pur- pose of justifying or excusing the crime, but for the sole pur- m i\ :V 674 AMERICAN CRIMINAL REPORTS. pose of dctennining wlictlior, in fact, the particular species or degree of prime has been eoniniitted. Are the elements of larceny such as to bring it also within the elasa of crimes permitting the consideration of evidence of in- toxication for the purpose of determining the intent with which the acts are committed ? Our answer nuist bo in the affirma- tive, and our conclusion is that the exclusion of the evidence of (Ic'fend, becomes a pro))cr sub- ject to be considered by the jury in deciding the question of in- tent." M'ood V. Stale, 3-1 Ark. 341, also a larceny case, is in full accord with the cases just cited. See, also, Ulale v. Bell, 2D Jowa, 31S; Slate v. SchiiKjen, 20 Wis. 7!); Pujmon v. Slate, U Ohio, 4GiJ ; Lytic v. State, 31 Ohio St. 190. The only State, so far as we can ascertain, which has excluded the evidence (jf a defendant's intoxication in larceny cases, is Indiana. O'Her- rin V. Slate, 14 Ind. 420, and Dawson v. Slate, 10 Ind. 420, are against the admission of such evidence. The later case of liailetj r. Stale, 20 Ind. 422, however, held such evidence competent, as tending to show whether the defendant was in a mental con- dition so as to be able to commit the crime. And still later, in lingers v. State, 33 Ind. 543, that court reversed the lower court for refusing to admit evidence to show that the defendant, who Avas addicted to the use of opium, had at the time of the otfense been deprived of his accustomed supply of the drug, upon the ground that the evidence went to show his mental condition, ami bore upon the existence of the intent. This case is cited by Chatham v. State, 92 Ala. 47, 9 So. Rep. 007, in support of the admissibility of evidence of intoxication in larceny cases. In the latter ease the court said: "When the offense consists of an act committed with a particular intent, when a specific intent is of the essence of the crime, drunkenness, as affecting the mental state and condition of the accused, becomes a proper subject to be considered by the jury in deciding the question of inteut. . . . The decided weight of authority sustains the doctrine that evidence of the condition of the accused, though caused by voluntary drunkenness, is receivable, and may be considered by the jury in determining the question of intent." If the prop- erty taken is not taken with the intent to deprive another thereof, the crime of larceny has not been committed, and the I'* i Hi i \i t '1' Ik l|, I 1 m • lil I V i .-iiii 676 AMERICAN CRIMINAL REPORTa existence of this intent id nlwnys for the jury to dctorniino. There is no dogroc of intoxiciition, however grent, which, of it- self, is rccnj^nizetl us ronch-ring one h'gally incapahle of furniing a eriniinal intent. I]\it there may l)e u mental condition amount- ing to a species (jf insanity, superinduced by long and excessive use of intoxicating li(piors, which amounts to a legal incapacity to commit crime. In such a case the jury passes upon the ex- istt nee anfl a necessary inference, for the intent accompanying the acts may be entirely wanting, or in itself an innocent one. For instance, the projjcrty may be taken with an intent to return it, or be taken by mistake, or some intent other than to deprive the owner thereof, in which case larceny has not, of c(mrse, been coniniit- ted. The intent to steal does not follow the act of taking as a legal and conclusive presumption; and we may add that the net of the legislature, in admitting this class of evidence in particu- lar cases where intent is peculiarly the gist of the crime or degree, is not an arbitrary exercise of power, for it rests on the imderlying principle that the ultimate object of judicial inquiry in every criminal prosecution is to determine whether a crime has been committed, and to ascertain the guilt or innocence of the accused. And it would seem to us equally justifiable in ])rinciple to prohibit a jury from considering evidence of a de- fendant's physical condition, where it amounted to partial or conjplete paralysis of his physical powers, and is olfered as bear- ing upon the question whether the physical acts included in the crime were committed, as to exclude from their consideration his intoxicated condition, as bearing upon the existence in his mind of the intent to steal, in view of the fact that the well- known effect of intoxication upon the mind is to impair the nor- mal condition of the mental machinery in varying degrees, and CADY V. STATE 577 ) niainod there about a week, he sold the horse to "Whoelis. In about two weeks after the taking of said horse, the owner, Canterberry, recovered him. Appellant presented two defensive theories. He proved by several witnesses that he was drinking on the day of the alleged theft, and was intoxicated. He testified for himself, and stated substantially that he had been drinlin;^ whisky during the whole of the day preceding the theft, and at the time of the takitig of said horse, he was dinink to such an extent that he did not know what he was doing. He, however, gave a circumstantial account of what he did on that occasion. We qiiote from his testimony as follows : ''I came back from the hotel to Rickelman's saloon, where I got something more to drink. After this I went into the alley back of the saloon, where Jack Bradford's wagon was. Jack wanted, me to get back in the wagon, and return to the fish camp. I told him, 'Xo;' I was going to ride. I went in the alley, and mounted the Canterberry hoi-sc, and rode down the alley. Passed Jack Bradford, when he tried to pull me off the horse, and the horse began to rear and plunge. I then rode on out into the street, having no particular place in view; just thought of taking a ride. After riding a distance of eight or ten miles, the air and wind brought me to, somewhat. I had a terrible head- ache, and my only desire was to get rid of the horse. I remem- ber stopping at some one's house on the road, and asking how far it was to Lott. I tried to follow the direction, but got lost, and went up to a house occu])ied by William ^Mieelis. I went and stayed all night there. The next day (Sunday), Mr. When, ^^farlin, him, 'Yes,' we were a! ne one had 3n !i[onday 1 I told her ras glad for e horse and I told Mr. hat was tho CADY V. STATE. 570 best for me to do about it. He replied that he did not know. After T was there for about a week or such matter, I let him have the horse, so I couhl get some money to leave the country on. I intended, after I got far enough off, to write to Mr. Canterberry tmd tell him where the horse was. When I got on the horse at ^Marlin I was drunk, did not know what I was doing, and tlio only thought I had was to take a ride. I did not intend and had no idea of stealing the horse." The defensive theories presented by appellant were: First, that, at the time of the alleged theft, he was laboring under temporary insanity, produced by the recent use of whisky, and so was not in condition to form the fraudulent intent to steal; second, that he took the horse merely for the temporary purpose of taking a ride, with no intent to steal him. The court gave the jury the statutory chai-ge on temporary insanity, produced by the recent use of intoxicating liquor, and instructed them that they could only consider the same in mitigation of the pen- alty they might assess against the defendant in ease they found him guilty. In this connection, he further instructed the jury as follows: "If, luider the evidence, you believe the defendant, at the "time of taking tho horse, was in such a condition of mind as that he was not capable of or did not possess the specific in- tent to defraud the owner of the horse, by depriving him of the value thereof, and appropriating the same to his own use or benefit, then you will not convict him, unless you further find and believe from the evidence that afterwards defendant's mind was restored to such condition as that he was capable of and had the intent then and there to deprive the owner of the horse or its value and to appropriate the same to his own use or benefit, and that, acting under such intent, he retained possession of the horse, or sold him to Wheelis, intending to deprive the owner of he value of the horse, and to appropriate same to his (the de- fendant's) use or benefit. So, if defendant did not have the intent to steal wdien he took the horse, such lack or absence of in- tent being the result of his mental incapacity to form such intent, yet if afterwards, while still in possession of the horse, he be came mentally capable of forming the intent to steal, and, while in such last-mentioned mental state, he conceived and formed the intent to steal the horse, his condition of mind at the time of '^'ll'lll :\ ru" ::f'/ :., t . ; (id r ■! j (■■hiiSiii.- ifn m ': 580 AMERICAN CRIMINAL REPORTS. i: M taking the horse will not avail to acquit him of the charge. After all, unless the intent to defraud, as above defined, existed in defendant's mind, either at the time of taking the horse or subsequently, as above explained, the defendant is not to be con- victed." Appellant excepted to this charge, and requested the court to give the following instructions: "The defendant re- quests the court to charge the jury as follows, to wit : If you be- lieve from the evidence in this case that the defendant took the horse of the prosecuting witness, Canterbcrry, but that, at the time of so doing, he did not intend to permanently deprive the owner of the same, but only intended the same for a temporary use, to wit, that of taking a short ride, you will acquit the de- fendant, even though you should believe the taking was without the consent of the said Canterbcrry. If you believe from the evidence that the defendant took the horse of !Mr. M. U. Canter- bcrry, as charged in the indictment, btit that, at the time of said taking, the defendant was so drunk as to be incapable of form- ing in his mind a fraud\ilent intent, and did iiot, by reason of such drunkenness, have such frandulent intent, you should ac- quit him, notwithstanding the fact that you may further believe that, after coming to himself, he converted the same to his own use and benefit ; and, if you so believo, you will acquit the de- fendant, or, if you have a reasonable doubt thereof, you will find him not guilty. You are charged ihat in prosecutions of theft, that the fraudulent intent of the taking is the essential in- gredient and gist of the crime of theft, and this intent must exist at the very time of the taking, and that no subsequent fraudulent intent will render the previous taking felonious. So, in this case, if you believe that, at the time the defendant took the horse in question, he did not intend to steal the same, but that, subsequent to said taking, he conceived the idea of ap- propriating the horse to his own use and benefit, and did in fact so appropriate him, you will find him not guilty ; or, if you have a reasonable doubt thereof, you will find him not guilty." Said special charges were refused by the court, and appellant ex- cepted. We do not believe that the evidence raised the issue of tempo- rary insanity. True, the defendant testified that he had been drinking, and testified that he did not know what he was doing; the chax'ge. ned, existed he horse oi* :)t to be con- quested the fendant re- If you be- mt took the that, at the deprive the I temporary n|uit the de- ,vas without e from the U. Canter- ime of said >le of form- y reason of shouhl ae- ther believe to his own ]uit the de- f, vou will lecutions of essential in- ntent must subsequent onious. So, jndant took ^ same, but dea of ap- did in fact if you have Ity." Said pellant ex- B of tempo- p had been was dding; HALL V. COMMONWEALTH iSl yet he testified with great clearness and circumstantiality, giv- ing all the details of the transaction. Insanity has a distinct moaning, and, whether produced by the recent use of whiskv or other causes, it has the same meaning. It is not mere drunk- enness. The court, however, gave a charge on temporary in- sanity, produced by the recent use of intoxicating liquor, in ac- cordance with the statute. And if he had stopped there, undcM' the facts of this case, there would have been no error. But the learned judge proceeded further, and told the jury that if he Avas in such a condition at the time he took the horse as not to know what he was doing, and afterward when he came to him- self, he then formed the intent to steal the horse, he would then be guilty. This is not the law. The fraudulent intent to steal must l)e formed at the very time of the taking. Without this, no subsequent app^'opriation will be theft. Appellant testified that he took the horse for temporary use, merely to ride, and this statement appears plausible in connection with his subsequent appropriation; and the charge given Avith reference to the intent to steal the horse formed after the act of taking was calculated to mislead and confuse the jury. The judgment is accordingly reversed, and the cause remanded. Eeversed and remanded. Hall v. Coir mon wealth. 106 Ky. 894—21 Ky. Law Rep. 520, 51 S. W. Rep. 814. Decided June 15, 1899. Larceny: Habitual CuiMrxAL: Former convictions — Evidence — In- structions — Increased penalty — Sentence. 1. Under the Kentucky rule it is not necessary in larceny to instruct on the question of defendant having found the property. 2. The Habitual Criminal Act is not unconstitutional. 3. Under that act the jury should find the fact of former conviction and fix the Increased penalty; but defendant is not entitled to a separate trial on that issue. 4. It was error for the court to affix the increased penalty (sentence for life) where the Jury had not fixed it, and where the jury had not been fully instructed on that Issue. f^TJ' '■ %i u!' ,5 IPit 5S2 AMERICAN CRIMINAL REPORTa t. '.'*. Mm M :.!-.. \'m. Appeal from the Franklin County Circuit Court. Reversed. John \V. lUiij, for the appellant. W. S. Taylor, Atty. CJon., and 11. M. TJi^ttcher, for appellee. Du Kkt.t-k, J. Appellant was found guilty of grand lareeny, under an indictment which, in addition to tlu; charge of granon hy this court, through -Iiidgc I'ayntcr, in Ifcsler v. Com., K; Ky. Law K<'p. 7s;5, 2!i S. W. licp. ST.'., wlicre it was held that tlie instruct ion rc(|uiring liic jury to liclicive tliat she did fctloniously "take, steal, and carry away" IIk; money was uutvc. favorahic to thut the statute; as to hahitual e-riminals fse'c. \l'.',(K Ke;nt»icky 8tatute;s) seems \(> have; cre'iite'il an additional and higher elegree e)f ofTe-nse, vi/. the' commission eif a ielony, having hvcu therete)fore twie-e convie-te'd eif a felony, etc. Te> show tlie; accuseel guilty of this de'gre-e- e)f (he- edfe'iise charge'd, it is ne-ces- sary to show the former ceHivie-tions; ami tliis, eif e-ourse-, is hound to ])rejudice the accused, — just as e-vide'uce' showing malie-e is hound to prejudice the eledendant in a niunler case-, — hut it may he shown to make e»u( a highe-r <]c"vcc of the' edfense, which authejrizes the severer punishment. 'I'Ik' statute' has heen he;ld constitutietnal, and it has lie'e-n he-lej es-e'titial to alle'ge- the former cfinvictiem or ce.nvictieins in the- indictme'ut. Slcimrl v. dorn., 2 Ky. Law Tiep. 3Sr;; MoanI r. Com.. 2 Duv. '.)'.',; Taylor r. Com., 3 Ky. Law Hep. 78:J; llofjfjn r. Com., 9 Ky. Law Kep. uh.-Hi 584 AMERICAN CRIMINAL REPORTS. •n d R'i{ ' 342, 5 S. W. Rop. 307. The statute requires the jury to find the fiK't of the former convictions. There is no provision for a separate trial of the fact of former conviction, nor do we think the statute intended there should he one. The law seems to work a hardship, hut it is a hardship the legislature alone can remedy. Tn Combs v. Com., 14 Ky. l.aw Rep. 245, 20 S. W. Rep. 2(;S, this court, through Judge Lewis, recognized the legality of this "lure, saying: '*It wa.s distinctly and sufHclently charg(>tl •ic iidictment, and fully provor this y hy whom ment to ho aw. Uj)on liat hy sec- •d time of iry during s shall not shall Hngree of the offense of which they find the defendant guilty. It is not our duty to discuss the relative mc.v- its or demerits of the two systems. That (pu'stion is not under dis- cussion. I)Ut it is our duty to consider what our own system was intended to effect, and whether a failure to carry out its general design in any particular is prejudicial to any substantial right of the accused whose case is brought before us. On the trial of a criminal case in the federal court, counsel for defense is not permitted to tell the jury what penalty will be imposed if they render a verdict of guilty. In our courts a considerable portion of the argument of counsel for the defendant is frequently de- voted to discussing the severity of the punishment, as contrasted with the trivial nature of the offense. U'^nder our system, whether by direct design as to this point, or as necessary to ef- fect another purjiose, it is contemplated, at all events, that the jury shoiild know and say what punishment is to be imposed for the offense of which they find the accused guilty. The statute (section 113G) requires them to fix by their verdict the punish- ment to be inflicted, within the periods or amount prescribed l)y law. It will not do to say that, the fact of two former convic- f ' 580 AMERICAN CRIMINAL REPORTS. tions being ascertained and found by the jury, it is inovitablo that punishment by amfiueuient in the penitentiary for life sliouhl foHow, and therefore that the court is authorized to so ad- judge. If a defendant is found guilty of murder, it is in- evitable that he should be hung or confined in the penitentiary for life; but no Commonwealth's attorney would be hardy enough to come to this court expecting to athrm a judgment of confinement for life upon a verdict running, *'We, the jury, find the defendant guilty of murder as charged in this indictment." And yet that punishment -would be as inevitable from that ver- dict as it is in this. Nor is there anything incompatible or con- flicting in the two statutes, — sections 1130 and 11 30, ]iy the one it is mandatory that, if convicted a third time of felony, tho accused shall be confined in the penitentiary during his lif(>. By the other section it is e(pially mandatory that the jury shall fix the punishment, — just as mandatory that the jury shall fix the punishment of murder at confinoment in the penitentiary for life, at the lowest. This is in strict accord with the theory under Avhich the increase of punishment inflicteon habitual hoory is, as atod by the for life for nd larceny lunishinent the proper ive punish- s guilty of onvieted of he peniton- finenient in nd to work 3, like this, pxeopt that reqnired to ease. They ny. They of course, ley are not ich circum- HALL V. COMMONWEALTH. 587 stances, be expected to realize the importance of it. Under the instructions as to grand larceny, they find the accused guiltv, and fix her punishment at a year's confinement in the peniten- tiary, — one would think, an ample i)unislimeiit for stealing $;J2, under the circumstances as they appear in this case, liut they find, in addition, — without dreaming, so far as this record shows, of the effect of that finding, — a fact upon which, accord- ing to the Commonwealth's contention, tlif; cnurt inevitably sen- tences the accused to confinement in the penitf-ntiary for life. Tt may be urged that, for securing unprejudiced action by the jury in their finding of such facts, it is better that they should not know the effect of their fimling, Jhit our system requires tliem to know it. The case of Chenowilh v. CommomceaUh ( Ky.), 12 S. AV. Eep. 585, is not incompatible with this view, for there the jury were evidently instructed as to the elfect of finding the existence of former convictions. Their verdict showed it. ]>y an error in computation, the jury fixed the pun- ishment at more than this court thought it should have been. The trial court rendered judgment in accordance with the ver- dict, and this court reversed the case, with directions to render what was considered the jiroper sentence. Nor is there any c(mi- flict whatever with this doctrine in the recent case of llcrit'loii r. CommonwenJlh (decided by Judge ]Io])son), 48 S. W. llcp. f>S9. There the iiiry were instructed that if thev found the usier was directed by the court not to take any ])art in the proceedings when the charge against the de- fendant was l)eing investigated. The indorsement "A true bill" on the indictment was returned, signed by Busier as foreman, and the defendant moved to set it aside for that among other rea- sons. The motion was overruled, and of that ruling tlie defend- ant complains. Section 4201 of the Code of 1873, as amended by chapter 42 of the Acts of the 21st General Assembly, is as fs(dted in tho in, and malice is not an essential ingredient of the crime of nuisance. It is always an essential in cases of malicious mis- chief. See cases heretofore cited, and People v. Olsrii, G Utah, 284, 22 Pac. Kep. 1G3; United Stales v. (Jidcon, 1 :Miip:. 292 (Gil. 220); Stale v. Pierce, 7 Ala. 728; Slate v. M'ileox, 3 Yerg. 277. The demurrer to the indictment should have been sustained. 4. The appellant complains that he was recpiired to plead and go to trial on the day the demurrer was overruled, and that ho was not allowed the time given by law in which to plead and ]irepare for trial. The record fails to show any objection to what was thus done. 5. On the trial Stotler was permitted to state, notwithstand- ing objections of the defendant, the number of horses he had in different barns on the night of the poisoning; the condition the horses were in at the time; the number of horses and kinds and arrangement of stalls in the barn in which Mollie Cedar was kept; the number of boxes in that barn in which poison was found; and the number of separate barns in which horses wen; poisoned; and the number of boxes shown to a druggist named Hampton for examination. We do not find any error in ad- mitting the evidence to which reference has been made. Xo poison was taken from the box of Mollie Cedar, although it con- tained some of the preparation in which strychnine was found in other boxes. The testiinony in regard to other horses anva, 308, and ?t by consent, e of the facts iiilty puts in 1, and, if the We do not ential fact is dence to tlio ly of the wit- the court is Knapp, 10 f acquittal in 3WS the coni- this sense, a md the fact;, ; a new trial. I questions of and in doinjr :he witnesses. \Vebster, 111 al case is not a witness as 1 Cal. 34, 24 i take the tes- of the ]irose- ony, the jury ot introduced he jury, and pie V. Casey, had no right riie province a broad one. 1 rij^ht j2:iven I upon them, tit of her ajrc re not holden it. It would >ne. It is for STATE V. LIGHTFOOT. 59; the jury to say when truth and when falsehood come from tho mouth of the witness. The conduct of this witness when upon the stand may have shoAm her to have been lying. Her appear- ance may have shown her to have been of mature years. The inherent improbabilities of her testimony may have placed it beyond the pale of belief." These rules do not prevent the court from directing a verdict of not guilty, nor from saying that the defendant was not guilty of some particular offense, as in tSparf v. United States, 150 U. S. 51, 15 Sup. Ct. 273, 10 Am. Crim. Rep. 1G8, Avhich contains a most elaborate dis- cussion of the question of jurors being judges of both the law and the fact. But this is quite a different proposition from a statement saying that the evidence does establish a certain fact Ijcyond dispute. To say that a fact is not established in a crim- inal case, and that, therefore, the defendant is not guilty, is (]uite different from saying that a certain element of the crime is established by the evidence, and that but one more fact need be established to make out the offense. In the case of People r. (lart)utt, 17 Mich. 9, Judge Cooley, speaking for the court, said: "The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, aie to judge of the facts and weigh the evidence. The law established this tri- l)unal because it is believed that, from its nund)ers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better capable to judge of motives, weigh probabilities, and take what may be called a 'common-sense view' of a set of circumstances, involving both act and intent, than any single man, however pure, wise, and eminent he may be. This is the theory of the law, and, as applied to criminal accusations, it is eminently wise and favorable alike to liberty and justice. But, to give it full effect, the jury must be left to M'oigh the evidence, and to examine the alleged motives, by their own tests. They cannot properly be furnished for this ])urposo Avith balances Avhich leave them no discretion, but which, under certain circumstances, will compel them to find a nmlicious intent when they cannot conscientiously say they be- lieve such an intent to exist." In the case of Houston v. State, 4 G. Greene, 437," defendant Avas accused of the crime of de- facing and marking a school-house, and the trial court instructed ,•,,1 Min m ''■:» 9, - M 596 AMERICAN CRIMINAL REPORTS. 1., ■ i' l\-i^ that the State had proved all that was necessary with reference to the school district. This court said: ''This is error. This was charging the jury upon the weight and sufficiency of testi- mony. It is not within the province of a judge to instruct a jury as to what facts are proved or not proved, lie may explain to them the legal effect of facts, biit the facts themselves are to be ascertained exclusively by the jury. Better abolish the right of trial by jury at once than to i^ermit judges to dictate the facts upon which the verdict must be founded. The practice of charg- ing the jury upon the facts may have precedent in some of the older States ; but in Iowa it has ever been regarded as danger- ous, as a usurpation of power, and as an interference with tho rights of parties and the province of jiirors." That rule thus so clearly stated has never been departed from in this State, unless it be in one case, to which we will hereafter call attention. Soo, also. State v. Donovan, Gl Iowa, 3G9, 46 ?^. W. Eep. 206 ; >S7a/e V. Stowell, 60 Iowa, S.^.^, 1.5 N. W. Rep. 417 ; State v. Porter, 74 Iowa, 627, 38 N. W. Rep. 514. In the case now before us there was circumstantial evidence tending to show that some of the prosecuting witness' horses were poisoned, and direct evi- dence that strvchnine was found in some of the feed boxes, not, V 7 7 however, in that where the mare ^follie Cedar was kept. True, she died about the same time that the other horses did, but there is no direct evidence that her symptoms denntow before us hat some of I direct evi- l boxes, not, wept. True, d, but there •chnine poi- s that they ce to the ef- n poisoned, m had been let. But it t of law for hat dofend- es had been •efer to the I ted that ho was sini])ly I particular record, we 'c admitted ined in this STATE V. LIGHTFOOT, 59T vie TV by the fact that at the conclusion of the evidence defendant moved for a verdict, and one of the grounds of his motion was that there was no evidence that the animal had been poisoned and no evidence that there was any poison in her trough. If tho fact had been admitted, it is strange that such a motion should have been made. In this respect, as well as in some others, tho case differs from State v. Huff, 76 Iowa, 200, 40 X. ^\. Rop. 720. There the defendant had a permit to sell liquor, and the State introduced the certificates filed by him showing such sales. These were distinct written admissions by the defendant that he had made sales, and were held to be admissible for the purpose. On this state of facts, the trial court instructed that testimony showed that defendant sold intoxicating liquors at his place of business, and that the only question to be considered was Avhether he made the sales in good faith, for the actual necessi- ties of medicine. In that case there was a solemn written ad- mission of the defendant that he had sold liquors, and the in- strTiction was held to be correct. Without, at this time, ques- tioning the rule of that case, it is sufficient to say that it is not an authority in support of the instruction given in the case nt bar. Many civil cases can be found supporting the rule of the instruction given in this case, -JHit they are not applicable, for reasons which sufficiently appear from what has already been said. We think the instruction was erroneous, and that the question of fact assumed therein to be tnie should have been submitted to the jury. 9. Lastly, it is insisted that the verdict is not supported by the evidence. In view of the reversal, it is bettor that we ex- press no opinion upon this subject. For the errors pointed out the judgment is reversed. Robinson, C. J. (dissenting). I concur in the reversal of the judgment of the district court, but do not agree with the conclusion of the majority that the indictment was not sufficient. The section of the Code of 1873 under which it was returned describes three offenses, using the word, "maliciously" in de- fining each of the first two, and omitting that word in defining the third, which is the one charged in the indictment. The omission cannot be regarded as accidental, and, although per- 5t)S AMERICAN CRIMINAL REPORTS. P ■ ;: ':¥''} li|i:|?r:i! liaps unwise, should, I think, be given effect. The indictment eliarges that the defendant did wilfully and unlawfully commit the act described, substantially in the language of the statute, and, according to the rule generally applied in such cases, that was sufficient. See State v. Bait; 92 Iowa, 28, 60 IST. W. Rep. 480; Munson v. State, 4 G. Greene, 483; 2 ]VrcClain, Criminal Law, § 833. Of the cases of State v. Ilarrk, 11 Iowa, 415, State V. WHJianmm, 08 Iowa, 3.51, 27 N". W. Rep. 259, and State V. Limle, 54 Iowa, 139, X. W. Rep. 108, cited in the opinion of the majority on this question, the first and second involved the maiming and disfiguring, and the third the killing, of domestic animals. In none of them was the offense sought to be charged in this case in any manner involved, and they do not appear to be in point. It is my opinion that the ruling on the demurrer to the indictment was correct. Granger, J., concurs in the dissent. litei^ State v. JoirxsoN. 7 Wyo. 512—54 Pac. Rep. 502. Decided October 3, 1898. MAticious Trespass: Construction of statute — Specific intent. 1. The malice necessary to constitute the offense of malicious mis- chief or malicious trespass is something more than the malice which is ordinarily inferred from the wilful doing of an unlaw- ful act without excuse. 2. Statutes such as section 61, Laws 1890, punishing as a crime mali- cious or mischievous injury to the property of another, are not intended to make every wilful and wrongful act so punishable, but they are devised to reach that class of cases where the act is done with a deliberate intention to injure. 3. In order to bring an offense under the head of malicious mischief, it must appear that the mischief was itself the object of the act, and not that it was incidental to some other act, lawful or un- lawful. 4. Where the defendant drove a I and of sheep across the uninclosed, unimproved and uncultivated lands of the prosecuting witness, and in doing so did not stop to graze them thereon any longer than sheep do graze while being driven from place to place by the usual and ordinary methods employed to so drive them, in indictment illy commit the statute, 1 cases, that N". W. Rep. 1, Criminal Iowa, 415, . 259, anntal, but it must in addition be malicious in the sense above given. The wilful doing of an unlawful act without excuse, which is ordi- narih'^ sufficient to establish criminal malice, is not alone suffi- cient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, uidess accom- panied with that special malice which the words 'wilful and ma- licious' imply." In Duncan v. The Stale, 49 ^fiss. 331, which was an indictment for malicious mischief in killing a hog, tho I mm STATE V. JOHNSON. <;oi ion lias been l)erniitted to )lier(l; and it ch lands for r which dani- A decision of this case. a very laryo 's that "wli.)- 'es to be in- •ty, is guilty England, it the act must . C. C. 073 ; riio doctrine but the au- ; the malice »re than the doing of an lot intended as a crime, re the act is imoniccallh n for a wil- "The jury a spirit of exist in all re ennnier- riie injury lesign, as dental, but iven. The ich is ordi- alono suffi- tional and ess accom- ul and ma- 31, which a hog, tho jury returned a verdict: *'"\Ve, tho jury, find tho accused guilty of tho wilful and unlawful killing of the hog, but not out of a spirit of mischief, revenge, or wanton cruelty;" and this was held to be an acquittal of the accused of the charge in the indict- ment. So in Wright v. The Stale, 30 Ga. 325, which was an in- dictment for malicious mischief in shooting a undo, tho court say: "Tho question to be tried was not whether ho was jiisll/lcd in shooting the mule, but whether his motive in shoot iii>,' \v;is malicious. The question of justification would be the issue in an action for damages against him, but on this indictment the issue was malice or no malice. If he shot from the motive of protecting his crop, and not from cither ill will to the owner or cruelty to the animal, his motive was not malicious whether it was justifiable or not, and his act was not malicious mischief.'' Tn a New Jersey case tho defendant was indicted for wilfully and maliciously tearing down an advertisement of sale set up by the sheriff. His defense was that he took it down for the pur- pose of showing it to his counsel and from no bad motive. The court say: "The word 'maliciously' when used in tho definition of a statutory crime, the act forbidden being merely malum pro- hihilum, has almost always the effect of making a bad intent or evil mind a constituent of the offense. Tho whole doctrine of that large class of offtmses falling under the general denomina- tion of malicious mischief is founded on this theory. For ex- ample, it was declared by the Supreme Court of ^Massachusetts in the case of Commonwealih v. Walden, 3 Cush. 558, that tlu; word 'maliciously' as used in the statute relating to malicious mischief was not sufficiently defined as 'the wilful doing of an act prohibited by law, and for which the defendant has no law- ful excuse,' but that to the contrary, in order to justify a con- viction under the act referred to, the jury must be satisfif'd that the injury was done either out of a spirit of wanton cnielty or wicked revenge." Fohvell v. The State, 49 X. J. L. 31. And it seems to be generally held that in order to bring an offense under the head of malicious mischief it must appear that the mischief was itself the object, of the act, and not that it was in- cidental to some other act lawful or unlawful. 14 Am. & Eng. Enc. of Law, 11. The case of Daily v. The State, 24 L. R. A. 724 (51 0. S. 002 AMERICAN CRIMINAL REPORTS. ; ii I III 348), rcHod upon by counsel for tlio State, was a prosecution under nn Ohio statute entirely dissimilar to the one under con- sideration. It provides that "whoever wronjjffully and without lawful authority" injures any tree growinj^ iipon land not his own shall be fined, etc. The stion whether the act was done maliciously or mischievously did not ."rise, and even in that caso the trial court instructed that if the defendants acted under an honest belief that they had a rifiht to cut the trees, they \v(>re not guilty under the statute; but that if they acted heedlessly, reck- lessly and carelessly they would be liable. And the Supreme Court in attirming the judgment say that if th(\y did so act, the cutting was "wrongful" within the meaning of the statute. The decision has no application to this case, and we have not found any which sustain the view of the cr>unsel for the State. In an Indiana case, where the statute was in the same words as our own, it was contended by counsel as in this ca.se that the act having been clearly proven, malice would be inferred, liut tho court say such is not the rule where the circumstances attending the commission of the tres])ass rebut the presumption of malice. Lossen v. The State, 02 Ind. 440. The agreed statement of facts in this case shows that the de- fendant drove his sheej) across the land of the prosecutor to a railroad station, and that in doing so they destroyed only so much of the grass as such a band of sheep would ordinarily de- stroy in passing over it. There is not only no evidence of malice or that mischief was the object of the act, but the tendency of all the evidence is against such a conclusion. Admitting, there- fore, for the puqioses of this decision, that the act of driving the animals across the land was a tresj)ass for which damages might be recovered in a civil action, the facts as agreed ujion do not constitute any offense under the laws of this State. Xo answer is made to the fii-st, second, and third questions, none being necessary, and the fourth is answered in the negative. PoTTKR, C. J., and Knight, J., concur. Notes (by J. F. G.). — It is a well-settled rule that the statutes re- lating to malicious mischief only apply to those cases where a wilful injury is done to the property of another as a means of executing vengeance against the owner of the property. 2 East, C. L. 1070-71; 2 Arch. Cr. Pr., Waterman's notes, 708; Chitty's Blackstone, 134, p. 243; u;u STATE V. JOHNSON. 0O3 .:'.■;: prosocution r* uiulcr con- nnd without liuul not his >ct was (loiio in that cnscj ptl unch'i" an icy were not llcssly, rci'k- hc Supremo il so aft, tlio itatuto. Tho o not found tato. In an 'ords as our tliat tlio act 'd. Mnt tlio C3 attc)idiiij2j n of malice. that tlio do- ^ccutor to a s'od only so linarily do- co of malice tendency of ttiiiir, there- of driving 'h damaf>'<^s 'od upon do questions, w. negative. statutes re- lere a wilful of executing L. 1070-71; , 134, p. 243, iS I King V. Penrcc, 1 Leach, 527; Kino v. Shepherd, 1 Lench, 529; (tlate V. I'eirce, 7 Ala. 728; Northrot v. State, 43 Ala. 330; State v. B., Dev. & Bat. 130; United States v. Gideon, 1 Minn. 392, last par.; State v. Knsluw, 10 Iowa, 115; Neicton v. State, 3 Tex. App. 245. Tho Ameri- can statutes are generally held to have the same object in view as the Black Act In England, which was intended to apply to those cases which were inspired by a desire of revenge. As to the original objects of the statutes in England, see State v. Wilcux, 3 Yerg. 278; East, C. L. 1070-71. In malicious mischief the specific intent Is an essential element; so where one who had been fighting was turned into the street, and crossing picked up a stone and threw it at several persons, but. miss- ing them, hit a window, the jury having found that the intention was not to break the window, but to hit one or more of the persons, it was held in l{eg. v. Pemberton, 12 Cox, C. C. C07, not to amount to ma- licious mischief. Prisoners intentionally setting fire to a jail for the purpose of effect- ing their escape, and not for the purpose of burning the jail, were held, in People v. Cotteral, 18 Johns. 115, not to be guilty of arson; so in Jenhins v. State, 53 Ga. 33, it was held that burning a hole about a foot in diameter by a prisoner to effect his escape was not an at- tempt to commit arson. See also State v. Mitchell, 5 Ired. 3.")0. A sailor desiring to steal some rum entered that portion of the ship where spirits were kept, and, getting a lighted match too near the stream, burned the ship; held, not arson. Reg. v. Falkner, 3 Cox, C. C. 550. Driving through the streets of Boston at -a greater rate of speed than permitted by the city ordinance, whereby a boy was knocked down, was held, in Commonwealth v. Adams, 114 Mass. 323, not to amount to assault and battery. I;; 1 State v. Johnson. 58 Ohio St. 417—51 N. E. Rep. 40. Decided May 10, 1898. Mayhem: Maim: Definitions and distinctions — Common law and stat- utory — Intent — Pleading — Assault and battery. 1. Maim and mayhem are, at common law. equivalent words, and mean the same thing; therefore, a count in an indictment charg- ing the defendant with maliciously biting the ear of another with intent to maim cannot be supported as to the particular intent charged, as the biting of an ear does not, in law, constitute a maiming. 2. Nor can a conviction be had on such a count for biting the ear with intent to disfigure, under section 7316, Revised Statutes, '^ y C04 AMERICAN CRIMINAL UEPORTS. permitting a conviction of an inferior degree of ttie offense charged, as a biting with Intent to disflgure is not Inferior to a biting with intent to maim, under section C718 (6819?). Both offenses are of the same degree. Barber v. State, 39 Ohio St. 660. 3. Under an indictment charging an Injury to the person of another with intent to malm oi uiuuTure, the party may be convicted of an assault and battery, under the provisions of section 7316, Re- vised Statutes; the offense charged being simply an aggravated assault and battery. (Syllabus by the Court.) Exceptions on the part of the State from the Perry County Court of Common Pleas. David Johnson, indicted and tried in said court for mayhem, was acquitted on the first count and demurred to the second count, which demurrer was sustained; henco these exceptions by the prosecuting attorney to test the accuracy of said ruling, under the provisions of the statute. T. B. Williavis, Prosecuting Attorney, for the plaintiff in error. Maurice H. Donahue, counsel appointed by the court to argue exceptions. Tlios. B. Williams, Prosecuting Attorney, in sup- port of exceptions. MiNsuALL, J. David Johnson was prosecuted on an indict- ment presented by the grand jury of the county, framed on the provisions of sec. 6811), Revised Statutes. The section, so fnr as it is applicable to this case, is as follows: "^Vhoever w' \\ nuih cious intent to main or disfigure, cuts, bites, ^r ,,(. nose, ear or lip, cuts or disables the tongue, puts oi dostro^'s an eye, cuts off or disables a limb or any membei ' inotlv r per- son," is declared guilty of an offense punishable by ii |)rison- ment in the penitentiary. The indictment contained two counts. In the first it was charged that he maliciously "did bite the ear of one Reuben Mitchell with intent to disfigure;" and in the second, that he maliciously "did bite the ear of one Reuben Mitchell with intent to maim." A demurrer was sustained to the second count, and, on a plea of not guilty, he was acquil^ted on the first count. The prosecuting attorney took a bill of ex- ceptions to the ruling on the demurrer to the second count, and prosecutes the same here, under the provisions of the statute in that regard, to test the accuracy of the ruling. of the offense )t Inferior to a (6819?). Both }9 Ohio St. G60. ■son of another be convicted of ictlon 7316, Re- an aggravated ?crry County for mnyhcm, jO the second exceptions by said ruling, ) plaintiff in iourt to nrgiie mey, in sup- on an indict- :amod on the ion, so far as ^r Av- h ni;i.; lie nose, ilestroys an anoth'T per- )y ii prison- two counts, bite the ear and in the one Reuben sustained to as acquitted a bill of cx- 1 count, and le statute in The demurrer presents the question whether the malicious biting of the ear of another can bo charged as dime with intent to maim. There is no question, wo think, but that maim as a nomi, and mayhem, are eqtiivalent words, or that niiiini is but a newer form of the word mayhem; the difference being in the oilhogm- phy, and not in the sense. Webster's Unabr. Diet.: ".Maim" as a noun is there defined the same as mayhem: *'The privation of the use of a limb or member of tlie body, by which one is rendered unable to defend himself, or to annoy his adversary." This is the definition of mayhem at common law. 1 East, P. ('. 31)3; 1 Whar. Cr. Law, sec. 581. Hence the verb "to maim" is accurately defined in Anderson's Law Dictionary as follows: "To commit mayhem." So, at conunon law, whatever the in- juiy to any member of the body might be, if it did not perma- nenth' affect the physical ability of the person to defend himself, or annoy his adversary, it did not amount to mayhem. Neither the biting of an ear, nor the slitting of the nose, was regnrdtnl as an injury of this character. Clark's Cr. Law, 182; 15 IJI. Com. 121. The outrage upon Sir John Coventry, who had been set npon in the street, and his nose slit, for words spoken in parliament, led to the adoption of what is kno\\'n as the Coventry Act. 22 & 23 Char. II. This act made it a felony, without benefit of clcrg\', where any one unlawfully cut out or disabknl the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disabled any limb or member of any other person, with intent to maim or disfigure him. 4 Bl. Com. 200. Our statute is substantially the same. Any of the injuries there named, done with the intent "to maim or disfigure," is punishable by imprisonment in the penitentiary. Whether it be the biting of an ear, or the putting out of an eye, or the cutting off of a hand, each is alike regarded as a crime, and punished the same way ; or, in other words, each is of the same degree of criminality. Sec. 73 IG, Kevised Statutes. The question in the case is whether the second count in the indictment charges an offense against the laws of the State. It does not, for reasons stated, charge a maiming. Then does it charge the offense of biting the ear with intent to disfigure? Such intent is not averred in the count; and, unless the intent i > ■I i ■ ■.ji 606 AMERICAN CRIMINAL REPORTS. ■i J to maim includes tlio intent to disfignre, there can !)e no convic- tion on the second count for such an offense. Evidence of an in- tention to disfigure would bo a fatal variance fr(»in the intent laid in the count. The intent in this case must depend upon tlie nature of the injury, in connection with the character of the niend)er on which it is inflicted. If the member be not one of use to the ptu'son in defending himself, an injury to it can- not be said to have been done with intent to maim. It is pro- vided among other things, in section TolO, Ilevised Statutes, that, "When the indictment cliarges an offense inchuling differ- ent degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree." In Barber v. State, 30 Ohio St. (500, it was held that the offense of cutting with intent to kill, and that of cutting with intent to wound, are offenses of the same degree, under the provisions of section (iS20, lievised Statutes, making it an offense for any one to cut another pei'son "with intent to kill, wound or maim." The in- dictment charged a cutting with intent to kill. The verdict of the jury was, "'Guilty of cutting with intent to wound." Tlu^ court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to tha.. of cutting with intent to kill. ]iy a parity of reasoning, it follows that the unhiwful biting of the ear with intent to disfignire is not an offense in- ferior to that of biting it with intent to maim; and an indict- ment charging the biting to have been done with intent to maim would not be supported by evidence of an intent to disfigure — there woidd, in such case, be a material variance between the; proof and the allegation. But this does not exhaust the inquiry, for the question re- mains, does the count charge any offense against the laws of the State? If so, the court erred in sustaining a denuirrer to it. Xow, it seems a])parent that the malicious biting of the ear of another, whether to maim or disfigure, amoimts to an assault and battery, — an offense inferior in degree to an assault with intent to nuiim or disfigure — the offense charged being simply an aggravated fomi of assault and battery, of which the defend- ant could have been convicted on the count demurred to, on proof of such an offense. Heller v. Stale, 23 Ohio St. 582; '& )o no convie- loneo of an in- (»ni the intent (]epenpr be not one; ury to it t*aii- ni. It is pru- ised Statutes, „'lu(iiiij>^ (litfer- . guilty of the In Barber r. nse of cutting pnt to wound, ons of section iny one to cut • ?J rill • im. 1 he 111- riie verdict of A'ound." The jy the verdict, tent to wound g with intent the unhnvful an oflFeiise in- nd an indict- ritent to maim to disfigure — between the question re- le laws of the niurrer to it. of the ear of to an assault assault with being simply 1 the defend- iiirre(l to, on hio St. 582; STATE V. JACKMAN. Ou7 Barber v. State, supra; 3 Bl. Com. 121. For this reason the court erred in sustaining a demurrer to it. Exceptions sus- tained. State v. Jack man. 69 N. H. 318—42 L. R. A. 438. 41 Atl. Rep. 347, Decided July 29, 1898. MuxicirAL OuDiNANCics: Constitutional law — Unequal distribution of public burden. An ordinance requiring tlie tenant, occupant or owner, as the case miglit be, to remove snow from sidewalks adjoining premises, and providing a penalty for failure to do so, is void for tlie reasons: (1) It declares a duty whicli does not bear on all citizens alike, being an unequal division of public expense. (2) It is in violation of the fourteenth amendment of the United States constitution. (3) It ia an effort to impose a public burden on a few individ- uals. Appeal from the Police Court of Concord. Lyman Jackman, having been convicted and fined five dollars for violating an ordinance, appeals. Keversed. Sarpent, HoJIls & NiJes, for the State. Sauittel C. Eastman, for the defendant Elodoett, J. Among the various purposes enumerated in the act incoii^orating the city of Concord, and for which power is expressly given the city council to make ordinances, is that "to compel all persons to keep the snow . . . from tlu» sidewalks in front of the premises owned or occupied by them.'' Laws 1849, cli. SJ]5, § 17, p. 810. The ordinance in question, therefore, having been authorized by specific and definite leg- islative authority, and having also been "duly and legally adojited," has the ( fFect of a special law of the legislature within the limits of the city, and with respect to persons upon whom it may lawfully operate, and cannot be declared invalid except for unconstitutionality. 1 Dil. ^.hm. Corp. (4th ed.), §§ 319-322, ■^1 1 llil i ■ r . . ; 1 • :j; .■;\ • ■ ■ :■ s, , ■ fir; ;' 1 .' ■;'■ jitej.: His 'if '' 11' ■ I ',i \i '• > '■■■ 1 ) .uii; 'i'^ 608 AMERICAN CHIMIN AL RK1»0IITS. 327 ct scq.; TiKjmnn v. Chicmjo, 7S 111. 105 ; Phillips r. Denver, 19 Col. 179, 41 Am. St. Kcp- -'50; UroiMyn v. Jin'slin, 57 K Y. 591, 59(5; *S7. J'aul v. Caller, 12 Miim. 41. lJ'..l(,r our statutes, tlio duty of kccpiug liifihways in repair and free from obstruction by snow or otlier tliin<;-s tliat iini)edo travel or render it dangerous is imposed upon tlie municipalities in which they are situate (1*. S., eh. 7((, §§ 1, 2); and this duty extends to sidewalks as well. ]I(ill v. Manchester, 40 N. ]I. 410, 415; SlereiiJi v. Nashua, 40 .\. ]|. 192, 195. For these purposes, nuinici|)alities an; empowered to "raise such sum as they jud'^o necessary for each year," to be assessed upon all the polls antl estate subject to taxation therein, and nuiy order the same paid in money, in which case "the tax shall be eonnnitted Ut the col- lector of taxes, and be collected as other t^Mxes," or, if n(»t so ordered, it "may be paid in labor." T. S., ch. 7;{, §§ 1, 5, H. Jlurdened with this duty, an . 410, 4ir»; so piU'poHes, s they ju(l,i;(! ho polls ami e siiiiio piiiil (I to th(> eol- >r, if not so )o\ver, in ro- of Concord int tho hd)or Ik a' li^hwiiy it- f tho puhlio tion for t.h<' ill principle* Xor should right in or front of his town. All fcMiornl pul>- nol)stnictoe(|e trav(d. Then, npoii what principle caw ho ho (mkmI for not, re- moving snow or other ohstnict ion from tlu; sidewalk in which he has no interest otlu^' than what Ik; has in conunon with all other persons resident in tho city? It is (terlaiidy not ni)on the prin- ciphi nndor which assessments are made against llio owner for hnihiing sidt^walks in front of his |>roperty. Tho oases arc not analog(»ns. Snch assossmcints arc; nnniitainrMJ on t.ho ground the sidewalk (adnincos tho vaino of tho propt-rty, and, to tli(! extent () N. II. H7, 1)4. And, "nmler tho constitution, . . . there is n(» warrant f more in- offective than it would bo in its absence." Slalc v. Pcnnoyer, snprn, 115. Jt would seem unnecessary to go further; but the ordinaneo stands no better on the ground that it is an exercise of the yio- lico power inherent in all nnniicipal and State governnieiils, and which, it may be conceded, ])n>])erly extends to "the protec- tion of the public morals, the public health, and the ])ul>lic safety." Beer Co. v. Masmehii.sells, \)7 V. S. 25, :):]; Min/lrr r. Kanms, supra. Nobody doubts that, when an occasion fur its exercise exists, the police power may be invoked in hehalf of these objects, lint it is entirely plain that the ordinance has no real or sid)stantial relation to any of them. It is not an exer- cise of restraining or protective power, like the dog law, so called, or the statute empowering towns to require buildings to be provided with such ladders and buckets as may ho necessary for use in case of lire, under a penalty of six dollars for every three months' neglect, and other enactments of like character, cited by the State. It is simjdy an unequal division, for ecun- omv and convenience only, of public expense and public burden among a class of taxpayers who have not only once contrihiited and borne their full share agreeably to their constitutional duty, but who are again reqtiired to make contribution, not jjropor- tionately and according to the valuation of their property or the benefits they receive, but dispro])ortionately, and solely accord- ing to the length of the street lines of their respective lots. This is extortion and inequality, pure and simple — and it is nothing else. See Curry v. Spencer, 01 X. II. 024, 031, 032. "An act whicb operates on the rights or property of oidy a few individu- als, without their consent, is a vi«dation of the equality of priv- ileges guarantied to evciy subject" Merrill v. Sherburne, 1 X.II. 199,212. But suppose the legislature, in empowering the city of Con- cord to adopt the ordinance, intendee be apjior- and Avitbout be subjected ;uised, or be b tbey could lid not even tea all tboso 3 exercise of ■i; Carlhafje e nuisances, tolice power, ons ; and in of privilege larantied bv A'bicb mean t, in tbe ex- ividual may bicli ho did ontrol, an guard back in position it moves the l)lng; when you throw tlu." guard forward, as soon as you start it forward, the plug dro|)s down behind the trigg'or, and prevents the trigger from moving; that, when you press the guard down, a little mechanism that moves the cartridge would keep it frfnii falling out of place; that all Winchester rifles are miide witli that plug; that a Winchester rifle was a patent gun, and that the cartridge would not get in position and fire until you got the giuird back. It will he notcil that the defendant claimed that the gun, for some unaccouut- able reason, fired at a time when he was not expecting it, and when he was only working the guard.* The object of the evi- dence introduced evidently was to contradict the account which the defendant gave of the manner in which the gun fired, and to show that a Winchester ritle could not be fired in the manner in which the defendant claimed that this gun was discharged. This evidence must have had a veiy important bearing on the ease. The newly-discovered evidence, as set out in the aflidavit of Robert Shoemake, is to the effect that he Avas the owner of the gun Avith which the deceased was killed; that he had loaned this gun to the accused prior to the homicide; that it was defective in some way in the lock, and, iK'fore the occasion of the homi- cide, the gun, while being handled, had been discharged without any apparent cause; at other times the gun was used for a con- siderable time Avithout such an accident. It Avas also, at the trial, an important fact to be ascertained as to Avhere the ball 1 1 I «iii ,, 1 rr p 1 i 'l ::|, '1 ■1 .( V'' 'f: lift; If -LIe, < ;?*' I C16 AMERICAN CRIMINAL REPORTa from tlio riflo piitorod the lioiid of tlin tloocnsoJ. TJiulor tlio nc- coinit given by tho accuso(l when ho roportcd the homicido, iipcossiirily the ball must have entered tho front part of hor head. At the trial, a witness, who was a pliysician, testified as foHows on that subject: "I examined tho wound. There Avas no powder burn about tho face. The ball passed betwerMi two of her fingers a little to the right of the left eye, and came out aboiit an inch and a half lower than where it went in. I examined the wound on tho other side. From what I know of gnn-slmt wounds, I would say the ball went in frona behind. It generally makes a larger hole at the exit than where it goes in. 1 am a practicing physician. If I had been called there to make a de- cision as to which side of that head that ball entered, I would have said it went in at the back, and came out in fnmt." This, and other similar evidence tending to prove the same thing, must also have been very' material in the case, because, if the ball entered the back of the head, and came out in front, necessarily the account which the accused gave of the position the woman was in, and the manner in which the wound was infiicted, was imtrue, and tended to show that it was otherwise infiicted, anil that the shot was fired from her rear. The newly-discovered evidence set out in the affidavit of W. W. Bailey, W. J. Ferdham, T. D. Bailey, I. B. Ilitson, A. J. Weaver, and Enoch 'M. Howard dis])utes this theory of tho State. The last-named five afiiants say that they served as jurors on the inquest held over the body of the deceased the day after the homieide ; that they did not call a physician to make an examination of the wound on the body of the deceased, but they themselves carefully examined such wound, both in the front and back of the head; that they found what appeared plainly a large hole in the front of the skull, and, after shaving the hair from the back of her head, found that the back of the head was shattered almost to pieces, with pieces of bones and brain in the hair, which convinced these jurors that the ball entered the front of the head. Here, then, was testimony directly negativing tho theory of the State as to where the ball entered the head, and tending to show, to some extent at least, that the wound might have been inflicted while the deceased was in the position which the defendant described when he called for assistance. These lulor the nc- hoiiii('lsses whoso testimony would appear in tho rejiort of the evidence made hy the coroner, hut jurors charged with the duty of asau-taining the cause of death, and who, in tho discharge of their duties, made a carefid personal examination, the result of which was not communicated to the accused or his counsel hefore nor at tho trial. A\^c therefore think that this alleged newly-discovered evidence should not ho disregarded on the ground that due diligence was not shown in procuring it, nor do we think that it is merely cumulative in its character. So far as appears in the record, there was no evidence tliat tho rifle was out of condition, nor any relating to this condition. It is true that during the examination of one or more of tho wit- nesses who testified as to the construction of a Winchester rifle, and the only manner in which it could he fired, questions were asked in relation to whether their testimony would apply to this character of ami if the lock or working parts should he rusty, etc. ; hut nothing which we have ohserved, as to tho condition of the working parts of this rifle, which would or would not cause it, by other means than those testified to, to ho discharged. Cer- tainly, therefore, some of this evidence was not camulative at all, but new and original, as well as very material. The rule in :iirU 018 AMERICAN CRIMINAL REPORTS. relation to the j^rnnt of new trials for nowly-discovcrcJ cvidonco is that it must bo niatorial, not merely cumulative, in its char- acter, but relating to new and nuiterial facts, shall bo discov- ered by the apijlicant after the rendition of the verdict, and brought to the notice of the court within a proper time. When all this appears, it is not absolutely reijuired that a new trial shall be granted. The j)rovision of law is that, when these req- uisites ap[)ear, a new trial may l)e granted. Penal Code, § lOUl. In the case of Thompson v. ISfatc, (50 Ga. Glf>, this court ruled that the newly-discovered evidence, in view of the evidence had on a former trial, which might produce a different resiilt, being material, and not merely ciuuulative, was suilicient to authorizo the grant of a new trial. In Dale v. Slate, 88 Ga. 5r>2, this court ordered a new trial on the ground that the ends of justice wo'.id be promoted by allowing the defendant an opportunity to avail himself of the newlv-discovered evidence. And so we think here. The truth of the matter must necessarily be ascertaine2, this court ustiee Avo'.id nity to a VII 11 80 wo think ' ascertained ised, or from statement to nit, and ono 'ossible lefjal 'n before the at least, the drawn more fendant im- pnt made at lat this evi- 'he value of still decide vidence ap- laving been diligence in in order to ler evidence jll the facts y. In our r new trial nlgiuent re- MATTHEW8 v. STATE. qiq !Mattiikws v. State. , 40 Tex. Crlm. Rep. 316—50 S. W. Rep. 368. Decided A'urch 22, 1899. New Tt.iai: Order granting new trial cannot be vacated— Bill of ex- ceptions. 1. An order granting a new trial is final, and cannot be vacated by the court entering it, even at the same term. 2. Qjutiref Can an order overruling a motion for a new trial be va- cated? 3. Defendant's counsel, having received notice that the motion for a new trial would be reheard, was not deprived of an opportunity to prepare bill of exceptions. Appeal from the District Court of Tarrant County; Hon. Irby Uunklin, Judge. J). L. Matthews, being convicted of cattle theft, appeals. Ile- versed. Jas. S. Davis and 0. S. Laltimore, for the appellant. Rubl. A. John, Asst. Atty. (Jen., for the State. Ukooks, J. Appellant was convicted of the theft of cattle, his punishment assessed at two and a half years' coutinemeut in the penitentiary, and he prosecutes this appeal. The only question presented for our consideration is the ac- tion of the court overruling its former action granting a new trial and then passing sentence on appellant. Accompanying the transcript are certain affidavits of ajipellant which show the action of the court more in detail than the record. It is shown that on the last day of the term of the court (appellant having been convicted at a previous day of the tenn of the offense of theft of cattle) appellant's motion for a new trial was granted, and an order to that effect entered upon the minutes of the court, r>etween nine and ten o'clock on the night of that day, and just before adjournment, appellant was brought into court from the jail, and the previous order of the court granting him a new trial was set aside, and the court then proceeded to pass sentence upon him. The order of the court is in these words: "Xow comes James W. Swayne, prosecuting the pleas of the State, also the defendant, D. L. Matthews, in person, and it appearing i ■ ■• ini If i itv tm '' f\ G20 AMERICAN CRIMINAL REPORTS. to the court that tlio order licrotoforo tl):s «l)iv iniulc soltiiiir asiilo lli(^ judgiiKMit iiikI grant ill*:!; a new ti-ial in this causo wan made under a uiisapjirclicnsion of tlir ovidcnco ndiiplMincd of l»y de- fendant in his motion for new trial, it is considered and ordered that sai dereiidaiif, in open court excepts, and gives notices of ajipeal to the cnurt of criminal ap[)eals of the Stat(> of 'i'exas; and on a])pIication therefor it is ordered that defendant have* ten rehear the; case, hut liis couiisfd faii'id to put in an appearance!. Ap|»ellaiit assigns as error th>' action of tlu; (;ourt in granting him a new trial, aii derelidiiiit, » lii(> court, of i )i])|)liealioii ys from and ) prepare and 1 i"e('or(l does le a^^reeiiieiit, aiitAs coniis(d lli(! case, l)iit, •llant, assij^'iis ew trial, and Mil the coiirl, rive(l liiiii (i[' Jt, does not, was notilieil, Diiteiitioii as is as to tlio a Tiew trial, te(l to IIS in )f this term 'hriiary J."), tliat:, ill our liavinir full 'j; tlie leriii ; uses there is no criminal if we recur lear tlial tla; MATTlli'.WS r. STATIl. <:iii grniilinj.^ of a new trial in a erimiiiiil case is a (Inalily, and not Hiihjecl, (^» a rec' of ;i crimiiinl iiclion nfier verdict, Ix'fore the jnil^c or aimllicr jury, as the ciise niiiy he; and l.iiat. in no (fuse shall a new t rial he f;rjintc{' ^iiill, nor .'-hall it. he alluded lo in the artiunient. If a new trial shall he refuse(|, a slalemeiil. of the facts shall \>(' drawn, and cerlilied lo hy lh(^ jnd^if, clc See Code Criiii. I'roc., title It, cli. !. It would app<'ar from the~e provisions f the term, to a^ain call the ca.se up, .'-••I. the order aside ^rantiiif^ the motion, and overrule it, and then proceed te senlence the de fendant. 'i'his view is further manifested hy a rel'ereiice to other provisions of the slatute. l''or instance, siippo-e at a former day of the tz-riu, dil'endant, hein;.'; on hail, the courl, Hhoiild have j^ranted his motion for a new trial, the elfeci ol the order fi-rantiiif^ such motion would he to enlar^'-e the did'endanl on his hail, or, aftr-r the frrant in;.^ of the oi' \v- lieve it was intended that the action of tlie court in l;i .^ ,i new trial should be final. We are not now holding (because that (juestion is not before us) that it would not be competent for the court, afte.- having overniled the motion for new trial at a former day of the tenn, to again call the case up, and grant such motion; and we concede that, if the court can do this, it affords a reason why it might do the other. \Ve have examined such authorities of other States as are accessible, but can find no,iO bearing upon this question. In Loohahaugli v. Cooper (Old.), 48 Pac. Hep. 99, in a civil case, the judge, in rendering the de- cision, held that the action of tlie court in granting the motion for new trial was final, and no further action co\dd be taken on the same motion ; and cites a number of decisions of other States, notably from California, which appear to support the doctrine. lie also quotes from Thompson on Trials (sec. 2727), as fol- lows : "It has been held that, after an adverse decision on a mo- tion for new trial, the moving party has no right to file another motion, for the matters embraced in the motion have become res adjudicata." As stated before, however, the nde in our State appears to be dift'erent. See Sayles' Hev. Civ. Stats., art. 1337, note 2; Hooker v. Williamson, 02 Tex. 524; Gnihhs V. Blum, 62 Tex. 420. IJut we believe the rule with rof(MVMice to civil cases in this regard cannot be applied to criminal eases, in view of the provisions of our statute above quoted. AVhile the disposition of this cnse on habeas corpus was no doubt ef)r- rect, yet what was said by us in that opinion at Vi^riance with this decision is overruled. We accordingly hold that the action of the court was erroneou3, and the judgment is reversed, and the cause remanded. Reversed and remanded. Davidson, P. J., absent. 3 (lofondant, V the former as we know, froTU a road- 'ions, wn 1 i n u. .- ,1 bceaiiso that )mpetent for cw trial at a 1(1 grant such lis, it affords aniined sncli an find no. so oper (Old.), ering the de- g the motion [ be taken on other States, the doctrine. 727), as fol- ion on a mo- » file another have become nile in our Civ. Stats., 524; Gnthhs th rrf(M'(Mice minal cases, ted. Wliile o doubt cor- jriance witli >t tlie action }versed, and HORHOUSE V. STATE G23 IIoRirorsE V. State. Tex. Court of Crim. App.— 50 S. W. Rep. 361. Decided March 15, 1899. New Trial: Neivly-discovertd evidence as to insanity. Where the evidence Is not conclusive as to criminal intent, newly- discovered evidence, showing that the accused was insane, is ground for a new trial, even though with reasonable diligence it might have been discovered previous to the trial. Appeal from the District Court of Galveston County; Hon. E. D. C.^avin, Judge. Appellant Ilorhouse, convicted of burglary, appeals. Ee- versed. Byron Johnson and Marsene Johnson, for the appellant. liobt. A. John, Asst. Atty. Gen., for the State. Brooks, J. Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary f(n* a term of five years, and he appeals. J. S. Brown, the owner of the alleged burglarized house, testified: "Alx>ut eleven o'clock at night we were awakened by hearing some one in the house downstairs, myself and family l>eing upstairs. The doors had been locked, and every opening in it Avas closed. Uptm hearing the noise, I went to a window, and called out tx) I^. S. Lut1d by appellant be true, the question of diligence is not to be considered by the court in passing on whether or not a new trial should be granted. Judge Wilson, in Schuessler v, Slafe, 19 Tex. App. 472, uses this language: "It is tnic that no diligence has been used by defendant to dis- cover and procure this testimony. On the contrary, his desire was that such testimony should not be resorted to. "If, in fact, the defendant is insane, it could not be expected that he should use diligence to procure the testimony, and the law would not exact it of him. His counsel appear to have used reasonable diligence to obtain testimony, and did obtain some, as to his mental condition, and show good reason why they did not procure the testimony which they show can be produced on another trial. This newly-discovered evidence is certainly ma- terial, and calculated, we think, to change the result on another trial. It appears to us probable that the defendant is not a re- COOPLR V. COMMONWEALTH. 025 , plate, and ollars. Do- :n, and also it, who was "When I le said that testified in ritz Galvan [orhour'e. I , and could foregoing is, is attorneys, judgment of ay of April, iiacy. They ;ind brother, s crazy. int to secure fortified co])y ; but, if the question of passing on ge Wilson, language : lant to (lis- his desire )e expected nv, and the o have used )tain some, ly they dill )rodueed on rtainly ma- on another is not a re- sponsible person, and wo think that the law and justice demand that ho shall have a new trial." We think that the evidence in this case clearly shows that ap- pellant is entitled to a new trial, since the exhibits attached to appellant's motion for new trial show that a different result would probably have been reached if the evidence of the insanity of appellant had been introduced. Furthermore, the evidence of the State is not of that con- clusive character on the question of intent such as would ordi- narily be required. The evidence does not show that he had any f(donious intent. True, he broke into the house through a win- dow, but, after getting in, although the owner of the house made o\itcry, and had the police telephoned for, yet he stayed there, and never attempted to take anything away from the house or to escape, nor did ho clfer any resistance when arrested. This, coupled with the exhibits as above indicated, attached to his motion for new trial, constrain us to reverse the judgment. The judgment is accordingly reversed, and the cause re- manded. Davidson, P. J., absent. Cooper v. Commonwealth. 106 Ky. 909—21 Ky. Law Rep. 546, 51 S. W. Rep. 789, 45 L. R. A. 216. Decided June 17, 1899. Pebjuby: Res judicata. An acquittal on a trial for adultery bars a prosecution against the defendant for perjury, charging that in testifying on the trial he denied the alleged carnal intercourse. HousoN, J., and Paynter, J., dissenting. Appeal from the Circuit Court of Kowan County. Appellant Cooper, being convicted of the offei.^e of perjury, appeals. Reversed. A. T. Wood and R. Blair, for the appellant W. S. Taylor, for the appellee. VouXI-40 'wvS: 1 J ! ,i' !' W\ i-' 620 AMERICAN CRIMINAL REPORTS. DrnNAM, J. The appellant and one Libbie Purvis ■were jointly indicted in the llowan circuit court for the offense of adultery. Tlio trial under that indictment resulted in a ver- dict of acquittal for appellant. The gi-and jury of Rowan county thereupon reported this indictment against him, in which it is charged that upon the trial of appellant and Li])l)ie Purvis upon the charge of adultery "he did knowingly, wilfully, and corruptly swear that ho had not had carnal sexual intercourse with Libbie Pun'is, when same was false and untrue, and was known by him to be false and untrue." The trial under this indictment resulted in a verdict of guilty, and a judgment sen- tencing appellant to confinement in the penitentiary, which we iir(> asked upon this appeal to reverse. The principal question to be considered is the effect which is to be given to the indictment, trial, verdict, and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant cannot be guilty in this case if ho was innocent of the charge contained in the other indictment. His guilt or innocence of the offense of having had carnal sexual intercourse with Libbie Purvis was the exact question which was tried in the first proceeding, and as a result of that trial the defendant was fcjund not guilty. In order to convict him in this case, it was necessan' for the jury to believe that he was guilty of the i(l(Mitical ofFeiise for which he had been tried and ae(iuitted iinder the other indictment, as it is evident that, if he was innocent of having had carnal sexual intercourse with Libbie Purvis, he was not guilty of fals(> swearing when he stated that he had not had such intercourse with her. We there- fore have, as a result of the trial of a])pellant under these two indictments, a verdict and judgment finding him not guilty of the ofTense of having had carnal scwual intercourse with Libbie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charge(l, and the second jury found him guilty of a f'cdony be- cause he testified that he was not g^iilty of such misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It a^)- urvis were ( offense of I in a vor- of Rowan Ti, in whii'li :)l)ie Purvis ilfully, iind intcrconrso 10, and was under this Igmont sen- ary, which ;ffect which d judsiinent, aduhery, as is case if ho dictnient. had carnal act question psult of that r to convict K'lieve that hceu tried ident that, course witli - sdciueanor. fif the law !is. It ap- COOPER V. COMMONWEALTH. (-o-j- pears to us from the conflicting character of the test inn .iiy in tlio ease upon the question of defendant's guilt or innocence that a verdict of the jury might have heen upheld in the first caso wliether found one way or the other, hut certainly the finding of the jury must he conclusive of the fact considered as against tlie Commonwealth, and preclude any further prosecution which involves the ascertainment of such fact. A question analogous to the one at har was considered in tlio case of Coffey v. Unilcd Stales, IIG U. S. 43(), Sup. ("t. 4:57, tl'.e facts in which ease are ahout as follows: Coffey was a dis- tiller, and was proceeded against under a section of the statute for defrauding, or attem])ting to defraud, the United States of the tax on spirits distilled hy him, and the coi)])er stills and other d:.-?t!!lery apparatuses used by him and the distilled spirits found on his distillery premises were seized. One section of the statute provides, as a consequence of the commission of the prohihited act, that this certain property should ho forfeite(l, and that the offender should he fined and imprisoned. CofTey was first proceeded against on the criminal charge, and ac- quitted. SuhseqiUMitly a ])roceeding to enforce the forfeiture against the res was instituted. The defendant in the proceed- ing //; rein relied u]K)n his acquittal under the criminal charge, and .ludge lilatchford, in delivering the opinion of the court, said : ''Wliere an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding institute(l by the United States, and a judgment of acquittal has heen ren- dered in favor of a jiarticiilar ]>er requiring guilt to he proved beyond a reasonable do\ibt, and that ('U the same evidence, on the (]ues- tioii of preponderance of proof, there might Ihi a verdict for the Unite8, the court held : ''The jtuljijment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court." And in the case of United Slates v. McKee, 4 Dill. 128 [Fed. Cas. Xo. 15,(588], the defendant had been convicted and pun- ished under a section of the llevised Statutes for conspiring with certain distillers to defraud the United States by unlaw- fully removing distilled spirits without the ])ayment of taxes ther(H)n. ]Ie was afterwards sued in a civil action by the United States, under another section, to recover a penalty of double tho amount of the taxes lost by the conspiracy and fraud. The court held that the two alleged transactions were but one, and that tho suit for the penalty was barred by the judgment in tho criminal case. The decision was ])ut on the ground that tho defendant could not be twice punished for the same crime, and that tho former conviction and judgment were a bar to the suit for tho penalty. And Judge Van Fleet, in his Treatise on the Law of Former Adjudication (p. 1242, § 028), says: "If there is a contest between ihe State and tho defendant in a criminal case over an issue, I know of no reason why it is not res adjudlcata in another criminal case;" citing a number of American decisions in sup])ort of the text. Appellant in this case had already been tried and acquitted of th(! offense of having had carnal sexual intercourse with Lil)- bie Purvis, and the judgment in that case is res judicala against the Commonwealth, and he cannot again be put on trial where the truth or falsity of the charge in that indictment is the gist of the question under investigation. It therefore f(dlow3 that appellant was entitled to a peremptory instruction to the jury conscqucnco no new trial ontinee ■with Court in the io of liC.v r. 8, the court Ion, directly , conclusive, directly in 1. 12S [Fed. id and pun- ' consi)iring s by uiilaw- ?nt of taxes f the United f double the I. The court and that the ho criminal e defendant nd that the suit for tlio f of Former :> defendant )n why it is ^ a number d acquitted e with Lil)- vala against trial where t is the gist ■()llow3 that to the jury COOPER r. COMMONWEALTH. 629 to find him not guilty. For reasons indicated, the jiidgmont is reversed, and the cause remanded for proceedings consistent Avith this opinion. IT(.usoN, T. (dissenting). Appellant, when indicted for adul- tery with ].il)bie Purvis, secured an acquittal by swearing falsely that he had not had carnal intercourse with her; and being indicted and convicted of false swearing in giving this testimony, it is held that because he was acquitted in that case ho cannot bo punished for the crime tlnis connnitted. In other words, it is held that if the defendant in a criminal case will awear to enough to secure an acquittal, and does in this nninner get a verdict in his favor in that case, he cannot, although clearly gniilty, be punished for the perjury or false swearing by means of which he defeated justice. Such a nde puts persons charged with crime, when testifying for themselves, on a differ- ent platie from other witnesses and oflfei's an incentive not only to perjury on their ])art, but to the corruption of justice in other ways to secure a verdict in their favor which will ])rotect them from punishment for both the offense for which they are tried and the perjury committed on the trial. It is certainly ancnia- lous to say that if a criminal attempts by perjury to secnre an ac(piittal and fails in the attempt, he may be punished for tho crime; but that if he is successful, no ])uiiishment can be in- flicted. Undoubtedly it would seem that there is, at most, as sound reason for punishing this grave crime where the ends of justice have been thereby def(>a^'d as where th(^ effort to defeat justice has proved abortive. In Freeman on Juneral jurisdiction are not the subject of an attack in a col- lateral proceeding, it becomes necessary to determine whether this rule, or the reasons upon which it is basc^ is to be apidicd to the case before us. "The rule had its origin from motives of public policy, sus- tained, as all the authorities conduce to show, by the additioiuil reason that the party aggrieved has every 0]>porfunity ofVen'd him for redress if wrong has been committed ; he may appeal, move to set asi IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ ti& ■tt ^ 12.2 1.1 Itt I^iotographic Sdaioes CaqxsHtiQn 23 VraST MAM STIHT WIISTIR,N.Y. 145M (716)172-4503 4^ ;V 632 AMERICAN CRIMINAL REPORTa the more should he be estopped to make this plea to escape pun- ishment for the crime of perjury' by means of which he obtained the judgment. There is not a shadow of doubt of appellant's guilt in the case 1 :^fore us, and not to punish him is to lose sight of the principles on which the nile relied on rests. The opinion is based on the ground that the cpiestion whether appellant had had sexual intercourse with Libbic Pun^is was litigated and determined on the trial of the indictment against him for adultery, and that the State is concluded by the judg- ment in that ease from litigating with him again this precise question on a charge of false swearing on that trial. Xono of the authorities cited by the court sustain this conclusion ; nor is it sustained by the principles on which the doctrine of res adju- dicaia rests. It rests after all on public policy and convenience. Its design is to protect courts of justice and secure for them re- spect. It is court-made law and, like other conuijon-law prin- ciples, is not to be stretched beyond its rea.son. The purpose of the rule is to promote the orderly administration of justice, not defeat it. It rests on the ground that the law having provided certain processes for the correction of errors or defects in judg- ments, the ends of justice require that these r.hould be followed. But it was never intended to assail the right of the courts to protect the administration of justice from perjury, a right which all courts must of necessity possess if judicial proceed- ings are not to become a solenm farce. Neither the reason, pur- pose nor spirit of the rule permits its application in such a man- ner as to destroy respect for courts of justice or make them im- potent to punish crime. For these reasons I dissent from the conclusion reached by the majority of the court. This dissent which was announced at the time was, by an oversight, not filed before. Payntku, J., concurring in the dissenting opinion. Notes (by J. F. O.). — Of the four volumes credited, In the head lines, with reporting this case, only the 106 Kentucky gives the dis- senting opinion; the other three give the reversing opinion, and sim- ply note that "Hobson, J." dissents, making no mention of Mr. Justice Paynter's dissent. The court was constituted of seven judges. The writer of the dissenting opinion concedes that fraud which vitiates a Judgment in a criminal case is fraud "in giving the court EX PARTE CLEM McCARVER. 633 escape piin- lie obtained ; appellant's to lose sight ion whether Purvis was (lent against )y the judg- this precise 1. Xone of ision ; nor is of res adju- 3onvenience. for thein re- on-law prin- 3 purpose of justice, not ng provided ^cts in judg- ho followed, ho courts to iry, a right lial proceod- reason, pur- such a nian- ko them iui- roached by was, by an tn. In the head gives the dls- ion, and sim- )f Mr. Justice idges. fraud which ing the court jurisdiction," but contends that greater is the fraud when perpetrated by perjury after jurisdiction has attached. Morally he may be cor- rect; but if such fraud can vitiate a judgment where jurisdiction has attached, then a judgment based upon a verdict of not guilty could be set aside, and the original case be retried, notwithstanding the con- stitutional provision, regulating the practice in many of the States, that no person can be placed twice in jeopardy of the same offense. It is well settled that if a person appears before a justice of the peace and accuses himself with being guilty of a misdemeanor, and is fined, the judgment is no bar to a future prosecution for the same offense (Drake v. State, 68 Ala. 510; Bingham v. State, 59 Miss. 529), for, the State not being represented, the proceeding is ex parte, and there is no jurisdiction. The same rule applies where a guilty person fraudulently procures another person to file a complaint against him, there simply being an appearance of jurisdiction, but in fact no juris- diction. Ex Parte Clem McCakver. 39 Tex. Crim. Rep. 448, 42 L. R. A. 447, 46 S. W. Rep. 936. Decided June 15, 1898. Personal Liberty: Curfew Ordinance: Rule for construing ordinances. 1. Coifrts are not inclined to question the reasonableness of munici- pal ordinances passed under a special grant of power; but if an ordinance based upon a general power does not appear to be rea- sonable, it will be declared to be void. 2. A municipal ordinance, depending for its authority on a general power requiring the ringing of a curfew bell at forty-five minutes after eight o'clock p. m., and declaring it unlawful for any per- son under the age of twenty-one years, not in the company of parent or guardian, and not in search of a physician, to be on the streets or alleys at fifteen minutes after such ringing, being an unreasonable interference with personal liberty, is void. Appeal from the County Court of Young County ; Hon. 0. E. Finlay, Judge. In a habeas corpus proceeding, the relator being remanded, appeals. Relator discharged. John C. Kay and P. A. Martin, for the relator, contended that the ordinance is in violation of the State constitution ; cit- ing Const., art. 1, sec. 10, and Huntsman v. State, 12 Tex, Crim. App. 619. That the common law gives no such power to i!Si'' ■.; 634 AMERICAN CRIMINAL REPORTS. cities. That the ordinance endeavors to make acts criminal which in themselves are not so ; and would interfere with minors in attending religious meetings or innocent amusements. That the city, being organized under the Revised Statutes, has no pov.-cr not expressly granted, etc. Also cites Ex parte Garza, 28 Tex. Crim. App. 381; Galveston v. Loomy, 54 Tex. 523; Miller v. Biirch, 32 Tex. 210 ; V/illiams v. Davidson, 43 Tex. 33 ; Voshurg v. McCrary, 77 Tex. 572 ; Brenham v. Water Co., 67 Tex. 542. W. W. }Valling and Mann Trice, Asst. Atty. Gen., for re- spondent. IIexdersox, J. This is an appeal from a proceeding under a writ of habeas corpus. It appears in the city of Graham, Young county, the city council have passed what is termed a "curfew ordinance," as follows: "Ordinance !N'o. 30. "An ordinance prohibiting persons under the age of twenty-ono years from remaining or being fo\ind upon the streets of Graliam after nine o'clock at night. "Be it ordained by the city council of the city of Graham, in session assembled, that : "Section 1. Any person under the age of twenty-one years who shall be found upon any of the streets or alleys of the city of Graham at night, and later than fifteen minutes after tho ringing of the curfew bell as hereinafter provided, sliall be guilty of a misdemeanor, and iipon conviction thereof shall be fined in any sum not less than five dollars nor more than fifty dollars. "Sec. 2. Be it further ordained, that the foregoing section shall not apply to any person lander the age of twenty-one years, who shall at the time of being so found upon the streets or alleys of said city be accompanied by his or her parent or guardian, or to any person or persons in search of the service of a physician, provided such person or persons at the time of being so found is actually executing such errand. "Sec. 3. Be it further ordained by the city council of the city of Graham, that the city marshal of the city of Graham, at and EX PARTE CLEM McCARVER. 635 ts criminal vith minors ents. That tes, has no arte Garza, Tex. 523; m, 43 Tex. Water Co., en., for re- ding under if Graham, is termed a twenty-ono e streets of Graham, in y-one years I of the citv ?s after tho d, aliall bo fof shall he e than fifty »ing section V-one years, ets or alleys guardian, or I physician, so found is I of the city lam, at and on each and every day at eight forty-five o'clock p. m. shall ring or cause to be rung the church bell at the Baptist church in said city, and said bell shall be known as the 'curfew bell.' *'Sec. 4. Be it further ordained, that this ordinance shall take effect and be in force from and after its publication, according to law. "Approved Feb. 28, 1898. "J. S. Starrett, ^Mayor." That after said ordinance went into effect the relator, a young man nineteen years of age, was found by the city marshal of the city of Graham on the street more than fifteen minutes after tho city marshal had rung the curfew boll at the Baptist church, in said city, on the night of the 18th of April, 1898. That said niarshal held and detained him for a violation of said ordinance. He sued out a writ of habeas corpus, and, upon an examination of the case, he was remanded by the county judge, and he now prosecutes this appeal. The question here presented is as to the legality of said ordi- nance. If it be such a one as the city council had a right to pass, then the relator is entitled to no relief; otherwise he is. It appears that a distinction is made between ordinances passed under an express grant of power by the legislature and ordi- nances which are merely passed under a general power. As to the former, courts are not inclined to inquire into their reason- ability; but as to the latter, if an ordinance does not appear to be reasonable, the courts will declare them void. See 17 Am. & Eng. Enc. of Law, p. 247, and authorities there cited ; Cooley, Const. Lim. (4th ed.), i)p. 243, 244, and note. It is not shown in the statement of facts how the city Gra- ham is incorporated, but we take it for granted that it is incor- porated under the general act of the legislature on the subject, and it only has such authority as is conferred on it by the pro- visions of such general act. Article 419, Eevised Civil Stat- utes, 1895, gives the municipal authorities exclusive control and power over the streets, alleys, and public grounds and high- ways of the city, and to abate and remove encroachinciits or ol)- structions thereon. A number of articles also confer authority on the city council to do certain things. But we fail to find any authority expressly authorizing the city council to pass a m '\. 636 AMERICAN CRIMINAL REPORTS. V 1 « "curfew ordinance," as it is termed, or an ordinance making it a misdemeanor for a person under twenty-one years of age to be found on the streets or public highways of any city or town after nine o'cloc^i at night. So that the authority to pass this ordinance miist be under the general powers of the city to pre- serve the peace, and to protect the good order and morals of the city. Article 457 would seem to proscril)e the authority of the council in this respect. It is as follows: "The city council shall by ordinance have authority to prevent all trespasses; breaches of the peace and good order; assaults and batteries, fighting and quarreling; using abusive, obscene, profane, and insulting lan- guage ; misdemeanors, and all disorderly conduct, and punish all persons thus offending." If this is the express authority on the subject, it would appear to exclude the authority of the council to go beyond it. But wo will treat the question in the proposi- tion as to whether or not, conceding that the municipality has authority under its general powers to pass any ordinance that is reasonable to preserve the public peace and to protect the good order and morals of the community, the ordinance in question is reasonable. We hold that it is not ; that it is paternalistic, and is an invasion of the personal liberty of the citizen. It may bo that there are some bad boys in our cities and towns whose par- ents do not properly o ntrol them at home, and who prowl about the streets and alleys duiing the night time and commit offenses. Of course, whenever they do, they are amenable to the law. But does it therefore follow that it is a legitimate function of gov- ernment to restrain them and keep them off the streets when they are committing no offense, and when they may be on not only legitimate errands, but engaged in some necessary business. At common law a conspiracy was an indictable offense, and under our statute a conspiracy to do certain things is an offense. If persons go upon the street, whether under or over age, in pur- suance of a conspiracy to commit burglary or some other offense, they are indictable. But it is not claimed here that the going upon the streets by appellant was in pursuance of any conspiracy to commit any offense. We understand it to be made unlawful for any person under twenty-one years of age to go upon the streets after nine o'clock at night, or, more strictly speaking, later than fifteen minutes after the ringing of what is called TAYLOR V. REESE -PERRY v. REESE. 637 ee making it ITS of age to city or town to pass this i city to pro- norals of tlie liority of tlm council shall ics; breaches fighting and nsnlting lan- id punish all lority on the f tlie council the proposi- icipality has di nance that tcct the good n question is Tialistic, and , It may ho 8 whose par- prowl about ,mit offenses, he law. But ction of gov- streets when ly be on not ary business, offense, and is an offense. • age, in pur- )ther offense, lat the going y conspiracy ide unlawful go upon the ly speaking, hat is called the "curfew bell" provided for by the ordinance. True, some exceptions are made. For instance, a person under twenty-one years of age may go upon the streets with his parent or guard- ian, and such person can go upon the streets iu search of tiie services of a physician, but these are the only exceptions. "We can well imagine a niuiiber of other exceptions. Indeed, so numerous do they occur to us that they serve themselves to bring into question the reasonability of the law. A minor may bo un- avoidal)ly detained away from home after night, yet in passing along the streets on his way to his home he commits an olfense. lie may be at church or at some social gathering in the town, and yet when the curfew bell tolls in the midst of the sermon or exhortation, he wcnild be compelled to leave and hie himself to liis home, or, if at a social gathering, he must make his exit in haste. He could not be sent by his parents to a drug store, or, for that matter, on any errand, save and except for a physician. The rule laid down here is as rigid as under military law, and makes the tolling of the curfew bell equivalent to the drum taps of the camp. In our opinion, it is an undue invasion of the per- sonal liberty of the citizen, as the boy or girl (for it equally ap- plies to both) have the same rights of ingress and egress that citizens of mature years enjoy. We regard this character of legislation as an attempt to usurp the parental functions, and as unreasonable, and we therefore hold the ordinance in question as illegal and void. See City of St. Louis v. Fitz, 53 Mo. 582 ; City of Chicago v. Trotter (111. Sup.), 20 X. E. Rep. 359. The relator is ordered discharged. Relator ordered discharged. Taylor v. Reese, Judge. Perry v. Reese, Judge. 108 Ga. 379—33 S. E. Rep. 917. Decided March 17, 1899. Practice: Bill op Exceptions: Ma"' he presented and signed hefore motion for new trial — Mandamus. 1. If, upon the trial of a criminal case in a court whose judgments are directly reviewable by the Supreme Court, an error of law be committed, the necessary effect of which is to control the verdict, fl' iWH'i ' ft 638 AMERICAN CRIMINAL REPORTS. ;JI !^ ^ >■ and thus deprive the accused of a fair and lawful trial, he may, without moving for a new trial, sue out a bill of exceptions, for the purpose of having such error corrected. 2. When the refusal of a judge to certify a bill of exceptions tendered to him in a criminal case, in which no motion for a new trial had been made, is based solely upon the ground that, in his opinion, he had, in the absence of such a motion, no authority to certify the bill of exceptions, this court, without inquiring into the mer- its of the question presented by the bill of exceptions, will, by mandamus absolute, command the judge to certify the same The decisions of this court in Pitta v. Hall, 60 Ga. 389, and Batterer V. Harden, 88 Ga. 145, 13 S. E. 971, in so far as they held to the contrary, are, upon a review thereof, overruled. (Syllabus by the Court.) Original application by Will Taylor and Fred Perry for Avrit of mandamus against Hon. Seaborn Ecese, Judge. Writs granted. Horace M. Holdcn and Alexander ^y. Stephens, for the mov- ants. Lumpkin, P. J. Upon an indictment charging Will Taylor and Fred Perry with the murder of Jep Dennard, they were jointly tried and convicted. Without moving for a new trial, each by his counsel sued out a separate bill of exceptions, alleg- ing, among other things, that the judge erred in refusing to give in charge to the jury certain written requests, the object of which was to have the jury instructed upon the law of volun- tary and involuntary manslaughter. Each of these bills of ex- ceptions set forth a statement of the evidence introduced at the trial, recited that the judge ruled that it was not proper to charge the jury as requested, and complained that the verdict of guilty was necessarily controlled by this ruling. Each bill of exceptions also alleged that the judge failed entirely to charge concerning the lower grades of homicide. Perry's bill of ex- ceptions contained one assignment of error which was not in that of Taylor, but it is not now essential to state or discuss tlio same. The judge declined to certify either of the bills of ex- ceptions, basing his refusal upon the ground that, in the absence of a motion for a new trial, he had no authoritv so to do. There- upon each of the accused sued out an application for mandamus, to compel the judge to certify his bill of exceptions. We have reached the conclusion that it was the duty of the trial, he may, exceptions, for itions tendered , new trial had in his opinion, rlty to certify ; into the mer- tlons, will, by he same The , and Dotterer ey held to the d Perry for udge. Writs for the mov- Will Tayl.r d, they were a new trial, ■ptions, alleg- 'using to give ;he object of aw of voluii- le bills of cx- )duced at the lot proper to t the verdict T. Each bill rely to charge 's bill of ex- as not in that r discuss the e bills of ex- n the absence to do. Tliere- »r mandamus, i. ? duty of the TAYLOR V. REESE — PERRY v. REESE. G30 judge to certify these bills of exceptions, notwithstanding tlioro was in neither case a motion for a new trial. The requests to charge were manifestly predicated upon the theory that, under the evidence and the statements made by the accused at tlu; trial, the law of both grades of manslaughter was involved. An examination of these bills of exceptions makes it perfectly clear that in suing them out the accused were seeking to avail tlioui- selves of the provisions of the act of December 20, 189S, "to dispense with a motion for new trial and filing brief of the evi- dence, and to authorize a direct bill of exceptions, in certain cases," which declares : "That from and after the passage of this act, in any case now or hereafter brought where the judgment, decree or verdict has necessarily been controlled by one or more rulings, orders, decisions or charges of the court, and the losing party desires to except to such judgment, decree or verdict, and to assign error on the ruling, order, decision or charge of the court, it shall not be necessary to make a motion for a new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the Supreme Court to clearly understand the ruling, order, decision or charge complained of.'' Acts of 1898, p. 92. This act renders unnecessar}' the filing of a motion for a new trial when the case depends upon a controlling question of law, and the complaint is that the trial judge committed a vital error with respect to the same. The losing party in any case might very properly concede that, imder the evidence and a given charge, the verdict against him, assuming the charge to be cor- rect, was demanded ; yet, at the same time, he might with abun- dant reason insist that, because of error in the charge, the jury were constrained to find as they did. The correction by this court of such an error results in a new trial. The act of 1898 simply gives in explicit terms a right of which parties litigant frequently availed themselves before its passage. See, in this connection, Roberts v. Ned, 62 Ga. 163 ; Trippe v. Wynne, 76 Ga. 200 ; Massengill v. First Nat. Banh, Ibid. 341, 347 ; Has- Mns V. Banh of State of Ga., 100 Ga. 21Q ; FranJdin v. Adams, 101 Ga. 126, 28 S. E. Rep. 611. We do not, of course, wish to be understood as saying that a party can except to or complain I 640 AMERICAN CRIMINAL REPORTa fed \>'i ii of a verdict as being contrary to oviilcnco without first moving for a new trial. Jones v. Pitts, 98 Ga. 521, 25 S. E. Rep. 673 ; HoUey V. Porter, 105 Ga. 837, 31 S. E. Rop. 734. There is enough in each of the bills of exceptions tendered to the judge to enable this court to clearly understand and pass upon the rulings complained of; and if the positions taken by counsel for the accused are well founded, it was the right of the accused to have the jury determine the question whether or not they were guilty of a lower grade of homicide than murder. If the judge committed the errors alleged, they were deprived of this substantial right, and the verdicts actually rendered were necessarily so far controlled by the judge's action as to necessi- tate a new trial. We do not, however, feel called upon, in dealing with those applications for mandi'mus, to pass upon the merits of the ques- tion presented by the bills of exceptions. It is true that in the case of PUfs v. Hall, GO Ga. 389, this court held that a "trial judge should not be by mandamus compelled to sign a bill of ex- ceptions which was without merit." And to the same eifect see Dotterer v. Harden, 88 Ga. 145, 13 S. E. Rep. 974, in which it was held that: "The Supreme Court will not grant a mandamus nisi, to the end that a bill of exceptions may be signed and certi- fied, where it affinnatively appears on the face of the application that the decision complained of and sought to be excepted to was correct, inasmuch as in such case the mandamus would be of no practical benefit to the applicant." Following these rulings would require in every case like the present ones an examination by this court into the merits of the questions presented by the bill of exceptions tendered, and an ex parte decision thereon of the main case. The ruling in the case last cited was based mainly on that in 60 Ga., the correctness of which was conceded, and therefore not brought under review. So far as relates to the question with which we are now dealing, neither of those de- cisions can, in our opinion, be regarded as sound. We have ac- cordingly permitted counsel to review the same, and, to the ex- tent indicated in the second headnote, they are overruled. The law makes it the imperative duty of a judge, whenever a true bill of exceptions is tendered to him, to certify it. Upon his re- fusal to sign, and certify a bill of exceptions, it is the right of TAYLOR V. REESE -PERRY v. REESE. 641 '.rst moving . Rep. 573 ; tendered to id and pass ns taken by right of the 2ther or not nnrdcr. If deprived of idered were 3 to necessi- ; with those of the qiies- ! that in the hat a "trial a bill of ex- ae effect see in which it I mandamus id and certi- application jpted to was aid be of no lese rulings examination inted by the a thereon of I was based as conceded, •elates to the of those de- We have ac- d, to the ex- •ruled. The never a true Upon his re- the right of the party tendering the same to apply to this court for a »irt/if?a- mm nisi, calling upon the judge to state the reasons for his failure or refusal to certify. It then becomes the duty of this court to consider and determine the validity of these reasons and, if they be insuificient, the law explicitly declares that this court "shall issue a mandamus absolute commanding the judge to sign and certify the bill of exceptions." See Civil Code, § 5546. We have already shown that the reason given by Judge Koose for declining to certify the present bills of exceptions was in- sufficient. He could not, with propriety, have assigned as a reason for declining to certify that the bills of exceptions did not, in his opinion, show the commission of any error. If tliis were allowable, every judge could pursue a like course with ref- erence to any bill of exceptions tendered to him, and the in- evitable results of a practice of this kind would obviously bo such as the law never contemplated. In point of fact, as has been seen. Judge Reese did not, in his answer to the mandamus nisi, allege such a reason for not certifying, and we are fully satisfied that no argument based upon the proposition that the rulings excepted to were correct should have any weight in de- termining whether or not the writs of mandamus should bo made absolute. Conceding that it may finally be held that tlio rulings complained of were free from error, it is still the right of the applicants to have their cases brought to, heard in, and determined by this court in the regular and lawful way. It therefore becomes our duty to order in each case a writ of man- damus absolute. . n view of what has just been said, we could not do so if the prior decisions of this court cited above were ad- hered to, without first inquiring into the merits of the questions presented by these bills of exceptions, and reaching a conclusion that reversible error had been committed. In other words, we would have to decide the eases against the State without hearing from her counsel, and then, merely as matter of form, reverse the judgments when the cases subsequently reached here upon certified bills of exceptions. Such a practice would not only be anomalous, but, as a result thereof, it would frequently happen ihat cases of the utmost importance would, for all practical pur- poses, be finally detennined before they reached this court in Vol. XI— 41 P ^;:;t- 111 91 HI m\ 1 1 1 1 1 643 AMERICAN CRIMINAL REPORTS. the mnniicr proscrilicd by law, and that, too, without even notice to parties vitally intere.stod. Mandamus absolute ordered in each case. All concurring. Notes (by J. P. O.).— In Stewart v. Huntlngtov Bank, 11 S. ft R. 267, on page 270, appears the following: "The counsel who takes an ex- ception has a right to have it fixed immediately; but this may be done without drawing up the bill in full form, — a note in writing is sufll- cient; and such a note should never be omitted." In Lyon v. Evans, 1 Ark. 349, on page 3G0, appears the following: "The object of bills of exception Is to preserve the evidence of facts, which, in the ordinary course of proceedings in the court, would not otherwise appear of record in the case. The bill of exceptions inuat be tendered at the trial; for, if the party acquiesced, he waives it, and shall not resort back to his exception after a verdict against him, when, perhaps, if he had stood on his exceptions, the other party had more evidence, and need not have put the cause on that point; not that It need be drawn up in form, but the substance must be reduced to writing, while the thing is transacting; because it is to become a record." Where a case Is being disposed at one hearing, there is no need of preserving separate bills of exception; for, by keeping note of the points, they can more conveniently be placed in one general bill of exceptions; but where various matter are passed upon at different terms of court, the better practice is to preserve the matters in sep- arate bill of exceptions, having each bill signed by the judge before his memory as to such matters becomes uncertain. Where a mo lion for continuance is made and overruled. It is consistent with good practice to have a bill of exceptions incorporating the motion immediately signed; and when convenient so to do, the attorney should have such bill of exceptions prepared in advance, that it may be presented for signature at the time of the ruling upon the motion. It being claimed by one or more courts that a bill of exceptions should be signed in open court, prudence should prompt the attorney to present it in open court, when such can be done; and in the certificate to the bill of ex- ceptions have it stated that the same is presented, signed, and sealed in open court; and also have the clerk note such fact as a matter of record. State v. McEwen. 151 Ind. 485—51 N. E. Rep. 1053. Decided November 29, 1898. Practice on Appeal: Instructions — Evidence — Variance. 1. While it is not good practice, on appeals by the State, to set out the evidence in extenso, still there should be enough evidence to show whether instructions sought to be reviewed were applicable STATE f. McEWEN. (!-l3 even notice ordered in L S. & R. 267. takes an ex- may be done itlng is Buffl- le following: mce of facts, rt, would not options inuat iraivea it, and against him, ler party had lint; not that le reduced to to become a [s no need of note of the meral bill of at different atters in sep- Ige before his a moiion for good practice immediately ild have such presented for being claimed be signed in mt it In open the bill of ex- id, and sealed s a matter of to the evidence. Without some foundation of fart in the record, this court will not enter into an abstract discussion of polnis. 2. Where the indictment avers that certain moneys stolen were the property of J. A. P. and Frank A. P., and the evldonie was that such moneys belonged to J. A. P. and Franklin A. P., there would be a fatal variance, iinioss the evidence also showed that "Frank- lin A." was the same person described in tlie indictment as "Frank A.," and was commonly known by that name. Apj)cal from the T >hn8on Coimty Circuit Court, by tlio Stnto, to test the correotnoss of the ai^iion of the trial court in and refusing certain instnu tions. giving riance. ite, to set out ;h evidence to rere applicable 1]'. A. Ketcham, Atty. Gen., Alonzo Blair, W. E. Deupree and M. L. Herbert, for the State. Miller & Bamett and William A. Johnson, for appellee. !^[cCABK, J. The appellee was prosecuted for the crime of larceny in the Johnson circuit court, and was acquitted. The State appeals, and assigns as error the refusal to give the fol- lowing instruction : "I instruct you, gentlemen of the jury, that if the indictment in this cause shows and alleges that the prop- erly stolen or alleged to have been stolen was owned at said time by Jackson A. Pruitt and Frank A. Pruitt, and the evi- dence shows that the property stolen was the property of Jack- son A. Pruitt and Franklin A. Pruitt, and that said Franklin A. Pruitt is, and for years has been, known and been doing busi- ness in the name of and called himself Frank A. Pruitt, then I instruct you that there would be no variance between the evi- dence and the allegation of the indictment that would entitle the defendant to an acquitttal under the law; but the jury are the exclusive judges of both the law and the evidence." The evidence is not in the record, nor is there any statement in the bill of exceptions or in the record showing that this instruction was relevant to the evidence, and hence no question of law is presented for decision. Without some statement of the evi- dence, we must presume that the instruction was refused he- "ause there was no evidence to which it was applicable. ^A^lil0 it is true that it is neither necessary nor proper, in appeals by the State, to set forth the evidence in full, it is also time that there must be some statement in the bill of exceptions showing that ther?' was evidence to which the institictions were relevant. 1 i'i i '*' r I C44 AMERICAN CRIMINAL REPORTS. It is a well-established principle in appellate procedure t];at the court will not decide mere abstract questions, and, where there are no facts stated, nothing but abstract questions can, in such a case as this, arise upon a ruling refusing instructions. Stale V. Kern, 127 Ind. 4G5, 2G X. E. Rep. 1076. The giving of an instruction is assigned by the State as error, reading as follows : "The names of the persons who are alleged to be the owners of the money alleged to have been stolen are material allegations of the indictment, and must be proven as charged ; so, if you find from the evidence that the name of one of the owners of the money alleged to have been stolon was Franklin A. Pruitt, then you must find the defendant not guilty." The alleged names of the owners of the money alleged to have been stolen were Jackson A. Pruitt and Frank A. Pruitt. If the evidence showed that the name by which Franklin A. Pruitt was commonly known was Frank A. Pruitt, even tho\igh Franklin A. Pruitt was his correct name, the instniction was erroneous, because the name by which a person is commonly known may be employed in an indictment, and it will be good if the proof shows that he is commonly known by that name. Bishop's Xew Criminal Proc, § G8G ; Wharton's Criminal Evi- dence, § 95 ; Ehlert v. State, 03 Ind. 76 ; Henry v. State, 113 Ind. 304, 307, 15 X. E. Rep. 593 ; Walter v. State, 105 Ind. 589, 5 K E. Rep. 735 ; Kntger v. State, 135 Ind. 573, 35 X. E. Rep. 1049; IILc v. People, 157 111. 382, 41 N. E. Rep. 8G2. But, the evidence not being in the record, and no statement therein as to what the evidence showed, we cannot, as the attor- ney for the State seems to suppose, presume that the evidence showed that Franklin A. Pruitt was commonly knowTi by the name of Frank A. Pruitt. In the absence of such evidence or statement in the record, proof that the name of one of the own- ers of the stolen money was Franklin A. Pruitt instead of Frank A. Pruitt would be a fatal variance. See the authorities last above cited. Therefore we cannot say that the court erred in giving the instruction. The appeal is not sustained. ure tl;at tho where there can, in such ions. Slate ate as error, » are alloged n stolen are )e proven as name of one L stolon was icndant not oney alleged ik A. Pruitt, Franklin A. even though tniction was IS commonly will be good r that name, riminal Evi- y. State, 113 te, 105 Ind. 73, 35 X. E. L Rep. 802. 10 statement as the at tor- tile evidence nown by the 1 evidence or ; of the own- ?ad of Frank thorities last mrt erred in BROWNING V. STATE. 545 Browning v. State. 64 Neb. 203—74 N. W. Rep. 631. Decided March 17, 1898. Practice: Necessity for arraignment and plea. 1. A Judgment of conviction of felony cannot stand where there was no arraignment of, and plea by, the accused before the trial. 2. Allyn v. State, 21 Neb. 593, distinguished. 3. When it is discovered during the trial on the charge of a felony that there has been no arraignment and plea, the court should not proceed with the trial without arraigning the accused, enter- ing his plea, and causing the jury to be resworn and the wit- nesses to be re-examined. (Syllabus by the Court.) Error to the District Court of Gage County; Stull, Judge. Keversed. L. W. Colhij, for the plaintifF in error. C. J. Smyth, Attorney-General, and Ed. P. Smith, Deputy Attorney-General, for the State. XoRVAL, J. This was a prosecution by information filce stated to id, at least jcessarv be- unless this lent cannot 3tiiient and al, there is 'endant did eral recital sue joined.' at was the it was pro- him of his d. . . . are wc at !cused, and i » • • • 1 of a trial it was do- that he did mce in the eh a defect on 1025 of the Revised Statutes, but involves the substantial rights of the accused. It is true that the constitution does not, in terms de- clare that a person accused of crime cannot be tried until it be demanded of him that he plead, or unless he pleads, to the in- dictment. But it does forbid the deprivation of liberty without due process of law ; and due process of law requires that the ac- cused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed ; and the record of his conviction should show distinctly, and not by inference merely, that every step involved in due process of law, and essential to a valid trial, was taken in the trial court; otherwise the judgment will be erroneous." In State v. Montgomery, 63 ^lo. 290, it was decided that the failure to arraign a prisoner and enter his plea before the jury is sworn is reversible error, and that the entry of a plea after- wards is too late. See Early v. State, 1 Tex. App. 248 ; State V. Hunger, 43 La. Ann. 157; People v. Corhcit, 28 Cal. 328; Douglass v. State, 3 Wis. 820 ; Territory v. Brash, 32 Pac. Eep. (Ariz.) 260; State v. Baker, 57 Kan. 541. The attorney-general has cited cases which are in conflict with the above, but we decline to follow them. After the ac- cused was arraigned the jury should have been resworn and the witnesses already examined should have been re-examined. Had this been done, the omission of the arraignment and plea before the selection of the jury would not have been available. Weaver V. State, 83 Ind. 289 ; State v. Weber, 22 Mo. 321 ; Disney v. Commonicealth, 5 S. W. Rep. (Ky.) 360. For the error in- dicated, the judgment is reversed and the cause remanded. Reversed and remanded. Notes (by J. F. G.).— In the case of Barker v. State, referred to in the above opinion, the cases cited, to the effect that a judgment with- out a plea should be reversed, are as follows: Burley v. State, 1 Neb. 385; State v. Williams, 117 Mo. 379; Johnson v. People, 22 111. 318; Aylesworth v. People, 65 111. 301; Hoskins v. People, 84 111. 87; Darts V. State, 38 Wis. 487; State v. Wilson, 42 Kan. 587; Ray v. People, 6 Colo. 231; People v. Moody, G9 Cal. 184; Grigg v. People, 31 Mich. 471. The doctrine applies to misdemeanors as well as to felonies. — In Johnson v. People, 22 111. 314, the indictment was for conspiracy. The following paragraph is an excerpt from the opinion in that case: "The 18l8t section of the Criminal Code (Scates' Comp. 407) pro- vides that, upon the arraignment of a prisoner, it shall be sufficient, m -.; ! I'M i i 650 AMERICAN CRIMINAL REPORTS. without any other form, for him or her to declare orally, by himself or herself, or his or her counsel, that he or she is not guilty; which plea the clerk is required to Immediately enter on the minutes of the court, and the mentlou of the arraignment and such plea shall con- stitute the Issue between the People and the prisoner, and If the clerk should neglect to insert in the minutes of the court the arraignment and plea, it provides that it shall be done under the order of the court, and then the error or defect shall be cured. The arraignment and plea has always, by the practice in cases of felonies, been regarded as essential to the formation of the issue to be tried by the jury, but in cases of misdemeanor the practice allows the plea of not guilty to be entered without arraignment and may be entered by counsel. But it is believed that the practice is uniform, both in England and this country, in requiring the formation of an Issue to sustain a verdict. Without it there Is nothing to be tried jy the jury. If the record had shown that the trial was by consent, in the case of a misdemeanor, it might be held to cure the defect, but when the trial does not appear to have been so had, no such Intendment can be indulged. Or, in case there had been a plea entered, and the clerk, by an omission of his duty, had failed to enter it upon the record, the prosecuting attorney might have cured the defect by procuring such an entry under the order of the court. But the statute has provided no other mode of ob- viating the objection, and, unless waived by the defendant, it must be held to be error. In this case the error has not been cured by either of these modes, and the judgment should have been arrested for the want of such plea." In AyJesworth v. People, 65 111. 301, a conviction for selling liquor without a license was reversed, Mr. Justice McAllister saying: "The rec- ord should also show that the plea of not guilty was entered. With- out it there is nothing for the jury to try." The old English practice. — Under the old 75n8;\;''* V-.v, , Jf a prisoner stood mute and failed to plead to the indict'jien' :. :■•■ y "aa Impaneled to determine whether his conduct came fror. •- :,!>iacy or from a natural impediment. According to Blackstono k 4„ p. 325), If the prisoner was found to be obstinately mute, and tue inriictment was for high treason, it was settled that his silence was equivalent to a con- viction, and that judgment and execution should follow, which that author claimed applied to the lowest species of felony (petit larceny) and misdemeanors; but the same author says that upon appeals or in- dictments for other felonies, or petit treason, according to the ancient law the prisoner was not deemed convicted, but, because of his ob- stinacy, should receive "the terrible sentence of penance, or peine." A respite for a few hours was permitted the prisoner, the sentence being distinctly read to him, "that he might know his danger; and, after all, if he continued obstinate, his offense was clergyable; he had the benefit of clergy allowed him, even though too stubborn to pray It." Blackstone says that the punishment "was purposely ordained to be exquisitely severe, that by that means it might rarely be put In execution." He describes the punishment as follows (p. 327): "That the prisoner be remanded to the prison from whence he came. STATE V. REED. 651 r, by himself guilty; which Inutes of the Ba shall con- 1 If the clerk arraignment of the court, ignment and I regarded as jury, but in guilty to be insel. But it ind and this iln a verdict, le record had jdemeanor, it !S not appear . Or, in case ission of his ting attorney ry under the : mode of ob- it, it must be red by either ested for the selling liquor ng: "The rec- tered. With- if a prisoner as impaneled y or from a I. 325), If the ment was for ent to a con- ■, which that )etit larceny) ippeals or in- the ancient se of his ob- ■e, or peine." the sentence danger; and, rable; he had •born to pray 3ely ordained ely be put in 327): ence he came. and put In a low, dark chamber, and there be laid on his back, on the bare floor, naked, unless decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and more; that he should have no sustenance, save only, on the first day, three morst-ls of the worst bread, and, on the second day, three draughts of standing water that should be nearest the prison door; and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran) till he anstcered." Thorley's Case (Kelyng, a?).— Kelyng in reporting the proceedings at the Newgate Sessions in the fourteenth year of Charles II. gives the following report (the spelling, capitals, and italics are as they ap- pear In the report) ; One stand Mute. Thumbs tyed together with Whipcord. At the same Sessions, George Thorley, being indicted for Robbery, refused to plead, and his two Thumbs were tyed together with Whip- cord, that the Pain of that might compel him to plead, and he was sent away so tyed, and a Minister perswaded to go to him to perswade him; And an Hour after he was brought again and pleaded. And this was said to be the constant Practice at Newgate. A New England victim.— It is said that during the prosecutions in New England, for that ficticious crime of witch-craft, a respecticable citizen being so accused, well knowing that by reason of the excite- ment and religious fervor of the times, a plea of not guilty and trial would result in a conviction, with confiscation of property; and that the same judgment would follow a plea of guilty, he refused to plead, thereby preventing a conviction, and enabling his family to retain the property. The court ordered that he be pressed, because of his ob- stinacy. During this process, the dying victim's tongue protruded, which so shocked the sensibilities of the devout sheriff, that he pushed it back with his cane. State v. Rked. 76 Miss. 211—71 Am. St. Rep. 528, 43 L. R. A. 134, 24 So. Rep. 308. Decided December 19, 1898. Railroads: Rights of hackmen. A railroad company cannot confer on certain hackmen the exclusive right to enter its station grounds and solicit patronage from in- coming passengers to the exclusion of others. Appeal from the Cireiiit Court of Warren County; Hon. W. K. McLaurin, Judge. Joseph Reed was prosecuted under section 1320 of the Code of 1892 for going upon the inclosed lands of another without >»i| '■J! 1f^ ¥ m ''■:■ mi 652 AMERICAN CRIMINAL REPORT8L the owner's consent, and after being notified not to do so. He was fined by a justice of the peace, but upon appeal the circuit court found for the defendant ; and the State appeals. Affirmed. McWillie & Thompson, for the Alabama & Vicksburg Rail- way Company. /?. L. McLaurin, for the appellee. Woods, C. J., delivered the opinion of the court Joseph Eeed, the appellee, was arrested upon affidavit charg- ing him with trespassing up'in private premises belonging to the Alabama & Vicksburg Railway Company, and was, before the justice of the peace, tried and convicted. He appealed from that conviction to the circuit court of Warren county, and was there tried upon an agreed statement of facts, and was, by the judgment of that court, acquitted of the charge and discharged. From this judgment of the circuit court the State prosecutes this appeal. From the agreed statement of facts it appears that the depot of the railway company in the city of Vicksburg is surrounded by a fence, and that there is a "considerable inclosure of grounds adjacent thereto." It further appears, also, that "within said inclosure around the depot is the most convenient and best place for hackmen and busmen to discharge, solicit and receive pas- sengers departing and arriving on the passenger trains of said company, and that any hackman or busman who had the ex- chisive privilege of entering this inclosure and soliciting pas- sengers there, would have an advantage over hackmen or busmen excluded therefrom, so far as passengers arriving on said trains was concerned." These facts, moreover, appear in the agreed statement, viz. : that the railway company granted, in June, 1894, the exchisive privilege of entering said inclosure and soliciting passengers therein to said Peine, and that Peine was a person engaged in the hack, bus and general transfer business in Vicksburg, and that, after said exclusive grant to Peine, all other hackmen and busmen were excluded from entering said inclosure for the pitr- pose of soliciting passengers therein, and were notified not to enter said inclosure for that purpose, under threat of being prosecuted as trespassers ; that the appellee. Reed, after having STATE V. REED. 653 do 90. He I the circuit . Affirmed. :sburg Raii- davit charg- (clonging to was, before pealed from ty, and was was, by the discharged. J prosecutes jt the depot surrounded 3 of grounds within said d best place receive pas- ains of said had the ex- liciting pas- a or busmen I said trains eimont, viz. : he exchisive ■ passengers engaged in ksburg, and ackmen and for the pitr- ;ified not to at of being ifter having been notified not to enter said inclosiin or such purpose, drove his hack into the inclosure, and while therein solicited and re- ceived a passenger, and then drove away, and that in doing this he created no disturbance or disorder; that Cherry street is about one hundred and fifty feet from the depot, and that from the depot to Cherry street, whore hacks, other than Peine's, can stand, there is a good sidewalk. In a word, Peine's hacks have the exclusive privilege of entering the inclosure surrounding the depot and soliciting incoming passengers, while all other hacks are excluded from the inclosure and must stand outside and about one hundred and fifty feet from the depot, and in an open street. It is admitted in the agreed statement any hackman, or bus- man, having the exclusive privilege of entering said inclosure and soliciting passengers there, would, to that extent, have an advantage over hackmen or busmen excluded therefrom, so far as concerned incoming passengers. The agreed statement of facts distinctly states the question to be decided by us, and to that we must confine ourselves. Says the agreed statement : "It is contended that the said company had the right to make the said contract, and thus exclude the defendant and others than the said Peine from the said inelos- iire, and to grant to the said Peine the exclusive right to enter the said inclosure for the puqiose of there soliciting passengers for his hack line. Defendant controverts this position, in so far as it is claimed that the said company can grant the exclusive right to any particular person to enter the said inclosure with his hack and there solicit passengers, and contends that the rail- way company must exclude all, or admit all into the said in- closure, so long as they conduct themselves in an orderly and peacable manner." The single issue is thus sharply defined, viz : Has a railway the right to confer upon one hackman the exclusive privilege of entering with his hacks its inclosed station-house grounds, and of soliciting incoming passengers, and to exclude all others from the inclosure, such privilege conferring advantages upon the favored hackman and discriminating against all other hackmen by forbidding them to enter the inclosure to solicit passengers, and by placing the hacks of those excluded one hundred and m ■M ■ i w 6M AMERICAN CRIMINAL REPORTS. i:m hi ■!i:'j^; fifty feet from the depot, and in an open street ? The (|uostion has never before been presented in our reports, but it is by no means a new one, and has been passed upon in other jurisdic- tions. Quite independently of constitutional or statutory provisions, it seems to be the prevailing doctrine in the United States that a railroad company may make any necessary and reasonable rules for the govenunent of persons using its depots and grounds; yet it cannot arbitrarily, for its own pleasure or profit, admit to its platforms, or dep u , Ms If 658 AMERICAN CRIMINAL REPORTS. 2. Where there is no attempt to use force, no threat, no violence, and no evidence of an intention to use force, if necessary, to over- come the will of the prosecutrix, but only solicitation, a verdict of guilty will be set aside, and a new trial granted. Plaintiff in error Ilairston, convicted of attempted rape in the County Court of Henry county, brings error. Eeversed. William M. Peyton, for the plaintiff iii error. A. J. Montague, Atty. Gen., for the Commonwealth. RiELY, J. The first assigimiont of error is that the verdict of the jury is defective for uncertainty. The indictment contains a single count, and charges the ac- cused with an attempt to commit rape upon a certain female. The verdict of the jurj' is in those words : "We, the jury, find the prisoner guilty of attempted rape, and fix his punishment at eight years in the penitentiary." The verdict of a jury in a criminal case is always to be read in connection with the indictment; and if, upon reading them together, the meaning of the verdict is certain, this is sufficient. Uohach's Case, 28 Gratt. 922. The indictment in this case charges the prisoner with an attempt to co.nmit rape, and names the female upon whom the attempt was made. The verdict is a direct response to the issue of guilty or not guilty, which the jury were sworn to try. It finds the prisoner guilty of at- tempted rape, and ascertains his punishment. It was not neces- sary to insert his name in the verdict. The verdict, by the use of the word "prisoner," identifies the person named in the in- dictment, in custody, and on trial, as the person guilty of the offense, and finds him guilty of attempted rape ; that is, of the attempt to commit rape, with wliich he is charged in the indict- ment. This is plainly the meaning of the verdict. The only other assignment of error is the refusal of the court to grant the accused a new trial. The insufficiency of the evi- dence to warrant the verdict was the ground of the motion for a new trial. The court is of opinion that this error is well assigned. To sustain the charge of an attempt to commit rape, there must be evidence of force, or of an intention on the part of the offender iolence, and ry, to over- n, a verdict ed rape in jversed. h. the verdict •ges the ac- ain female. 3 jury, find [lishinent at i to be read ading them is sufficient, n this case , and names e verdict is ', which the iiihy of at- is not neces- , by the use 1 in the in- uilty of the at is, of tlie the indict- of the court of the evi- notion for a HAIRSTON V. COMMONWEALTH. 659 signed. To ere must be the offender to use force in the perpetration of the heinous offense, if it should become necessary to overcome the will of his victim. 1 Bish. Cr. Law (2d ed.), § 731; 3 Am. & Eng. Ency. \n\\' (2d ed.) 258; Commonweallli v. Fields, 4 Leigh, 648; State v. Massey, 86 ]SL C. 658; and State v. Kendall [73 Iowa, 255], 5 Am. St. Rep. 679. The evidence of the prosecutrix is that the accused camo to her father's house, riding upon a mule, and commenced talking to her, as she stood in the edge of the yard, about paying him for some work he had done, and followed it up by making to ler an indecent proposal. lie then got down off his mule, and started towards hex*, renewing his indecent request^ and making a motion at her and very close to her as if he would pull up her dress, but did not touch her. She jumped to one side, and dodged him, screamed, picked up a stone, and threw it at him ; that he advanced on her after she threw the stone; and that she then threw three more stones at ^nm, when he turned awav, got on his mule, and left. The occurrence took place between twelve and one o'clock in the day, in the edge of the yard of the father of the prosecutrix, about fifty yards from the house, and in sight of, and very near, the house of a coloi*ed family. No one witnessed the occurrence or heard the screams. The father and mother of the prosecutrix were in the house, sick in bed, and her sister was in the back room, washing dishes, with the front door shut. The whole evidence, taken together, is of a very doubtfid and inconclusive character. There was no attempt to use force, no threat, only solicitation. The absence of all violence, and of evidence of any intention to use force, if necessary to overcome the will of the prosecutrix ; the time and the place, and all the surrounding circumstances, invest the charge with very great improbability. However reprehensible is the conduct of the ac- cused, the evidence is consistent with a desire on his part to have sexual intercourse with the prosecutrix, but without evi- dence of an intention to use force, if necessary, to gi'atify his desire, — only persuasion. "The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence." rij 660 AMERICAN CRIMINAL REPORTS. The court is of opinion that the county court erred in refusing to grant the plaintiff in error a new trial, for which error its judgment must be reversed, the verdict of the jury set aside, and a new trial awarded. Bailey v. State. 57 Neb. 706—78 N. W. Rep. 284. Decided February 9, 1899. Rape: "Previously unchaste" female — Jurisdiction — Information — No estoppel against a criminal defendant — A conviction must be sup- ported by the "letter" of the law. 1. A woman not "previously unchaste," within the meaning of sec- tion 12 of chapter 4 of the Criminal Code, is one who has never had unlawful sexual intercourse with a male prior to the inter- course with which the prisoner stands indicted. 2. The object of the statute is to protect the virtuous maidens of the Commonwealth — to protect those girls who are undeflled virgins; and a female, under eighteen years of age and over fifteen years of age, who had been guilty of unlawful sexual intercourse with a male, is not within the law. 3. The gist of the crime denounced by this statute is the defilement of a virgin, with her consent, over fifteen and under eighteen years of age, by a man over eighteen years of age. 4. The prisoner was indicted for rape, under the statute, for having. in Nebraska, had sexual intercourse, with her consent, with a girl over fifteen and under eighteen years of age, and not "pre- viously unchaste." The evidence showed that the female, after she was fifteen years of age, and before her sexual intercourse with the prisoner in Nebraslia, had had illicit sexual intercourse for the first time with him in the State of Iowa, and that she had . sustained such relations with no other man than the prisoner. Held, that the evidence would not sustain a conviction. 5. In such an indictment may be included all acts of unlawful sexual intercourse which occurred between the prisoner and the prose- cutrix in the State of Nebraska after the female became fifteen years of age, and which were not barred by the statute of limita- tions. 6. The State, in a criminal prosecution, may not invoke against the prisoner the doctrine of estoppel. 7. To sustain a criminal conviction, it is not enoush for the State to show that the prisoner indicted has violated the spirit of the statute, but the evidence must show beyond a reasonable doubt that he has offended against the very letter of the law. (Syllabus by the Court.) in refusing h error its ' set aside, BAILEY V. STATE. 661 •matlon — "No nust he sup- alng of sec- ,0 has never ;o the inter- idens of the lied virgins; fifteen years jurse with a e defilement ler eighteen for having, lent, with a id not "pre- emale, after intercourse intercourse that she had . he prisoner, n. iwful sexual d the prose- came fifteen te of limita- against the the State to pirlt of the inable doubt w. Error to the Douglas County District Court; Slabaugh, Judge. George C. Bailey, convicted of rape, brings error. Reversed. McFarland cC Altschider, for the plaintiff in error. C. J. Smyth, Atty. Gen., and W. D. Oldham, Dopt. Atty. Gen., for the State. Ragax, C. Section 12 of chapter 4 of the Criminal Code of this State, among other things, provides : "If any male person of the age of eighteen years or upwards shall canially know or abuse any female child under the age of eighteen with her con- sent, unless such female child so known and abused is over fif- 'teen years of age and previously unchaste, every such person so offending shall be deemed guilty of a rape." George C. I'ailcy was indicted in the district court of Douglas county, under the statute just quoted, for having on June 13, 1898, had sexual intercourse with one Clara Blue with her consent; she then and there being a female of the age of sixteen years, and not pre- viously unchaste. Bailey was convicted and sentenced to the penitentiary, and brings that judgnnent here for review on error. Of the numerous assignments of error argued in the brief, it would subserve no useful purpose to notice but two. 1. The evidence in the bill of exceptions shows without con- tradiction that in June, 189S, Clara Blue was between sixtoen and seventeen years of age; that no man had e\er had sexual in- tercourse with her, except the prisoner; tliat in !March of that year she lived in the State of Iowa; that the prisoner formed her acquaintance at an hotel in Pacific Junction, in that State, in the month of ]\[arch, 1898 ; that with her consent he then had sexual intercourse with her in Iowa ; that subsequently, in dune of said year, she came to the city of Omaha, in this State, and on the 13th of said month, and at divers other times l)ef(U'e and after that date, he again had sexual intercourse witli her in this State, she consenting thereto. As to the meaning of the phrase "previously unchaste," found in the statute just quoted, the district court instructed the jury as follows: "By tlie phrase 'unchaste,' as used in the law defining rape, is meant lewd ; hav- ing an indulgence of lust; :.nd, as applied to a female child 662 AMERICAN CRIMINAL REPORTS. I: I I, previously unchaste, means that she was previously before the act complained of lewd, or had an indulgence for lust." The ' prisoner took an exception to the giving of this instruction. We do not approve of the construction placed upon the phrase in the statute, as embodied in this instniction. The definition of an unchaste woman, within the meaning of the statute, is by the district court given as a lewd woman, — a woman possessing an indulgence for lust; or, as we undex'stand the court's definition, a woman, to be unchaste, within the meaning of this statute, must be a woman of notoriously lewd and lascivious habits ; in the ordinary language of the day, she must be a "prostitute." We do not think this is the meaning of the statute. A woman not "previously unchaste," within the meaning of the statute, is one who has never had unlawful sexual intercourse with a male prior to the act of intercourse for which the prisoner stands in- dicted. The object of the statute quoted was to protect the vir- tuous maidens of the Commonwealth, — in other words, to pro- tect those girls who were undefiled virgins ; and a female, inuler eigliteen years of age and over fifteen years of age, who has been guilty of unlawful sexual intercourse Avith a male, is not within the act. 2. But the evidence in this record does not sustain the ver- dict on which the judgment rests. The material allegations of the indictment are that the prisoner was a man over eightocn years of age ; that in Douglas county, Nebraska, with her con- sent, he had sexual intercourse with Clara Blue; that she was then and there sixteen years of age, and not "previously un- chaste." The latter averment was not only not proved by the State, but the undisputed evidence shows that Clara Blue, prior to the date of her intercourse with the prisoner in Nebraska, Avas unchaste. The fact that she was first deprived of her vir- ginity by the prisoner does not strengthen the State's case. That first illicit sexual act of the female and prisoner occurred in the State of Iowa. Had the first defilement of the girl by the prisoner occurred in Nebraska, instead of Iowa, on the date it did, and which was prior to the one charged in the indictment, then the first defilement would be no defense to the prisoner on an indictment for the second, since both woiild have been within the statute of limitations, and each intercourse a part of the BAILEY V. STATE. 663 before the ist." The ■ ction. We phrase in ition of an is by the sessing an definition, is statute, habits; in rostitute." A woman statute, is ith a male stands in- ct the V ir- is, to pro- ale, under , who has lie, is not II the vor- [••ations of • eighteen 1 her con- t she was o'.isly lin- ed bv the lue, prior N^ebraska, f her vir- ise. That cur red in irl by the lie date it dictinent, •isoner on en within rt of the crime charged in the indictment. But to sustain this convic- tion on this evidence is to punish the prisoner here for the crime committed in another jurisdiction. The statute is a harsh one, and the penalties for its violation severe. To sustain a convic- tion under it, the evidence must show beyond a reasonable doubt, among other things, that the female with whom the sex- ual intercourse was had was, prior to that intercourse, sexually pure, — chaste as Diana. To show that she was chaste prior to tlio sexual act in Nebraska, but for her previous seduction ])y the prisoner in another State, does not satisfy the statute. Suppose the statute of limitations for this crime was one year, instead of three ; suppose the prisoner, in Nebraska, deprived this girl of her virginity when she was sixteen, and she did not again car- nally know any man until she was seventeen and a half, and then, with her consent, sexual intercourse occurred between her- self and the prisoner, and he is indicted therefur. Is it not clear that the intercourse which occurred when she Avas sixteen would, if established, afford the prisoner a complete defense ? It woubl, because after the second sexual act she was not chaste. The first illicit intercourse would not be included in, and a part of, the crime charged in the indictment. That act would be barred by the statute of limitations. The statute does not punish men for unlawful sexual relations Avith a prostitute over fifteen years of nge, nor for such relations with a female Avho, though not a prostitute, has already submitted herself to the illicit em- braces of a male, capable of perf(U'niing the copulative act. ■ 3. But it is said by counsel for the State that to allow the prisoner to urge as a defense here the intercourse which took place between himself and the prosecutrix in the State of Iowa would be permitting the accused to take advantage of his own wrong. This is simjdy saying that the accused is estopped from asserting the truth of his unlawful conduct in another jurisdic- tion because that conduct would establish innocence of the crime which he is charged with having committed in this State. B',(t the State, in criminal prosecutions, may not invoke against the prisoner the doctrine of estop^iel. Moore v. Slate, 5^ Xeb. 831. To sustain a criminal conviction, it is not enough fm- the State to show that the prisoner indicted has violated the spirit of the statute, but the evidence must show beyond a reasonable doubt 664 AMERICAN CRIMINAL REPORTS. h >; that ho has offonded against the very letter of the law. Moore r. State, 53 Neb. 881 ; Crim. Code, § 2.51. Here the prisoner is charged with having had in this State sexual intercourse, with her consent, with a girl sixteen years of age, she being prior thereto chaste. At the time the intercourse occurred in tliis State the female was not chaste. Prior to the prisoner's inter- course with her in Iowa, so far as this record shows, she was chaste; and in Iowa — for we must presume the laws of that State to bo the same as ours — he robbed her of her virginity, and committed the crime for which he is convicted here. The judgment of the district court is reversed. Note. — Husband as an accomplice in raping his wife. — See State v. Haines, 51 La. Ann. 751, 25 So. Rep. 372 (1899). For lack of space we cannot give this case in full, but give the following selection from the syllabus by the court, stating questions involved: 1. The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract. 2. To hold a husband charged with rape upon a woman who is his wife, or to convict him, it must appear that the carnal knowledge of the woman constituting the rape was accomplished through a man other than the husband, and that the husband procured it to be done, or assisted the other in the execution of their com- mon purpose. 3. But where the "other man" in the case, demanding a severance, is tried first, and acquitted, the prosecution against the husband falls, since he cannot be guilty of raping his own wife. Howard v. State. 121 Ala. 21—25 So. Rep. 1000. Decided May 18, 1899. ftEsi.STiNG Arrest: Indictment — Void warrant. 1. An Indictment for resisting arrest, to comply with the Alabama Code, need not state the date of the resistance, nor for whose ar- rest the warrant was issued. 2. A warrant which, as a cause for arrest, recites, "Complaint on oath having been made before me that the offense of threatening breach of the peace has been committed," does not state a crime, is not a sufficient peace warrant, and is void. 3. It is not a crime to resist one who endeavors to make an arrest under a void warrant. law. Moore the prisoner intercourse, e being prior irred in tliis soner's inter- nvs, she was laws of that er virginity, lore. —See State v. k of space we ^ tion from the of an actual consent which in who is his lal knowledge led through a d procured it of their corn- severance, is the husband Ife. t. the Alabama for whose ar- laint on oath threatening itate a crime, ike an arrest HOWARD V, STATE. Gi^.5 •ntgoinory, Jack Howard, convicted in the City Court of ^Sh Hon. A. D. Sayre, Judge, of resisting an officer who'^vns at- tempting to serve a warrant or writ of arrest, issued by a jus- tice of the peace, ajipeals. Ilevcrsed. Hill (& Hill, for the appelLnnt. Chas. G. Brown, Attorney-General, for the State. Tysox, J. The indictment contained three counts. Two of them were framed under section 5403 of the Code, and the other under section uJGG. Each count was demurred to. The assignments of the demurrer raised the question tliat the war- rant or writ of arrest was not sufficiently described. The con- tention was insisted upon that the indictment should have averred the offense mentioned in the warrant or writ of arrest, its date of issuance, and the name of the person for wlioux is- sued. .« Xo such particularity is proscribed by the form for the in- dictment under section 54G3. In fact, it is there expressly declared that describing the process generally is sufficient. Fonn 73, p. 334, Code. Xo form is found for indictments under section 54GG. The count in the indictment under consideration follows the lan- guage of this section, and no more particularity in the descrip- tion of the warrant or writ of arrest is required in an indict- ment under this section than is required under section 54G3. There Avas no error in overniling the demurrer. The warrant or writ of arrest introduced in evidence against the objection of defendant describes the offense as, "throatenod a breach of peace." There were several objections urged against its introduction in evidence. Those worthy of consideration may be stated to bo that it was void upon its face, in that it charged no offense known to the law, and that the justice of the peace issuing it had no jurisdiction to do so. Section 51G2 of the Code authorizes the institution of pro- ceedings before magistrates to keep the peace. The purpose of the statut*^ is to prevent the connnission of an offense against the person or property of another, and to this end a warrant may issue for the arrest of the person who has threatened or is about to commit an offense on the person or property of another; and, l\ m mi w Ir m m ili^ GQ^ AMERICAN CRIMINAL REPORTS. if there is just reason to fear the commission of such offense, tlie defcnilant must be required to give security to keep the peace, etc. Sees. 5163, 5168. It is a preventive measure which the magistrate is authorized to set in motion to restrain the de- fondant from the commission of an offense against the person or property of another, and not a proceeding to try the person charged Avith the commission of a criminal offense. To threaten an offense on tlie person or property of another is not an offense against the law for which a person may be punished. At most, as we have said, he may be restrained from so doing by proper proceedings, but not punished by fine or imprisonment. True, should the defendant fail to give the security required by the magistrate, it is the duty of the magistrate to commit him to jail until he enters into the undertaking with sufficient sureties for the time he is required to keep the peace, not nwre than twelve nor less thai, six months. But this commitment to jail is predicated upon his failure or refusal to give the security re- qxiired by the order of the magistrate, and not as the punish- ment for the commission of an offense. The warrant issued for the arrest of the defendant in the case under consideration was in these words: "Complaint on oath having been made before me that the offense of threatening breach <:if peace has been committed in said county, and charg- ing Jack Howard with the commission of said offense, you are therefore conuuanded to arrest said Jack Howard and bring him before me instanter." The gist of this warrant is that the defendant had committed tlie offense of threatening a breach of the peace. This is emphasized by the language following, "charging Jack Howard with the commission of said offense." Howard had committed no offense, as shown by the language in tlie warrant. Had the warrant read that he has threatened an offense on the person or property of another, he would have been apprised that he was required to appear for the purpose of hav- ing the question adjudged as to whether or not he wo\ild have to give security to keep the peace, and that he was not charged with a criminal offense. When this Avarrant was shown him or read to him, he doubtless believed, and had a right to believe, nor was there a clear inference deducible from the language to the contrary, that the attempt to arrest him was for an offense. [ich ofiFense, ;o keep the ^sure which rain the de- the person the person To threaten t an offense . At most, ^ hy proper ent. True, ired hv the niit him to 3nt sureties more than lent to jail security re- the punish- lant in the mplaint on ;hreatcning and charg- se, vou are and bring is that the a hroaeh of following, d offense." angnage in eatened an I have been ose of hav- vould have lot charged iwn him or to believe, anguage to an offense, STATE V. ROLLINS. ccr for which he was to be punished, wliich designated offense was unknown to the law, and not punishable. The warrant was void upon its face, and the defendant was under no legal duty to submit to an arrest. 'Noh.s v. The State, 2-i Ala. GT2. This remlers it unnecessary to review the other questions raised in the record. The judgment of conviction nmst be an- nulled and reversed, and the cause remanded. Keversed and remanded. State v. Rollins. 50 La. Ann. 925—24 So. Rep. 664. Decided May 16, 1898. Rights of the Accused: The accuseds right to assistance ly counsel to prepare motion for new trial. 1. Though the law has not imposed upon courts the duty of inform- ing accused parties that they are entitled to counsel, and asking them whether they desire that counsel should be assigned to them, It has become almost universally the practice for them to do so ex proprio motn. 2. While the fact that a prisoner does not ask the court to assign counsel to him, and he chooses to appear by himself, and he is convicted, does not entlUe him to a new trial because of his want of counsel {State v. Kelly, 25 La. Ann. 382), it is none the less a fact to be considered in connection with others, for the purpose of ascertaining whether, in any particular case, he has been ac- corded the full opportunities for defense which it is the duty of the State to extend to its people, even those who may be ulti- laately and deservedly found guilty of crime. 3. The right to move for a new trial is guarantied to the defendant in the smallest civil cases. In criminal cases the same right ex- ists, as also the additional right of moving in arrest of judg- ment for defects apparent on the face of the record. These rights may be waived by the parties, but they cannot be denied by the courts. The law contemplates the giving of reasonable opportun- ity for preparation and examination. To refuse a reasonable time for the exercise of a right is tantamount to a denial of the right itself. State v. Gardner, 10 La. Ann. 25. (Syllabus by the Court.) Appeal from the Twenty-Second Judicial District Court for the Parish of St. Beniard; Hon. Robert Ilinglo, Judge. li!- it vir' i L f' 1 w m 1 G68 AMERICAN CRIMINAL REPORTS. !Moso3 UoUins, being ncousod upon two informations of crim- inal offenses, wont to trial without the assistaneo of counsel. IIo was found guilty; after which he immediately secured the aid of counsel, who applied for time to prepare a motion for new trial ; but the court, because the time for adjournment had ar- rived, requested counsel to state the grounds for the motion, which being done, the motion was overruled and sentence CJI- tercd. The defendant appealed. Reversed. A. E. & 0. S. Livamhis, for the appellant. M, J. Ciitmh\(jhnm, Atty. Gen., and Albert Esloplnal, Jr., Dist. Atty. (P. A. Simmons, Jr., of counsel), for the State. Xiciioi.Ls, C. J. On the 1st of ^Earch, 1897, two informa- tions were filed against the defendant. The first charged that he had, on September 30, 189G, wilfully and maliciously, and with a dangerous weapon, to wit, a pistol, inflicted a wound less than mayhem upon one Wash Williams with the intent him, the said Wash AVilliams, to kill. The second charged that he had, on the 30th of September, 189G, carried, concealed about his person, a concealed weapon, to wit, a loaded pistol. The minutes of the court of date of ^larch 7, 1897, show that the accused was on that day brought to the bar, in the custody of the sheriff; that, l)eing arraigned, on each of the charges ho pleaded "Xot guilty;" whereupon, on motion of the district attorney, the case was fixed for trial for ^larch 16, 1897, and accused was released on bond. For some reason, unexplained, the cases wore not trie(^ on that day. On the 7th of ^larch of the next year (1898), the accused having failed to answer to his name when called, a bench wai*- rant issued for his arrest, returnable !Mareh 8, 1898. On that day, the cases were fixed for trial for the 10th of the month. The minutes do not show that the accused was present when they were so fixed. The minutes of the lOtli recite that ''tlioso cases, regularly fixed, came on their day for trial. Present: A. Estopinal, Jr., District Attorney, for State; the accused pres- ent in court, and represented in proprui persona. The accusinl being ready for trial, the following persons [naming them] were duly called, presented, accepted, and sworn as the jury to try these cases. STATE V. ROLLINS. 660 mg of crim- lounsol. IIo rod the aid on for now ont had ar- tlie motion, eiitenco eji- op'mnl, Jr., e State. •o informa- largcd that iously, and wound less lit liim, the lat lie had, I about his , show that ;ho custody charges ho he district 1807, and lexphiinod, he accused bench war- . On that the month, 'sent when that ''these Present : :'used pres- he accused ing them] he jury to ■ ■ "The evidence being completed, these cases wore submitted. The court charged the jury in relation to each of tlie charg.-a of wounding with intent to kill, and c.irrying concealed weapons, ordered them to retire to their room to deliberate on tln-ir ver- dict, and to appoint their own foreman. After a short absence the jury returned into court, aiif tlio court ct was reii- for n new iul; wlioro- le intentlod \ roqncstod !0(1 his snid ; so, iu tho ed and his tig said mo- under said ar and suf- Whcroupon le ruling of t upon tho 0, 1808, it The ac- this court, released on ^h 7, 1898, •tion of tho Dst, and on ought into 1 10, 1808. 3 following le judge or ff was then led by tho presence of R'ithout ol)- it rendered 2. The de- fendant had sufficient notice of the assiguniont of his cast' fi.r trial. 3. The prisoner did not ask the court to assign an attor- ney to defend him, and chose to appear l»y hinisclf, n-.i- ,11,1 1,,. ask for a continuance on any gronml wliatsoevor. 4. Tli(> names of the witnesses furnished to the sheritl' hy him wi-iv *mu- nioned, with the exception of one who could not lie t'numl. Tli('^(> witnesses were present at the trial of the cause, and their testi- mony was given on behalf of the defendant. The services ,,t' counsel were secured only after verdict, and at the very nmnii'iit that tho defendant was to receive sentence. It was iIkmi their motion for a new trial was made. 5. The defendant or his friends had ample time prior to the trial to procure the assist- ance of counsel." No assignment of error was made in the Sui'/remo Court, nor was any brief filed on behalf of appellant. Ilis counsel argued the case orallv. Tho accused in this case went to trial without the assistance of counsel. There is no pretense that the court informed him that ho was entitled to counsel, or asked him whether he desired that counsel should he assigned to him. Though the giving of this information and the asking of this question have not been imposed upon courts by law, it has become almost universally the practice for them to do so ex propHo moiu. While it has been held that, if a prisoner does not ask the court to assign an attorney to defend him, and chooses to appear by himself, and he is convicted, the want of counsel is no good reasou for a new trial {State v. Kelly, 25 La. An. 382), it is none the less a fact to be considered in connection with others, for the purpose of ascertaining whether, in any particular case, he has been ac- corded the full opportunities for defense Avhich it is the duty of the State to extend to its people, even those who may be ulti- mately and desen'edly found guilty of crime. The minutes do not show that the appellant was present wl.cn the case was assigned for trial. Per sc, standing alone, that fact might not be good ground for a new trial, but this also is a cir- cumstance to be considered. The district judge, in his reasons for refusing a new trial, states that appellant was present at that time; but that is not the proper place where such fact should appear. Defective minutes are not to be eked out by G72 AMERICAN CRIMINAL REPORTS. mi ri i^ '{■; It, -1, ! !'< statements so made by the judge. The case was tried two days after the assiginiient. The clerk in his minutes recites as a fact that the accused was ready for trial when the case was called, but the minutes do not declare that he was asked whether he was ready, and answei'cd that he was. As matters stand, the statement is a mere conclusion of the clerk. If the court's state- ment be taken as showing the facts of the case at that time, ho was not asked that qiiestion at all, but simply 'Svhether he would be tried by the court or the jury ;" and, having answered, "By the jury," the juiy was at once called, impaneled, and sworn, and the case at once disposed of. The court saj's the sen'ices of counsel were secured only after verdict and at the very moment that the defendant was to receive sentence ; "that it was then that motion for new trial was made." That is true, but the rec- ord shows that the verdict in the case, the motion for a new trial, the sentence of the accused, and the adjournment of court all followed in rapid succession on the same day. The motion for a new trial comes before us in a very irregular manner. J t is unsworn to, and reaches us as part of the minutes of the court. The reason for this appears to have arisen from the fact that the court declined to grant comisel of accused time to write out his motion, and insisted that he should state his grounds for tliu same at once. The reasons seem to have been assigned verbally, and to have been taken down by the clerk. We see no reason for this haste. Counsel for accused could not have acted any more promptly than they did. The judge states that all this happened upon the day that ho intended to adjouni the court; but this intention to adjourn should have given way, at once, before the reasonable demand made for time to prepare the legal motions which the law allows to be made between vei'dict and sentence. There is no reason assigned by the court why this hasty adjournment t.iiould have been made on that day, and we see none. In State v. (laidiier, 10 La. An. 25, this court said : "'The right to move for a new trial is guarantied to the defendant in the smallest civil cases. In criminal cases the same right exists, as also the additional right of moving in arrest of judgment for defects apparent on the face of the record. These rights may be waived by the parties, but they cannot be denied by tho STATE V. ROLLINS. C73 !(1 two days OS as a fact was called, wLolher he i stand, the xirt's sta te- at time, ho 5r he would ivered, "J'y and sworn, sen'iecs of ry moment t was tluMi but the ree- for a new nt of court Che motion lanner, Jt f the court, let that the •ite oiit his ids for the d verhally, no reason acted any lay that ho .0 adjourn le demand law allows no reason lould have aid: "The fendant in gilt exists, Ifjuient for •ights may ed by the courts. To refuse a reasonable time for the exercise of a ri"l.t is tantamount to a denial of the right itself. This is exempli- fied in the present case. According to Hawkins, the rule in the Kmg's Bench, in cases of misdemeanors, was that four dsivs should elapse between the conviction and the judgment, if there Avere so many days remaining in the term. It is said b'y Chitty that the court, if they grant a male nisi, will, at the instance of the party applying, make it a part of the rule that the defendant should have a certain time, e. g., three dnys, to move in arresfc of judgment, after they shall have given their opinion upon the motion for a new trial, or the defendant may obtain a rule in the alteniative,— though, as the motion in arrest may be miido at any time before judgment is pronounced, it would seem tliat such a special rule is not necessary. The analogy between crim- inal and civil proceedings, in the English court, in regard to these matters of practice, is very striking. Our Code of Prac- tice relates to civil proceedings alone, but, by analogy, it may occasionally afford a safe guide to criminal proceedings. AVe are not called on to determine what a reasonable time for the l)reparation of the motion in question would be; we only say that the judge erred in refusing to grant any time whatever.'' Those views are thoroughly correct. It will not do to say that the motion for a new trial was, in fact, made and overnded. The law contemplates a motion made with reasonable opportunities for preparation, and, in this case, for examination. It may be that the accused was proj)erly found guilty, and that he should be punished. If that be true and he be not punished now, it will demonstrate that harsh proceedings in the district court are not the surest and best methods of secur- ing the ends of justice. We are of the opinion that the sentence appealed from should be, as prematurely rendered, set aside, and the cause remanded to the district court, and there reinstated on the docket, with leave to the defendant to make formal motions for a new trial and in arrest of judgment, and for further proceedings accord- ing to law, and it is hereby so ordered and decreed. Vol. XI — 43 674 AMERICAN CRLMINAL REPORTi Mi Spexckr v. State. 106 Ga. 692—32 S. E. Rep. 849. Decided March 14, 1899. RonBERY: Distinctions between robbery and larceny from the person- Force, violence and intimidation necessary elements of robbery. Suddenly snatching a purse, with intent to steal the same, from the hand of another, without using intimidation, and where there is no resistance by the owner or injury to his person, does not con- stitute robbery. (Syllabus by the Court.) Frank Spencer, alias Joe Brown, convicted of robbery in tbe Glynn County Superior Court, Hon. J. L. Sweat, Judge, brings error. Reversed. Owens Johnson and ^1. D. Gale, for the plaintiff in error. John W. Bcnnclt, Solctr. Gen., for the State. !f isH, J. Frank Spencer, alias Joe Bro\vn, was indicted and tried for the offense of robbery. From the evidence submitted by the Stato (there was no evidence introduced by the defend- ant) it appeal's that ^Irs . O'Connor and another lady were standing on a street in the city of Brunswick, when the accused approached them, and asked, "Will you please tell me whore Capt. Dart lives ?" and just as he said this he snatched a pocket- book containing $7.50 from the hand of !l[rs. O'Connor, and ran away with it. She testified that she did not have time to hold on to the book, it was all done so quickly; that she just had it in her hand, as ladies usually carry pockctbooks, and was not expecting it to be taken away from her, and was therefore not grasping it imusually tight; that she did nothing at all to ])rovent him from taking it ; that she did not consent or object to his taking it, as she did not have time to do cither; that the acciisod had it, and was gone, before she knew it. The court charged the jury: "If you shall find it to be true that this de- fendant, in the county of Glynn, and on the date named, com- ing into contact with Mrs. Mary O'Connor upon the sidewalk, and entering into some conversation with her, or propounding some question to her, or to others who were with her, if you shall find that she held her purse openly in her band, and this do- -^■, SPENCER V. STATE. 675 he person-m robbery. le, from the ere there Is oes not con- lery in the dge, brings error. iJicted ami I submitted ;he defend- lady Avcre he accused nie where d a pocket- onnor, and ive time to at she just , and was s therefore g at all to t or object r; that the The court at this de- nned, eom- sidewalk, opounding f you shall lid this de- fendant, in full view of her, and with her knowledgo, she seoiii;' him, suddenly snatched her purse and iu contonts from lior without her consent, and ran off with it, — the court charocs von that if you shall find that to bo true, and that this was dime' by this defendant with intent to steal the same, that w(.uld make, under the law of this State, a case of robbery, and in such event it would be your duty to convict the defendant." There was a verdict finding the accused g\iilty of robbery. ILo moved fm- a new trial upon the grounds that the verdict was coutniry to law and the evidence, that the charge above quoted was error, and upon other grounds not necessary, in the view which we take of the case, to be passed upon. The motion was overruled, and he excepted. Tiie question which controls this case is whether tbe facts as proved constitute the offense of robl)ery, which is "the wrongful, fraiululent, and violent taking of money, goods or chattels from the person of another by force or intimidation, without the con- sent of the owner." AVe have no ditRc..-.y in deciding that this, under the facts, is not a case of robbery. Section 177 of the Penal Code, referring to larceny from the person, the general definition of which is given in the preceding section, says: "Any sort of secret, sudden, or wrongful taking from the pcn'son with the intent to steal, without using intimidation, or open force and violence, shall be within this class of larceny, though some small force be used by the thief to possess himself of the prop- ertv : Provided, there l)e no resistance bv the owner, or iniurv to his person, and all the circumstances of the case show that the thing Avas taken, not so much against as without the consent of the owner." The facts of this ease bring it clearly within the provisions of this section. The accused, without using any in- timidation, suddenly snatched the purse from the hand of ^^[rs. O'Connor, and ran off with it. There was no injury to her person, nor any resistance or struggle to prevent him from tak- ing the purse. All the circumstances of the case show that the purse was taken, not so much against as without her consent. The charge of the court was erroneous, because, under tlie hypo- thetical case stated by the court, without more, the offense would not be robbery, but would be larceny from the ])erson, under the provision of the last-quoted section of the Penal Code. mi 'r ' it, li m 676 AMERICAN CRIMINAL REPORTS. M w ii r i>'i In Fanning's Case, CG Ga. 107, the accused slipped his hand into a lady's outsiile pocket, and furtively took therefrom a purse of money. Before he got the purse entirely out, she felt the hand, and tried to seize it, but the thief had succeeded, and the purse Avas gone. In the effort of the thief to extract his hand and the purse, the pocket was torn. She rushed upon him, and caught him l»y the coat, which, in his struggle to escape, was left, torn, in her jxjssession. It was held that the offense was larceny from the person, and not robbery, because there was no force or intimidation in the act. Counsel for the State strongly relies upon Burke's Case, 7-i Ga. 372, contending that the facts there and those in the case at bar are substantially the same. But there is evidently not a full statement of the facts in that case as it is reported in 74 Ga., for it does not appear in such report that the owner of the money taken by Burke made any resistance, but simply that the ac- cused grabbed four dollars from his hand, and ran ; that the owner called after him, etc. Yet, the headnote, Avhich is sound law, is as follows: ''Where, before the felonious taking of money by one person from another, the latter makes resistance, and the taking is not only without his consent, but against it, the crime is robbery, not larceny from the person." The record of the case is not at hand, but the recorded opinion of ^Fr, Jus- tice Hall is as follows : "The (piestion made in his case is that the defendant, who was convicted of robbery, was, under the evidence adduced on the trial, guilty of nothing more than lar- ceny from the person. Both the judge and the jury who tried the case were of a different opinion, and, if the testimony is to be credited, their conclusion seems to be supported. It is in- sisted that this was a secret, sudden, and wrongful taking by the defendant of the prosecutor's money privately, and without his knowlef ^Tr, .Tus- ?ase is that under the '6 than lar- ■ who tried niony is to It is in- taking hy nd without was unac- \\e other of jry. Code ted section he prosecii- t the thing force eon- ruling ele- 10 ments. 'If there is a struggle to retain the possession ..f tl _ property before it is taken, it is the "force" of our Penal Code.' Long's Case, 12 Ga. 2!)-t ; Fann'mg's Case, CO Ga. I(i7. If there bo 'resistance' before the felonious taking is complete, and that taking be against, not simply without, the owner's consent, this, too, under our Code, is robbery, and is one of the decisive tests distinguishing it from larceny from the person. There was in this case evidence both of 'resistance' by the owner and of a struggle between him and the defendant before the money was snatched from his person and carried away l)y defendant." This last sentence in the opinion in Burke's Case, alone, shows the; difference between the facts in that case and those in the case which we are now considering. .In Doyle's Case, 77 Ga. 5l:>, the prosecutor agreed to treat the accused to a drink, and took out his pocketbook to pay for it. lie had the book in one hand, and in the other a rubber strap which he had taken from around it. In the pocketbook was a five-dollar bill with one end stick- ing out. The accused extracted it from the book witli a (piick jerk, and passed it to a confederate, who made off with it. There was no struggle and no threats; the accused merely snatched or jerked the money from the pocketbook, which the prosecutor held in his hand. It was held that these facts did not constitute the offense of robbery, and the ruling was put on Burl-e's Case, supra. !AIr. Justice Hall, avIio also delivered the opinion in that case, said that, in view of the fact that almost every community is infested with thieves, who throw unsuspect- ing persons off their guard, and snatch money or other valual)les from their pei-sons, the court unanimously recommended to the General Assembly that such offense be made robbery. Counsel for the State* also cites Vsovi's Case, 97 Ga. 1!U, 22 S. E. Rep. 399, but in that case there Avas evidence both of re- sistance by the owner of the satchel and of a struggle between her and the accused before it was pulled from her luunl, and the case is directly in line with those which we have cited above. The distinction betAveen robbery and larceny from the person pointed out in our Penal Code and the decisions of this court above referred to is one that is generally recoftiiizod. '"Siuitch- ing, which is a sufficient as])ortation in simple larceny, carries with it or not the added violence of robbery, according as it is m % n ii 678 AMERICAN CRIMINAL REPORTS. li met or not by resistance." 2 Bisli. Xew Cr. L., § 11G7, and cases cited. See Clarke's Crim. Law, 285. "The mere snatch- ing a thing from the hands or person of another, without any struggle or resistance by the owner, or any force or violence on the part of the thief, does not amount to robbery." 21 Am. & Eng. Enc. L., 420, and cases cited in note 5. "With respect to the degi'ce of actual 'violence,' where the taking is effected by that means, it appears to be well settled that a sudden snatching from a person unawares is not sufficient." 2 Buss. Cr. (0th ed.), p. 88. i rtdgment reversed. All the justices concurring. Smith et al. v. State. 76 Miss. 728—25 So. Rep. 491. Decided April 10, 1899. Scire F.\cias: Forfeited bail bond — Service — Variance. 1. A judgment by default is erroneous when not supported by service as required by statute. 2. Where personal service is had, followed by a judgment by default, and appeal, no advantage can be taken of a variance between the writ of scire facias and the bond, the bond not being a part of the record in that proceeding. 3. A fatal variance as to the date in the judgment nisi and the final judgment is reversible error. t-i' ><■ Appeal from the Circuit Court of Claiborne County; Hon. William K. McLaurin, Judge. Daniel II. Smith, Jr., being indicted for keeping a gaming table, gave bail with two sureties. He appeared at the next term of the circuit court and pleaded giiilty of gambling. The plea was accepted and a judgment entered suspending sentence, biit condemning defendant to pay costs and stand committed \mtil such costs be paid. At the following term, the judgment nisi referred to in the opinion was rendered against the defend- ant and his sureties, because of his failure to respond when called. A writ of scire facias was issued to Claiborne county, and was served on the sureties, but returned "not found" as to 11G7, and re snatch- thout any iolence on 21 Am. & respect to flPected by snatching (Gthed.), nee. by service by default, etween the a part of d the final ty; Hon. a gaming the next ng. Tho sentence, ommitted judgment e defend- •nd when e county, nd" as to LOVELESS ET AL v. STATE. 679 the principal. An alias writ was issued to JUmh county and re- turned ''not found" as to the principal. A final jiulgment being entered by default against all parties, they appeal. Keverscd. " Martin £ Anderson, for the appellants. Wiley N. Nash, Atty. Gen., for the State. Whitfield, J. As to Daniel IT. Suiirli, Jr., the principal, the judgment is erroneous— being by default— becinisc there was no personal service on him, nor were there, as re(inired as an equivalent therefor by section 13!>G of the Code of 1802, "two writs of scire facias returned by the proper officers of the county where the bond or recognizance was entered into 'not found.' " Stafford r. Stale, 00 ]diss. 928. The sureties having been personally served, and having failed to appear, cannot predicate error here of a variance iHtwecn tho bond and the scire facias; because, in such case, the bond is "not properly a part of the record of that proceeding, but must be brought before the court by plea of »;// iicl record, or other appropriate plea." Ditto v. State, 30 :^riss., at p. 128. IJnt there is a fatal variance between the judgment nisi and tho judgment final, as to the date of the judgment. Say the court in Ditto v. State, 30 .Miss. 12S: "Where the scire facias is not supported in a material respect by the judg- ment nisi, a judgment final, inconsistent with the judgment nisi, is erroneous, and, if to a party's prejudice, must be re- versed." To the same point, ideuticaliy, is Bridges v. State, 24 Miss. 154. Reversed and remanded. Loveless et al. v. State. Tex. Court of Crlm. App.— 50 S. W. Rep. 361. Decided March 8, 1899. ScutE Facias: Misdescription of offense in bail bond. A bail bond which does not describe the crime for which it is given, either by its name or by its essential elements, is insufficient. 680 AMERICAN CRIMINAL REPORXa Appeal from the Kaufman County Court ; Hon. John Vescy, Judge. Judgment upon a bail bond. Reversed. J. D. Cunningham and Loc R. Stroud, for the appellants. liobt. A. John, Asst. Atty. Gen., for the State. BijooKS, J. Appellants in error, ]\[. L. Loveless, T. J. Reynal, P. G. Lewis, C. F, Priest, and J. V>. Payton, sued out a writ of error against the State of Texas, appellee in error. The case, as indicated by the record before us, is one wherein the State of Texas took a forfeiture upon a certain bail bond, wherein the appellant in error ^L L. Loveless was principal, and the other appellants stated above were sureties. In the view we take of the case, it is only necessary to con- sider appellants' first assignment of error, as follows: "Said writ is insufficient as pleading, and said bond described therein is likewise insufficient, because neither said bond nor the writ of scire facias distinctly describe any particular ofFonsc; the only description given being 'unlawful selling of intoxicating ]i(piors,' wh.'ch language included many distinct oflfensos, — one described in article 3S)8, another in article 399, ano!i\er in ar- ticle 400, another in article 401, another in article 402, another in article 404 ct eeq. [of the Penal Code], — and it cannot bo told which of the niunerour^ crimes is refeired to." It is well settled that, where a bail bond or recognizance is taken after indictment foimd, the very offense of which the principal stands charged in the indictment must be named in the bond, not the class of offense. In the case of Ramsey v. State, 30 Tex. Crim. Rep. 392, 37 S. W. Rep. 330, the court said, where this exact question came up for consideration in a recognizance: '*A])pel- lant is charged with selling intoxicating liquors in a local-option precinct. The recognizance recites that he 'stands charged in this court, by bill of indictment, with selling intoxicating liq- uors, and who has been convicted of said offense in this court,' etc. This recognizance, in order to be a valid undertaking in law, such as to attach the jurisdiction of this .court on appeal, should have further recited those eleriionts of the offense charged in the indictment, to wit, selling intoxicating liquors in a pre- cinct where local option was in effect. Stating it in another STATE V. MATTHEWa 681 )lm Vesoy, oil ants. ?8S, T. J. 1, sued out ; in (nTor, liorein tlio jail bond, icipivl, and ry to con- ,'s: "Said od therein r the ^vrit Fonsc; the toxicating isos, — ono iior in ar- 2, another cannot 1)C It is well ikcn after pal stands d, not the 'ex. Crini. this exact : "Ai)pel- cal-oj)tion harged in lating liq- lis court,' 'taking in »n appeal, charged in a pre- ti another form, the recognizance must state the offense of which the ap- pellant stands indicted. If it is an offense eo nomine, it is sutfi- cient to so recite. If not, it must recite all the constituent ele- ments of the offense in the recognizance. This has not been done, and it is fatally defective." It appearing from an inspec- tion of the record before us that the condition of the bail bond upon which the forfeiture was taken states that the appellant M. L. Loveless "stands charged with the offense of unlawfullv selling intoxicating liquor," the same defect exists in th(> bull bond in this case as existed in the recognizance in the case cited above. The law in reference to recognizances and bail bonds being the same, we hold that the bail bond in this case does not comply with the law in the respect indicated. For the errors discussed, the judgment of flie lower court is reversed, and the cause dismissed. Davidson, P. J., absent. State v. Mattiikws. 148 Mo. 185—49 S. W. Rep. 1085. Decided February 21, 1899. Self-dkfenre: Murder and vianslaughter — Express malice — Right of attack in self-defense — Defense of property — Instructions. 1. One who kills another in self-defense is not guilty of murder, though he bore express malice towards deceased. 2. It is not generally true that the right of self-defense does not imply the right of attack. One who has reasonable ground to be- lieve that another intends to do him great bodily harm, and that such design will be accomplished, need not wait until his ad- versary gets advantage over him, but may immediately kill the latter, if necessary to avoid the danger. 3. The fact that one puts himself in the way of being assaulted by another, though he expects the latter will attack him, does not preclude him from setting up self-defense. 4. Though one is not justified in killing another who is tearing down and carrying away a fence belonging to the former, such killing is nothing more than manslaughter in the fourth degree, if done in a heat of passion engendered by the removal of the fence. 5. Where defendant shot deceased while the latter v.as removing .he former's fence, an instruction that such fact did not justify de- I s ■ 11 682 AMERICAN CUIMINAL REPORTa i«, Ilii m ■fi im LI* I; '1i |i; u ilM iJh 1 fendant Is misleading, as It should also state that, If the killing was done In the heat of passion, It would be only manslaughter. 6. The fact that defendant claims that the killing was done in self- defense does not destroy the right to an instruction based on the claim that the killing was manslaughter. Appeal from Douglas Circuit Court; Hon. W. N. Evans, Jmlge. Reversed and remanded. A. II. Livingston, for the appellant, Edward C. Crow, Atty. Gen., and Sam B. Jeffreys, Asst Atty. Gen., for the State. SiiKuwooD, J. Indicted for murder in the first degree for killing one R. 11. Morgan with a shotgim on the 17th of April, 189G, defendant being put upon his trial was found guilty of the second degree of that offense, and his punishment assessed at fourteen years in the penitentiary. This homicide grows out of a disputed lino, and a portion of a disputed rock fence, which, if removed, would open defend- ant's field and leave it unincloscd, and besides, would admit the water from the hillside to sweep over defendant's field. A lane nuining north and south divided the two fences of defend- ant and of Hammond, that of defendant lying on the west and Hammond's on the east of that lane, which, at its north end, oi>ened into a public road which at this point ran west on the north side of defendant's field. The north end of the lane ter- minated at the foot of a steep hill, which was the water-shed of that immediate locality. The disputed boundary and rock lay between the northeast and the northwest corners of the respect- ive fields. Hammond had lived on his farm about nineteen years and had never, so far as it appears, had any difference or difficulty with his vis-a-vis neighbor. Defendant, forty-five years of age, had lived on his farm some fifteen years, in the county some thirty years, had been con- stable and justice of the peace some ten or twelve years, and bore an excellent reputation for being a peaceable and law-abid- ing citizen. On the other hand, ^forgan, who had lived on the farm of Hammond, his step-father, for the space of about a year, and had rented it, it seems, for the year 1890, had the reputa- tion, as some of the testimony tends to show, of being of a rash, STATE V. MATTHEWS. CS3 r the killing islaughter. lone in self- )ased on the N. Evans, reys, Asst. dcgi'ce for 1 of April, I guilty of it assessed portion of m defend- uld admit J field. A of dcfend- i west and lorth end, est on the 3 lane ter- er-slied of I rock lay le respeet- nineteen Ference or arm some been con- ears, and law-abid- ed on the ut a 3'ear, 10 reputa- 3f a rash, quarrelsome, turbiilont and daiigcrnna disposllion, ^.f whirli de- fendant was informed prior to the fatal oc'ciutcik'c, and lie hml been warned by some of his neighbors to be on his giuir.l against iforgan. Indeed, it seems .Morgan had conceived a strong dis- like against defendant, and had made serious thivats against him, and of these threats defendant had been told. Alwiit two weeks before the homicide, Morgan had gotten into nn alterca- tion with defendant's youngest son; had thrown rocks at him, and when remonstrated with by defendant on that occasion lui.l invited defendant out of his field ir. order to beat him, savin-r to the latter that he had it laid up for him and intended to do him np. Morgan was a large, stent man weighing one hundred and seventy-five to one hundred and ninety pounds, and was about thirty-eight years old. Defendant had been prosecuted for ob- structing the public road at the northeast conier of his field, and was convicted of that oflfense. On termination of this prosecution, defendant, under the direction of the prosecuting attorney and sheriff as to where his fence should be erected, had set his fence back on his line as it was ascertained to be on the trial aforesaid, and he built this portion of the fence of rock in order to prevent his field being flooded. After this building of his fence back on his line, defendant was repeatedly annoyed by ^forgan throwing his fence down, when defendant woulil re- build it. This process of rebuilding had just been completeil just after noon of the day of the homicide, by defendant and two or three of his nearest neighbors. In the afternoon, a pass- ing neighl)or having informed .Mitrgan, who was at work in his field plowing, of the fence being replaced, he inuiiediately quit his v;ork, sent his team around by the bottom road, went by his house for his ax and pistol, and with Hammond, his step-father, and ^Irs. Hammond, his mother, he went to where the roek wall had been replaced, taking with him two chains. The others of the family, two grown women, and two boys, one twelve years and the other younger, all went to what was termed the ''rock pile," as the rock wall at the locus in quo was called. Arriving there, they all went to work tearing down defendant's fence and placing the rock thus obtained on that of Ilanunond. Defend- ant was in his field cutting sprouts; his son, who was in the 084 AMERICAN CRIMINAL REPORT^. it i 'i V'! field also and plowing, but soiurwliat nearer to tlie rock wall than Ilia father, saw Morgan and called his father's attention to it, whereupon defendant, looking up, saw Morgan coining hill toward the rock wall, at a hri'^k walk or r\in. llo had on \\\a arm an nx, and d(>fend«nt thought he saw him havo also a pistol. J?ehind Mnrgan were his st(>p-father and mother. Def(>ndant also noticed the others of the party proceeding to tho same iM)int with horses, etc. Thinking it prudent to do so, d(^ fendant went to his hotise and got a shotgun and returned to tlie field and went towards the fence where ^I organ and tho others were tearing defemlant's fence down, ai' »hen defend- ant got williin ahout thirty steps of him wher ' were tear- ing the fence down, Morgan said to him: "Don't como any closer." Defendant told him to gf) away and not disturb his fence, wlu'n ^forgan replied with foul and abusive language. Whether defendant had his gun presented at ^forgan at tho time or not is the subject of conflicting evidence. Some of tho testimony shows that it was tlnis carried ; other that defendant merely carried it in his hands, and other still, that it was on his shoulder. After testifying as above stated, with regard to what !Morgan said to him, defendant continued: "I kept insisting that !^r<»rgan get away, that I didn't want any trouble with him, and that that was my fence, and he very well knew tho court had so decided, and, if he thought it wasn't, to go into court, and when the court decided it was his, he should have it, and not until then. He kept on abusing me, and then he had a pistol; the fii*st T saw of it he was behin- rotiinicd to nn nntnl. JIc was not over four or live feet from where he prest-nteil the pis- tol at me." Tln're was (tther testimony tending to show that defendant threatened to ■urt. in admit- n and are ro not cr- npon the x'cssitates le dofpnd- froni the )t (if you le defend- d that lie leccascd." could not ) jury be- linatos to tal, if the ct created or not he hat doubt [f you be- at the de- tion at or idant was e that the irthor be- that said to decline hen I in- This in- efendant, ? first ag- ust make ;. Button, PEOPLE V. SCOTT. 693 Wo note no other alleged errors that call f..r a =;pcoial con- sideration, but for the roas-ms given, tlio jiulgiuout and order are reversed and the cause remaiidod. McFakland, J., and TcirrLE, J., concurred. Note (by H. C. GO.-SKr.F-DKi-KxsE: In Jones v. State, 120 Ala 383 25 So. Rep. 25 (1899), the following clause appears: "The court in its oral charge said to the jury: 'Self-delense Is the defense in seventv- five or perhaps eighty or ninety per cent, of the cases in this country ' This appears as an independent charge. In what connection with any other part of the oral charge It was given does not appear. Its logical and Inevitable effect was to prejudice the minds of the jury against the defense the defendant was making to the charge against him, and it should not have been given." Threats tvithout overt acts— It was held in Wright v. State, 40 Tex. Cr. Rep. 447. 50 S. W. Rep. 940 (1899), that defendant could not shield himself behind the claim that he feared the deceased, who had as- saulted him and made violent threats, when at the time of the homi- cide the deceased was otherwise engaged, and made no demonstration against him, and did not seem to know that the defendant had ap- proached him with a gun. Threats, to justify a reasonai)le apprehen- sion of imminent danger, should be accompanied by overt acts of some kind, indicating an intention to execute the threats. Voluntarily entering into a combat does not abrogate the right of self-defense; neither does express malice.— In State v.Rapp, 142 Mo. 443 (1898), on a trial for assault with intent, etc., it was held to be error to negative an ordinary instruction on self-defense by tacking onto it the condition that defendants should not have the benefit of it if the jury found that they "voluntarily entered into the difficulty." And also error to instruct that, even though the prosecuting witness was the first to bring on the difficulty, yet, if the defendants "volun- tarily" entered Into it, they cannot be acquitted on the ground of self- defense, no matter how great and imminent the danger. The court ob- served that self-defense is an a/firmative, positive, intentional act, and necessarily is voluntary. That "voluntarily entering into a difficulty" is not an ingredient in any case whatever. That if the right of self- defense existed, it was wholly immaterial whether its exercise was voluntary or involuntary. That existing the right, the animus was immaterial. That even though a defendant entertained the most ex- press malice toward his assailnnt, yet, if the facts showed that he acted in self-defense to save his own life, his malice should not be taken into account. He has only exercised his legal right. (Citing 2 Bish. New Crim. Law, sees. 37 and 71fi; Whart. Crim. Law (9th ed.), sec. 98; Golden v. State, 25 Ga. 532; Partlow's Case, 90 Mo; 008; State V. Gilmore, 95 Mo. 554.) Instructions on self-defense. — In the case of McCronj p. State, re- ported in 25 So. Rep. C71, the court instructed the jury as follows: "(2) The court charges the jury, by the State, if they believe from 1 '•^1 ! 1!'^' C94 AMERICAN CRIMINAL REPORTa the evidence beyond a reasonable doubt that the defendant, after shoot- ing deceased with his pistol, thereby disabling him, and while in no danger, real or apparent, of any harm at the hands of the deceased, he took a shotgun from the child of deceased, and pursued deceased and maliciously shot him, and after knoclting him down with the gun, and while deceased was down, brained him with the gun, he is guilty of murder, and the Jury should so find." This instruction was held to he faulty for the reason that it as- sumed that the deceased was disabled by pistol shots fired by the de- fendant, and that thereafter the defendant could not avail himself of the doctrine of self-defense. But whether or not the deceased had been so disabled, was one of the questions to be determined by the jury. The defendant requested that the following instructions be given, which were refused: "The court instructs the jury that the law does not make actual or impending danger indispensable to the exercise of the right of self- defense, but that the law considers that, when threatened with danger, one is obliged to judge from appearances, and to determine therefrom as to the actual state of things surrounding him, and in such case, if one act from hurried consideration, induced by reasonable evidence, he will not be held responsible criminally for a mistake as to the ex- tent of the actual danger; but if the jury believe from the evidence that, at the time of the shooting, the conduct of the deceased was such as to excite in the mind of a reasonably prudent man the belief that the deceased then had the means and purposed then to kill the de- fen(\ant, or to do him great bodily harm, he was justified in anticipat- ing the attack, if it was present, urgent, and otherwise unavoidable, except by flight, and protecting his own life or limb by taking the life of his adversary, even though the jury, in the light of subsequent de- velopments, may believe that the danger was not real, but only appar- ent; and if the jury so believe, it is their duty to acquit." "The court charges the jury that, in passing upon the action of the accused, the jury should not try him by the light of after-developments, nor hold him to the same cool and correct judgment which they are able to form. They should put themselves in his place, and judge of his act by the facts and circumstances by which he was surrounded." The court thought that the defendant was entitled to have the views expressed in these instructions presented to the jury «>nd, for the ac- tion of the trial court on these three instructions, reversed the case. The right of self-defense should not be liinited by the ability of the defendant to distinguish between felonies and misdemeanors. — We had prepared State v. Sloan, 22 Mont. 293, 56 Pac. Rep. 364 (March, 1899), but owing to lack of space we are obliged to omit it. The most salient feature in that case arose over an instruction given to the effect that, although the defendant had got into a quarrel and was assaulted by the deceased, still he was not justified in using a deadly weapon unless he had good reason to believe that there was imminent danger that the deceased would kill him or inflict on him some great bodily injury amounting to a felony. This was held to be erroneous, the court say- EVANS V. STATE. 695 tfter shoot- hile in no i deceased, d deceased h the gun, e is guilty that it as- hy the de- himself of :eased had led by the be given, ! actual or ht of self- th danger, therefrom ch case, if evidence, to the ex- B evidence was such belief that 111 the de- anticipat- lavoidable, ig the lifo equent de- nly appar- 'The court cused, the , nor hold re able to of his act the views or the ac- he case. ity of the —We had •ch, 1899). )st salient ffect that, iaulted by )on unless r that the lly injury court say- ing that: "The right of one assaulted to lull his assailant in self- defense should not be limited by his ability to distinguish between felonies and misdemeanors. He must be guided by a reasonable ap- prehension of death or great bodily harm. And the fear or apprehen- sion of this latter, from an unlawful beating at the hands of the as- sailant, may be sufficient, even when the assault is lacking in some of the elements of felony." Passion and malice are antagonistic elements.— The court, in sub- stance, instructed that, though the killing was done in a quarrel when defendant's passions were aroused, yet, if malice were present in his mind, the jury must determine whether the "killing was prompted principally by such passion or by such malice," and thus decide whether the offense was manslaughter or murder. The court said: "There can be no such thing as a killing with malice, and also upon the furor hrevis of passion; and provocation affords no extenuation, unless it produces passion. JMalice excludes passion. Passion pre- supposes the absence of malice. In law they cannot co-exist;" and argues at length that the irresistible passion, aroused by adequate provocation, necessary to reduce the killing to manslaughter, rebuts the idea of malice. Id. EvAxs V. State. 106 Ga. 519—32 S. E. Rep. 659, 71 Am. St. Rep. 276. Decided March 4, 1899. Self-incrimination: Illegal methods used to force defendant to pro- duce evidence against himself — Such evidence is incompetent. Following the decision of this court in the case of Day v. State, 03 Ga. GG7, the evidence which was offered by the State, and admit- ted, showing that the accused, while not under legal arrest, had been compelled to put his hand in his pocket and surrender a pistol, thus disclosing that he was violating the law, was not ad- missible on the trial of such person for the offense of carrying concealed weapons, alleged to have been committed on that oc- casion. (Syllabus by the Court.) Plaintiff in error, convietoJ of carrying concealed weapons in the City Court of Hall County, Hon. G. II. Prior, Judge, brings error. Reversed. IT. II. Dean, for the plaintiff in error. Ilowanl Thompson, Solicitor-General, for the State. :i- u 1 "i S GOG AMERICAN CRIMINAL REPORTS. *«i |i \ vh ':!» Conn, J. Evans was convicted of the offonso of cnrrving / I/O concealed weapons. His motion for a new trial was ovcrndcd, and he excepted. The only witness introduced on the trial of tlio case was IJrown, a policeman, who testified that ho was called up at ni{;ht in Gainesville, Hall ccmnty, on account of some disturbance. When he got to the place where the disturbance was alleged to have occurred, he saw nobody, but was told that the accused had been shooting around there. After a while he saw the accused coming down the road. At this point the witness was allowed to testify as follows: "I told him to give up his pistol, and ho said, 'What pistol V and I said, 'The one you have been shoot- ing with.' He refused to give it up, but I called ^Iv. Lyles, another policeman, and we forced him to give it up. He had it in his hand, imdcr his coat, and it was concealed so I could not see it until after I compelled him to give it up." After this, witness arrested the accused. He had no warrant for the ac- cused ; and neither had Lyles, the other policeman. That part of the testimony of the witness which is quoted above was ob- jected to by the accused on the ground that "no party can be compelled to give evidence against himself by act or words." The refusal of the court to exchulc this evidence is assigned as error in the motion for a new trial. The constitution of this State provides that "no person shall be compelled to give testimony tending in any manner tr) crim- inate himself." Civil Code, § 5703. In the case of Day v. State, 03 Ga. 0G7, it was held that: "Evidence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not ad- missible. A defendant cannot be compelled to criminate him- self by acts or words." In that case, Allen, a witness for the State, testified that: "Witness took hold of [the accused], and pulled him along, and then he put his foot in the track. The first time witness told him to put his foot in the track, defend- ant refused. Witness then took hold of his foot and put it in the track. He did not consent to it. The shoe fitted the track." This evidence was admitted over the objection of the accused that it was compelling him to furnish evidence against himself, contrafry to the constitution of the State. Chief Justice Warner, EVANS I'. STATE. r.i>7 tiftcr quoting tho constituticnnl provisi.m n1)nvo f>ot ..ut, a^Ll..!- "Xor can one, by force, compol another, apiinsf hk C(.i,s,.Mt to put his foot in a shoe track, for the purixis,. of using it a^ '-vi- dcncc against him on the eriniiual side of tiio ounvt,— tlm nicro especially when the person using such forco has no lawful war- rant or authority for doing so." Jt will thus ho so(mi that in th.' case cited the constitutional provision was constnied to apply tu cases other than those in which the accused was f..rco.l to ojvc evidence against himself, either in court, or pmsuaiit to^an order of court. In the present case, neither the offie.M- who testi- fied nor the officer who assisted in the arrest had any warrant for the accused, nor was any arrest made until after the aeeu^ed >vas forced to give up his pistol. The only fair interi)ri.tatini, that can be given to the evidence objected to is that the accused was compelled, against his consent, to put his hand in his pocket, and surrender his pistol to the officers, anl, 8 S. E. Ren. 724, is to bo distinguished from the Dai/ Cane for the same reasons as the case last cited. In the Myers Case, 07 CJa. 7G, 25 S. E. Rep. 252, the accused was not forced against his will to furnish evidence against himself. In discussing this question, Atkinson, J., recognizes the distinction laid down by Chief Justice Jackson in the Franklin Case, supra, in the quo- tation above set out. Resides, flyers was under arrest, and it does not appear whether the shoes introduwd in evidence were taken from his feet, or whether, if this was done, he raised any objection thereto. In the case of Williatiis r. Slate, 100 Ga. 511, 28 S. E. Rep. 024, no such question as the one novv under discussion was raised or decided. In that case an oificer took from the person of the accused marked coins, wliieh were aft(>r- wards used in evidence against her. She was not compellcil to furnish any evidence whatever against herself. The decision in that case simply holds that the constitutional provision as to un- reasonable searches and seizures did not render the evidence inadmissible. It was there said that the pur])ose of the consti- tutional provision was to deter the lawmaking power from au- thorizing or declaring lawful any unreasonable search or seiz- ure, and to prevent cfnirts and executives frou ciil'i s any law which was violative of this provisuMi i.i- hat it wa^^ not Intended to operate so as to ])revent ti .ts fnnii re \ ing evidences of crime, although tliey migl ive been obtaiiu'd by an illegal and unreasonable search and seizure. Ir would seem from these cases that the law in this State is tout evidence of gnllt found upon a person und ngalnst issing thia 1 down by a the quo- !st, and it onoo woro •aisctl nny , 100 (Ja. low under fficer took •ere aft(>r- npell(''l Rep. 195, It !h evidence ition would granting to 3 was made IS called as summoned, gularly iin- istalned. 8 Pac. Rep. rhe relator, ns, was re- and filed a 216; People ; Ex parte ice V. Rice, t Hardware ck V. Com- 624; State n. Rep. 22; ; Oalbreath 429; Horst- Gratt. 110; Hassett, 8 )tive — Oen- similar of- nination — dence, the tially, and ust be in- esorted to lerwise re- agination evidence. While it is proper to prove a motive, it must hnve some logical and legal relation to the criminal act charged. 3. The defendant was charged with the specific offense of hurning, or causing to be burned, a parochial school building, belonging to a religious corporation of which he was trustee, pastor and man- ager, the assumed motive being to collect the insurance thereon. out of which to pay himself the salary in arrears, which was due him; and it was not to be expected that on trial he would be able to explain or rebut an array of circumstances put in evidence, covering a variety of other charges, of improper acts and moral delinquencies, and exhibitions of an unjust and arbitrary dispo- sition, nor to explain charges of other burnings, imless they were well established and had a direct bearing on the issue being tried. 4. It was error to admit evidence that other property of the corpora- tion had been burned more than two years previous and that the insurance company had persisted in canceling the policies talven out by defendant, the origin of such fires not being shown. Also error to refuse to instruct the jury that such evidence should not be considered, and in remarking that "There is a proper and law- ful purpose for which the jury may consider those fires." 5. (2, 3, 6) It was error to admit in evidence circumstances tending to show that defendant had once assaulted his female servant; to admit a letter to defendant from his bishop containing state- ments derogatory to the conduct of defendant; also evidence tend ing to show that defendant was unjust, arbitrary and unreason- able in his conduct toward those under his control. 6. (4) It was error to refuse to instruct that the presumption of law is that the defendant would not misappropriate the money of the corporation, etc.; and error to charge that "There is no such rebuttable presumption that I know of," etc. 7. (5) It was error to qualify an instruction on the failure of the de- fendant to testify, by telling the jury that while the statute pro- vides that no presumption should be indulged in against a de- fendant because of his not testifying, the statute does not say "that the jury shall consider all of the evidence as denied by him, which he might deny if he took the stand," etc. 8. (7) Defendant was not allowed to ask, on cross-examination, an attorney to whom he had given the insurance policy for collec- tion, whether he (defendant) had not told him to pay the money to the bishop, when collected. This question related to the very transaction about which the witness had testified, and an answer to it might have tended to rebut or dispel the theory of a crim- inal motive in the defendant, which the prosecution contended was an essential element of the case. The question was proper. and the ruling thereon erroneous. Appeal by John M. FitzgeralJ from a judiriiiont of tlio Ap- pollato Division of the Supreme Court in tlio Fom-th Judicial Department, afRruiing a judgment of the .Monroe County Court ■■i ill T02 AMERICAN CRIMINAL REPORTS. convicting him of the crime of arson in the second degree, and an order donviiig a new trial. Reversed. (People V. Fi'zgerald, 20 App. Div. 139.) David N. Salisbury, for the appellant. George D. Forsythe, for the respondent. O'Brien, J. The defendant was indicted for the crime of arson in the first degree, convicted of arson in the second degree, and sentenced to imprisonment in the State prison for the term of ten years. The specific charge in the indictment was that on the 17th day of July, 1895, he set fire in the night and Imrned the parochial school house in the village of Chr.i'ntte, in which building there was at the timo a human being. The build- ing was the property of a religious corporation, and the defend- ant, as the pastor of the parish church with which the scliool was connected, was one of the five trustees who had charge of the corporate property and the management of the temporal aifairs of the congregation. In this capacity as trustee he had pro- cured the building to be insured to an amount fully equal to, if not in excess of, the actual value; the loss, if any, being pay- able by the terms of the policies to the corporation by its cor- porate name. It is not claimed that the defendant actually or personally set the fire. Indeed, it is admitted on all sides that on the night when the fire took place he was absent from the scene of the crime, and conld not have personally participated in it. The theory of the prosecution is that the fire was set by one John Cronin, and it incidentally api>ears in the record that he was convicted of the crime, but that the defendant procured him to do the criminal act. Cronin was the servant of the religious corporation, employed by the defendant in his capacity as trus- tee, to have the care of the church, school house, parochial resi- dence, in which the defendant resided, and other corporate pro])- erty as janitor. Practically the relations between the defend- ant and Cronin were those of master and servant, since the lat- ter was, in the discharg-o of his duties, subject to the directions of the former, and to a very great extent, if not wholly, tmder his control. It appears that "Nora Cronin, a sister of John, was a domestic in the defendant's house, and the claim is that the ogreo, and ! crime of nd degree, n for the iincnt was night and i'.i'ntte, in rhe build- le al. Penal Code, § 29. The issue presented for trial was, therefore, very clear and distinct. It was whether the defend- ant in fact did, either directly or indirectly, counsel, command, induce, or procure John Cronin to commit the oflFense charged in the indictment. It is not claimed that there was any diiwt proof ^hat he did. It was competent for the People, however, to prove the charge by circumstantial evidence, and they at- tempted to sustain the case wholly by evidence of that character. The Peojde had the burden of proof, and a great variety of facts and circumstances were shown, all tending, as is claimed, to prove the main fact which was in issue. If the case was otherwise free from error, and the sole question was whether there was sufficient proof to warrant the submission of the case to the jury, we Avould, I think, feel concluded by the verdict Avith respect to the question of fact involved. But it is not everv fact or circumstance from which an ingenious or imaginative mind may infer by some process of reasoning the existence of the main fact in issue that the law admits as possessing tlie force and certainty of evidence. In attempting to prove a fact by circumstantial evidence there are certain rules to be observed that reason and experience have found essential to the discovei'v of truth and the protect'on of innocence. The circumstance-! themselves must be established by direct proof, and not left to rest upon inferences. The inference which is to be based \\\wn the facts and circumstances so proved must be a clear and strong logical inference, an open and visible connection between the facts found and the proposition to be proved. When a criminal charge is sought to be sustained wholly by circumstantial evi- dence, the hypothesis of guilt or delinquency should flow natu- rally from the facts and circumstances proved, and be consistent with them all. The evidence of facts and circumstances must l>e such as to exclude to a moral certainty every hypotbosis but that of guilt of the offense imputed; or, in other v.ords, the facts I I? ifij lOi AMERICAN CRIMINAL REPORTS. and circumstances must all bo consistent with and point to tlio guilt of the accused not only, but they must be inconsistent with his innocence. In the investigation of all charges of crime it is competent to prove a motive on the part of the accused for the commission of the criminal act. Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the coiinnission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which ad- ministers it has any concern. It is in cases of proof by circum- stantial evidence that the motive often becomes not only ma- terial, but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case. People v. Ben- nett, 40 N. Y. 137', People v. Owens, 148 N. Y. G48, 43 X. E. Rep. 71 ; 1 Greenl. Ev., § 1.3. The motive attributed to the accused in any case must have some legal or logical relation to the criminal act according to known niles and principles of hiunan conduct. If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof. In this case the People claim that the defendant had a motive in procuring the building to be destroyed, and that was that the church corporation owning it was indebted to him for arreai-s of salary, and that his purpose was to get possession of the insur- ance in order to apply it on the salary claimed. The defendant w'as the treasurer of the corporation, and the motive supposed involved a wrongful appropriation of the money, and the ac- quiescence of the other officers and trustees, either actively or passively, in the scheme. Whether such a motive is a legitimate inference from the facts or a remote speculaticn we will not now inquire. Such a motive does not, in the ordinary course of things, inhere in the relations of 'debtor and creditor. The chances of the creditor being able to reach the money when pay- able to the debtor himself are so precarious, uncertain, anMmected with other oifenses of the same character as the one charced was not admissihle. There was no legal connection shown hetwocn the former fires and that charged in the indictment. There was no legitinuite ])urposc for which the jury could consider the evi- dence, and as it was in the case, Avhether \.'ith or without ohjec- tion, the request was proper, and should have heen charged. (2) The People called two witnesses, who testified that in the month of Xoveniher — some four months after the fire in question — they were attracted by noise in the defendant's house ; • that they lieard the sound of his voice and the screams of a ■woman that they supposed to he Xora Cronin ; also the breaking of china, and then the fall of some heavy body on the fioor. In a short time after, the defendant came to the kitchen door, with- out his hat. The testimony was received against the defend- ant's objection and exception. There was only one inference from the testimony, and that was that the defendant was guilty, on the occasion testified to by the witnesses, of inflicting physical violence upon a woman who was a seiwant in his household. If that fact was a reasonable conclusion from the circumstances, it is quite difficult to see what bearing it had upon the issues in the case. The learned district attorney reasons that, inasmuch as this woman submitted to physical violence at the hands of the defendant, it must follow that she would be likely, through fear or some other influence, to become an instrnmont in the execution of his purpose to commit the offense for which he was 11 in' ! i 708 AMERICAN CRIMINAL REPORTS. I «4 9^1 mi'\ \m ■* 3 i on trial. We do not think that the inference naturally pro- coeds from the fact sought to be proved. Indeed, a conclusion quite the contrary might be drawn with as much reason from the circumstances, since it could be said with at least as much force that the dofoiidant had never trusted such a dangerous se- cret to one to whom he had given so much cause for rosentment, and who would l»e likely to seek for opportunities of revenge. The truth is that the circumstance had no bearing on the case one way or the other, and, since it presented the defendant to the jury in a very unfavorable light with respect t(j a transac- tion foreigTi to the issue, should have l)een excluded. The fact, if ti'ue, that the defendant was in the habit of inflicting eastiga- tion upon a domestic under such circumstances plainly U'lided to create prejudice against him with the jury. (•}) The bishop of the diocese, who was the defendant's of- fioial superior in the church, was called as a witness by the pros- ecution, and produced a letter which he had written to the de- fendant under date of July 11, 1895, which the district attor- ney gave in evidence under objection and excxqition of defend- ant's counsel. The body of the letter is in the following w(U'ds: "Of late so many complaints have come to me of your repeated and public drunkenness that I cannot close my eyes any longer to vour conduct. I now ijive von warning that if von do not quit the use of intoxicating drinks altogether, and refonn your life, I shall be obliged to send you to a hoiise of correction, ami remove you from the charge of souls. Your usefulness in your ])rescnt mission is at an end, and the sooner you seek some other field of work the better it will be for yourself and for religion.' It cannot be doubted that this letter, coming from such a source, must have had great weight and influence with the jury. It was the opinion of the bishop, deliberately formed, with respect to the defendant's life and general conduct. It was clearly preju- dicial to the defendant, and should have been excluded, unless it proved some fact material to the issue before the jury. The learned district attorney defends the decision Tinchir which it was put into the case on the ground that, since it bnmght home to the defendant knowledge of his relations to the bisho]) and the church, and pointed to his removal from the charge of the parish, it was admissible on the question of motive. The motive attrib- I PEOPLE V. FITZGERALD. ro9 iited to the defendant was, as we have soon, the dosirc to pos- sess himself of the money represented by the polieies of in.„r- ance. One of these p.,lieies, for $1,500, was issued more than two years before the fire. Three more were issued for $4 000 in the aggregate, on July 10, 1895, seven days bef-re the fire. The defendant, when he procured these last policies, must have conceived the design to destroy the building, if at all, and hoi.ee a letter subsequently written by the bishop and received by the defendant could not have influenced his design either in the con- ception or execution. It is not conceivable that he supposed the throat of sending him to a house of correction could 1« executed against his will ; and, if the threat nf removal had any influence at all upon his mind, he could scarcely expect that it would be delayed so long as to enable him to procure the money. Tlio policies would not fall due until sixty days after proofs of loss, and there might be further delay and litigation before payment.' The local agents of the companies were not his friends! Tlio bishop himself was one of the trustees of the corporation, with power to interfere at any time to prevent the diversion of the money to the defendant by notice to the companies, as in fact he did after the fire. The theory that this letter furnishe.l the motive for the commission of the crime charged is purely specu- lative. The reasoning from cause to effect is strained, if not en- tirely fallacious, and it cannot be accepted in law as a justifica- tion for the admission of evidence of such a damaging cliaracter to the defendant when it was foreign to the issue. It had no tendency to throw light on the real question of fact involved in the case, and could only prejudice and mislead the jury. (4) The theory of the prosecution that the defendant had a motive to procure the building to be destroyed in order to reach the money dominates the whole case, and he had the right to have the juiy properly instructed upon that branch of the case. The defendant's counsel requested the court to charge the jury that the presumption of law is that the defendant would not steal or misappropriate any money of his church society had it got into his hands. In res])onse to such request the court said: "There is no such rebuttable presumiition of law that I know of. The law, on the contrary, sui)poses that men will sometimes mis- appropriate, and for that reason statutes arc enacted for the III i 710 AMERICAN CRIMINAL REPORTS. i iJUiiislinunt of gnuid larceny. I do not think it can be said tliat tliere is a prosuniption of law that men will not do wrong; there is a presumption of law that men arc innocent \intil their guilt is eutalilished." To the refusal to charge as recpicsted and to the charge as made there was an exception. We think the ex- ception presents a material legal error. The learned judge was not re(|uest(!d to charge that the presumption referred to, or any dtiier ])resumi)tit)n in the case, was of such a character as \o 1)0 cdJK'lnsive. The recpiest expressed a correct hv^al principle, applicable to the case, and the charge as made could scarcely fail to imin'oss the jury with the idea that it was their duty to as- sume, in their deliberations, the existence of a principle just tho contrary. ('») It appeared incidentally in the case that the defendant appeared before the gi'and jury as a witness. That body was engaged in the investigation of the charge against the Cronins and John Doe. Tho co\irt was requested by the defendant's counsel to instruct the jury that his failure to testify at the trial in his own behalf did not create a presumption against him and the court thereupon proceeded to charge as follows: *'I have been requested to charge you, gentlemen, that the fact that the (U;- fendant went vohmtarily before the grand jur^', and told his story, but has not taken the witness stand here, should not raise any presumption against him. That is true, gentlemen. Tho defendant had a right to go before the grand jury, and make his statement there, and he had a right to change his mind, and not take the stand here in this acti(m, and the law savs that no presumption shall attach to his failure to take the stand on his trial. That statute does not say, however, that the jury shall consider all of the evidence as denied hy him, which he might deny if he took the stand. It does not incorporate in the evi- dence a denial which is not there. It simply says that the jury shall consider the evidence as it is, not strengthened or v.eak- ened by the fact that the defendant df)es not take the stand. It does not say that the evidence shall be the same as if it con- tained a denial by him ; it does not say that the jury shall pre- sume that the defendant would deny all the incriminating facts if he took the stand. It says that the jury are not to presume PEOPLE 1-, FITZGERALD. 711 . that ho would deny or admit any of the evidoncc, but that tho jury v.'.mt comUU'r tJio evidoncc aa it standi, uiiaflFor.to.l by tlio fact that the defendant does not take the stand." To tlds p,,!'- tion of the cliarge the defendant duly excepted. In tlio trial of a eriuiiiujl case it ean never be necessary U, add anytliiuf. to tlio plain and simple language of the statute on this subject. Tbc! fact that the accused does not testify in his own behalf camiot bo permitt(>d to create any presumi.tion against him. That is tho ])laiu numdate of the law, and the Inrce of the pn)p..siti(m fihould ruit bo weakened and destroyed with the jury by (pialilV- ing words. The learned judge, in contrasting the case as it was with the case as it would have been if the defendant had taken the stand, must have left the impression on the minds of the jury that, after all, something was to be taken against the de- fendant by reason of his (miissidu to testify, and iheivfdre this part of the charge was open to objection. (0) The school that was conducted in the building in ques- tion was under the charge of the sisters of charity, and three or four of. these ladies were called as witnesses f(ir the People. AVbilc they all testified with a prudent caution and in gnarded language, it is plain that their relations with the defendant were strained. Their testimony, much of which was received under objection and exception, presented the defendant to the jury as a clergyman, supposed to be engaged with them in a conuncn work, but who was rude in his behavior, arliitrary and unrea- sonable in the exercise of power, regardless of their just riglits and feelings and of the success of tho work in which they were engaged. All this inay bo true, but it had no bearing on the real issue in the ease, and, since it tended to excite prejudice against the defendant, should, we think, have been excluded. The learned district attorney defends the ruling under wiiich this class of testimony was admitted on the same ground as tho letter of the bishop alread}' referred to. The testimony is of tlie same general character, and points in the same direction. In one case the opinion of the bishop with reference to the defendant's life and general conduct was placed bett.re the jury; in the other the opinions of the sisters of charity. These opinions, whether right or wrong, were not evidence against the defendant. It 712 AMERICAN CRIMINAL REPORTS. wns, of coiirso, roinpotent for the People to prove by tliose wit- iipsflcs nny iiuilcrial fact, niul so fur as the testimony rolatctl to the UHo ami diaractor of the building, the time whon the school closed, and the person who had general charge at night, it was atlmissible. ]Jut the specitic acts and inten'iews of the parties, retlecting upon the defendant's general conduct, were irr«'levant. It would have been quite as competent for the People to call wit- nesses to prove the defendant's general bad character. That was virtually what was acconii)lished by the proof of many of the coUa.teral facts and specitic acts and transactions in which the case abounds. If they had any legal relation to the criminal act charged, it would then bo the defendant's misfortii.ie, due entirelv to his own disregard of the moral code. Tint, since thev had no legitimate bearing on the fact in issue, within the r\des of law to which we have referred, the People had no right to prove indirectly what they could not have been pei'mitted to show by direct i)roof, and that was the plain tendency of the evidence. (7) The Peo])lo called .as a witness one of the members of a law firm with whom the defendant left the insurance policies for collection after the fire, and proved that fact and the various steps taken to collect the loss. The testimony tended to sustain the theory of the prosecution that the purpose of the defendant was to possess himself of the insurance money. On cross-exam- inaticm the defendant's counsel asked the witness if it was not the fact that the defendant, when he left the policies in his hands for collectitm, requested that the money Avhich should be collected on them should be paid over to the bishop. The ques- tion was objected to by the People, and exclmlod under excep- tion. The question related to the very transaction that the wit- ness had descrilxid, and bad a plain tendency to explain or mod- ify it. The defendant had a right to repel the inference Avhich the jury were asked to draw from the fact that he had delivered the policies to the firm for collection, and hence the question was })roper, and the ruling excluding it error. There are other questions in the ease which, if they stood alone, could not well be overlooked; but, since they may not arise on another trial, it is unnecessary to prolong the discussion. PEOPLK V. TUl'J'KU. Tia The jueciflc criminal intent essential in various crimes, and as to intoxication negativ- ing such intent, see notes 200-206 CHANGE OF VENUE— should have been granted where it required the military to l)revent mob vengeance 206 same — where many disinterested citizens, giving their means of information, deposed that defendant could not have a fair trial because of universal prejudice, notwithstanding the sheriff, chief of police and district attorney swore that he could 207 granting same, is not res adiiidirnta on a new indictment for same offense; nor is defendant estopped because he had promised not to ask for, when a continuance was granted.. 226 see also notes 232 CHARACTER— evidence of good, by defendant 226 of defendant, not in issue 447, 482 private character not open to investigation on trial for a specific crime 700, note 713 CHRISTIAN SCIENCE— not the practice of medicine, and is not controlled by the statutes regulating it 238 CONFESSIONS— inadmissible when obtained by hope, favor, flattery, fear or promises 192, 253, 275, 278, 279, 280 so, when by t ricks 2G1 same — when by detective pretending to be recruiting agent for a band of outlaws, whereupon accused made statements that he had coniniilted many desperate crimes 261 same—on inducement that he would not be prosecuted 192 same — on promise to make him a State's witness and save him from prosecution 280 but where obtained by artifice, but without promises or induce- ments, held admissible 271 error for the court in charging the jury to designate slate ments, ma le by defendants in teatifying before the magis- trate, as confessions 250 before its admissior it should be shown to be free and voltin tary and untainted by improper influences 253 prosecuting officers should not offer when not voluntary 275 not admissible as to other crimes 2til Durden is on the prosecution to prove that it was freely and voluntarily made before its introduction 207, 224 notes 284 II \ INDKX. Refereiicos ore to pagps. 721 ilating 179 191 192 192 193 It, was It was 193 im and iirglary 198 1 intent legal Iv- 200-206 tary to 206 ■ means e a fair ing the tliat he , 207 nent for he had ranted.. 226 232 ., 220 ■ ■ ■ ■ '447, 482 1 for a 00, note 713 by the 238 fear or ,278, 279, 280 201 igent for ■nts that 261 192 save him 280 indiu-e- 271 ito state e magis- 250 1(1 voUin 253 iry 275 2t!l [eely and . . 207, 224 284 CONFESSIONS (continued) — and on such preliminary inquiry defendant has the right to cross-examine and introduce rei)iutal testimony— jiohvs' Bweat-l)ox methods condemned for full discussion of the subjeit, see notes ..!! 283- CONSPIRACY— mere acquiescence or approval, without cooperation or agree- ment to co-operate, is not sufficient CONSTITUTIONAL LAW— will not consider its constitutionality where the case pre- sented does not come within the statute •. criticism on this position — note peddlers' license act, \mconstitullonal act of Congress, that a conviction for stealing, eti'., i)roperty of the United States, thall he conclusive evidence of the theft, etc., on the trial of the receiver, held unconstitutional Congress cannot abridge the rights of the accused to examine the witnesses against him where one was convicted of selling liquor to one of "divers other persons" authorized by statute, held un'onstitutional same — where a special statute siispended the requirement to charge a particular offense — note an information verified on information and belief is contrary to the United States constitution a statute held unconstitutional because it provided for special search-warrants, for special interests — beer bottles, etc., — and authorizing complaints upon information and belief to comply with the constitution a criminal complaint must allege the facts parts of a statute may be constitutional or not, according to their independent operation. If they depend upon each other, the whole falls statute giving a party, cited for contempt, a jury trial, held unconstitutional same — giving unwarranted power to a municipality CONTEMPT— constructive. Is of a criminal nature the affidavit for, is jurisdictional, and the facts musi be set forth with the same certainty as in a criminal prosecution, and must be of the positive personal knowledge of affiant and not on information and belief note • ■ • iwwer to punish criminal contempt is inherent in the court, and cannot be transferred to juries by legislation criticism of this do< rine— noff • • falsely claiming siiUncss by a party to get a continuance held to be • :■••• woman having custody of an infant taliing it beyond the jurisdiction of a court for its bcinrtt. held on error, not in contempt CORPVa DELICTI— , „ . „,,^ need not be conclusive, but the evidence of surrounding circum- stances may create a sufficient fonndaiion to Introduce a confession when 'principal counsel for defendant in a b.imicide trial is taken violentlv sick during the arc "uis to the .uiry, it is error to compel him to argue before he sufficiently re- covers therefrom • Bee also AitcrxuMS of Counsel; Riciiis of Accused. 46 287 207 :;95 295 23S 250 ;!24 V,0 330 346 347 349 356 355 320 303 (;07 298 208 301 303 31 !• 303 320 135 540 722 AMERICAN CRIMINAL REPORTS. References are to pngea. CRIMINAL COMPLAINTS— essential tacts must be set out 253, 356, 384, 38(> probable cause must be based on facts, not on belief; an opinion under oath Insuffli tent 3(i6. 367 contra 380 but see notn 382 must comply with the constitution 355, 35t> oniittinK tlie word "did," vitiates 384 olty ordinances must be set out 385 ready-made omnibus complaints prejmred to cover all cases condemned 3nti"iVonV otherwise tliere is no oltunse; and sudi la.t. nuist lio pleaded ,,- ^„^ not in drawing a chetdv on a l)anlv IlionRh liio accouiu was overdrawn, wlien llie drawer liad implied authority to drnv where defendant had drawn on a Imnlc lor ynnrs, and ilic checlts were paid when the aicotint was overdrawn held that he had implied aiilliority to draw and was not ^iij'li\ of giving a cheelj does not Imply that the necossarv funds are then on deposit " must he f raudnlont as well as false no offense to cniiae a man to pay his dehts, or live iip to his contracts, by false statements taldng a mortgage upon goods sold is iiresnnVii'tivp'evi iiMipe that the vendor did not wholly rely ujjon the reiirnsontntions made do not apply where vendor retains title in himr.i'lf. .!!!.".,. ..'! declarations made by defendant a year after, as to what he did with the goods pun based, are irrelevant Indictment defective. — assign and transfer of note not equiva- lent to indorse.. the venue of the offense should be cbarly shown in some county certain, — not spread over several louiuies for Involved and contradictory allei^ations. see description of property, see Indictmkxt and iMdinrATiov. FAMILY— may consist of a portion thereof .- ■■.1 •* too 41(j 420 \21 122 12;! 427 427 ■m 43u 430 428 42!> 420 11 FORGERY— cases on 4;]1, 432, 43^. 438, 440. general votes on 445 a writing simply giving the value of an articl", not the sub- ject of the elements to in.1ure or defraud must api)enr in the writing, or in extrinsic averments 432. 434, a letter of introduction is not imfc Innuendoes are essential to explain obscure writings... 431. 412 -448 431 439 431 432, 438 every material portion of the alleged forged instrument should be set out 13.'). variance in names a writing in evidence must be identified as the one pas='^d.... evidence of passing similar ti(lvets on the same day adtnisHiiile to show pur])oso two alleged orders being found on defendant's person, chart-ed with having a certain forged instnmienf with intent to iiMcr, etc., one of them must he distinctly identified, to justify a conviction evidence of other forgeries not admissible unless there is evi- dence tending to connect defendant therewith, other than suspicious circumstances the fact that a blank check (since destroyed) was found in a desk "said" to have been used by defi^ndant. not compeii'nr. evidence ^^'-^ making alterations in a deed, after some partirr, had signed il, but before its legal execution, is not for.uery a nudum pactum instrument not the subject of 438 432 410 436 440 442 444 4i3 445 IMAGE EVALUATION TEST TARGET (MT-3) kf 4^ 1.0 I.I 11.25 ■tt liii 12.2 S* Hi *■ U 11.6 - 6" Fhotographic Sdenoes Carporation 23 WBT MAM STHfT WIISTII.N.V. 14SM (7U)t7a-4S03 % 726 AMERICzVN CRIMINAL REPORTa References are to pa^es. FORGERY (continued)— "repugnancies;" "variances;" "uncertain and defective;" "am- biguity" 446 forging a name to a receipt on a postal money order la not forging the order 446 FORMER ACQUITTAL— an acquittal of a charge of adultery is a bar to a charge of alleged perjury in denying the adulterous intercourse, being res ad judicata of the same facts 625 GAMING TABLE— aiding and abetting to keep, is not keeping 19 HABEAS CORPUS. See Peusoxal Liijkkty. HABITUAL CRIMINAL. See Larceny. HAWKERS AND PEDDLERS. See Constitutional Law. HOMICIDE— cases involving 253. 261, 271, 447, 461, 466, 468, 474, 482, 484, 487, 518, 534, 545, 681, 690 by drugs with intent to produce abortion 447 in a sudden fight, — beer glass as weapon, — question and in- struction as to a deadly weapon 261 conviction on circumstantial and questionable evidence, ac- complice, etc 468 questions as to justifiable homicide and voluntary manslaughter, where it was claimed that several persons came on defend- ant's premises in a riotous manner with unlawful intent. . . . 474 committed while an officer and posse, in the night-time, with- out notice and with guns, broke into a house to arrest de- fendant on an ordinary charge. The court should have in- structed on the duty of the officer to give notice of his intention and to use only necessary force 482 conviction set aside where the evidence was uncertain, and another had been since convicted of killing the deceased.. 484 new trial granted because of erroneous instructions and rulings on evidence, and improper remarks r.nd interference by the court, and especially in prompting a witness, and telling the jury what her evidence was, etc 487 verdict for, set aside because of coercion of jury by the court 545 murder and manslaughter — heat of passion reducing from mur- der — defense of self and property, etc 681 self-defense. Instructions, challenge, actual bias, etc 690 see also Ski.f-defknse; Insanity; .IrixiE and Jikv; Ahortion; CoNKESsio.Ns; Evidence; Instrlctio.ns, etc. HUSBAND AND WIFE— as witnesses for and against each other, see Bicamy; and notes 174-177 INDICTMENT AND INFORMATION— sufliicient in language of statute 145, 177, 179 language of the statute insufficient when it falls to- describe the essential elements of the offense 506 must Inform accused of the nature of the offense; this right cannot be taken away by statute 346 note on 317 verification must be of facts, not on belief 34!) should describe, in arson, a jail as a dwelling 130 matters of description cannot be rejected as surplusage to bring verdict under another section of statute 130 bribery 177, Vi9 446 446 19 INDEX. 727 References are to pages INDICTMPNT AND INFORMATIOV t .• burglary-should allege nie^^,u^,/'°"^l"r'^- In the building .^ ^ ""^"* ^° ^^^^1 the property then ^ia^;/Sr "^- ^aiseV;p;esent^,o„s:;:;;;:::;:::--- ':i receiving stolen postage stamps -Aeeri" nc^i'^V. ^^^ from whom received "^^"^ ownership, nor repugnant 330 variant, repugnant and' Variant' 'et'c <*5 raise pretenses— "A lartre anmnVf „V i ", 440 the value of 2700 dolfars " ?r.n • ''l f"'^ ^^"^^ ^oods of also for contradictory alements'see"'"'''''"^ ^lescrip.i.n. . . . 429 laying ownership of property bnrtiPri in'tVi V ' 1 421) "'£LI/S.sr'™='^ ™*''"» '^ «SS. an;,™.;,: "^-^ intent to maim, anti intent to disflgu INSANITY— ire, are not equivalent., isr, 603 cases on general notes on. ..".'.'.'.". 518, .'■)2r), 534 special issues of and "practice "thereon 541-.5 15 one trial thereof sufficient ^^'^ common-law judicial discreiion "thereon Ifr. delusional, hreaistlble Impulse. "monomaS'. .•.■.■.■;.■.■.■; ul' ^i"! ^ , "paranoia" ... ' r.i- as to danger from mobs, etc . . „i "l['crrf "^'^ ^^^^-"^ '^^ ^^t is't'he ■r"e"s"uu"of "suJi; 22, 521. ,^30, 532 52, 542, 543, ,541 531 53'; delusions "right and wrong" test not conclusive 500 expert witness on, and hypothetical qu'e'stions. ."" h^ ttf ^- °'""'°"' "P''" "hearsay" and private informat'ion" but the jury must know upon what facts and commons such opinions are based lonnmons _ 'TnJe'llverhm'nn', '''"''^' oi'inions" i.pon ■the"a;tuare\:i". " stated . . ^ "'""' ^ ''""'^'' '^'^ hypothetically Improper hypot"h"etical" "(iiicstio'ns".'.'.".'. K^I'fZ a proper hypothetical question, note ' I,, reSi'trry'To'."' '^^^'^^^]'^-^ "^ '^^^^ ■wit"ness"e"s"."«oie: ! ! ! .' .544 * ^iZ^^i" " ^^Vi^"'^ "^ ilefemlant-s" "belia^io; " s"u"bse"au"e"nt" " to "^ homicide, held competent, note. 54. a sheriff not competent to give opinion of" "defeiidanl's' sanity from having heard him testify in another case 523 on a motion for new trial a copy of a .iudpment of a county court, finding the defendant insane, was filed. It was held that, though diligence was not shown in producing such evi- . rience nor in bringing witnesses of such flndinp-, vet a new trial should have been granted, for if the defendaiit was in- sane he would not be expected to show diligence . . 624 INSTRUCTIONS- not error to refuse, where the court has distinctly, unequivo- cally and repeatedly stated the panip prlncipjp 125 failure to ask for correct instructions does not cure error In those given j |o ] 13 ■■■■■■■■■■il ■Mil 728 AMERICAN CRIMINAL REPORTS. References tre to pages. INSTRUCTIONS (continued) — on self-defense, erroneous 140 error to instruct that the offense has been proven to have been committed 31 same — that the existence of the offense has been proven, and that the jury must determine who committed it. Whether an offense had been committed was a question for the jury to decide 588 same — to refuse special instructions on a vital issue where evidence is close and conflicting 3 same — as to the use of a deadly weapon, the weapon not being per se deadly (a beer glass) 4(>1 same — as to a pocket-knife not being a deadly weapon 231 same — that defendant should be convicted if the jury believe that he procured some other person to give the drugs, etc., there being no evidence to that effect 448 erroneously calling the jury's attention to weak and irrelevant evidence as pointing to a probability of guilt, and attaching too much importance thereto, is not cured by telling tlie jury not to be unduly prejudiced thereby 468, 471 because defendant claims self-defense, he is not estopped from asking an instruction on manslaughter 681 error to instruct that possession of a doubtful pocket-book would raise a presumption of guilt 468, 472 same — that jury can disregard entire evidence of a witness who testified falsely as to one fact. That prechides the con- tingency of honest mistake. The falsity must be intentional 44 same — that flight presumes guilt. Fl'ght is only one drcum- Btance to be considered with others, and the motive there- for, as pointing toward guilt 474, 477 where a witness made threats to swear the defendant to 'lell, defendant was entitled to an instruction calling attention to the witness' animus 487 an ofScer and posse with arms, and without notice, in the night, broke into a house to arrest defendant, charged with an ordinary offense, and he killed one of them. Instruction that the officer had a right to do so, was defective, in not further stating that he should have given notice of hia intention and used only necessary force 482 that defendant is not guilty if jury find that he was at another place at time the offense was committed, erroneous, in as- suming that such fact must be proved affirmatively ;?3, 51 erroneous, that defendant, indicted for keeping gaming tables, could be convicted of aiding and abetting another to keep, etc 19 error to instruct that, if the jury are convinced beyond n rea- sonable doubt of the truth of each and all of the material allcpations, they may And the defendant guilty 136 on a charge of assault with intent, defendant is entitled to an instruction that he shot merely to scare 148, 151 not error to refuse to instruct that one solicited for a bribe is an accomplice 179, 189 where the evidence failed to clearly connect defendant with an alleged prior conspiracy to rob deceased, it was error to tell the jury that the prosecution claimed that such evidence connected him with the killing of the deceased 261 error to impair the statute about a defendant not testifying, by attaching conditions to it 700 same — to refuse to instruct the jury to disregard incompetent evidence 700 INDEX. 729 140 ^e been 31 >n, and hether le jury 588 where 3 : being 4fil 234 believe s, etc., 448 ilevant aching e jury , . 468. 471 I from 681 t-book . . 468. 472 !s who 3 con- itlonal 44 Ironm- there- . 474, 477 ) 'lell, 3ntion 487 n the 1th an 1 that irther n and 482 lother in as- . . . 33, 51 ablp.s, keep, 19 n ren- terial 136 to an . 148, 151 ibe is 179, 189 th an o tell ilenoe 261 'ying, 700 etent 700 74 References are to pages INSTRUCTIONS (continued)- charglng force and violence (robberv) not i« ,, errrelTinnSinTrbJ?, ""'^^^^^^^ ^ cured by giving o'lfe on rarabIeSr\h^^ *° ^" ^'^'^ duty of court to Instruct correcUv and^ "^^^ .^''' '" '""'''^'^ ^^ entitled to an instruction, it is the dutv }^T^''^ '™"''' ^^ the same on its own motion ^ ^ ^^^ *=°"''^ ^o give where plainly incorrect in princinle 'iinV^i/rlV i ^l. 73 error to refuse to charee tiinV thf ' ^ "^'"^^^ ^^ others. . . . 399 the clefendant woSK stearor'nrr'^*'"^"' '^^ '«' ^^at of his church society. misappropriate the money and further error to teli the" iilrv' JiUi "^ ; 700 sumption that the court know7o^^ *''"'" '' '^^ ''''^ P^«- Bee also Homicide; Self-defense, etc. ^00 INTENT— ior specific criminal intent, see as to an accomplished object ■'"' l-'S- 1'''3 general notes thereon. . . ," • ' 153, 198 In burglary l5u-lo8 and 200-206 In malicious mischief. 192 absence of, to defraud. . ..*.*...".".'.'.'.. ^^^' ^^^ JEOPARDY— ^^^ '"^quSSoS^of Sift'.!' '"^'' ^^''^^"^^ ^^^ ^-^ -ay disagree on conviction on bad Indictment, no bar ^"^ same— for bigamy, not a bar to a trial VoV adiiVterv ' but see Fobmer Acquittal. aciuitery JUDGE AND JURY— absence of judge from court room... the judge has no right to coerrp thp imV "\l'""V^' ative, by commands.'^thJelt:. ins m^.Jtions'dur ^3"^".'; protuse and repeated argumentation on tke neSsit?ei S justice, economy, public policy, etc., to seek to overcome the opinions and judgment of the jurors to bring about auTgi^e ^"mL\f ?"'.'^ T"^^ Vubjec'ted' to'privations'and hardships' ihat might test their physical endurance and that m ght oaus- norshouTrthrb' W^ r''^' ^^^"^ physical "eSausTn: nor snould they be induced to agree to a verdict for fear J censure upon their mtelli.e.ce or integrity. ? ... '' °^ 545 error for judge to tell jarors that they must agree- and ilr.; hS/n^'■"'''"'^°J *"^^ ^' ^ '•^a^""' ^°d make CO er agret 1 and^h«t"! T"" '^"' "" '"^'^fi^'t^ly "'"ess tliey ?oSsio'n" of'flSipSfcr"^'^* "°"'' ^'"^^^ ^'"""'^^ ^° -,, Jury kept out eighty-four hours with poor "faciiities 'for sleep while several times informing the judge that they could not agree -,_ verdict so obtained should be set" aside.' ".'.".' .'.'.'.*." 545 error to tell jurors that unless they agreed they m'igiit'be "shut up for two days, as he was going away 534 same— to agree or be locked up four days without adequate aid or protection _ 554 same— that they would be kept together" imt'li the "end" of "tlie term unless they agreed 555 same— that if they did not soon agree they would' be takeii with the court to another county 555 24 24 713 545 730 AMERICAN CRIMINAL REPORTS. References are to pages. JUDGE AND JURY (continued)— same — that the court could see no reason why they could not agree — note 560 same — "that in view of the testimony in this case the court is utterly at a loss to know why twelve honest men cannot agree in this case" — note 561 same — "it seems strange that you would fail to agree, when there is so little conflict in the evidence" — note 562 same — to teil Jury what the evidence was on a former trial. . . 495 same — to make comparisons that exploit some witnesses and disparage others — note 504 samo — to say that there is evidence of defendant's guilt 505 same — to express an opinion as to the identity of an oil can, and leading a witness to express a similar opinion 505 suggestions regarding such matters — note 506 on refusing an instruction to disregard immaterial evidence, it is error to remark that there are purposes for which it may be considered 700 JURORS— challenges to panel 179 defendant not allowed to examine jurors as to their interest in the prosecuting corporation, nor as to whether they were related to persons who were; held on appeal that there was no error in refusing a new trial, since there was no afllrma- tive showing that any such disqualifled juror was on the panel 129 criticism on this doctrine — note 130 misconduct of, in discussing, in their deliberations, the failure of the defendant to testify 419 where an alien sat on the jury, held, that defendant was not entitled to a new trial, because (1) he did not question him as to his citizenship, and (2) that alienage was not a dis- qualification that affected the juror's intelligence and im- partiality 183 where there is no abuse of discretion, ^.;d the evidence is con- flicting, the discretion of the court in passing upon the par- tiality of, will not be interfered with 125 challenge for bias can only be reviewed on questions of law.. 690 the judge should be the more careful to secure only unbiased jurors 690 a challenge generally for actual bias is sufficient 179 LARCENY— cases on 563, 567, 570, 577, 581 not where owner voluntarily parts with property, although he may have been Induced to do so through fraudulent and unfair representations 563 taking property openly under an honest though mistaken claim of right, is not 567 such taking without subsequent effort at concealment, with an avowal of right, raises a strong presumption that there was no felonious intent 567 not required to explain the possession of alleged stolen prop- erty to the satisfaction of the jury — sufficient to raise a rea- sonable doubt as to the same note 570 to rebut the existence of the necessary specific intent to steal, it is proper to show the defendant's intoxicated condition before and at the time of the offense, and it is error to ex- clude such evidence 570 drunkenness incidentally considered in relation to 577 INDEX 731 Referenr^eg are to pages. LARCENY (continued)— if the taking was not with an intPnt at »»,« *< subsequent appropriation would not mn.ifh ?^, /° ''*^^'' ^ life sentence under KentmkyrbitualrHm «!.'"''"« ''''"'^"y ^77 because the jury had not flLcl thrpna^ and hail ^ntr'''^ fully instructed thereon ' ^' """ "'^•' ""t been MALICIOUS MISCHIEF— ^^^ MALICIOUS TRESPASS— ^^^ driving a herd of sheep over another's domain ti,o „,„i. essential is more than the ordina,^ VSe or al' nlaw ul fhf ™7*^f ^ ""'' ?^ ^ deliberate intention ;o in ure r,,8 the mischief must be the prime objoct. not an incideni t\l ''^'''a;;ss:s:'Sc^''" ^^^^^^- «^^ "»— = SKu..;.;. •.: MAYHEM— defined; intent to disfigure Is not Intent to maim p,n/io;s the record by plea, not by motion to quash 24 should pleaci to the jurisdiction l)efore plea of not guilty. ...,.' 24 the fact that defendant was called before the grand jury, but was advised of his rights before testify' ■, is not ground to quash 102 a conviction without arraignment and plea before trial is void 645 the defendant may sue out a bill of exceptions to review errors without moving for a new trial 637 the Supreme Court will by mandamus compel the judge to sign such bill of exceptions 637 732 AMERICAN CRIMINAL REPORTa References are to pages. PLEADING AND PRACTICE (continued) — on appeals by the State it is not necessary to set out the evi- dence in extenso; still there should be enough to show whether instructions were applicable to the evidence. ....... 643 reserving right to call witness out of order 261 necessary to preserve exceptions 159 records should be condensed 226 error claimed in forcing defendant to plead and go to trial the same day will not be reviewed where the record fails to show that he objected in the court below 688 see also Trial; I.mjrtmknt, etc. PRESUMPTIONS— rebutted by evidence, cease to be factors In a case 159 in bigamy the presumption of legality is equal as to each marriage 169 an avowal of right to take property, with no effort at conceal- ment, raises a strong presumption of innocence 567 vendor taking a mortgage on goods sold, raises a presumption that he did not wholly rely upon the representations of the buyer 430 the presumption is that the defendant is innocent, and ignorant of the particulars of the charge against him, and is there- fore obliged to seek the same in the indictment 429 where the court admonished the foreman of the grand jury to take no part in considering a certain case, the presumption is that although he indorsed the indictment, "A true bill." he did not take a part in finding it 588 PROSECUTING ATTORNEY. See Argument of Counsel; Evi- DENCE. RAILROADS— a railroad company cannot confer upon certain hackmen the exclusive privilege of plying their business on its station grounds 651 RAPE— on a trial for, it was error not to allow the defendant to prove "his reputation for morality, virtue and honesty in living".. 655 "honesty" as used in the foregoing context means chastity or sexual propriety 655 under the statute an unchaste woman does not necessarily mean a prostitute 660 a girl having had previous intercourse Is not "previously chaste" 660 indicted in Nebraska, but defendant previously had inter- course with the girl in Iowa; held, she was not previously chaste 660 husband cannot rape his wife; can only be guilty of procuring another to. But where the other is acquitted, the case against the husband falls — note 664 REASONABLE DOUBT— element of, should not be eliminated from instructions 690 suificient on question ot alibi 31, 33, 51 and Lee Alibi; Self-defense; Larceny, etc. RES ADJUDICATA. See Foumeb Acquittal; Change of Venue. RES GEST.iE 51, 179, 391, 461 RESISTING ARREST— not unlawful to resist arrest under a void warrant. The war- rant describing the offense as threatening a breach of the peace, does not describe a crime and is void 664 also resisting a posse in the night, etc 482 rra set out the evl- mough to show evidence 643 261 159 226 ,d go to trial the record fails to 688 ase 159 qual as to each 169 effort at conceal- nee 567 33 a presumption mentations of the 430 3nt, and ignorant m, and Is there- lent 429 he grand jury to le presumption is t, "A true bill," 588 F Counsel; Evi- ain hackmen the 3S on its station 651 ;fendant to prove lesty In living".. 655 neans chastity or 655 i not necessarily 660 not "previously 660 ously had inter- as not previously 660 lilty of procuring auitted, the case 664 jtructions 690 31, 33, 51 HANGE OF Venue. 51. 179, 391, 461 arrant. The war- t a breach of the d 664 482 INDEX. ^33 References are to pages. RIGHTS OP ACCUSED— ^"tH^f .!°.*^?!^**"''® of counsel to prepare motion for new to deny reasonable time'therefoVis'to deny "a right Sr, tried, convicted and sentenced the same day. Held' VheVe was no necessity for undue haste; that the desire o rhelZl to adjourn that day was no justiflcation; that it were better i?gh?8 .°! adjournment than to deprive defendant of Ms ROBBERY— suddenly CG7 snatching a purse without force, resistance, is larceny "from the "personTand L"ot"oSy "^ SCIRE FACIAS— judgment on ball bond void unless service is had according to inirSgment i^UL .'"^"..^'^ ^"'^'"^'^^ "'^ '''' ^^« the offense must be designated with certainty in' tiie "bond-'a * misdescription renders the judgment based thereon void.'... SEARCH-WARRANTS. See Constitutional Law also note on SELF-DEFENSE— cases on general notes on C7i 678 679 379 140, 681, 690 killing in self-defense not murder, eveii" thoii'gh the siayer*mav~ entertain express malice • ggi" ggo neither is it murder to kill in the defense of* oiie's' property' at most it would be manslaughter 681 687 one may use adequate force to resist unlawfiii ' aggression upon his property ^35 ggy not true that the right of, does not imply the right of "attack. ' 687 not true that a person has no right to put himself in the v/ay of being assaulted gg^ defending a fence .............,*, 687 689 the element of reasonable doubt must not be eliminated from' instructions on ggQ where deceased was the aggressor, in order to suspend defeiid- anfs right of, the aggressor must have made known his de- sire to decline further combat 690 threats without overt acts as an element in 693 voluntarily entering into a combat, etc .!!!!... 693 instructions on, given and refused " " G93 the right of. should not be limited by defendant's ability to dis- tinguish between felonies and misdemeanors 694 passion and malice antagonistic elements 695 error for the court to comment on the defense of, disparag- ingly, to the jury 693 SELF-INCRIMINATION— one cannot be forced to incriminate himself; and evidence obtained from him by compulsion is not competent to be used against him 695 notes on 698-700 STATUTES— construction of, on abortion — child living or dead 3 construction of, on arson 125, 130 construction of, on mayhem 603 construction of as to unborn child 466 words not to be restricted, nor are they to be extended beyond their common interpretation 238 --■ "'-"J T31 A3IERICAN CRIMINAL REPORm References are to \»gea. STATUTES (continued)— defendant entitled to reasonable doubt as to whether the case comes within 238 cannot make insufflolent description of offense sufficient. . 346, 506 canno* abolish the right of the accused to be confronted by the witnesses against him 330 granting a municipality unwarranted power, void 607 requiring peddlers to procure license, void 324 TRIAL— wrong to confront a defendant, on trial for a specific offense, with an array of alleged improper acts and moral delin- quencies; they tend to confuse the issue and prejudice the defendant; and he is not to be expected to be able to meet them 700 same — as to alleged assault upon a female servant 700 same — as to arbitrary treatment of his inferiors 700 same — as to letters of admonition from his bishop 700 same — as to disbarment and expulsion from church — note 713 same— as to rumors of previous fires (defendant being charged with burning a parochial school ) 700 same — to admit evidence that a town marshal alleged to be friendly towards defendf.nt, had arrested a witness for the prosecution 226 absence of the judge from the court room is to try defendant without due process of law 713 defendant may show that prosecuting witness tried to induce his bondsmen to withdraw, for the purpose of showing his animosity 442 right to counsel and time, see Rkjiits ok Accl'sed. sickness of counsel, see Coun.sel. see, further, Akoitment of Coi'xskl; Evidence; Judge and Jury; Juiioiis; Pleadixo and Practice, etc. VARIANCE— between allegations as principal and proof as an accessory 13, 17, 19 between information and proof as to adultery (see Adultery) 349 same — as to dwelling-house and a smoke-house 192 same — as to names pleaded and proved 432 instances of 446 VENUE— where no one witness located it, it may be gathered from all of the evidence 108 see also Change of Venue. VERDICT— not reversible error to omit giving form of, for "not guilty," when not requested 253 finding "the prisoner" guilty, good 657 WITNESSES— examination of, more appropriate function of counsel; rarely necessary for the court to do so 449 may be asked if he had been arrested and sent to jail 51 contra, note 73 calling out of order 2C1 defendant's inalienable right to examine 330 instruction as to hostile 482 same — as to false testimony of (see Evidence) 44 husband and wife cannot be, for or against, even by consent: and notes on (see Bigamy) 174-177 1 1 lether the case 238 mfflnlent. . 346, 50« confronted by 330 )lcl 607 324 ipeclflc offense, 1 moral delin- 1 prejudice the e able to meet 700 nt 700 700 P 700 rch — note 713 being charged 700 alleged to be ifltness tor the 226 try defendant 713 rled to induce if showing his 442 ;u. e; Judge and accessory 13, 17, 19 see Adultery) 349 192 432 446 lered from all 108 ■ "not guilty," 253 657 ounsel; rarely 449 ) jail 51 73 201 330 482 44 n by consent: 174-177